Language and Law – Linguagem e Direito

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I posted about the journal Language and Law / Linguagem e Direito when it first appeared. I forgot to report (from From Words to Deeds blog) that the latest edition is about legal translation. That is, the journal is always about language and law, but not specifically on legal translation. Actually I got part-way through the first article, so this is a rather rushed account.

You can download it here.

The first article, by Karen McAuliffe, ist:
Hidden Translators: the Invisibility of Translators and the Influence of Lawyer-Linguists on the Case Law of the Court of Justice of the European Union. Here’s the abstract:

Abstract. Since the mid-1990s, when Lawrence Venuti published his book The Translator’s Invisibility, there has existed, in the field of literary translation, a debate on the (in)visibility, power and influence of translators on literature and academic theory. This paper shifts that debate to the field of legal translation, focusing on the role of and work done by lawyer-linguists at the Court of Justice of the European Union (ECJ) in terms of their (in)visibility in the process of text production of that court and in the texts themselves. Data presented here demonstrate that, in the ECJ itself, as in other fields, translation tends to be “a largely misunderstood. . . practice” (Venuti, 2008: vii), but that recent shifts in dynamics within that institution are leading to changes in perceptions of translation and more ‘visibility’ for translators in the process of production of that court’s case law, although they remain largely invisible in the context of the texts themselves.
However, the invisibility of translators in this context necessarily leads to a certain amount of power and influence on the texts they produce. Since those texts, in particular judgments of the ECJ, are intended to have force of law and to be applied uniformly throughout the 28 EU member states, that power and influence is not insignificant. This paper analyses some examples of such ‘influence’ on ECJ case law, and thus on EU law more generally. If we are to develop a full and nuanced understanding of the case law of the ECJ, the power of translators should not be ignored.

I was interested in this article, more in what I found out about the ECJ translators than in Venuti (I have got Venuti on my shelf but he has remained there). I had forgotten that French is the main language of the court.

One of the biggest difficulties, cited by almost every lawyer-linguist interviewed, is caused by the fact that those drafting the judgments are working in French, a language which for most is not their mother tongue

The translators tend to be lawyers, and above all lawyers without translation training. The translation they do has the force of law if it is judgments declared to be ‘authentic’, and this distinguishes their work from a lot of other legal translation.

Very few (only three of the 56 interviewed) had any experience of translation prior to working at the Court of Justice. Thus, the translating aspect of the role of lawyer-linguist appears to be one largely learned ‘on the job’. While that does, of course, have benets in terms of developing institutional translation norms and maintaining the consistency of the house style, it also runs the risk that translation ‘guidelines’ are interpreted as hard and fast rules of (ECJ) translation:
“I had no experience of translation prior to coming [to the ECJ], but that makes it easier to follow the rules of translation here, which are quite strict”. (lawyerlinguist)

…

With regard to the role of translation: a case can be brought before the ECJ in any one of the 24 official languages of the European Union, and each case has an official ‘language of procedure’19. Unlike EU legislation, which is ‘authentic’ in every language version in which it exists, with regard to ECJ judgments only the version of the judgment in the language of procedure is considered to be ‘authentic’. For practical purposes, the ECJ works in a single language: French. When an application is lodged before the Court (in any of the 24 official EU languages), all of the relevant documents are translated into French.

…

Interestingly, not a single one of the 56 lawyer-linguists interviewed for this paper was content to describe themselves as ‘translators’. Those who did initially refer to themselves as translators immediately qualified their statement by pointing out that as translators of judicial texts, with law degrees, they are “much more than simply translators” and that having a legal qualification “set [them] apart from ‘mere’ translators”.

