28th Jul 2021

Defendants' rights caught up in EU institutional quarrel

Defendants' rights to proper translation when involved in a criminal case in an EU member state whose language they do not speak are facing yet another delay due to an inter-institutional power struggle.

The cause is noble: ensuring minimum common EU standards for defendants when they do not speak the language of the country.

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The European Commission on Tuesday tabled new legislative proposals to this aim. "Today we are taking a first important step towards a Europe where justice knows no borders," said justice commissioner Viviane Reding in a press statement.

But across the street from the EU commission's headquarters, in the Council of ministers, the initiative was met with little enthusiasm.

"The council regrets that the commission chose to table its own proposal, which unnecessarily duplicates our initiative and increases the procedural time needed for a result," one EU diplomat told this website.

A group of 13 member states in December put forward a similar initiative - a novelty under the bloc's new legal framework, the Lisbon Treaty, which now gives the right to governments to come up with legislative proposals, not only the EU commission, as had been the case. If at least nine of the 27 member states agree on a draft bill, they can put it forward for negotiations with the European Parliament. The EU executive is also involved in this so-called co-decision process.

Commission officials say the member states' version is missing several important protections - such as ensuring that the defendant is given legal advice before waiving his right to translation or that all relevant documents are translated for him, not just given "oral summaries," as the council prefers. The commission also stresses that when a lawyer is provided by legal aid, an interpreter should also be paid for by the national authorities, if the lawyer does not speak the language of his client.

All these measures translate into more costs for member states and are likely to be watered down, as capitals need to agree on the final wording of the law together with the European Parliament.

EU diplomats say the commission could have altered the text and negotiated these points at a later stage, instead of tabling its own initiative, which delays the process, as it has to be sent to all 27 national parliaments who are also given new consultative powers under the Lisbon Treaty.

"Now the timing is different, there are at least eight weeks added to the process, the time national parliaments have to react on the proposal," the diplomatic source said, adding that it was "not the best message" the EU executive was sending.

A spokesman for the commission brushed off criticism, pointing that his institution was interested in the "substance" of the text, which was much better than the one of the ministers. The commission's proposal also has an impact assessment, which the council's version lacks, said Matthew Newman, a spokesman for Ms Reding.

"Member states snuck around" in December, when the EU commission was in caretaker mode, unable to table legislative proposals, he told this website.

MEPs enter the fray

The European Parliament will now have to deal with both draft bills. "Our rules of procedure say we'll draft a single report. This may be the first time we've done anything like this," British Liberal MEP Sarah Ludford said.

She argued it would not be "helpful" to consider the proposals as a power fight between the two other EU institutions.

"I don't want to get bogged down in inter-institutional quarrel. I would have preferred a commission proposal to begin with. But the commission was in caretaker mode, Mr Barrot [the former commissioner] was finishing his mandate, so it was my suggestion for member states to adopt an own initiative, since it was possible under the Lisbon Treaty," Ms Ludford told this website.

As for human rights groups, they welcome both initiatives, as long as the end text does not get watered down too much.

"We hope this is no institutional power game which will delay the directive even further," Natacha Kazatchkine from Amnesty International said. She added that her group has documented police violence, ill treatment, people being arrested in Greece and France without being informed why and without interpreters telling them what the policemen were saying.

"Translation should be insured not only at the judicial proceedings stage, but as early on as police interrogation stage," she said.

Ms Kazatchkine also noted that the right to translation was connected to other rights, such as the one to have a lawyer or to inform the family.

Both the European Parliament and Amnesty International supported a comprehensive EU directive dealing with all these issues, but member states could not agree back in 2002, so they opted for a piece-by-piece approach. The EU commission is set to table further proposals for each of these rights in the coming months.

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