The judge and the quality of the translation. Feuilleton - episode 7: the judge and translated requests, convocations and decisions

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

In the previous episode, you and the judge assessed the quality of supporting documents in translation. In this seventh and penultimate episode, you must judge translated requests, convocations and decisions.

 

A Judge's look at foreign law

Ghent, Isabelle Bambust- In a South African decision of 8 May 2009(54), the judges addressed a question of inheritance. In accordance with Swiss law, a representative of the heirs was appointed. The first concern is to verify the precise role of this representative under Swiss law.

The only material available to find out this is the two Swiss decisions that appoint two successive representatives. These decisions were "translated from Swiss German to English".(55)

The translated documents are labelled by the judges as unreliable because of the poor quality of the translation. The language used is far from clear and, on various occasions, the translator recorded her difficulty stating that she ‘presumed’ the meaning of some of the words from the general context of the documents as she could not trace them in any dictionaries.”

 

On the basis of South African case law from the years 1904, 1948 and 1998, the judges decide that it must be assumed that Swiss law in this area is equal to South African law.

I think this is an unrealistic course of action for a decision that was made in 2009. For example, it might have been sufficient to have a German-speaking person from South Africa contact the Swiss court about this.

 

Extradition requests

A judgment of the French Supreme Court(56) highlights the poor translation quality of extradition documents.

In order to execute two arrest warrants, a certain Gaspare Russo must be extradited from France to Italy. The party concerned complains about the poor quality of the translation of the extradition documents and therefore requests their nullity.

However, the Court of Cassation states that the French judicial authorities have requested and obtained additional information from Italy in this respect. Furthermore, the Court of Cassation relies on the fact that the French judicial authorities have stated that "if the translations that have been provided are still imperfect, they are sufficient to assess the merits of the extradition request."

For example, the Italian Court of Cassation has also stated in relation to a Romanian arrest decision that a difficult reading of the translated decision in Italian does not affect the certainty as to the content of the decision.

In another French case(58), the one Rosario Schembri who has to be extradited at the request of Germany complains that the translation of the extradition document does not correspond to the original document. The Court of Cassation considers that the Court of Appeal replied sufficiently to the arguments "regarding the quality and accuracy of the translation."

A more recent French cassation judgment(59) deals with extradition proceedings at the request of Russia. Here, the French judicial authorities are doing everything in its way to obtain a qualitative translation. This allows the party concerned to complain about the loss of time caused by the poor translation. The party claims that it has been imprisoned for an unnecessarily long time, which would have violated its right to a family life. On the basis of the chronology of successive acts in the file, the Court of Cassation ruled that the French judicial authorities have not exceeded the reasonable period in its procedural acts.(60)

 

Requests for mutual assistance

In a case before the Dutch Supreme Court, the conclusion briefly refers to a translation quality problem.(61)

It's about a Russian legal aid request to interrogate a person. Certain cases are derived from the facts mentioned in this request. This distraction – according to the conclusion – is done because of the quality of translation with some difficulty and with caution.

I therefore suspect that the intervening judicial actor has been bumped into certain difficulties in reading the translation of the request for legal aid. It seems odd to me that the judicial actor in the criminal case prefers to make an effort himself and even has to be cautious in doing so, rather than seeking certainty with the intervention of an expert..

In the same line of judicial indifferentism – can I call this? - is a case of the Dutch District Court of Amsterdam.(62) This is a request for mutual assistance that was sent from the Netherlands to Switzerland. The soundness and accuracy of the German translation are questioned. The translation was organized by the Dutch judicial authorities.

The court finds several differences between the two texts. These differences are discussed by the defence at the hearing. The finding of a first difference is apparently no reason for the court to check the texts word for word. The court does speak of far-reaching carelessness and negligence. However, according to the court, this has no consequences in relation to the judgment on the other defences. The investigation is continued without a doubt.

