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.

 

 

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”.

Brexit is an opportunity to reverse the tragic decline of marriage in Britain

Yes, I was amazed by this heading too. It is over an article by Paul Coleridge in the Telegraph.

Fortunately Lucy Reed has done the ground work of ridicule in the Pink Tape blog: Who knew? The EU destroyed the traditional nuclear family. I will quote the same bit she quotes:

And this “State will provide” attitude infected our national domestic life too. The generous welfare system did nothing to discourage family breakdown and it became economically possible for a woman to support children without financial support from herself or a husband. More and more items of our household expenditure were picked up by the State. Notions of individual family self-reliance faded.

and here’s her comment on that:

Dammit, how I *wish* we could go back to those good ol’ times when it was economically impossible for a woman to support children without financial support (and permission) from her husband. If only it weren’t for women’s pesky notions of individual self-reliance we could go back to those happy days where people were forced to stay in unhealthy and abusive relationships that damaged themselves and their children.

Paul Coleridge is a retired judge, born 1949. While still acting, he was disciplined for an article that was presumably similar. From that 2013 article:

Sir Paul, 64, has said he would have continued sitting as a judge for several more years had he not met opposition towards him expressing his beliefs on marriage.

Votes for Life Bill petition for UK citizens living abroad

The Votes for Life Bill is to allow UK citizens living outside the UK to vote in parliamentary and EU elections, even if they have lived abroad for more than 15 years. The government currently intends that even if this bill is passed before the EU referendum, it should not apply to that referendum.

There is a petition for UK citizens to sign if they want to be able to vote in the referendum. Here is the link:
https://petition.parliament.uk/petitions/111271

The petition must have been started in October as it ends in April. Apparently there are about 2 million UK citizens living abroad, but some of them have been abroad for less than 15 years so they are entitled to vote here.

Some sources: Votes for Expat Brits blog
a BBC Radio 4 podcast: Carolyn Quinn explores the practical process by which Britain would exit the EU if UK voters opt to leave, and looks at the experience of Greenland, which quit the EEC in 1985.

Translators and copyright

HC0114287

Translation and intellectual property rights is a brochure/PDF prepared for the EU by Bird and Bird LLP. It is only available in English (a bit Franglish).

The brochure considers the law in the EU and in a number of countries (Belgium, France, Germany and the UK). It considers it both from an upstream point of view (is the original text subject to copyright?) and a downstream one (is the translation subject to copyright?).

Whether one’s translation might be copyright is one of those topics that translators’ mailing lists get heated about every year or so.

Copyright usually attaches to literary and artistic works. But what about other types? For example, are statutes copyrighted? One hopes not. They should be freely distributed. Thus it’s interesting that the EU does not exclude EU publications from copyright, but at the same time the Commission’s policy is to increase their use:

In this respect, the status of European Union publications is not very clearly regulated. On the one hand, there is no legal provision at the European Union level, as it is the case under national laws, which stipulates that legal texts such as Regulations or Directives fall within a category of works are deprived of copyright protection. The “Legal notices and copyright” contained within the “Information Provider’s Guide”40 and the section related to copyright in the Interinstitutionnal style guide”41 (these two documents emanate from the European Union institutions) both tend to go in the opposite direction: they provide for that the European Union owns a copyright on all official publications of the Union institutions or bodies. It does therefore not seem that the official texts of the European Union are legally excluded from copyright protection. That being said, the reuse policy of the European Commission42 aims at increasing the use and the spread of the European Union information, also to foster innovation. Hence we believe that the official texts of the European Union fall under that policy and should be easily and freely reused despite their possible copyright protection, in accordance with the provisions laid down under Decision 2011/833/EU, hence, among other things, under reservation of the
exclusive rights of third parties.

There is a comparison of how the four countries treat works created by an employee in the course of employment.
Exceptions to copyright, e.g. for educational use, are discussed, and this is also related to the problem of machine-aided translation (where your database might contain elements from copyright works). The law as it stands would appear not to protect machine (-aided) translation, and the authors would welcome ‘full compulsory harmonization’.
Another aspect considered is how various legal systems treat translations carried out without the original author’s consent.

I was particularly interested in the protection of official translations of official texts.

It derives from the situation created by the Berne Convention that a distinction must be made in most Member States between the following three types of works: (i) official texts/acts; (ii) official translations of official texts/acts; and (iii) non-official translations of official texts/acts. For the first two categories the regime is rather straightforward: no copyright protection. …The situation is more complex with respect to non-official translations of official texts/acts. Scholars consider that the wording of article 2(4) in fine indicates a contrario that a contracting party of the Berne Convention “cannot deny protection to non-official translations of these texts – presumably translations made by private publishers”.

(Is in fine a French Latinism for the German am Ende? haven’t seen it in English before).

There is more, of course, including information on database rights and recommendations for contracts with translators – I have just skimmed the 146 pages. There’s a bibliography and case references too. Recommended.

Some links

1. In Court in the act: How many European Courts are there? the IPKAT discusses the confusion:

Confusingly similar — but these folk shouldn’t be confused. The UK Intellectual Property Office (UKIPO) has emailed the information that a new intellectual property case has been referred to the Court of Justice, but it has got itself into something of a mess as to which Court of Justice it means. After the EU’s judicial institutions were renamed, this weblog, in common with many other people and publications, has practised calling the EU’s Court of Justice the Court of Justice of the European Union, abbreviating it as the CJEU. The UKIPO however prefers to refer to this Court as the European Court of Justice and to abbreviate it as the ECJ.

2. Prof. Dr. Thomas M.J. Möllers of Augsburg University has set up a database of some areas of German and EU commercial law: Daten­bank zum deut­schen und euro­päi­schen Wirt­schafts­recht which looks useful and will be kept updated. Link from Unternehmensrechtliche Notizen, the weblog of Prof. Dr. Ulrich Noack.

3. Angry solicitors
It’s not easy to find a good solicitor, except by recommendation. I was dissatisfied with one firm, but a recommendation to find a further recommendation via the Law Society was not useful. I mean, I knew in advance it wouldn’t be. But I established that firms pay something to be accredited by the Law Society, The Law Society: Find a solicitor you naturally have to pay a fee. So firms with enough work have little incentive to be on that lis (rather like Which’s lists recommending builders and tradesmen, which I’ve also had problems with).

Anyway, The Law Gazette reports that

The Solicitors Regulation Authority has agreed to share its data on solicitors with comparison websites set up by third parties by the end of this year.
The regulator has responded to a call from the Legal Services Consumer Panel to provide more information for online registers of practitioners.
In a letter to the panel, SRA executive director Crispin Passmore said a ‘data extract’ – likely to include the size of the firm and any disciplinary issues in the past – will be in place by Christmas.

Of course, the fact that there have been a large number of complaints against a firm does not mean that these were upheld. I recommend reading the comments under the article:

… I’ll let the moronic comsuner panels and ombudsmen, and touchy-feely “empowerment in legal choices” briage into a secret here [hush]… people pay to be included in a comparison site, it isn’t done out of the goodness of anyone’s heart.
That’s right. Amazing though it may sound, you don’t have to have to be the best to be on the “Bestsest ever solicitors .com” – you just have to set up the monthly direct debit! And who is going to pay a comparison website to publicise their complaints data?
I didn’t even know that the “Chair” of the Legal Services Consumer Panel (£15,000 per year for turning up 30 days a year) has a blog. Now I do know, I still can’t read it, because of the irresistable urge to burn my PC.

Btw, the Chair does have a blog, but she doesn’t know the difference between a blog and a post.

(Via Delia Venables)

Correction/Korrektur

On August 10, I posted an entry stating that I was suspicious about an article in the Times about EC translators. Today I read on the ITI website – members’ forum – that a member of the ITI Council had spoken to the DG in question and it appeared that either the Times reporter did not understand the discussion or the DG was misquoted. The DG decided not to issue a correction to the article because they did not think it was necessary.

I added a note to the entry, which I sometimes do, but I thought it was worth posting here too.