Assurances that the principle of equality of arms is upheld in criminal proceedings in other jurisdictions than our own is fundamental for common trust. Based on the Swedish experience, an important source of problem in mutual recognition-based cooperation is the lack of sufficient guarantees of procedural rights in domestic systems. Deficiencies of this kind in many national systems and the lack of common minimum procedural standards regarding the protection of individual rights in criminal proceedings give rise to hesitation and lack of a sufficient basis for mutual trust and recognition.
Already in 2004 the European Commission, within its draft Framework decision on certain procedural rights applying in criminal matters throughout the European Union, therefore put focus inter alia on the access to interpretation and translation. The reason was quite simple; a suspect must know and be able to understand the suspicions and charges raised against him or her. Notwithstanding that this must be considered as a “basic right” common for every country based on the rule of law, the work of a common understanding within the European Union on the importance and need of translation and interpretation was buried for many years of political reasons.
Recently, however, the The Council of Bars and Law Societies of Europe (CCBE) has published a manifesto calling for ‘The right kind of justice for Europe’ in the light of the current drafting of the next five-year Strategic Agenda for Freedom, Security and Justice in the European Union, the so-called ‘Stockholm programme’.
One of the central parts of this Manifesto is the need for introduction of minimum common procedural safeguards for the right of suspects and defendants in criminal proceedings. One of the fundaments of these minimum procedural safeguards is access to free interpretation and translation, ensuring that persons, including relatives of the suspect, who are not capable of understanding or following the proceedings receive appropriate means for this.
Today there is not only lack of a minimum procedural right in respect of translation and interpretation in Europe and elsewhere. It is also, when such interpretation and translation can be disposed, often a questionable quality of the translation or interpretation services rendered. Furthermore, the defence counsels often have to bear the costs of interpretation and translation. In many countries this is a cost paid by the state only in case of acquittal. Hence, lawyers often bear the economic risk of having their clients’ justified legal interest and rights provided for. Pro bono work becomes a prerequisite of the fulfilment of minimum procedural rights.
Obviously, this must change. The CCBE Manifesto is a good start and my sincere hope and belief is that the Swedish Presidency of the European Union for the second half of 2009 succeeds in its declared efforts to pull a legislation on the right of interpretation and translation through the European legislative mills.
Let us at least have common minimum rights on the suspect’s understanding of the suspicion, and let it be at the expense of the states and not the lawyers.
Posted by Anne Ramberg
Secretary General of the Swedish Bar Association
IBA Pro bono and Access to Justice Committee
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In judicial proceedings instituted by the United States Government, the right of the defendant to an interpreter is governed by the Court Interpreters Act. Under this Act, which applies to both criminal and civil suits, an interpreter must be provided when the defendant speaks only or primarily a language other than English so as to impair his ability to comprehend the proceeding; his communications with counsel; or with the presiding official. Moreover, the Court Interpreters Act seeks to ensure the quality of the interpretation by requiring the interpreter be certified or otherwise recognized to be qualified.
ReplyDeleteThe state courts in the United State also generally recognize, either under state law or by an interpretation of the US Constitution, that a criminal defendant has the right to an interpreter during the course of his trial.
In other contexts in the United States, such as in federal and state administrative proceedings, the right to an interpreter varies. However, many agencies are now governed by regulations requiring them to provide an interpreter in any agency action affecting the rights of an individual.
The use of an interpreter in pro bono or any other form of case is important as it ensures fair hearing.
ReplyDeleteIn Nigeria where we have legal Aids Council, the funding is not sufficient and there are no standards of translation or interpretation orally in the Court of competent jurisdiction where English is the Official language and many of this people are coming in Contact with in English in Court for the first time. Fair hearing which includes right to know the charge[s] or Claims is not tenable because there are no official interpreters in the Courts, Litigants are requested to come to court with their own interpreter, and the likelihood that this private interpreters will be tutored is 90%.
There are illiterates jurats that makes provisions in the various States in the Nigerian Federation on documentation of evidence of ileterate persons, but this relate to documentation of the interest of illeterates and no provisions as to the interpretation to persons who are illiterates in English.
The official Pro bono organisation in Nigeria is the Legal Aids Council, which to enhance it service should have a department to train interpreters because of the cultural diversity of the country, as without it the rule of law and the attendant justice according to the law will be a mirage.
Further, the IBA Committee on Pro Bono should make this Interpration issue a prority subject in all Conferences of the IBA. As lawyers, our tool of trade is languages and where our Claints do not understand our work, they will misplace our value.
I totally agree with you. State govt. should bear these expenses. Its their responsibility.
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