The Journal of Specialised Translation has a new edition on Quality in Legal Translation.
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
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.
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.
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.
§ 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
[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)?
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).
(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.
(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.
I was translating a text about local government in Germany. There are three levels of government: federal, Land and local. The local government authorities sometimes perform their own duties (Selbstverwaltung) and sometimes perform duties that higher authorities commission them to do (Fremdverwaltung).
Although Selbstverwaltung can be translated as self-government, and there is a right to it, I don’t find I get far with this term, and local autonomy works better.
Here’s the Basic Law, Article 28 (2), in the original:
(2) Den Gemeinden muß das Recht gewährleistet sein, alle Angelegenheiten der örtlichen Gemeinschaft im Rahmen der Gesetze in eigener Verantwortung zu regeln. Auch die Gemeindeverbände haben im Rahmen ihres gesetzlichen Aufgabenbereiches nach Maßgabe der Gesetze das Recht der Selbstverwaltung. Die Gewährleistung der Selbstverwaltung umfaßt auch die Grundlagen der finanziellen Eigenverantwortung; zu diesen Grundlagen gehört eine den Gemeinden mit Hebesatzrecht zustehende wirtschaftskraftbezogene Steuerquelle.
and in the ‘official’ translation by Tomuschat and Currie:
(2) Municipalities must be guaranteed the right to regulate all local affairs on their own responsibility, within the limits prescribed by the laws. Within the limits of their functions designated by a law, associations of municipalities shall also have the right of self-government according to the laws. The guarantee of self-government shall extend to the bases of financial autonomy; these bases shall include the right of municipalities to a source of tax revenues based upon economic ability and the right to establish the rates at which these sources shall be taxed.
Translated by: Professor Christian Tomuschat and Professor David P. Currie
Translation revised by: Professor Christian Tomuschat and Professor Donald P. Kommers in cooperation with the Language Service of the German Bundestag
They translate ‘Länder, Kreise und Gemeinden’ as ‘Land, county and municipality’ (intelligently avoiding the plural of Land and also the use of ‘(federal) state’ so popular for Land).
A note on the word Gemeinde: it is most often translated as municipality nowadays, the US American preference. Local authority is more British. I also like the term commune – they are colloquially called Kommunen in German – but I believe I am out on a limb here. There are various categories of these local authorities, but fortunately I didn’t need to go into that.
The term Fremdverwaltungsaufgaben was more problematic, and I was glad to find transferred duties in a useful article on the German Law Archive site, Local Government Administration in Germany, by Dieter Haschke.
Transferred sphere of activities of the municipalities
The registrar’s office performs all the important tasks in a municipality: publishing banns, performing marriage ceremonies and issuing birth and death certificates are state tasks that the Federation or the Land have transferred to the municipalities by virtue of a law. State control is extended to legal and expert supervision with the entitlement to issue instructions under certain conditions.
The following administrative areas are also part of the transferred sphere of activity: …
I don’t really like sphere of activity (Aufgabenbereich), but in legal translation you don’t always finish up with a natural-sounding term.
The German Law Archive site has been updated recently and is well worth a look.
Translation and interpreting (or more commonly in the US: interpretation)
Translators translate and interpreters interpret? Yes, but interpreting is a form of translation. Newspapers are going to go on referring to people translating in court, Afghan translators and so on. Get over it, people!
And I can’t agree with the argument for the distinction that interpreters have to translate on the spot so they are allowed leeway, i.e. interpreting is called interpreting because it involves understanding and conveying a message – as if translation didn’t, see here:
In fact, it is this real-time comprehension, analysis, and accurate reformulation of one language into another that poses the greatest challenge. The interpreter is both listener and speaker, working in real-time, without a safety net, and with little room to correct errors. The simultaneous, or virtually simultaneous, nature of the work combined with a lack of control over the content of the original speeches mean that the interpreter performs his or her work in demanding conditions that leave little room for error.
However, the importance of the translator’s work must not be overlooked: the absence of immediate time constraints allows the translator to apply more mental resources to the task of finding the correct solution. The translator always seeks rigorous solutions, not solutions that will just ‘get the job done’. To do so, the translator applies thorough research and consulting techniques and uses specialist databases to broaden their understanding of the subject matter.
just because ‘interpret’ has a double meaning doesn’t mean that the two meanings merge.
While I’m on the subject, Werner Siebers, the German criminal defence attorney blogger, has reported on an interpreter who was removed from a case because he translated too freely.
