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Understanding the language: Helping foreign children realise their right to a fair trial

16 Aug 2017
Source: 
Terre des hommes

“It was two years ago. Back then, I did not speak Hungarian well. I did not have an interpreter, just an appointed lawyer.” - A 15-year old foreign boy that faced criminal charges in Hungary tells about his experience.

A child suspected or accused of committing a criminal offence needs to understand the criminal process in order to have the right to a fair trial in accordance with Article 6 of the European Convention on Human Rights. A language barrier can be a major obstacle in these processes. Foreign children are particularly vulnerable due to their inability to speak the language or understand the criminal justice system of the country in which they find themselves accused or suspected.

The European Union has passed a number of laws which contain minimum rules regarding the protection of the procedural rights of persons suspected or accused of a criminal offence. Nonetheless, organizations working with foreign nationals who are accused or suspected of crimes in EU countries continue to be concerned that justice is not being administered fairly in cases where the defendant does not understand the language of the proceedings.

Terre des hommes addressed these issues in a regional project titled “Procedural Rights of Juveniles Suspected or Accused in the EU” (PRO-JUS), aiming to ensure that foreign children who are in conflict with the law are able to benefit from the procedural guarantees they are entitled to under three EU Directives (EU Directives 2010/64, 2012/13 and 2013/48).

Through this regional project, Terre des hommes Hungary, in partnership with Defence for Children - DCI Belgium, Defence for Children the Netherlands, Rights International Spain and Hors la Rue from France, helped to improve the way children can access their rights when facing criminal charges. More than 40 children participated in the project, by sharing their own experiences and views on matters that directly affect them. They contributed to a better understanding on how best to ensure a child-friendly, age and culturally appropriate judicial treatment of cases of foreign children.

There was conducted extensive national and comparative research assessing the national legal frameworks and the extent to which foreign children are able to exercise their rights both in theory and in practice. Research findings have been featured in the July 2017 edition of the Chronicle of the International Association of Youth and Family Judges and Magistrates (IAYFJM) (pages 50-53). The research has shown that the three Directives have been or are in the process of being transposed into national law in all 5 countries. The rights in question already exist in national laws and have been refined or reaffirmed by the transposition. While procedural rights are observed in a formal sense, challenges remain in implementation. Therefore, to realise these important rights, the authors of the paper recommend a number of practical measures to be undertaken by EU countries, and namely:

  • Setting up of systems of quality control for interpretation;
  • Strengthening official registers of interpreters;
  • Requiring interpreters to sign a code of ethics;
  • Establishing clear protocols for the use of intermediary languages for interpretation;
  • Utilizing standardized procedures for determining the need for interpretation;
  • Providing a standard written and translated letter of rights

Moreover, lawyers and other criminal justice professionals require specialized skills to be able to deal with children, particularly if there are cultural differences. To guide them in their work with foreign children, there was developed a handbook for legal practitioners based on the research findings. The project raised awareness and trained about 300 legal and law enforcement professionals from a total of 15 EU Member States on the rights of foreign children who are involved in criminal proceedings. In addition, a study visit was organized for legal practitioners, where they shared their experience and learned about interesting practices.

The project contributed to ensuring that foreign children involved in criminal proceedings are able to access improved legal representation, adequate translation and interpretation, as well as information about their procedural rights when coming into contact with the law.

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This project is funded by: