The judge and the quality of the translation. Serial - episode 3: upstream translation quality

CamelThe judge and the quality of the translation. An exciting serial in eight episodes written by Isabelle Bambust.

The previous episode took place in court, where it emerged that translation quality within court is not the same as outside court.

In this third episode, you'll discover that there is upstream translation quality ("en amont"), in the fourth downstream ("en aval"). Are you keeping up with me?

Ghent, Isabelle Bambust - Upstream translation quality is quality at an abstract formal level: a translation is of high quality if it meets the prescribed quality requirements for translators and interpreters, if it meets the mandatory entries in registers and if it has diplomas to be submitted.

 

Should the translator have a quality label?

First of all, there is the question of whether the court interpreter or the court translator should have a quality label that automatically guarantees the quality of the translation. This is therefore a transcendent approach to translation quality (see episode 1), whereby compliance with a quality standard must ensure a high-quality translation.

 

An international tangle of qualities

In the international regulations there are several possible qualities.

Sometimes the term "official translator" is used. This is the case, for example, with Italy's statement on the European Evidence Regulation. The official translator must certify the translation.

Other times 'sworn translator' is used, an example is Article 10 of the Hague Convention of 1 March 1954, Article 4 of the Convention of 17 March 1970 and Article 19 of the 1989 Tunisia Agreement.

Sometimes there is talk of a translation 'made by a person qualified to do so' - see, for example, Article 27 of the 1981 Moroccan Agreement.

It can also be a "translation (...) declared either by a diplomatic or consular official, either by a sworn translator or by each other person responsible for this in one of the two States' – see Article 6.2. agreement with Romania of 1975.

Or: a translation that is 'certified by the person authorised in one of the Member States to do so' – see Article 55.2 of Regulation Brussels I and Article 38.2 of Regulation 2201/2003 ...

 

The European Council regulation

The Regulation on the Service of Documents applies to the cross-border communication of documents in civil and commercial matters. The regulation does not say anything about the quality of translation. Most Member States do require a certified translation.(17)

However, in Portugal, a judicial document in civil matters can even be translated by the requesting party. Only when there is doubt about the translation, the judge may ask the applicant for an authentic regularization.(18) There is therefore no initial transcendent condition here. Standards are only discussed when there is uncertainty about the translation by means of a product approach.

In England there is no general transcendent condition regarding translations in civil matters, but there is a kind of transcendent process à la carte. Indeed, "(...) a translation needs not to be certified by an authorised translation: “Every translation filed (…) must be accompanied by a statement by the person making it that it is a correct translation, and the statement must include that person’s name, address and qualifications for making the translation.”(…).”(19)

In Denmark, Finland and Germany, the usually required sworn translation is negotiable in the sense that the parties can contractually deviate from it during the proceedings.(20)

 

What about Belgium?

The Belgian Law of 15 June 1935 on the use of languages in legal proceedings and the European Directive 2010/64 on the right to interpretation and translation in criminal proceedings do not always explicitly mention whether it should be a sworn translator or a sworn interpreter.

That is not so bad in itself, because the Belgian source document related to the quality of translation is now the Law of 10 April 2014(21). The title of this law already contains the words "sworn translators, interpreters and translators-interpreters".

There are two essential provisions in this law.

According to Article 20, translation or interpretation may by law only be entrusted to sworn translators, interpreters or translators-interpreters (who are listed in the national register).

Article 27 provides for an exception in cases of urgency, or where there is no interpreter, translator or translator-interpreter available for the language concerned, or where, given the rarity of the language, there is no translator, interpreter or translator-interpreter in the national register who has the required knowledge of the language concerned.

 

Language assistance by the social services in the Netherlands

In a Dutch case of 23 June 2015,(22) a social inspector has to make a determination at a person's home. The Dutch of the social inspector comes into confrontation with the Turkish of the person visited. There is no interpreter coming in. The social inspector does receive language assistance from an employee of the Amsterdam social service (the Dienst Werk en Inkomen, DWI).

The person visited (the appellant) disputed the reports drawn up in Dutch.

However, the Central Board of Appeal relies on the following:

"The report on the statement made by the appellant, drawn up in Dutch, stated that the appellant had agreed that the colleague from the enforcement specialist present should arrange for translation, where necessary. It is not apparent from the statement that the appellant has at any time during the hearing withdrawn his consent or otherwise expressed doubts about the DWI employee's translation (...). The Appellant also signed the report on the statement on a page by page basis. In addition, on each page the box on the declaration, after which the following is indicated, is ticked: "I have taken note of and understand the above statement as I have made it. The content of the written declaration corresponds to what I said orally." In addition, the appellant made no reservation with regard to the translation into Dutch of his oral statement in so far as he has made it in Turkish."

In this case, the Central Board of Appeal opts for a transcendent approach to (the control of) the translation quality: the employee of the social service controls Turkish, so he is a good interpreter. I think this is a problematic approach. A product approach to (the control of) translation quality would be better, but it is impossible because there are no traces of the source text, i.e. of any Turkish language given.

