Time to make the case for better justice

The Commission must fight its corner over justice proposals.

The Lisbon treaty provides yet another dilemma for Europe’s leaders – not this time in the elevated spheres of diplomacy, but in the harsher world of criminal justice. As of this week, there are now two rival proposals on the table concerning translation and interpretation rights for defendants.

One was put forward last December by 13 member states, which took early advantage of the Lisbon treaty’s provision allowing nine or more member states to propose legislation.

The other was presented this week by the European Commission, which has boldly decided to set its face against negotiating a compromise version with the proposal already before the Council of Ministers.

The Commission’s proposal is comprehensive. EU citizens accused of a criminal offence in a member state whose language they do not speak should have the right to translation and interpretation from the moment of being named as a suspect through the conclusion of their trial, covering conversations with lawyers, interviews with police, and translation of documents. The costs, says the Commission, would be borne by the member state.

Member states worry that the proposed standards might drive up the costs of criminal proceedings against EU citizens qualifying for this assistance. Their proposal limits the right to translation and interpretation.

But the argument is not simply about cost. Mandatory interpretation and translation could be used frivolously by defendants wanting to slow down investigations. It might even prompt prosecutors to postpone or to discard cases that threaten to become too complex and costly because of the proposed right. Justice deferred would, in such cases, risk becoming justice denied – to the state, rather than to the defendant.

This is not a happy precedent for co-operation in the justice and home affairs area, where Lisbon has introduced an additional complexity, by requiring consideration of legislation by the 27 national parliaments. And the Commission proposal is just the first in a series of five measures envisaged to set EU-wide minimum standards for fair trials. Last November, the member states instructed the Commission to come up with a step-by-step approach – instead of the single, wide-ranging proposal that the Commission had planned. The coming months will see work on information on rights and charges, on legal advice and legal aid, on communication with family members and consular authorities, and on protection for vulnerable suspects.

Viviane Reding, the European commissioner for justice, says that she is aiming to have an agreement on the interpretation and translation proposal “before the summer”. That plan looks very ambitious. She will have a lot of work to do to overcome member-state resistance and make the case convincingly for the tougher requirements that she is proposing.

The Commission is eager to get its version of procedural rights, rather than that of the member states, passed into law. It argues that interpretation and translation are fundamental rights that need to be guaranteed across the EU. But for that argument to be credible, it need to show that only EU-mandated minimum standards will provide an effective guarantee. This, the Commission has so far failed to do. It is in a bind.

What the Commission needs to show clearly is that the current situation is unsatisfactory, that the EU needs to legislate, and that stricter rules are required than those proposed by the nine member states. But so far the Commission has been reluctant to criticise the member states collectively for failings in their criminal justice systems – still more to single out individual member states where defendants’ rights fall short of the proposed standards. This coyness is inappropriate.

If the national governments are not protecting the rights of suspects, then this should not be covered up, however uncomfortable a truth it might be. The Commission cannot hope to make its case for EU-wide legislation just by hints and innuendo.

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