Guaranteeing the interpretation of the charges brought against the accused and the translation of the important documents, regardless of which EU member state they happen to be in: the Council and the European Commission agree on this principle. The problem, however, is that each has its own draft directive. That of the EU executive, adopted on 9 March, will go further in protecting defendants by obliging member states to respect three additional laws during the criminal proceedings. As a co-decider, the European Parliament will have to come to a decision on, or combine, the two texts.

From a penal perspective, this is a somewhat separate area in EU law, under which member states may take legislative initiatives: suddenly, the 13 EU countries - Belgium, Germany, Estonia, Spain, France, Finland, Italy, Austria, Portugal, Hungary, Sweden, Romania and Luxembourg - which, in December 2009, submitted their draft directive on the right to interpretation and translation in criminal proceedings, agreed to move forward on this basis, at the instigation of the Spanish EU Presidency, which made it a priority of its mandate.

This was regardless of the desire by Viviane Reding, the commissioner for justice and fundamental rights, to impose three elements considered to be important to the rights of the defendants: 1. all important documents (such as evidence) must be translated into a language understood by the defendant (and not just the documents which are “essential for guaranteeing the right to a fair trial or at least important passages,” as proposed by the 13 states); 2. the client must also be able to communicate with his lawyer in a language that he understands (he must have the right to interpretation throughout the proceedings: questioning, trial); and 3. in order to give up his rights to translation and interpretation, the defendant must have received prior legal advice, and must be able to consult his lawyer.

Earlier, Reding had warned the Presidency that she would abandon her draft if the Council integrated these three elements. Her words went unheeded. With the support of the college, she thus decided to “complete” the ministerial initiative. “I do not think this is a question of rival proposals, I am certain that they will be merged in the end,” considers a source close to the case. Reding has an opinion from the Council of Europe, which fears that member states have been allowed too much discretion in the project of the 13 states, resulting in the non-respect of the European Convention on Human Rights. The Commission was also supported by the Council of Bars and Law Societies of Europe, asserting in a press release that, for many years, it has “advocated a full set of minimum common procedural guarantees for suspects and the accused, as the necessary complement of instruments of judicial cooperation, such as the European arrest warrant”.

In principle, being judged should not be more difficult from one member state to another, both for Europeans and non-Europeans. “Frankly, however, we know that these rights are not always respected,” underlined a Commission source. It is now up to the EP to examine one or the other proposal, or both together.

Other proposals to follow

The EU has been working on a set of common minimum guarantees in terms of criminal proceedings... since 2004. However, faced with blockades, coming from the UK and Ireland in particular (see Europolitics3785), the dossier was relaunched in sections, under the Swedish EU Presidency, in mid-2009. The Commission proposed beginning with linguistic rights, and made a proposal, in July 2009. If this case drags on, it will paradoxically be “the fault of the Lisbon Treaty”. Its entry into force, on 1 December 2009, gave the EP the right to co-decision in penal matters. Suddenly, the Commission’s proposal to the Council became null and void. In June, it will make other proposals on information relating to rights and accusations. And later, with the assistance of a legal advisor and jurisdictional aid, it will communicate with families, employers and consular authorities and provide guarantees to suspects and vulnerable persons.