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Sample translations submitted: 2
English to Arabic: Court interpreters and fair trials General field: Law/Patents Detailed field: Law (general)
Source text - English
Preface
I worked as a trial prosecutor in Victoria, Texas for a few years when I was
fresh out of law school. The location of the town meant that a number of our defendants (and witnesses) spoke only Spanish and were reliant on court appointed interpreters throughout the judicial process. In practice, this meant that we used bilingual defense attorneys, court clerks, or even one of our own legal assistants from the District Attorney’s Office. It never occurred to me at the time that any of these defendants received anything less than a fair proceeding using one of our “interpreters”.
After a few more years working as an appellate prosecutor, I got married, moved to Germany and began teaching part-time at the Johannes Gutenberg-Universität Mainz’s Faculty of Translation Studies, Linguistics and Cultural Studies in Germersheim. As coincidence would have it, this was one of the preeminent training facilities for interpreters in the world and my interactions with the academic staff there fatally undermined every assumption I had made as a prosecutor about courtroom interpreting. In my experience, most attorneys (myself included) and judges were blithely unaware of the impact that court interpreters can have on criminal trials. Likewise, the court interpreters I’d met, despite some research in the area by interpreting studies scholars, largely failed to understand how their standard practices often undermined the actual legal proceedings they were employed to enable. The more I learned about the interpreting process, the more I began to reflect on its fair trial implications.
When I later took a Research Fellow position at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg, I started to dig into these issues. Granted access to a worldclass library and surrounded by some of the brightest legal minds in Europe, what started as a simple research project in my spare time turned into a doctoral dissertation which has now spawned a book. I suffer no illusions that it will solve any of the issues that arise from using court interpreters in criminal proceedings. However, I hope that in its own
small way it can bridge the gap between the legal profession and interpreters and open their eyes to an issue they have both been content to ignore for far too long.
Along the way I have been helped by a number of people whom I can
never truly thank properly. Prof. Dr. Dr. h.c. Rüdiger Wolfrum was the ideal doctoral supervisor, allowing me the freedom to work at my own pace and in my own manner. Thanks as well to the members of my doctoral committee at the University of Hamburg, Prof. Dr. Dr. h.c. Jürgen Basedow and Prof. Dr. Peter Mankowski, for their support. My former colleagues in Germersheim at the Faculty of Translation Studies, Linguistics and Cultural Studies provided continual guidance and material above and beyond what was strictly necessary. I am similarly indebted to my former co-workers at both the Max Planck Institute for Comparative Public Law and International Law and the Max Planck Foundation for International Peace and the Rule of Law. Ali Zakouri and the great staff at the Max Planck Library deserve specific mention here for their assistance with my research. Dr. Dominik Zimmerman, Dr. Sigrid Mehring, and
Dr. Daniel Heilmann each lived through the ups and downs of my research, reading drafts and offering insightful comments without which this book would be much the poorer. Dr. Kathrin Scherr was the best boss I could have had, equal parts understanding and demanding, and her contribution to this book is beyond measure. Special thanks goes as well to Dr. Johann-Christoph Woltag, who was always there when I needed him, whether that meant reading a chapter or commiserating over a beer.
On a more personal note, I am deeply thankful to my Mom and Dad
for loving me enough to let me find my own path in the world, even if
that took me across the Atlantic. It is a sacrifice I never truly appreciated
until I became a parent myself. Finally, this book would not have been
possible without the unwavering support and encouragement of my wife.
As an interpreter and scholar herself, she has been a constant resource as
to her profession and a necessary foil relentlessly challenging my misguided prosecutorial arrogance. That she does not agree with everything I’ve written about her profession not only makes her continued support even more incredible, but also absolves her of any mistakes I have made throughout this book.
Kleve, Germany John Henry Dingfelder Stone
1
Introduction
1 An Unchallenged Assumption
In the past few decades, the increased rates of international trade, travel
and migration have led to a rising number of criminal defendants and
courtroom participants who do not speak the language of the court in which they find themselves. Such individuals present numerous problems for courts, mainly because criminal justice systems, with some notable exceptions, are monolingual in nature and ill-equipped to handle multilingual proceedings. The traditional solution to any courtroom linguistic problems has been the appointment of a court interpreter, or, more aptly described, the appointment of a multilingual individual to interpret, as it is not uncommon for unqualified and untrained individuals to be drafted into service by the court (Stern 2011, p. 339; see also Chap. 6). This is even more true when the language in question is itself
uncommon in the area. Once appointed, court interpreters have usually
been left alone by courts to do their job with little oversight. Courtroom participants primarily desire to communicate across any language barriers
and they are generally pleased when the interpreter allows them to do so. Removal of the language barrier permits the court to revert back to its
innate monolingual nature under the assumption that a comparable fair trial can be achieved through the simple addition of an interpreter. But what if this narrative is an illusion, an overestimation of the corrective capacity of court interpreters?