 

Between spelling and content

The unfortunate and typical "dt" mistakes in Dutch such as “worden toegevoegt en aangetekent (…) aan het adres van de gedaagde verzonden”(63) do not affect the comprehensibility of the translation.

Much more difficult is the mention of "Case: Echtscheiding (Wegens het fundamenteel schudding) van het huwelijkseenheid – Tegenstrijdige echtscheiding”.(64) This document was translated from Turkish into Dutch in Turkey - most likely by a translator with the Turkish language as the most comfortable language.

In order to ensure the quality of the target text, it is a good idea to have the document translated by a translator who has the target language as his or her own language. The presence of such translators is usually stronger in the receiving State (when the target language corresponds to the official language of the place of service).

 

Google Translate also joins in

A very nice illustration is the judgment of the police court of Dordrecht.(65)

A Russian lorry driver is in the Netherlands for two days, when he is charged with a pub quarrel.. The Russian suspect is monolingual Russian. During police interrogation, he is assisted by an interpreter. However, the appeal for the police judge has only been made in Dutch.

However, the file contains a trace of Google Translate. The sentences "You must appear before the judge on 3 August 2010 for what happened today [sic]. It is also in the documents you just received. You can get out of here." were translated into Russian by two police officers using Google Translate from Dutch.

According to the policemen involved, the Russian suspect made it clear "that he understood". However, the Russian does not appear in court. That is why the police judge asks the interpreter present to translate the Russian Google result back into Dutch.

The interpreter specifies that the Google text is Russian, but that there is a lack of syntax. It says: "You must avoid his 3 August 2010 [in the sense of '(inter)hinder'] the courts for that for what is happening today [i.e.: a part of this verb is there]. These are pieces [in the sense of cheese pieces or possibly pieces of text, at least not 'pieces' in the sense of 'documents'] that you have just taken with you [or: got it]. You can 'get out of here'."

Now that these Russian sentences translated into Dutch are ahead, the police judge asks the interpreter whether an ordinary Russian who reads this could infer that he should be in court on 3 August 2010. The interpreter is right to answer that there is a date in the text and that courts are discussed, but that there is no 'occurrence' in the sense of 'appearance', but 'prevention' in the sense of 'obstruction'. According to the interpreter, an ordinary Russian would rather deduce from the text that the judge was prevented from attending on 3 August 2010.

The suspect did get a document in his hands, but this was written in a language he doesn't understand. The unprofessional Google translation does not show what it is about. There has therefore actually been no qualitative communication. That's why the police judge annuls the appeal.

 

Magic with Google... is that never allowed?

Of course I categorically say 'no!' to a blind use of Google Translate in the legal environment. Since the police officers apparently wanted to play tricks, I regret that they did it in an unsuspecting way.

If I do take refuge in a translation machine, I will definitely follow the following rules for myself: I always use very simple short sentences in the source language, I keep the starting point as pure as possible; So I don't sow potential confusion in advance by using words like ‘voorkomen bij de rechter’ and ‘stukken’ instead of, for example, ‘de rechter ontmoeten’ and ‘documenten’, I ask the translation machine to translate the result back into the source language (and sometimes I also ask the translation machine to translate the result into another language that I know but that is not the source language), I check the result per fragment, which means that I look up the meaning of each individual word result, if possible I have the result read by a target and a source language in order to find out what is understood by it.

 

Loss of German thoroughness

In a judgment of the German Oberlandesgericht Nürnberg, the minimisation of the quality of translation is well expressed.(66)

This is a Turkish-German translation of a document communicated following a recovery procedure. According to the court, the translation does not in principle have to be understandable. It is sufficient to achieve the essential purpose of informing. In other words, the translation must enable the recipient to know the purpose for which the document was issued to him and what he can do to defend himself.

All of this is sufficient, even if the translation is judged as follows: "It is written in a grammatically very idiosyncratic German - to put it mildly - and leaves a lot to be desired in terms of clarity."