Er versteht sich selbst mehr als Ausleger und Interpretierer denn als Übersetzer. Er meint, „das Gesetz“ – welches auch immer er meint – schreibe ihm vor, gerade nicht wörtlich zu übersetzen, vielmehr müsse er gleich den von ihm erkannten – vermuteten? – Sinn zu Papier bringen.
The comments get a bit hair-raising:
11. Mai 2016 um 11:59
Also wenn der Zeuge sagt: „It was raining cats and dogs“, soll der Dolmetscher übersetzen, dass es „Katzen und Hunde“ geregnet habe??
11. Mai 2016 um 13:41
Selbstverständlich muss er zwingend so übersetzen, er hat nichts zu unterpretieren und auszulegen, er ist lediglich Sprachmittler. Gestattet ist ihm, eine Anmerkung zu machen, dass es sich um eine Redewendung handelt, die eine andere Bedeutung als die wörtliche Übersetzung haben kann (z.B. es regnet Bindfäden oder wie aus Eimern oder einfach stark). Vorrangig ist aber zunächst selbstverständlich und zwingend die wörtliche Übersetzung.
However, it appears that the interpreter was indeed very free: he said “Dafür habe ich kein Geld” (I haven’t got enough money for that) instead of “Mir sind die Hände gebunden” (My hands are tied).
There was a bit of a discussion about this blog post on a translators’ mailing list and some remarks were made by court interpreters – police, public prosecutors or judges ask the interpreter to instruct the witness:
“Herr Dolmetscher, sagen Sie ihm bitte, er ist … schwarzgefahren und hat das Recht… etc.”
oder “Ach ja, ich habe vergessen den Zeugen zu beleheren. Herr Dolmetscher, sagen Sie ihm… Ähm.. Sie kennen doch die Belehrung, gelle? Also, sagen Sie ihm, dass er als Zeuge berechtigt ist… und alles andere, das Übliche, halt!”
One of the most frequently discussed translation errors is that of Impressum. A search of this site will reveal many posts on it, perhaps leading to confusion. The main purpose of an Impressum is to make it possible to contact the website owner, so I think legal notice is better than disclaimer, even if there is a disclaimer in there too. But to translate it as imprint or masthead is rather ridiculous.
Now I see in Linguee that there is a sentence on data privacy that gives rich soil for translation errors:
Der Nutzung von im Rahmen der Impressumspflicht veröffentlichten Kontaktdaten durch Dritte zur Übersendung von nicht ausdrücklich angeforderter Werbung und Informationsmaterialien wird hiermit ausdrücklich widersprochen.
Here are some attempts (leaving out the names of the guilty):
We hereby expressly prohibit the use of the contact data published as part of our duty to publish an imprint …
The utilization of contact data published within the bounds of the imprint obligation by a third party for the consignment
The use of the contact details, published in the framework of the index obligations, by third parties for the transmission
The use of contact data which has been published due to general information requirements by third parties,
The use of published contact data within the limits of impring opbligation through third parties for the transfer of not explicitly requested advertising
The use of in the context of the imprint obligation published contact contacts through third the transmittal of not expressly
The use of contact data published in the context of the Impressumspflicht by third parties for the over-sending of advertising not requested
We hereby expressly object to the use by third parties of the contact data published within the scope of our statutory legal notice
The utilization from in the context of the “About us” liability announced contact information by third parties to send implicit
The use of the framework of the imprint obligation published contact data by third parties for the distribution of unwanted
My version would probably be something like ‘Under German/EU law, we have to to publish contact details on our website. We expressly refuse permission to third parties to use contact data revealed in this way to send advertising and information materials that have not been expressly requested.’
Did anyone else get one of these?
I really loved your blog!
My name is XXX and I am a partner at YYY. We are looking to solve the pains and frustrations of the translation industry through training, consultancy and our flagship TMS software solution.
Currently, we are looking to deliver amazing content and insights from thought leaders to our growing customer platform. And once we saw your amazing blog we couldn’t stop thinking about getting in touch with you to see if there are potential ways to collaborate.
It would be great to set up a short chat with you to explore synergies! Just let me know when it would be a good time for you if you are up for it.
Would love to hear back from you.
I think it’s usually etiquette not to reply to emails, for instance job offers, which are not addressed personally to oneself, although actually I did reply to XXX (in the negative) here.