 

Assistance from an unregistered French interpreter

In a judgment of the French Court of Cassation of 8 June 2016(23), there was an objection relating to the urgent appointment of an interpreter of Russian-French. The party to be supplied is not satisfied with the fact that in the procedural documents the interpreter is mentioned by name only and that the full civil status of the interpreter is not displayed, so that the party could be sure of the quality of the interpreter. As a result, the party's lawyer can only find the interpreter over the Internet. It is also argued that the interpreter in question is not on a list of interpreters.

The Court of Cassation accepts the decision of the Chambre de l'Instruction de la Cour d'Appel (examining court at the Court of Appeal).

The Chambre de l'Instruction refers to French criminal proceedings, which, in the event of necessity, allows a former translator-interpreter who is not on a judicial list in so far as he is not a researcher, judge, registrar, party or witness in the file, and if he has taken the oath. All these conditions were met in the present file.

The research court also notes that a simple search in the Yellow Pages or on the Internet (by entering the name of the translator and his capacity as a translator) "immediately reveals the existence and presence in Nice of a Thierry Z..., residing at 12 corniche André A..., and working as an interpreter since 1 February 2011."

 

From lack of neutrality to refusal of re-registration

It is good to know that a downstream control of translation quality, by looking at the concrete quality of the translation, can have an impact on upstream quality control, in particular on the registration in an official register. A finding that a translation is actually of poor quality may lead to a refusal of re-registration in the official registers. This is the case in a French cassation case of 13 May 2015.(24)

An interpreter/translator in the Romanian and Hungarian languages requests a re-inclusion in the list of court experts. This request is refused on the basis of a report by a police commissioner. This shows that several interrogators in investigations have found that the interpreter-translator in question had "shows a flagrant lack of neutrality during the hearings of Romanian persons in police custody and systematically takes up the case for them, distorting the truth or not accurately transcribing the words of both parties and directing the hearings so that the investigators are obliged to ask certain questions, and thus by carrying out inaccurate oral translations and therefore of insufficient quality, Mrs X... does not respect the legal and regulatory provisions applicable to legal experts".

 

From misuse of the sworn title to refusal of re-registration

Abuse of the sworn title may also result in a refusal of a request for reregistration on the list of court experts. This is the case in a French cassation case concerning a sworn expert who was registered as an interpreter in Tamil and abused his capacity as a sworn expert when translating an official document into English.(25)

 

In episode 4 we go see the downstream translation quality... Are you still keeping up with me?

The judge and the quality of the translation. Serial (introduction)

The judge and the quality of the translation. Serial - episode 1: Fields & co

The judge and the quality of the translation. Serial - episode 2: translation quality in the legal world

 

(17) See point 15.3 of the JUST/2014/JCOO/PR/CIVI/0049 survey on the service and notification of judicial and extrajudicial documents in civil matters and commercial matters in your country, https://euservicestudy2015.wordpress.com: “Indien een vertaling in een toegestane taal is vereist, moet dit worden gecertifieerd, gelegaliseerd door een beëdigde vertaler?” and “Study on the service of documents – Comparative legal analysis of the relevant laws and practices of the Member States”, Final Report, N° JUST/2014/JCOO/PR/CIVI/0049, 5 oktober 2016, 243: “A majority of Member States would require a certified translation to be used, despite the fact that the Regulation on service of documents does not expressly require a certified translation.”

(18) “Study on the service of documents – Comparative legal analysis of the relevant laws and practices of the Member States”, Final Report, N° JUST/2014/JCOO/PR/CIVI/0049, 5 October 2016, 243.

(19) “Study on the service of documents – Comparative legal analysis of the relevant laws and practices of the Member States”, Final Report, N° JUST/2014/JCOO/PR/CIVI/0049, 5 October 2016, 243.

(20) “Study on the service of documents – Comparative legal analysis of the relevant laws and practices of the Member States”, Final Report, N° JUST/2014/JCOO/PR/CIVI/0049, 5 October 2016, 243.

(21) Law 10 April 2014 amending various provisions with a view to establishing a national register of court experts and establishing a national register for sworn translators, interpreters and translator-interpreters (Belgisch Staatsblad, 19 December 2014).

(22) Centrale Raad van Beroep (Nederland) 23 June 2015, nr. 14-2814 WWB.

(23) Court of Cassation (France) 8 June 2016, nr. 16-81756.

(24) Court of Cassation (France) 13 mei 2015, nr. 15-60009.

(25) Court of Cassation (France) 26 June 2008, nr. 08-10424: “Attendu que M. X... fait grief à la décision de ne pas prendre en compte son expérience et de commettre une erreur manifeste d’appréciation en considérant comme un manquement le fait d’avoir usé du titre de traducteur et de s’être prévalu de sa qualité d’expert assermenté lors de la traduction d’un document officiel vers la langue anglaise, alors qu’il était inscrit sur la liste des experts comme interprète en langue tamoule; Mais attendu que c’est sans commettre d’erreur manifeste d’appréciation que l’assemblée générale de la cour d’appel a, sans apprécier l’expérience de M. X..., refusé son inscription, en retenant que celui-ci, en faisant un usage abusif du titre qui lui avait été conféré, avait manqué aux obligations qui résultent du statut des experts fixé par la loi du 29 juin 1971.”

 


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Author: Isabelle Bambust

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Source language: Nederlands (nl)


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