The judicial approach to products thus limits the control to a comprehensibility check without the need for a flawless translation. Only when the translation is so difficult to understand that it can no longer be used as a basis for the assessment (...) must a comprehensible translation be provided""(67)

The court also comes into contact with the quality of the translation as the subject of the substantive dispute (e.g. a contractual liability claim about the quality of a translation, or a dispute about the granting of a subsidy for a translation). You guessed it. In the eighth and final episode, you come to court as a translator himself. You end up in the middle of a copyright conflict and there is also a problem with your contractual liability. 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

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

The judge and the quality of the translation. Serial - episode 4: downstream translation quality

The judge and the quality of the translation. Serial - episode 5: the judge and the quality of interpreting performance

The judge and the quality of the translation. Serial - episode 6: the judge and the translation quality of supporting documents

 

(54) Supreme Court of Appeal (South Africa) May 8, 2009, Jacobs v Baumann NO (126/08) [2009] ZASCA 43.

(55) The judges may mean "German of Switzerland" or "German of the Swiss courts" instead of "Swiss German". It would indeed be very surprising to me that the decisions in question would have been written in Swiss German. The Swiss government uses hochdeutsch – especially in written documents.

(56) Court of Cassation (France) 2 September 1997, nr. 97-83256.

(57) Court of Cassation (Italy) October 24, 2013, Penale Sent. Sez. 6, nr. 43802, In 2013: “(…) [L]a cattiva qualità della traduzione in italiano degli atti della AG rumena (...) comporta qualche difficoltà di lettura che, comunque, non impedisce du individuare con certezza il contenuto della decisione anche quanto alla misura della pena.”

(58) Court of Cassation (France) 26 July 1993, nr. 93-82390.

(59) Court of Cassation (France) 5 October 2016, nr. 16-84681.

(60) Not only a problem with the quality of translation, but also translating in itself is associated with the time aspect. For example, the translation problem sits in De Clerck v Belgium (ECTHR 25 September 2007, no. 34316/02, De Clerck v Belgium) actually led to an extension of the procedure. An accused asked the translation of the most important documents of the criminal file into the Armenian or Arabic. In the analysis in law, the translation is not called a barrier in so many words for the reasonable period within which the procedure must be dealt with. In the end, the case will decide the infringement of Article 6.1 of the ECHR. Also in the European Directive for Victims, recital 36 states that the fact that the victim does not speak a widespread language as such should be no reason to decide that interpretation or translation would be an unreasonable extension of criminal proceedings lead. Article 7.8 of that Directive for victims states that interpretation and translation should not lead to an unreasonable extension of criminal proceedings.

(61) Hoge Raad (Nederland), Conclusie 3 september 2013, nrs. 13/01062 en 13/01063.

(62) Rechtbank Amsterdam (Nederland) 22 oktober 2002, nr. 13/129199-97.

(63) See a Turkish-Belgian service (of a Turkish divorce request) of 24 March 2014 which was transferred to a Dutch-speaking woman of Belgian nationality under the Hague Convention in 1965.

(64) See the same Turkish-Belgian service from previous footnote.

(65) Politierechtbank Dordrecht (Nederland) 3 augustus 2010, nr. 11/710702-10. For a comment see I. BAMBUST, “Een Russische Google-roulette”, Filter 2017, week 11, http://www.tijdschrift-filter.nl/webfilter/vrijdag-vertaaldag/2017/week-11-isabelle-bambust.aspx.

(66) Oberlandesgericht Nürnberg (Duitsland) 15 februari 2005, 4 VA 72/05; zie ook S. WILSKE en C. KRAPFL, “Zur Qualität von Übersetzungen bei Zustellung ausländischer gerichtlicher Schriftstücke”, IPRax 2006, nr. 1, 10-13.

(67) Hoge Raad (Nederland), Conclusie 29 maart 2016, nr. 15/05746.

 


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Author: Isabelle Bambust

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Source language: Nederlands (nl)


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