Category: Legal Translation

There can be dire consequences from not translating legal content.

The Siemens bribery trial was characterised by many this past summer as a trial ‘lost in translation’. For those who don’t remember or know the topic, this case is about public contract No. 8002 which the German company Siemens secured and signed in 1997 with the Hellenic Telecommunications Organisation (OTE) which was then publicly owned in order to digitise its network. The investigation of the case was launched by Greek judicial authorities about a decade ago and, as a result, 64 suspects were brought to trial. Amongst them were 13 German nationals, executives of the German company, as well as a French-Swiss banker. According to the indictment, the defendants allegedly bribed Greek politicians and public officials to secure the above mentioned public contract.

On the 12th of July the three-member Court of Appeals in Athens suspended proceedings in the Siemens scandal case for an indefinite period, because the subpoena and the bill of indictment hadn’t been translated into the defendants’ native language. The Court accepted the plea filed by the non-Greek defendants and suspended proceedings until the translation could be completed, even though this suspension could lead to the crimes being prescribed under the statute of limitations. Of course, that is the only decision the Court could have reached, since the right to interpretation and translation for those who do not speak or understand the language of the proceedings is enshrined in Article 6 of the ECHR, as interpreted in the case-law of the European Court of Human Rights and is further specified by the Directive 2010/64/EU of the European Parliament and of the Council. According to the Directive the Member States should ensure that there is free and adequate linguistic assistance, allowing suspected or accused persons who do not speak or understand the language of the criminal proceedings fully to exercise their right of defence and safeguarding the fairness of the proceedings. Article 3 of the Directive also makes it quite clear that, “Safeguarding the fairness of the proceedings requires that essential documents, or at least the relevant passages of such documents, be translated for the benefit of suspected or accused persons in accordance with this Directive.  Certain documents should always be considered essential for that purpose and should therefore be translated, such as any decision depriving a person of his liberty, any charge or indictment, and any judgment.”

So quite rightly not translating legal content essential for the case was characterised as an even bigger scandal than the Siemens scandal.  The Translation Service of the Ministry of Foreign Affairs, to which the translation of those documents was assigned, initially stated that all the documents sent to it by the Prosecution Service at the Court of Appeals were translated in time, while the Prosecution Service denied that that was so. After a number of further denials of each side’s claims by the other side, as well as disciplinary actions against State Prosecutors, the Translation Service of the Ministry of Foreign Affairs delivered the translation of the bill of indictment in the German language on the 15th of September.

But what can we learn from this case about the consequences of not translating legal content?

  1. What happened confirms that legal translation is still considered as an unnecessary and trivial service in Greece, even by some legal professionals themselves. It is worth noting that in the preparatory stage of the proceedings a State Prosecutor didn’t grant the request for the translation of the bill of indictment made by the non-Greek nationals, on the grounds that the defendants had already provided a statement of defence and had been apprised of the charge sheet, therefore the translation of the bill of indictment was not necessary. The content of legal documents though is what determines the outcome of a court case. In criminal matters, by issuing a bill of indictment the Judicial Council is in effect deciding to bring the defendant to trial, if it finds that there is sufficient evidence to support the charges against him. The content of that document will shape the defendant’s defence and will determine a number of other rights that he has under Greek law, such as =his right to appeal the decision of the Judicial Council. Let’s hope that the Siemens story doesn’t need to be repeated, before we can realise how important the translation of legal documents is, both in and out of the courtroom, and what consequences not translating legal content can have.
  1. The services of legal translators should be engaged from the outset in legal cases where it is anticipated that there will be a need for legal content to be translated, in order for delays of this kind to be avoided. Legal translators are not only valuable, but also necessary aides in cases where there are foreign elements.  So choose your translators from the outset and keep them updated about any developments or changes in your case. How much faster would the Siemens case have progressed from one stage to the next, if the services of legal translators had been engaged from the beginning and if the translation of every essential legal document had been secured right after it was drafted?
  1. Assign the translation of your legal documents to specialised translators, who know the legal system of the country in which the documents are being drafted, as well as the legal system of the country into whose language they are translating. Let’s not forget that the essential aim of the translation in the Siemens case was to provide the foreign defendants with the opportunity to exercise their right to defend themselves. No matter how good the German language skills of the translators are, if they are not familiar with the legal system of Greece, they won’t be able to grasp the meaning of the terms found in legal documents. No matter how well they know the Greek legal system, if they are not familiar with German legal terminology as well, they won’t be able to choose the most suitable term, in order to fulfil the aim of the translation for its final recipient.

Besides the Siemens case, there are also other cases where not translating legal content had adverse consequences and often incurred extra costs. A recent excellent example we have already highlighted was the WhatsApp

Sources: http://www.cnn.gr/news/ellada/story/42369/areios-pagos-peitharxiki-dioxi-kata-trion-eisaggeleon-gia-tin-ypothesi-siemens

 

By Eva Angelopoulou

Eva is an English / German to Greek legal translator. She holds a Master’s in Law and a Postgraduate Degree in Specialised Translation. She worked as a legal practitioner in Greece for 7 years and has been bringing her expertise and knowledge to the translation industry for the last 3 years. She is an SDL-certified translator and is obsessed with languages. Besides working with language, she also really enjoys travelling. She has lived in Greece, Germany and Belgium and is now based in Ireland.

It is not just legal language that can be difficult to comprehend for the layman and legal translator alike. Often, it is the very content of legal texts that is strange. And the UK has no shortage of bizarre British laws if authors and journalists are to be believed.

From time to time books are published about England’s weird and wonderful laws. Nigel Crawthorne’s The Strange Laws of Old England (2004) is a hilarious case in point. And today the Guardian published a short story about a study commissioned by an insurance company that looks at whether obscure legislation is really needed. It offers a list of the 10 most bizarre British laws “to highlight the complexity and antiquity of statutes that remain in force”. The study has been prepared by a Ph.D. student at the University of Cambridge and -as is normally the case with lists or compilations of this type- contains some truly odd stuff.

Here are some short excerpts from the article:

“Section 12 of the 1872 Licensing Act declares that “every person found drunk … on any licensed premises, shall be liable to a penalty”. It was enacted to reduce consumption of alcohol and to encourage sobriety among the poor. It remains in force within England and Wales as a rule prohibiting public drunkenness.

The Metropolitan Police Act 1839 makes it an offence for any person to carry any cask, tub, hoop, wheels, ladders, planks or poles on a footway “except for the purpose of loading or unloading any cart or carriage”. It was passed to ensure people could move freely along public thoroughfares without obstruction.

MPs are prohibited from wearing armour in parliament by the Bearing of Armour Act which dates back to 1313. It was an attempt by Edward II to prevent nobles from threatening to use force when parliament was called. The Earl of Lancaster, it was reported, still attended parliament carrying weapons until at least 1319.

… a different part of the 1872 Licensing Act … outlaws being drunk in charge of cattle; the 1986 Salmon Act – intended to ban poaching – makes it illegal to handle salmon in suspicious circumstances; a 19th-century law bans the beating of carpets after 8am on streets in London.”

To read the full article about these bizarre British laws, click here.

 

 

Over recent years there has been increasing interest in ‘professionalizing’ legal translation and court interpreting, with a series of academic papers on the subject, many of which are of interest to legal translators and court interpreters. Much of this has been as a direct result of  Directive 2010/64/EU on the right to translation and interpretation in criminal proceedings, which has stimulated debate across Europe on the need for better court interpreters and highlighted the importance of getting legal translation right. Against this background, this November Cambridge Scholars Publishing will release a book on legal translation entitled “Towards the Professionalization of Legal Translators & Court Interpreters in the EU”, edited by Martina Bajčić and Katja Dobrić Basaneže, both of whom teach at the Faculty of Law in Rijeka, Croatia.

The description of the forthcoming book provided by the publisher is as follows:

“The profession of legal translators and interpreters has been unjustly neglected despite its relevant role in international and multilingual legal settings. In order to bridge this gap, this volume brings together contributions from some of the leading experts in the field, including not only scholars, but also internationally acclaimed professional legal translators and interpreters. Coming from different EU Member States, the contributors address the status quo of the profession of legal translators and interpreters within their respective states, while proposing ways to raise the standards of the profession. In particular, effort is made to make the profession more uniform Union-wide in terms of training and accreditation of legal translators and interpreters and quality of their services. Topics covered include ISO standards for interpreting services in judicial settings, EULITA, Directive 2010/64/EU on the right to translation and interpretation in criminal proceedings, legal translation, translation of multilingual EU legislation, document translation, whispered interpreting, and the need to introduce uniform programmes for the education and training of legal translators and interpreters. Offering a mix of theory and practice, the book will appeal to scholars, practitioners and students with a special interest in legal translation and interpretation in the EU.”

Certainly sounds like it will make an interesting read for legal translators and court interpreters, though the book is set to retail at £ 61.99, which may mean it has a small audience.

In one of our previous posts we talked about the cultural inconsistencies in legal translation that often come up and specifically about inconsistencies in the realia. In this post, we are going to talk about the ways in which the legal translator can tackle these inconsistencies.

We gave an example using the term “fiduciary” and its Greek translation, but we concluded that there isn’t an equivalent term that has the exact same meaning and an identical content in the Greek legal system. What needs to be stressed here is the fact that the legal translator is able to reach this conclusion only if he is familiar with the law of both the legal systems involved: the legal system from which the source text comes and the legal system from which the target text comes. Familiarity with the first will enable the translator to have a clear grasp of the meaning, the content and the function of the concept, the term or the realia that he needs to translate. Familiarity with the second will enable him to look for the respective concept, term or realia in the target language.

As in the example that we used in our previous post, in the case where there isn’t an equivalent concept, term or realia, the translator should embrace the interpretative approach, aiming at the same time to ensure that the final recipient of the text will be able to understand it. The target text will be used in the context of a different legal system by people familiar only with their own legal system. The translator’s aim should be to clearly present the foreign legal system, without altering the structure and the legal effect of the text and of course without adding to or subtracting from the amount of information that the final recipient will draw from his translated text.

Hard? Yes. Impossible? No.

In any case, the legal translator should contact his client and advise him about the implications that arise from the inconsistencies of the two cultures involved, as well as about the ways in which he is planning to tackle those cultural inconsistencies in legal translation.

In our example I chose to translate the term “fiduciary” as “διαχειριστής αλλότριας περιουσίας” (administrator of another’s affairs), drawing my inspiration from the concept of “management of another’s affairs/voluntary agency” (διοίκηση αλλοτρίων) in Article 730 of the Hellenic Civil Code. The reason that the English term couldn’t have been translated as “διοικητής αλλοτρίων” (manager of another’s affairs/voluntary agent) is because there is a crucial difference between those two concepts: the agent mentioned in Article 730 of the Greek Civil Code manages the affairs of another person, but acts without authority, while the fiduciary acts under a mandate.

Just like any translator, the legal translator should also cultivate his multiculturalism, as this is a necessary professional tool. Since any form of cross-language communication is also cross-cultural communication (Vlachopoulos, p. 36) and every legal system is created within a specific culture, it is more than necessary for the legal translator to be aware of and be exposed to his own, as well as the foreign culture. This is the very heart of the role of the professional legal translator, as he is the person responsible for transferring the message and the content of the legal text from one culture to the other and finding solutions to the legal inconsistencies in his legal translation.

According to Vlachopoulos, who in turn refers to the research of Maddux & Galinsky in the field of business administration (Vlachopoulos, p. 37), simply knowing the language, as a sum of finite linguistic units and syntactical mechanisms, without being aware of the cultural elements reflected in the usage of a specific word or in the usage of a specific syntactical mechanism and without being conscious of the significance these elements bear in the foreign culture, dooms every effort of cross-cultural communication to failure. In other words, lack of awareness of the cultural parameters defeats creative understanding and leads to a linear and uncritical transfer of structures of the source language to the target language. It leads, above all, to an uncritical transfer of the thought structures of the source culture to the target culture. Vlachopoulos then he goes on to say that it is necessary for the translator to be familiar with the cultures with which he is working, so that, firstly, he can possess the knowledge and the experience that will support his understanding of the target culture and secondly, to be able to assess the acceptance criteria and in this way be able to converge to the highest possible extent with the communication standards that he is required to respect.

In the context of cross-cultural communication, therefore, the skilled legal translator should possess an awareness of the legal culture of both countries and keep himself constantly informed about new legislation, new case-law and the changes taking place in his own, as well as in the foreign legal system.

 

By Eva Angelopoulou

Translation of legal documents and complicated legal language

On 29 June, I attended an interesting afternoon about the drafting of legislation and some of the difficulties it poses, with some discussion of the translation of legal documents thrown in too and a lot of interesting input from the audience from legal interpreters who often have to deal with the complexities of legal language and explain them to the ordinary man.

6 speakers presented different issues relating to law and language (and raised the topic of legal translation). Brief summaries are set out below that highlight the key issues of interest in the translation of legal documents.

Hayley Rogers, a UK legislative drafter, outlined the UK legislative drafting process and some of the difficulties it presents. She argued that legislative drafters tend to see themselves as ‘architects’ but often the practicalities of the drafting process mean they are actually more akin to ‘cowboy builders’ creating chaotic-looking legislation because of a series of constraints (primarily political and policy-related) imposed on the drafters.  So instead of striving for perfection they often just have to cope with the world ‘as it is’. This may resonate with legal translators who face demands for perfection from clients, but are constrained by real world factors like short delivery deadlines.

Prof. Maria De Benedetto spoke about how the language of the law is often incomprehensible to the layman, how it is a language of the elite, and outlined some of the techniques those who speak the language of the law utilise to maintain their elite status, such as reliance on Latin when ordinary people are unlikely to comprehend it.

James Hadley is new to legal translation as a discipline but comes from a strong background in translation theory. He is currently involved in a project being run by the Institute of Modern Languages Research (IMLR) in partnership with the Institute of Advanced Legal Studies (IALS) exploring some of these key questions that arise when laws and legal documents need to be translated from one language to another. His presentation looked at equivalence and legal translation and his working hypothesis is that equivalence (defined as “the notion that a translated text produces the same effect for its readers as the source text did for its own” may be demonstrable in legal language.

He posited that those who are capable of doing legal translations properly will need to have a very specific skill set, represented by the following Venn diagram:

The skill set need for the translation of legal documents

The skill set need for the translation of legal documents

 

Nothing original here, but it is always good that key issues in the discipline are presented to new audiences and that more people become educated about legal translation and what it entails, who can do it, and so on.

It will be interesting to hear more about his research as it becomes available.  According to the School of Advanced Studies website, the larger project that Hadley’s research relates to will look at who legal translators should be, how to assess the quality of their work, and what issues reading a legal document may raise from a language / law viewpoint.  Legal translation is taking place all the time, and may entail the translation of laws that have the same effect as the original language version in bi- and multi-lingual jurisdictions. Outside of an institutional context, that sort of legal translation is a rarity. Much more common is the translation of legal documents for other reasons: international commerce, the purchase of land, employees working in other countries needing to know their rights. Legal language is complicated though; often dubbed negatively as ‘legalese’ which is difficult to understand even for native speakers of the source language. To quote the School’s announcement about the upcoming project, “That being the case, and legal traditions around the world being so variable, it is easy to see how translating legal documents from one language to another would be no mean feat. Even if you do happen to speak both languages, you also need to understand, and be able to reproduce the respective forms of legalese with an extremely high degree of technical accuracy.”

William Robinson, Associate Research Fellow at IALS, spoke about the complexities of the EU drafting process, highlighting the important role of translators in the overall process.

Stephen Neale, Professor of Philosophy and Linguistics, examined the question of ‘interpreting’ the meaning of words and highlighted the importance of context in coming up with good and bad faith interpretations of what legal words actually mean. He pointed out that judges, often considered to be the final arbiters of what the law ‘means’ often don’t have a strong grasp of linguistics, and gave some examples of ‘weird’ outcomes in cases where the judges appeared to go against the ‘common sense’ meaning of the words. His assertion is that there is a set of heuristics we use all the time to figure out the common sense meaning intended by others and that intrinsically we all know when an ‘interpretation’ is in bad faith.

Jerome Tessuto provided a data-driven analysis of how writing styles and language conventions from one country can influence those of another, by looking at the impact of English arbitration legislation on Singapore’s arbitration legislation.  He pointed out that while deontic modality, and the use of shall in particular, is on the decline in English legislation because of the impact of the Plain Language movement, his data revealed that it was still important in Singaporean legislation, though an audience member who was a legislative drafter from Singapore pointed out that recently that has begun to change.

 

 

“Legal translation has been regarded as the ‘ultimate linguistic challenge’, ‘combining the inventiveness of literary translation with the terminological precision of technical translation’ … It is marked by a strong conflict between accuracy and naturalness. …  This conflict is widespread in all types of translation; however it is escalated in legal translation. Accuracy is of primary importance in legal translation and takes precedence over stylistic considerations.”

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Lucja Biel, Lost in the Eurofog: The textual fit of translated law, Peter Lang Editions (2014), p.  49

Translated law, legal translation and textual fit 

“… legal terms  tend to be incongruous, the degree of incongruity depending on the affinity between the systems and languages… The differences are greater between the common law system and the civil law system … than between two civil law systems … Some areas of law are more prone to globalisation and a harmonisation of concepts, for example, business law tenders to show higher affinity between legal systems than criminal law, subject to the culture-specific axiological and moral assessment of what is socially unacceptable and punishable. The incongruity is one of the major challenges in legal translation: it is found not only at the level of terms but more importantly at the level of concept systems, which affects how conceptual networks and conceptual fields are organised…. In legal translation it is unavoidable for recipients to access the unfamiliar (source language concepts and knowledge structures) through the familiar (target source language concepts and knowledge structures) by establishing epistemic correspondence between incongruous structures.”

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Lucja Biel, Lost in the Eurofog: The textual fit of translated law, Peter Lang Editions (2014), p.  50

 

 

 

“Experts Talk About Legal Translation” is a series of interesting quotes from some of the world’s leading academics and writers from the field of legal translation. The series highlights some of the complexities and difficulties involved in legal translation and seeks to raise awareness among clients, translators and the general public about legal translation which is proving to be one of the fast-growing, most interesting segments of the translation market.

 

“Because of the system-bound nature of legal terms, full equivalence between terms from two legal systems is rare: translators most often deal with partial or zero equivalence / conceptual voids. Kjaer argues that ‘non-equivalence is the rule rather than the exception’ .. When searching for an equivalent, the translator should first decide whether it is possible to use a functional equivalent, also known as a dynamic or natural equivalent, that is a term which exists in the target legal system. This technique is regarded as the ideal solution …; however, Sarvcevic emphasises that its acceptability depends on the degree of incongruity between source language and target language concepts … functional equivalents are possible when incongruity is relatively small …”

Lucja Biel, Lost in the Eurofog: The textual fit of translated law, Peter Lang Editions (2014), p. 42

 

The Athens Bar Association will host an event about “Legal translation: problems and prospects” from 6 to 8 pm on Tuesday 7 June 2016 at its premises. Speakers are Professor P. Krimpas who will talk about the translation of legal texts in Greece and P. Alevantis, head of the Athens Office of the Commission’s DG Translation who will talk about the Greek Terminology Network.

 

Source: http://goo.gl/mk2PaI

In the world of legal translation, getting the translation right is vital. Poor quality translation can be costly for the parties involved as a recent case from India indicates, when the court imposed a fine after one of the parties filed a text packed with poor grammar, incorrect sentence construction, wrong choices of words and inappropriate punctuation.

NDTV reported a few weeks ago that the Indian Supreme Court imposed a fine for a poor quality translation of a judicial order from a lower court on the grounds that it was ungrammatical and difficult to comprehend. The report indicates that the judges had to spend considerable time attempting to figure out the intended meaning of the court order because of the grammatical errors in the translation. It appears that the lawyer in the case failed to check over this specific legal translation before submitting it to the court and was reprimanded by the court for failing to do so.

The moral of the story: commission people skilled in legal translation to do the translation for you, and ensure your documentation is proofread by someone else, or at the very least reviewed by you before using it.

 

 


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