I haven’t actually finished reading this article yet. But I found it particularly interesting as I was once part of an initiative to get more freelances working for the court. I was sent a huge pack of really interesting information and previous translations. Although I was using the internet and translation memory myself, it appeared that the lawyer linguists had a database of prior texts and EEC/EU documents which was not made available to me, so I spent an awful lot of time searching for and pasting existing English versions of the legislation and case law quoted. I also put a lot of effort into adapting my first translations, which were seen as a paid test, to the style of the materials sent me, and yet precisely that vocabulary was found lacking and was corrected minutely in red ink. I was told by another translator that that is what the court lawyer linguists are like: they give you a hard time until they get used to you. However, the initiative came to an end when the lawyer linguist who was promoting it died unexpectedly in his late forties. It really was not much fun translating because the work was three-quarters searching to find out what others had done. But if the lawyer linguists have not been trained in translation or had practice in it before they are employed, they will have no experience of revising other translators’ work. However, this is just my guess based on very little evidence.

Another article I have skimmed is by Vigier Moreno, F. J. – Teaching the Use of ad hoc Corpora. It’s about the problems of creating corpora for students learning to translate legal texts into their second language, so it’s close to my own experience of teaching legal translation. It’s a down-to-earth account of the subject. It has attached text examples and a useful bibliography.

Various links, including IALS and statute translations

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1. The Institute of Advanced Legal Studies in Russell Square has occasional meetings with talks by lawyers and others. The meetings are free but you need to register – you can join their mailing list for information. Although the target audience are lawyers rather than translators, they can be very useful.

There has just been a meeting on Why is legal language so complicated? and on the From Words to Deeds blog there is a guest post by Danaë Hosek-Ugolini with a report on the event, a very useful warning as to the mental stamina you need to attend such an event. I must say I would not have expected so much on the problems of EU legislation, which are a field of their own because of the language problems and are already fairly familiar to me. I do like the term ‘the EU legislative footprint’, though!

I am curious about the work of Dr James Hadley, which (understandably) is not reported in detail :

Dr James Hadley, from the School of Advanced Study, presented the early stages of his research on equivalence and legal translation. He sought to demonstrate that if relationships between people are reproduced in different countries, equivalence could be reached in legal translation despite the differences in legal systems and concepts.

His research profile reveals little in this connection.

2. Buying essays online. Some time ago (thanks, Barbara!) the Guardian published an article with the heading An essay I bought online was so bad I want a refund – but the firm won’t pay up . The article is curiously illustrated with a full-bottomed wig shown from the back. I can’t say what exam you have to cheat in to get a full-bottomed wig.

The Guardian was, unsurprisingly, rather po-faced about this.

We phoned the website (apparently not the only one reached by the phone number) and a spokesman said he had no record of any account in your name. He also insisted the essay-writing done for students like you was “within the law”. Universities are having to invest in internet plagiarism filters to detect fake work such as this. Students, avoid these websites – you will not only lose money but could also jeopardise your academic career. You have been warned.

Plagiarism filters have been around for ages.

I wonder how this works in Germany, where so many courses are now run and tested in (global) English, which seems to be a case of the blind leading the blind. Could one get better English by using an English online service, and if so would one be marked down for using good English which was not recognized as such?

It seems that cheating may be on the increase since the increase in numbers of universities in the UK.

3. English translations of German statutes.

I’m not saying anything new when I list the ways of finding translations online, but here is a refresher (and I don’t mean the refresher you pay a barrister for a further day’s work in court).

Firstly, if it’s ‘officially’ translated you can find it under ‘Translations’ on the left-hand side on the online site run by juris (juris is a proper name and does not get translated – it confuses some non-legal translators when they first encounter it in a text, but you have to realize that many Germans love to use small letters in proper names).

I believe that to be ‘official’ a translation has to be vetted by a qualified German lawyer. Unfortunately not all these translations are wonderful, though many are.

Secondly, there is the Centre for German Legal Information site which collects translations from all over the Web. It is a fantastic collection and you can click through to search for a statute by its German name, which clearly may be what you have.

However, the cgerli site does not keep outdated statutes, even though you might still have to translate them. It also never has everything. You can inform it of dead links and new links and you should do that.

There is also the German Law Archive site. originally at Oxford University, run by Gerhard Dannemann, which is in the process of being upgraded. There are a lot of statute links there.

If this all fails, translations can often be found elsewhere by any internet search. They all have to be taken with a pinch of salt. But they can be very useful.

