The Hague Program

and how it could affect the translating and interpreting profession

he European Council meeting of heads of state of 4-5 November 2004 endorsed the Hague Multiannual program, aimed at strengthening the freedom, security and justice across the EU over the period 2005-2009. The program is a step towards fulfilling the EU's goal, introduced with the treaty of Amsterdam in 1999, to create a European Area of Freedom, Justice and Security.

The Commission in May 2005¹ brought out its proposed implementation plan of the Hague program, in which it identified 10 priorities. These are:

1. Fundamental rights and citizenship: creating fully-fledged policies
2. The fight against terrorism: working toward a global response
3. A common asylum area: establish an effective harmonized procedure in accordance with the Union's values and humanitarian tradition
4. Migration management; defining a balanced approach
5. Integration: maximizing the positive impact of migration on our society and economy
6. Internal borders, external borders and visas: developing an integrated management of external borders for a safer Union
7. Privacy and security in sharing information: striking the right balance
8. Organized crime: developing a strategic concept
9. Civil and criminal justice: guaranteeing an effective European area of justice for all
10. Freedom, Security and Justice: sharing responsibility and solidarity

The two main instruments to achieve these goals will be:

• increased cooperation amongst operational law enforcement bodies
• the approximation of civil and criminal law in certain areas, including the mutual recognition of judgements in the European Union.

The program as outlined is ambitious and in the early stages. For each of the ten priorities, few specific actions have been identified. Many obstacles exist to, first, align the instruments in each member state and, second, to move these forward in the direction suggested by each priority. In addition, the Commission has had to bring into line a number of initiatives already underway in the field, some of which, paradoxically, were put on hold until the program and implementation plan were developed.

Today's political climate, the fight against terrorism, issues related to asylum seekers and the fight against organized crime will most likely top the agenda. Translators and interpreters with the relevant specialization have traditionally been involved in anti-terrorism, immigration and asylum issues, and the fight against organized crime, and their work load looks set to rise.

However, the ninth priority is most likely to profoundly affect the wider body of professional translators and interpreters.

The aim to guarantee an effective European area of criminal and civil justice for all is to be obtained through minimum procedural standards being met in each member state, and the harmonization of civil and criminal justice procedures across member states, so that judicial decisions in one member state become enforceable across all. The EU sees the mutual recognition of judicial decisions across internal borders as being akin to establishing the free circulation of judicial decisions within the EU area, much like the free circulation of goods and people within the EU.

Getting there, however, is much more difficult. In the area of criminal law, a cornerstone of the approach is the approximation of penal laws among Member States. For example, what constitutes a crime and what a misdemeanor must be approximately the same in each Member State. A certain degree of harmonization of criminal law is required to facilitate cooperation; however, some Member States consider this to be closely linked to national sovereignty.

The principle of mutual recognition has been progressed most at a lower level, where regulations and orders based on elements of national criminal law nevertheless deliver concepts that are common across all Member States.

A prime example has been the adoption of a European arrest warrant that reduces the burden of lengthy extradition procedures. Mutual recognition has also been extended to decisions to freeze assets, to financial sanctions, and confiscation orders. Another is the directive on access to legal aid in cross-border cases.² For EU nationals without sufficient resources who are forced to go to court in another Member State, this directive guarantees a low but adequate level of legal aid (including cover for the preliminary phase of investigations following charge).

The biggest step to develop minimal procedural standards—and the one most affecting the translating and interpreting profession—in the area of criminal justice has its roots in initiatives prior to the Hague program. The Commission prepared a Green Paper in February 2003 on the issue, and subsequently developed a proposal on "Criminal judicial cooperation: procedural rights in criminal proceedings throughout European Union" in April 2004.³ This proposal included within the procedural requirements five rights that it was felt were particularly relevant to foreign individuals:

• access to legal advice, both before the trial and at trial;
• access to free interpretation and translation;
• ensuring that persons who are not capable of understanding or following the proceedings receive appropriate attention;
• the right to communicate, inter alia, with consular authorities in the case of foreign suspects; and
• notifying suspected persons of their rights (by giving them a written "Letter of Rights" in their own language).

The proposal amounts to extending the minimum procedural standards for access to justice in cross-border cases, to all cases within each of the Member States.

This was supported by the European Parliament, which made some amendments, including:

• all measures to be in conformity with the European Court of Human Rights and the Charter of Fundamental Rights of the European Union;
• suspected persons with a visual handicap or reading disabilities should be notified orally of their basic rights;
• Interpreters certified by the competent judicial authorities shall be listed in a national register of interpreters;

• failure to assess and notify the vulnerability of the suspected person shall, if not remedied, invalidate any subsequent action taken in the criminal proceedings;
• The Letter of Rights shall be presented to the suspected person when he is first questioned, whether in the police station or elsewhere; and
• Member States must gather the information necessary for evaluation and monitoring the Framework Decision every year, including from NGOs, intergovernmental organizations and the professional bodies of lawyers, interpreters and translators, and forward to the Commission.

