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Summary

General

As is generally known, there are major differences between the fact-finding processes of arbitration and litigation proceedings. This is not only true from a civil law, but also from a common law perspective: Today's practice with respect to the taking of evidence in arbitration proceedings results from a combination of approaches of lawyers with different backgrounds, in particular, from lawyers from civil and common law jurisdictions. In particular, this combination of approaches is reflected in the International Bar Association Rules on the Taking of Evidence in International Arbitration. Different from many other ‘principles’, ‘rules’ etc. which only play a role in the discussion of academic or practitioners’ conferences, these rules have gained significant acceptance in arbitration practice and serve as guideline for the decision of fact-finding issues in many arbitration proceedings all over the world today.

The reason for asking about what litigation can learn from arbitration with respect to evidence-taking is obvious. Arbitration is market-made and, therefore, concepts developed in arbitration practice and accepted by parties and arbitration practitioners might be effective and user-friendly. Therefore, one might argue that arbitration could be a laboratory for best practices in civil procedure not only, but also when it comes to evidence. I do not suggest that, therefore, arbitration is superior to litigation. As is generally known, not all results of market-driven processes are in the best interests of all stakeholders. This contribution, however, is not about criticizing arbitration practice where there might be shortcomings, but simply asks which lessons can be learnt from arbitration with respect to evidencetaking.

My approach is, of course, based on my personal experience resulting from my academic and practical work in civil procedure in the German speaking countries on the one hand and in international commercial arbitration on the other. Therefore, some of the aspects which I will address where litigation might learn lessons from arbitration are based on my ‘Germanic’ litigation experience and might, therefore, not apply to the civil procedure of other jurisdictions to the same extent. Moreover, I would like to clarify that user-friendliness and efficiency, of course, are not necessarily the only relevant factors for identifying the best approaches in the field of evidence – it is just one very important perspective, and it is the one perspective which I will focus on in the following.

Summary

Role of Principles in Civil Proceedings

Undoubtedly, the development of IT has an impact on every aspect of civil proceedings. This was clearly formulated at the 2007 World Congress of the International Association of Procedural Law: ‘[The] new technologies have the capacity to change the core values of civil litigation by making litigation more efficient and effective, by making the civil justice system more accessible, and by changing the way we determine the facts and decide the case.’ And so at the outset of this contribution it should be noted that the technology of today can provide more than we could ever need with respect to the ‘electronification’ of judicial proceedings and what could lay the foundations for more effective and up-to-date litigious and non-litigious proceedings while still ensuring the required guarantees. The task of the experts of civil procedural law is to find the limits of the applicability of the technology instead of integrating all technical possibilities into the proceedings without criticism.

When establishing these limits attention should be paid to numerous theoretical and practical aspects, and one should find the ‘core’ of the procedural rules according to the aim of the proceedings, the basic values the continuity of which must be ensured. In W. Rechberger's words, ‘the cultural core of our procedure should not be “sacrificed on the altar of modern technology”’. This does not necessarily mean that the traditional interpretation should prevail and that the basic principles should not be touched; however, it is obvious that it is within this circle of rules that the above-mentioned stable core is to be looked for. For this very reason, when analysing this problem it is necessary to carry out a thorough review of basic principles, to be open to modern solutions, but to apply criticism and to search for equilibrium at the same time.

Specific attempts have been made to identify the principles the unchanged nature of which must be guaranteed. In Leipold's view, instrumental principles may be overridden or reinterpreted, e.g. the principles of orality and immediacy. However, the question is far from being that simple; it must be dealt with in a more refined way, for it is difficult to distinguish between basic principles on this ground.

Summary

DEFINITIONS AND VULNERABILITY FACTORS

“Vulnerability is a concept fraught with paradox. To start with, the concept is in common use but its meaning is imprecise and contested. Confusing, complex, vague, ambiguous are but a few of the labels scholars across disciplines have used to refer to it. (Bio)ethics and law, in particular, are disciplines which have spawned an extensive literature on vulnerability.”

Lourdes Peroni - Alexandra Timmer, Vulnerable groups: The promise of an emerging concept in European Human Rights Convention law

“Vulnerability is our susceptibility to be wounded. This fragility is part of our nature and cannot be escaped. The best the brain can do is to shut down conscious awareness of it when pain becomes so vast or unbearable that it threatens our ability to function. The automatic repression of painful emotion is a helpful child's prime defence mechanism and can enable the child to endure trauma otherwise be catastrophic. The unfortunate consequence is a wholesale dulling of emotional awareness.”

