We had a glimpse of the future this week. There was a shoot-out at the EU Corral involving the new justice commissioner and the member states. The weapon used was the Lisbon Treaty, and the quarrel broke out, beyond the tumbleweed and swinging saloon doors, over the need for minimum procedural safeguards for suspects and defendants around the EU.
When the smoke cleared, the member states were all lying dead, and the commissioner was cleaning the barrel of her gun, with a satisfied smile on her face.
The back story is this. The EU has been trying for 10 years to balance the enhanced rights of the prosecution, as provided in instruments like the European Arrest Warrant, with better rights for the defence, mainly through ensuring common rights for defendants around Europe.
And for 10 years, some member states – including the big, bad UK – have been resisting. All right, said its supporters in desperation last year, you won’t give us this package of rights as a whole, and so we will take them one by one, starting with the first right (or Measure A as it is called): the right to interpretation and translation.
This is the simple and basic right to have a criminal case interpreted and translated for you as a suspect or defendant if you do not speak the local language. The member states which supported going ahead with their own measure on this subject found it difficult to resist such a virtuous right altogether, but they watered it down considerably and nearly got away with it.
But, in the manner of the most thrilling western, their time to decide on their own ran out on 1 December of last year when the Lisbon Treaty came into force, giving the European Parliament (which has backed the commission in this matter) co-decision powers. Suddenly, the member states can no longer do exactly as they wish.
Enter Viviane Reding, the new justice commissioner, wearing a Stetson, holster, bandanna and chaps bought in her native Luxembourg. She hollers over to the member states huddled by their rustled horses (the actual words are my own): ‘Your watered down version of Measure A is below the level of the standard required by the European Convention of Human Rights (ECHR).’
She waves a copy of an opinion received from the Council of Europe which says this. ‘I do not want the first case against the European Union, now that we shall be subject to the ECHR, to be as a result of introducing a sub-standard right on my watch. Improve your offer or I will re-introduce a commission draft which meets the ECHR standard. Then my good friends in the parliament can decide which version they prefer.’ There is mayhem with gunshots before the smoke clears, revealing the victor.
And so the commissioner introduced a new draft this week. It has all the things which we at the CCBE have been asking for (and which was missing from the member states’ watered down version), such as:
- interpretation will have to be provided for communication between client and lawyer, as well as during investigations – such as police questioning – and at trial;
- the proposal covers written translation of all essential documents such as the detention order, the charge sheet or indictment or vital pieces of evidence, and so citizens will not have to rely on an oral translation that only summarises the evidence; and
- citizens have the right to legal advice before waiving the right to interpretation and translation, so that people are not pressured into giving up their rights unless they have spoken to a lawyer.
What does this tell us? First, it looks as if commissioner Reding is going to play a tough game, and the split between justice and home affairs that she represents may ensure that justice gains.
Second, the member states have lost power as a result of the Lisbon Treaty, with the commission now able to turn to the parliament for support in the justice field, which was not possible before. And third, the EU’s signing up to the ECHR, about which I wrote recently, is having some early positive effects on policy.
As commissioner Reding mounted her horse and rode out of town, she was heard to say: ‘That’s what’s important, to feel useful in this old world, to hit a lick against what’s wrong for what’s right even though you get walloped for saying that word.
‘Now I may sound like a Bible beater yelling up a revival at a river crossing camp meeting, but that don’t change the truth none. There’s right and there’s wrong. You got to do one or the other. You do the one and you’re living. You do the other and you may be walking around, but you’re dead as a beaver hat.’
Jonathan Goldsmith is the secretary general of the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies