Follow-up to ‘Strafbefehle must be translated’

In a recent post Strafbefehle must be translated I linked to the CJEU case on the subject. At that time, only the Advocate General’s opinion was available in English, but now I’ve called up a bilingual version of the judgment.

I’m treating the German as the original version and only commenting on any elements which may be German rather than EU.

Thus the term Strafbefehl is now penalty order, not penal order
Unfallflucht: failure to stop at the scene of an accident

German law: two sections of the Gerichtsverfassungsgesetz are transllated. There is an ‘official’ translation online in Germany, by Kathleen Müller-Rostin, but this was not used.

CJEU DE
§ 187 des Gerichtsverfassungsgesetzes (GVG) sieht in seinem Abs. 1 vor, dass für einen Beschuldigten, der der deutschen Sprache nicht mächtig ist, ein Dolmetscher oder Übersetzer heranzuziehen ist, soweit dies zur Ausübung seiner strafprozessualen Rechte erforderlich ist.

Official translation (Courts Constitution Act)
The court shall call in an interpreter or a translator for an accused or convicted person who does not have a command of the German language or is hearing impaired or speech impaired, insofar as this is necessary for the exercise of his rights under the law of criminal procedure. The court shall advise the accused in a language he understands that he may to this extent demand that an interpreter or a translator be called in for the entire criminal proceedings free of charge.

CJEU EN
Paragraph 187(1) of the Gerichtsverfassungsgesetz (Law on the Judicial System, ‘the GVG’) provides that, for an accused who does not have a command of the German language, recourse must be had to an interpreter or translator in so far as that is necessary for the exercise of his rights of defence in criminal proceedings.

I note: Law of the Judicial System instead of Courts Constitution Act – I remember that ‘constitution’ though correct confuses some non-native speakers, who think it refers to constitutional law, so there’s an argument for avoiding it. I like judicial system. Judicature Act is sometimes used, and I think that confuses people too. There are so many words beginning with ‘ju-‘ in legal English and they aren’t always understood. (Is that true of ‘judicial’ too?) I would stick to Act rather than Law.
Call in or have recourse to an interpreter – the latter is a bit pompous. ‘That is necessary’ seems a bit less idiomatic than ‘this is necessary’. I don’t know why ‘rights of defence’ is used rather than ‘rights under the law of criminal procedure’.
Section is really widely used, rather than paragraph, in English translation.

CJEU DE
Des Weiteren bestimmt § 187 GVG in seinem Abs. 2, dass zur Ausübung der strafprozessualen Rechte eines Beschuldigten, der der deutschen Sprache nicht mächtig ist, in der Regel die schriftliche Übersetzung von freiheitsentziehenden Anordnungen sowie von Anklageschriften, Strafbefehlen und nicht rechtskräftigen Urteilen erforderlich ist.

Official translation
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.

CJEU EN
In addition, Paragraph 187(2) of the GVG provides that, as a rule, a written translation of custodial orders as well as of indictments, penalty orders and non-final judgments is necessary for the exercise of the rights of defence of an accused who does not have a command of the German language.

Not much to say here, but one point that is sometimes overlooked and is handled correctly in boht cases here: if this is a summary of the law rather than a quotation, shall is out of place. It is not used to summarize law or contract. It is used within a statute or a contract with intended binding effect, but it is not customary to us it in reporting texts.

The German law continues with the Code of Criminal Procedure. Official translation: Original translation by Brian Duffett and Monika Ebinger
Translation updated by Kathleen Müller-Rostin and Iyamide Mahdi. However, I don’t have any useful comments on this, but here it is since I’ve collated it:

CJEU DE
Nach § 37 Abs. 3 der Strafprozessordnung (StPO) ist bei einem der deutschen Sprache nicht mächtigen Angeklagten nur das „Urteil“ zusammen mit einer Übersetzung in eine dem Angeklagten verständliche Sprache zuzustellen.

Official translation
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.

CJEU EN
Paragraph 37(3) of the Strafprozessordnung (Code of Criminal Procedure, ‘the StPO’) provides that, for an accused without a command of the German language, only the ‘judgment’ (Urteil) must be served, together with its translation into a language the accused understands.

 

I think these further thoughts on DE>EN legal translation are enough for the time being.

 

 

13th INTERNATIONAL LEGAL FORUM

Another legal translation and interpreting conference on the horizon:

13th INTERNATIONAL LEGAL FORUM

Legal Translation and Interpreting in a Changing World: Technology – Outsourcing – Shifts

This one is in Bonn in September 2018 and is organized by Aticom and the FIT.

and is pleased to invite

translators, interpreters, academics, researchers, students and practitioners

to attend the Forum

at Gustav-Stresemann-Institut (www.gsi-bonn.de)
in Bonn, Germany, from 6th to 8th September 2018

The languages used at the Forum will be English, French and German and the topics will range from LTI standards and best practices via international cooperation to videoconferencing and machine translation.

 I am not sure what ‘shifts’ are – presumably not petticoats.
LTI apparently stands for Legal Translation and Interpreting. I’m not sure where the abbreviation originates from and how long it’s been around. However, this is called the thirteenth international forum so there must have been twelve already. It appears the twelfth was in Peru, but the others were in Europe. More info from the FIT newsletter perhaps:

Strafbefehle must be translated – CJEU

Udo Vetter at lawblog reports that the CJEU held that a Strafbefehl must be translated if the defendant doesn’t speak German. Here’s the decision of October 12 2017.

Directive 2010/64 on the right to interpretation and translation in criminal proceedings (you can call up a bilingual version here too). The relevant bit is recital 30:

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.

 

Zur Gewährleistung eines fairen Verfahrens ist es erforderlich, dass wesentliche Unterlagen oder zumindest die maßgeblichen Passagen solcher Unterlagen für die verdächtigen oder beschuldigten Personen gemäß dieser Richtlinie übersetzt werden.

A Dutch national, Frank Sleutjes, was charged with leaving the scene of an accident and served the Strafbefehl (order of summary punishment) in German – only the details on how to appeal were translated. The Düren local court did not translate the order itself – normal practice nowadays. The European court finds that the Strafbefehl is an essential document.

I last discussed the subject here (the language of the court is German). We used to translate these all the time and presumably local courts will now be obliged to have them translated again.

There is not (yet) an English translation of the decision online, but there is an English translation of the Advocate General’s opinion. I see they translate Strafbefehl as penal order. I am not convinced by Tagessätze as daily penalties. More on the English perhaps later.

There is an amusing exchange in the comments on lawblog.

Bin mir nicht sicher wie ich das sehen soll.
Auf der einen Seite müssen die Leute den Text verstehen können, schon klar.
Auf der anderen Seite, woher weiß ich die Sprache die die Person spricht und wo nehme ich die Übersetzer her?
AFAIK gibt es etwa 7000 Sprachen weltweit. Und für die soll man nun immer Übersetzer vorhalten?
Klingt irgendwie nicht so gut durchdacht.

There’s a nice reference to the defendant (Beschuldiger) as “der Delinquent”.

Articles by Geoffrey Perrin (and Margaret Marks)

Many years ago, when I was teaching legal translation in Erlangen, I found some articles by Geoffrey Perrin which were very useful to me. Geoffrey let me put them on my website, but for some years after a move of the site they were not available. Now I had added a page with three of them, and also an old article by myself on translating German court names into English.

Geoffrey Perrin was at one time in the language department of the German Federal Ministry of Justice, then in Bonn, and later at the Bundessprachenamt at Hürth. The articles are on the many words for ‘copy’ in German, which unlike English prefers specific terms like Abdruck, Ablichtung, Abschrift and at least ten others; on how to translate ‘Rechtsverordnung’ (not necessarily as ordinance), and on the terminology of the juvenile criminal law – although the German terminology may change over the years, the article is still useful.

The link to the page Articles can be found in the column on the right.

Jurtrans blog

In connection with the Words to Deeds Conference 2017 I discovered a legal translation blog by John O’Shea, who does Greek to English translation. The latest post lists upcoming legal translation conferences, of which there are a few:
Round-up of forthcoming legal translation events
There are interesting links on the site too.

Also a fuller report on the conference by Jennifer Whitely on her blog Lakesidelinguist’s Blog. This probably does not refer to our local Lakeside Thurrock though:
Reflections on theWords to Deed Conference #W2D2017

Universities and translators

At the Words to Deeds Conference it struck me how many academics are writing about legal translation nowadays, and the texts they sometimes deal with are more what I think of as real-world translation texts, rather than bilingual Canadian statutes, for example. These texts sometimes even have the names of the parties blacked out, just the way I used to use real divorce documents with blacked-out names with my students in 1982 (before legal translation was a thing).

I chose a table workshop entitled Managing conceptual differences across legal systems. Our discussion made me think of Juliette’s mantra Building Bridges Between Academia and Practice, which I see has now been extended to include & Between Translation, Interpreting, and Legal Practitioners. Academics actually need non-university legal translators, and non-university legal translators would like to see their research. But maybe academics are mainly interested in building up their list of publications, and those publications appear online on sites which are very expensive to access – unless your university provides them. So that is my first problem about building bridges: what is the toll charge?

The day before the conference I was looking at the speakers’ bios and I found an article, just published online and downloadable free of charge, by Dr. Paulina E. Wilson, one of the speakers and heading our table. This is where I got it: Interjural incommensurability in criminal law. I just skimmed it – I don’t do Polish – and found it clear, comprehensible and containing a nice diagram of the definition of going equipped in English law. Now as some of us agreed on the table, it would be great to have access to all the material on comparative law being produced with translation in mind. Because a difficult legal translation requires more hours of research than a client is likely to pay, we are keen to at least see the work done by others. I could imagine collecting a database of articles, not even book chapters necessarily, that I could mine when I needed it. But there is a paywall around a lot of academic research.

Is there a list somewhere of all the sites which charge high fees for downloading? I am sure I’m being naive, because copyright and research funding require materials to be protected. But then what bridges are we going to build?