Gabor Mate, In the Realm of Hungry Ghosts: Close Encounters with Addiction

“On and on the rain will say

How fragile we are“

Sting, “Fragile”

If an object is easily broken or damaged, we deal with it cautiously and treat it in a certain careful way. We even place a warning label on the box it is packed in or on the wrapping, reminding everyone who comes into contact with it, that it is fragile. We, human beings, ‘subjects’, although we have no warning label attached, are all fragile; fragility, as Gabor Mate put it in the quotation above, ‘is part of our nature and cannot be escaped’. True as this may be, however, some of us are even more fragile, or, to use another term, more vulnerable than others due to certain personal or external characteristics and features. Therefore, we have at least the same level of responsibility and duty of care towards them as is shown to objects: the responsibility to provide enough attention and concern, to ensure special treatment due to their specific needs, and to follow specific or exceptional norms to prevent them being injured and harmed, as far as possible.

Summary

DIRECTIVE 2012/29/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 25 October 2012

establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 82(2) thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Economic and Social Committee,

Having regard to the opinion of the Committee of the Regions,

Acting in accordance with the ordinary legislative procedure,

Whereas:

Interpreter-mediated child interviews, by their nature, involve communication with vulnerable interviewees who need extra support for three main reasons: their age (under 18), language and procedural status (victim, witness or suspect). The CO-Minor-IN/QUEST research project (JUST/2011/JPEN/AG/2961; January 2013 - December 2014) studied the interactional dynamics of interpreter-mediated child interviews during the pre-trial phase of criminal proceedings. The project aimed to provide guidance in implementing the 2012/29/EU Directive establishing minimum standards on the rights, support and protection of victims of crime. This book sets out the key findings from a survey conducted in the project partners' countries (Belgium, France, Hungary, Italy, the Netherlands and the UK) targeting the different professional groups involved in child interviewing. Both the quantitative and qualitative analysis of the respondents' answers is discussed in detail. The book also provides hands-on chapters, addressing concrete cases of children involved in criminal procedures who required the assistance of an interpreter to ensure their rights were fully protected. Finally, a set of recommendations is offered to professionals working in this area.

Summary

DEFINITIONS AND GENERAL FRAMEWORK

THE CO-MINOR-IN/QUEST PROJECT

A twelve-year-old German boy is returning from a trip to Spain with his parents. On the way home, the family is carjacked and robbed at a lay-by along the motorway. The parents are seriously injured by two armed carjackers who steal the family's car and all their valuables, leaving the parents for dead in the middle of the night, with their son. When the police arrive at the crime scene, they find the terrified and injured family who are immediately taken to hospital. As both parents are seriously injured, they cannot be interviewed yet. Initially, the police can only rely on the son's statement to track down the offenders. However, the boy does not speak Spanish, except for a few words picked up from the children he played with near the holiday home. How will the police communicate with him? How can the interview team ensure that the conversation with the potentially traumatized boy runs as smoothly as possible? In what ways can they provide adequate protection and support? These are the main issues the CO-Minor-IN/QUEST project dealt with and which will be reflected in this publication.

The CO-Minor-IN/QUEST project (Cooperation in Interpreter-Mediated Questioning of Minors: JUST/201 l/JPEN/AG/2961) belonged to the Criminal Justice Support Programme, set up by the Directorate-General Justice (DG Justice) of the European Commission to co-finance project actions that ‘promote judicial cooperation within the field of criminal justice’. In the spirit of this programme, the CO-Minor-IN/QUEST project aimed at improving international cooperation between all EU member states, and particularly those belonging to the project consortium: Belgium, France, Hungary, Italy, the Netherlands and the United Kingdom. The following project partners participated in this two-year research project (January 2013 - December 2014) focused on improving interpreter-mediated child interviews.

Summary

CASE 1: CHILD VICTIM

(All the names of people and places are fictitious, but the events are real.)

On a Monday evening, Klaudia arrives, with her 10-year old daughter Ewa, at the local police station, in town X (Belgium). She wants to report an indecent assault on her daughter. An acquaintance of the family is alleged to have touched the girl inappropriately.

The police take the mother's statement while the minor is not present. This is to ensure that there is no confusion between their accounts of the events. The police then contact the public prosecutor's office by telephone. Upon the latter's request, Ewa is questioned by staff specially trained in child interviewing. They make use of the TAM interview method (Techniek van het Audiovisueel verhoor van Minder]arigen; Technique for Audio-visual interviewing of Minors).

Ewa's parents are of Polish origin. Although Ewa goes to a Dutch-speaking school, she is able to express herself best in her mother tongue. The public prosecutor's office orders the assistance of a sworn interpreter during the interview. They also order the presence of an expert psychologist, who will be watching the interview from the observation room. She, the psychologist, is asked to analyse the child's statements and write a report of the interview.

