Present is present - even if it would have been better otherwise

One interpreter, two roles - and a dispute over justice

The Federal Court of Justice (BGH) has clarified this in a recent ruling: An interpreter who is actually present and working in the courtroom during the main hearing is also deemed to be present - even if there were actually good reasons to refuse him. The background to this was a curious case in which a lawyer initially acted as a public defender, but was then "converted" into an interpreter at short notice - and later acted as a defense lawyer again.

The defense accused the court of violating fundamental rules of criminal procedure. The interpreter was not "neutral", but biased - and therefore not really "present" at all. The BGH took a completely different view.

No grounds for appeal because: "Present does not equal absent"

The defense's argument: If someone should not have been used as an interpreter at all, then the proceedings must be assessed as if there had been no interpreter - and that would be a clear ground for appeal. § Section 338 no. 5 of the Code of Criminal Procedure does not permit a trial without an interpreter if the defendant does not understand the language.

However, the BGH says that this is too far-reaching an interpretation. Just because someone could have been rejected under certain circumstances does not automatically mean that they were "absent". After all, the interpreter was physically present, actually translated and was not rejected by an application. She had therefore formally fulfilled her function.

Another argument put forward by judges: Criminal law already has special grounds for appeal for judges that are excluded - e.g. by section 338 no. 2 of the Code of Criminal Procedure. If bias alone were sufficient to classify someone as "absent", this rule would be superfluous. Clear dividing lines are needed.

Why the ruling is important in practice

The BGH creates legal certainty here - at least on paper. In reality, however, an unpleasant aftertaste remains: do we really have to tolerate a person being both the defense counsel of a co-defendant and an interpreter in the same case - and is this considered unproblematic as long as no one protests in time?

It shows once again: if you say nothing in a criminal trial, you are in a bad position later on. Formal errors or possible bias can only be challenged if they are raised at the right time - and above all: if the person in question requests that they be rejected.

Just because someone is there doesn't mean they should be there

What the Federal Court of Justice is delivering here is legally sound - but difficult to understand in human terms. The fact that a defense lawyer is suddenly turned into an interpreter and then changes back again may be formally possible, but it seems like improvisation on an open stage. And the fact that a ground for appeal depends on whether someone is "really absent" or just "would have been better off not being there" is a prime example of how law and justice do not always go hand in hand. In practice, this means that whoever remains silent loses. It doesn't always feel fair.