Words to Deeds Conference 2017

The Words to Deeds Conference, subtitled Legal Translation to the Next Level, was held in Gray’s Inn last Saturday. Many thanks to Juliette Scott for organizing the whole thing so elegantly and thoughtfully.
I have no intention of reviewing the conference. I did, when I first started this blog, review the ATA legal conference in New York, and I realized afterwards that it was a bad idea – you would never have time to analyse and describe all the contributions, you would be bound to leave something important out, and if you did produce something of the appropriate detail, it would be so long that nobody would read it.

Please note in my photo how tasteful the stationery was, and what you probably can’t see: all the pencils were sharpened by hand. You will find video clips on Youtube on how to sharpen a pencil by knife.

However, I will write something about some thoughts I had in discussions, in a following post.

Legal translation hub to be launched

Legal Translation hub

Institute of Modern Languages Research
and
Institute of Advanced Legal Studies

An array of activities in the next few days will launch the Legal
Translation hub – a cross-institute initiative by the Institute of
Advanced Legal Studies (IALS) in collaboration with the Institute of
Modern Languages Research at the School of Advanced Study.
The hub will host regular events such as seminars and discussion panels,
and an annual Legal Translation Day. A unique LLM in Legal Translation
is launching in October 2017, and a dedicated library section has been
established within the IALS library.
The hub engages with practice – both legal translators and lawyers – and
with professional bodies and institutions. Additionally, it undertakes
outreach projects.
The inaugural events include three talks at the Russell Square
headquarters of the Institute of Advanced Legal Studies on 3 February:

* Machine translation and national
security (3 February, 2–3 pm):
Dr Henry Liu, president of the International Federation of Translators,
based in New Zealand and a leading interpreter in English, Chinese and
French, will discuss issues that have implications for UK’s
international reputation and domestic security. He believes British
citizens are being placed at unnecessary risk by a lack of
accountability and absence of quality control in intelligence gathering
operations.
* A practical workshop: using Corpus Linguistics for
Law (3 February, 3.30–5.30pm):
Dr Gianluca Pontrandolfo, a Trieste-based practising legal translator
and academic, will use examples to explain how new technologies can be
used to gain insights into the language of legal texts. Dr Pontrandolfo
worked on the English translation of The Italian Code of Criminal
Procedure and is also the author of a groundbreaking work on compound
terms in criminal law.
* EU legal translation: past, present and
future? (3 February,
5.30–7.30pm): Professor Łucja Biel, from the Institute of Applied
Linguistics, University of Warsaw, Poland and leader of several
international language projects will provide a practically oriented
overview of major challenges and quality parameters in institutional
legal translation in EU institutions.

The launch programme concludes on 6 February at the Québec Government
Office, 12.30–2.30pm, with Louis
Beaudoin, an eminent jurilinguist from Canada, who will explain Québec’s
unique ‘co-drafting’ model to an international audience of legal
translation practitioners, representatives of leading law firms based in
London, researchers and members of the public.

See also at IALS.

obiter dictum

I see that Obiter Dictum, das is now in the Duden.

(in einem Urteil eines obersten Gerichts) rechtliche Ausführungen zur Urteilsfindung, die über das Erforderliche hinausgehen und auf denen das Urteil dementsprechend nicht beruht

This had passed me by. And strictly speaking there is no hierarchy of binding decisions in case law in Germany, although it’s clear that some decisions are treated as binding the lower courts.

So here’s a quote from a decision of a Higher Administrative Court:
Oberverwaltungsgericht NRW, 16 E 648/15 (at marginal number 19!):

Denn der Beschluss des Bundesverfassungsgericht beschränkt sich auf ein obiter dictum, ohne die Bedenken näher zu begründen und ohne sich mit der seit langem gefestigten Rechtsprechung auseinanderzusetzen, die u. a. von verschiedenen Obergerichten eingehend mit der allgemeinen Bedeutung von Beweisverwertungsverboten im Gefahrenabwehrrecht begründet wird.

I don’t know if one would translate English obiter dictum as German Obiter Dictum – that depends on how familiar it has become and how much explanation the user of the translation needs.

The latest edition of Dietl/Lorenz EN-DE (7th) has the following – first you look under obiter and are sent to dictum – reminds me why paper bilingual law dictionaries are dreadful – I think Romain is even worse. Under dictum:

obiter dictum Lat (a saying by the way) gelegentliche Äußerung f, beiläufige Bemerkung f (e-r Rechtsansicht in den Entscheidungsgründen, auf der die Entscheidung selbst nicht beruht. Im Ggs. zu ratio decidendi nicht bindend).

And Romain EN-DE, 5th ed.

obiter dictum, dicta pl, lat Urteil Nebenbemerkung, nicht tragender Entscheidungsgrund

I don’t think Dietl is right to say that the obiter is found in the grounds for the decision. It is found somewhere in the text of the decision. Were it actually in the grounds, I wonder how obiter it would be?

via Burhoff Online