The (Justice and Home Affairs) Council of Member States is expected to vote on the directive on 12 October 2005.

The Commission in the meantime has prepared a framework program to fund various activities across Member States' authorities, research institutions and legal professions (including court interpreters) for cooperation between the period 2007-2013⁴ amounting to just over EUR 300million.

The wide-ranging scope of the Hague program, with developments happening in many different fields of justice, security, and freedom, appears to suggest an increased demand over the period for interpreters and translators. New actors and bodies in the field of justice are appearing such as the European Justice Network and Eurojust.

Closer cooperation across enforcement authorities demanded under the Hague program will inevitably lead to more inter-state conferences and meetings among the relevant authorities and bodies such as the police, law societies, coroners' offices, legal aid providers, immigration directorates and so forth. This type of work will have a growing impact on the interpreting profession.

Similarly, such bodies seeking to cooperate further, will be sharing more information in many more languages other than the ones the information was gathered and stored in, increasing the amount of translating in the field.

One might even venture to suggest that, since the main languages in the EU are English, French and German, most additional work will be into these languages, rather than from these languages.

What is not clear from the Hague program as yet, is the role envisaged for the professional bodies. Increasingly, it is likely that they will be consulted on matters regarding the use of translation and interpreting. It may even be the case that there is an active role to play on developing minimum standards for procedures related to appointing interpreters and translators, managing the panel of interpreters used in the judicial process and providing information back to the relevant authorities on their effective use.

The wider and longer-term impact of the Hague program is less clear, but some of its features raise some interesting prospects in the filed of criminal law.

The prospects of civil law in one country being recognized in another country in such areas as contracts, torts, property and succession would on the face of it, have little effect on the existing range of associated translations and interpreting, since the main purpose in these instances is not a bureaucratic requirement for multilingualism but the desire amongst the parties to be understood in each others' language. This is perhaps best illustrated by an example. An English-speaking person inheriting a property in Greece, with the deeds and will written in Greek, would still desire to know the details of the property and the contents of the will in English, independently whether any requirement to translate the documents into English for a UK declaration for taxation purposes was removed or not. And it is unlikely that the UK declaration for taxation would accept a language other than English. The scope of the harmonization of such UK and Greek property and inheritance law might focus instead on rules of procedure such as the period of wills in probate and the legality of documents. To the extent that such harmonization in the long run provided greater confidence amongst individuals at large and thus encouraged them to increase the number and range of cross- border activities, one might expect a slow and steady increase in the associated demand for translating and interpreting.

In short, it is the harmonization of legal aspects of civil justice that would lead to a greater movement of capital, goods and people across borders and it is this increased movement, not the harmonization itself, that would lead to an increased demand for translation and interpreting.

In the criminal field, things are less clear. One the one hand, the greater movement of capital, goods and people across the internal borders could give rise to an associated increase in criminal activity with a multi-lingual dimension. To offset this, however, closer harmonization and access to criminal and judicial records across countries might lead to more effective law enforcement, creating a more credible deterrent to any increase in cross-border criminal activity.

A particularly interesting impact of the Hague program arises from the free circulation of judicial decisions. This creates a strong incentive to choose the jurisdiction which has the greater chance of success in a particular procedure. As a result, the associated translating and interpreting is likely to move to that jurisdiction. To the extent that judicial decisions become binding across member states, they do not have to be replicated in other member states; therefore, any associated additional translating and interpreting in another member state may no longer be required in order to argue aspects of the case again, particularly since evidence gathered in one country is now likely to be acceptable in another Member State.

In summary, the Hague program, and more importantly, the many framework decisions, directives and initiatives falling under its umbrella, are likely to gradually shape the scope and nature of the work of translators and interpreters over the next decade or so, and on balance increase their involvement in judicial processes, civil and criminal procedures. However, this change will be gradual and piecemeal; evidenced more in changes to the subject matter of what is being translated and interpreted and the actors involved rather than in changes in the subjects themselves: translators and interpreters have always been involved in civil disputes, evidence gathering, arrest, disclosure, court proceedings, judgement, enforcement and appeal.
 

^1' Com (2005) 184 final, 10 May 2005

^2' "Council Directive 2002/8/EC of 27/1/2003 to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes" L026 (2003) pp. 0041-0047.

^3' COM(2004) 0328 final "Proposal for a Council Framework Decision on Certain procedural rights in criminal proceedings throughout the European Union" April 2004.

^4' Com (2005) 122 final.