The Guardian: Standardising defence rights across Europe will build trust
June 25 2010Directive will entitle anyone facing charges in an EU country to prompt access to an interpreter.
European member states have long recognised the need to work together to fight cross-border crime and terrorism. In a Europe of increasing mobility and open borders, countries can no longer go it alone. How, though, should the EU go about this? How can co-operation work in a Europe with such huge variations in the methods and standards of delivering justice?
One way would be to harmonise criminal laws, but for many states, including the UK, this is a step too far. Instead, in the late 90s, the idea of "mutual recognition" was born. The basic idea is that if one EU country makes a decision it will be respected throughout the EU, no questions asked. The underlying principle is this: we may do things differently but we can trust our European neighbours to do justice.
Even 10 years ago, it was recognised that this was a myth. Standards of justice vary greatly from one EU country to another and EU countries need a solid basis on which to trust their neighbours. Blind faith was not enough, so it was decided that the EU should work together to ensure basic defence rights are guaranteed across the Union. EU legislation was placed firmly on the agenda in 2002.
Sadly, while Europe ploughed ahead with mutual recognition measures such as its fast-track extradition system (the European arrest warrant), no progress was made on defence rights. The post 9/11 EU criminal justice agenda prioritised security more than ever and defence rights didn't get a look in. Time and again, EU efforts to create binding fair trial guarantees were vetoed by the UK and others. The effect was a net reduction in the human rights protection of those accused of offences in EU countries other than their own.
But there has just been a glimmer of hope. The first in a long-awaited series of defence laws was passed earlier this month by an overwhelming majority of MEPs. The new directive will entitle anyone facing charges in any EU country to prompt access to an interpreter and to translation of documents when they need it. It will give those who do not understand or speak the language of criminal proceedings the right to interpretation facilities during police questioning, hearings and meetings with their lawyer. They will also be entitled to written translations of all documents that are essential to exercise their right to defend themselves.
The recent case of Garry Mann illustrates how important the right to an interpreter is. Mann, a former firefighter and father of six, was extradited to Portugal in May after several failed attempts to challenge his extradition. He was extradited to serve a two-year prison sentence imposed after a grossly unfair trial in Portugal six years earlier. The UK courts described his extradition as an "embarrassment" and his case as "seriously unjust" but mutual recognition meant they were powerless to stop it.
The denial of basic defence rights was at the heart of this injustice. Mann was arrested, tried and convicted in Portugal (after riots during the Euro 2004 football championships), all within the space of 48 hours. He spent just five minutes with a state lawyer (who spoke little English) before the trial started. There was one interpreter for all 12 defendants, not a qualified legal interpreter, but a hairdresser from around the corner who was a friend of the judge's wife. It was only when Mann looked over this woman's shoulder into her notebook that he discovered what he was charged with. Clearly he had no chance to prepare his defence. His alibi witnesses and character evidence were never heard.
Mann's case is a stark reminder of how far we are from an EU where the right to a fair trial can be relied on by anyone, no matter where they are in the EU. The new directive on translation and interpretation (which would have made such a difference in Mann's case) is the first of a series of measures on basic EU defence rights. Coming up are: information on rights; access to a lawyer; and pre-trial detention reviews. Let's hope these meet with the same level of approval and give European countries a sound basis to trust the integrity and fairness of their neighbours' justice systems.
Catherine Heard is policy officer at Fair Trials International