The police (of town X) who have created the file will also organise the audio¬visual interview. They are responsible for contacting:

Summary

SUMMARY OF THE SURVEY FINDINGS

INTRODUCTION

Since the project, its actions, partners, rationale and general framework have been described in the introductory chapter, in this section, we will focus on important issues concerning the survey, which basically means the methodology, the results and discussion of the results.

First, the authors will address the traditional five Ws- and one H questions, central to every information-gathering process. First of all, the motive for the survey (why?) and, next: the time schedule (when?), the content (what?), the respondents (who?), and the distribution (where?) - all of which can be summarised in the methodology (how?). Methodology obviously covers both the design of the questionnaire and the analysis of the results.

MOTIVES AND FIRST STEPS TOWARDS A QUESTIONNAIRE: THE WORKSHOP

From the beginning, it was stated in the project description that a needs analysis of the parties involved in the questioning of children was necessary. It became clear that the domain of Interpreter-mediated Questioning of Minors (ImQM) had hardly been explored, as has been shown in the literature review: several publications deal with questioning of minors in criminal (and civil) proceedings, but little has been published on the situation when minors do not speak the language of the court/jurisdiction. Moreover, in this kind of setting, we are dealing with different professionals ranging from the - specially trained - police officer to the psychologist, the child support worker, the youth lawyer, the youth judge and the interpreter. A trust person is possibly present but (s)he is not necessarily an expert and/or professional; this person may be or mostly is a parent, a family member, or a close friend.

To perform a needs analysis, it is very important to pose the right questions and to know exactly what the aims are. To explore the questioning of minors with an interpreter in more depth, a twofold methodology was applied: first, a literature review, which has been discussed in Section 1.1; secondly, since questionnaire design is extremely important, we decided to organise a workshop where experts of the different domains involved in interpreter-mediated questioning of minors could have a face-to-face meeting.

Summary

This book is the result of a research project entitled CO-Minor-IN/QUEST (JUST/201 l/JPEN/AG/2961), carried out under the supervision and with the support of the Criminal Justice Programme (DG Justice) of the European Union.

The project was developed in response to Directive 2012/29/EU establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JH. Within the group of victims, we decided to focus on a particularly vulnerable group: minors. Once the project started, it became clear that was not easy to completely set victims apart from other procedural categories in criminal proceedings (e.g. suspects and witnesses). A suspect may ultimately appear to be a victim, or a victim can be an important witness, or a witness can even become a suspect upon closer investigation. Along the way, it also became less self-evident to define vulnerability as a concept as such in an interview context involving minors. Children are vulnerable by definition and that is why it was particularly difficult to draw the line between vulnerability and extreme vulnerability. In this publication, however, we try to offer some suggestions on the subject without pretending this to be the absolute truth.

First, the project acronym requires some further explanation: cooperation in interpreter mediated questioning of minors. The meaning of the CO-prefix can be read in a double way. It first of all symbolises the cooperation between the members of the project's research consortium located in six Member States: Belgium, France, Hungary, Italy, the Netherlands and the United Kingdom (Scotland). Secondly, it represents the cooperation between the different professionals involved in interpreter-mediated questioning of minors: legal actors (ranging from police to judges and lawyers in court), child support workers, psychologists, other professionals (e.g. paediatricians) and of course -specific to this context - interpreters.

It is clear that the term “Minor” in the title refers to children and young people under the age of 18, as defined in the 2012/19/EU Directive.

The abbreviation IN refers to the figure of the interpreter. Both letters are capitalised because in this particular setting the interpreter may often be considered a rather unexpected participant, one you do not think of at first.

Intersentia

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IUS COMMUNE EUROPAEUM

EVIDENCE: LEARNING FROM ARBITRATION

Summary

EVIDENCE, INFORMATION TECHNOLOGY AND PRINCIPLES OF CIVIL PROCEDURE – THE HUNGARIAN PERSPECTIVE

Summary

Biographies of the authors

Annex 3 - CO-Minor-IN/QUEST survey (interpreters: signed language)

Annex 7 - Mind Map: Main Factors of high vulnerability among child interviewees

Annex 6 - CO-Minor-IN/QUEST survey (other professionals)

Chapter 3 - Interpreted interviews with highly vulnerable children

Summary

Annexes

Contents

Frontmatter

Annex 1 - Directive 2012/29/EU

Summary

Annex 2 - CO-Minor-IN/QUEST survey (interpreters: spoken language)

Children and Justice: Overcoming Language Barriers

Annex 4 - CO-Minor-IN/QUEST survey (justice and policing)

Chapter 1 - Introduction

Summary

Chapter 2 - Interpreted interviews with minors

Summary

Annex 5 - CO-Minor-IN/QUEST survey (psychologists)

Chapter 4 - CO-Minor-IN/QUEST research findings

Summary

Preface

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Children and Justice: Overcoming Language Barriers

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