The right to translation in Belgian criminal proceedings: Between legal obligations and practical constraints
This article examines the implementation of the Directive 2010/64/EU, and more specifically its provisions on written language assistance, in Belgian criminal proceedings. In order to investigate both top-down regulations and on-the-ground practices, a case study was conducted at the Ghent correctional court, including a policy review, analysis of criminal case files, and interviews with judicial actors. The study finds that the right to written translation is rarely exercised. Due to the restricted transposition of the Directive provisions into national legislation, local judicial authorities do not proactively provide translated procedural documents and defendants are often unaware of their right to translation. Instead of providing written translations, judicial authorities systematically rely on oral interpretation or summaries, despite the Directive stipulating that these should be the exception rather than the norm. Although the Directive was designed to strengthen fair trial protections, its impact remains limited in practice.
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To ensure a fair trial, defendants in criminal proceedings in the European Union (EU) have a number of basic procedural rights, such as the right to information and the right to legal counsel. These rights allow defendants to actively participate in the proceedings and defend themselves, but can be jeopardized if defendants do not understand the language of the proceedings, which may make it difficult for them to understand procedural documents or communicate with their legal counsel. In order to ensure that a defendant is “able to understand what is happening and to make him/herself understood” the European institutions have been working since the early 2000s to develop a legal framework that guarantees the provision of language assistance in all EU member states. These efforts resulted in Directive 2010/64/EU. This directive grants defendants who do not understand the language of the proceedings two types of free language assistance throughout the proceedings: (a) interpreter assistance during oral communication with the authorities and the defendants’ legal counsel and (b) translations of certain procedural documents.