Here’s an example of a curiosity I found recently when I was translating something about assembly rights. The police in Frankfurt am Main have a page all about assembly rights. It even contains a translation of the German assembly Act, albeit into Denglish:

Dictate of peacefulness

Regarding the Constitution, every assembly deserves protection as long as it is peaceful (means nonviolent), and carried out without weapons. In this connection you have to bear in mind that an assembly in its totality (means majority) has to be violent to be called “non-peaceful”.

As long as it’s comprehensible, this can be useful for clients.

The language of the court is German – continued

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The language of the court in Germany is German, but also Sorbian.

There is in fact an EU directive which guarantees the right to interpretation and translation in criminal proceedings, when implemented.

Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings

Section 187 of the Courts Constitution Act, as cited in my last-but-one post, implements this requirement, but with a loophole which can save the courts ordering a translation.

To quote the translation of the section once more:

An oral translation of the documents or an oral summary of the content of the documents may be substituted for a written translation if the rights of the accused under the law of criminal procedure are thereby safeguarded. As a rule, this can be assumed if the accused has defence counsel.

A colleague, Corinna Schlüter-Ellner, explained the situation in more detail. There is a provision in the Code of Criminal Procedure, section 37 (3) (see below) which makes it necessary to serve an indictment with a translation if the defendant does not speak German. If this is not done, time does not begin to run, because it would be unfair to the other parties. In the case of a Strafbefehl, however, there is only one party, so the court does not risk the service being ineffective without a translation – the defendant has to get a translation if one is needed.

Strafprozeßordnung (StPO)
§ 37 Zustellungsverfahren
(1) Für das Verfahren bei Zustellungen gelten die Vorschriften der Zivilprozeßordnung entsprechend.
(2) Wird die für einen Beteiligten bestimmte Zustellung an mehrere Empfangsberechtigte bewirkt, so richtet sich die Berechnung einer Frist nach der zuletzt bewirkten Zustellung.
(3) Ist einem Prozessbeteiligten gemäß § 187 Absatz 1 und 2 des Gerichtsverfassungsgesetzes eine Übersetzung des Urteils zur Verfügung zu stellen, so ist das Urteil zusammen mit der Übersetzung zuzustellen. Die Zustellung an die übrigen Prozessbeteiligten erfolgt in diesen Fällen gleichzeitig mit der Zustellung nach Satz 1.

Code of Criminal Procedure
Original translation by Brian Duffett and Monika Ebinger
Translation updated by Kathleen Müller-Rostin and Iyamide Mahdi
Coordinating Editor of the Translation Mrs. Mahdi

Section 37
[Procedure Concerning Service]
(1) The provisions of the Code of Civil Procedure shall apply mutatis mutandis to the procedure for service.
(2) Where documents addressed to a participant are served on several persons authorized to receive them, time limits shall be calculated from the date on which the last person was served.
(3) If a translation of the judgment is to be made available to a participant in the proceedings pursuant to section 187 subsections (1) and (2) of the Courts Constitution Act, the judgment shall be served together with the translation. In such cases service on the other participants in the proceedings shall be effected at the same time as service pursuant to the first sentence.

And here’s a nice article (in German) with pictures of the coordinating translator Mrs Mahdi, born in Glasgow.

Comments: we don’t use mutatis mutandis in legislation in the UK nowadays, as a search on the statute database shows (99 results, using Advanced Search), but with the necessary modifications (over 200 results). It usually indicates a translation done by a German lawyer!
addressed to a participant: addressed to one party (participant)?

The language of the court is German – Strafbefehle

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I wrote something about Strafbefehle a year ago.

A Strafbefehl (order of summary punishment) is a charge finding that you have committed a minor offence and imposing a fine. If you disagree, you can object and elevate the matter to criminal legal proceedings. It’s a bit like a parking ticket.

When I was living in Germany and translating for the courts as a certified translator, I originally used to get Strafbefehle to translate, and I used to teach students to translate them into English, but the requests became fewer and fewer. There is a theory that German judges know that the language of the courts is German and therefore do not order translations. But I suspect the general decision to cut down on costs occurs at a higher level.

But it does seem wrong for a foreigner, who may not speak German, to get a German document through the post without any way of understanding it supplied.

There’s now been a decision by Freiburg Regional Court (Landgericht) that a Strafbefehl is not effectively served to a non-speaker of German until the translation is served. (There was a similar decision by the Stuttgart Regional Court in 2014).

Sources from the blog of Detlef Burhoff, Rechtsanwalt and former judge at the Higher Regional Court who often deals with translation questions (Nochmals: Strafbefehl – nur mit Übersetzung ist Zustellung wirksam….) – thanks also to Igor Plotkin, a fellow-translator, for frequently mentioning the issue.

The story in Freiburg was that a Strafbefehl was issued against a Georgian speaker on 13.11.2014, but it was not until 24.08.2015 that a translation into Georgian was provided to the defendant, who was in prison (not sure if there was a connection here). Consequently the defendant’s objection filed on 28.08.2015 was within the time limits, contrary to the view of the lower court. The defendant had been informed of his rights by the police by means of a printout in the Georgian language (I wonder if their Georgian is as good as their English? I know Georgian is a tough language so probably they had someone good to write it).

The basis of all this is section 187 of the Gerichtsverfassungsgesetz (‘official’ translation: Courts Constitution Act).

§ 187
(1)…
(2) Erforderlich zur Ausübung der strafprozessualen Rechte des Beschuldigten, der der deutschen Sprache nicht mächtig ist, ist in der Regel die schriftliche Übersetzung von freiheitsentziehenden Anordnungen sowie von Anklageschriften, Strafbefehlen und nicht rechtskräftigen Urteilen. Eine auszugsweise schriftliche Übersetzung ist ausreichend, wenn hierdurch die strafprozessualen Rechte des Beschuldigten gewahrt werden. Die schriftliche Übersetzung ist dem Beschuldigten unverzüglich zur Verfügung zu stellen. An die Stelle der schriftlichen Übersetzung kann eine mündliche Übersetzung der Unterlagen oder eine mündliche Zusammenfassung des Inhalts der Unterlagen treten, wenn hierdurch die strafprozessualen Rechte des Beschuldigten gewahrt werden. Dies ist in der Regel dann anzunehmen, wenn der Beschuldigte einen Verteidiger hat.

Translation provided by Kathleen Müller-Rostin.

Section 187

(1) …
(2) As a rule, a written translation of custodial orders as well as of bills of indictment, penal orders and non-binding judgments shall be necessary for the exercise of the rights under the law of criminal procedure of an accused who does not have a command of the German language. An excerpted written translation shall be sufficient if the rights of the accused under the law of criminal procedure are thereby safeguarded. The written translation shall be made available to the accused without delay. An oral translation of the documents or an oral summary of the content of the documents may be substituted for a written translation if the rights of the accused under the law of criminal procedure are thereby safeguarded. As a rule, this can be assumed if the accused has defence counsel.

Comments: nicht rechtskräftige Urteile: non-binding judgments is odd – I would say judgments that are not (yet) final and non-appealable.

who does not have a command of the German language – who does not speak German

eine auszugsweise schriftliche Überetzung – difficult – excerpted sounds to me as if it was the whole thing, taken from a different source – a written translation of parts of the document?
There is repeated use of the rights of the accused under the law of criminal procedure – I feel like writing the accused’s criminal-procedure rights but maybe that is too compressed.

Ingeborg-Bachmann-Preis won by Sharon Dodua Atoo

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The bizarre Ingeborg Bachmann prize for literature has been won by Sharon Dodua Atoo, a black Germanist, mother and activist who has lived in Berlin for 24 years – see Philip Oltermann article in the Guardian. A couple of years ago the texts of the candidates were translated into English, but not this time. The reading, discussion and text, and a video about the author, can be found on the Klagenfurt prize website. She normally writes in English.
Here is more from Sharon Dodua Atoo’s website.