The difficulty with this narrative is that the utilization of a court interpreter comes at a price. Not all interpreters are created equal, and even the best interpreters are not automatic machines capable of flawless performance at all times. Interpreters exercise judgment, alter information, transform speech styles, and generally make a multitude of undetected alterations that can and do influence the trustworthiness of a criminal trial. Even something so apparently trivial as the accent of the interpreter can have an impact on the proceedings: French Canadian jurors view witnesses who testify through a European French interpreter more favorably than those who are interpreted by one who speaks Canadian French (Berk-Seligson 1990, p. 146). The shortcomings of court interpretation have long been known to the interpreting community, but have received little acknowledgement from legal scholars. This lack of awareness has led to a scarcity of scholarly attention concerning the legal effects of court
interpretation within the criminal justice system, which in turn has allowed courts to operate under the assumption that the mere appointment of an interpreter is a sufficiently corrective measure.
2 Objectives of the Book
This book tests this assumption by assessing the impact of court interpreters on the integrity of the right to a fair trial under international law. Specifically, it analyzes a broad range of examples showing the various different manners by which an interpreter can influence a criminal proceeding. Alterations of both information content and speech style are considered, as are the numerous systemic issues that arise from the appointment of a court interpreter. These factors are evaluated to determine the extent to which they may negatively affect an accused’s right to a fair trial. Based upon this analysis, suggestions as to how to further safeguard the right to a fair trial in this particular context are presented.
With respect to fair trial rights, the focus of the study is on the fairness
of criminal proceedings at the national level, as measured against international standards. Given that Article 14 of the International Covenant on Civil and Political Rights (‘ICCPR’) is generally accepted as customary international law (if not jus cogens) (Boas et al. 2011, p. 12; Boas 2010, pp. 329–330; Robinson 2009, pp. 6–7, 11; Orakhelashvili 2006, p. 60; Turner 2005, p. 22), the fair trial rights contained therein are used as benchmark standards. In order to gain a fuller understanding of the intricacies of these rights, it is occasionally necessary to consult alternate sources of international law that contain similar wording. In
particular, Article 6 European Convention for the Protection of Human
Rights and Fundamental Freedoms (‘ECHR’) proves useful, since it contains language that is nearly identical to Article 14 ICCPR. As such,
although certainly not conclusive, interpretations by the European Court
of Human Rights (‘ECtHR’) of the ECHR fair trial rights are at worst
persuasive authority as to the meaning of the ICCPR rights (Nowak
2005, p. 307; McGoldrick 1994, p. 438).
While such cross-fertilization of legal standards is a normal and useful occurrence, (de Zayas 1997, p. 696), only minimal consideration is
given to the caselaw of the international criminal tribunals (the
International Criminal Court [‘ICC’]; the International Criminal
Tribunal for the Former Yugoslavia [‘ICTY’]; the International
Criminal Tribunal for Rwanda [‘ICTR’]), specifically because the
interpretation procedures exhibited in these courts are very different
from those used in domestic proceedings and are not sufficiently analogous to allow useful comparatives. Furthermore, while it is true that
national courts contribute considerably to the interpretation of international treaties such as the ICCPR, the sheer volume of material arising from these courts makes their consultation well-beyond the scope
of this book. As such, even though the focus is on fair trial standards
as applied in domestic criminal proceedings, no particular jurisdiction
is specifically targeted or discussed, though the English-language
nature of the work naturally leads to a healthy inclusion of considerations familiar to common law jurisdictions.
3 Structure of the Study
Following upon this introduction, Chap. 2 discusses the legal right to an
interpreter under international law, since one cannot fully understand
how courtroom interpreters affect an accused’s right to a fair trial without
first understanding the circumstances which mandate the appointment
of an interpreter. Furthermore, many of the legal and practical issues that
arise from interpreter performance are well-illustrated by a detailed
examination of an accused’s right to an interpreter. Thus, a thorough
treatment of the subject serves as an excellent introduction to the overall
topic. Chapter 3 provides a general introduction to the mechanics of
courtroom interpreting. Legal practitioners often fail to appreciate the
complexity and ambiguity of the task that interpreters perform. However,
by focusing on the theoretical and practical aspects of courtroom interpreting, this Chapter seeks to demystify the interpreting process for a
legal audience. This facilitates a better understanding of the unseen complications that interpreters cause throughout legal proceedings.
Chapter 4 focuses on explaining the different components of the
right to a fair trial as set out in Article 14 ICCPR. The discussion is not
comprehensive, though, as the use of interpreters does not impact every
aspect of every fair trial right. Rather, only those rights (and the specific
facets of those rights) that are affected are examined. Included in this
Chapter is a short explanation as to the relationship between court
interpreters and the specific rights discussed. Having clarified the role
of interpreters in the courtroom, and the particular fair trial rights at
stake, Chap. 5 presents and analyzes the multitude of problems created
by the usage of court interpreters in criminal proceedings, as well as
their possible impacts on the right to a fair trial. These complications
are divided into two groups: those related to conscious decisions on the
part of the interpreter and those that arise as an unintentional sideeffect from the inherent difficulty of the interpreting process itself.
Following upon this discussion, Chap. 6 examines the numerous systemic issues associated with court interpreters, such as fatigue, that likewise complicate criminal proceedings. These aspects are analyzed for
their possible effects on an accused’s right to a fair trial.
The role of Chap. 7 within the study is to bring all of these disparate
strands of information together in one final analysis in order to assess the
overall impact of court interpreters on the right to a fair trial. Emphasis
is not only placed upon the individual fair trial rights as discussed in
Chap. 4, but also on the overall fairness of the proceeding. A final conclusion sets out a series of proposals meant to decrease the impact court
interpreters have on criminal proceedings.
4 Conclusion
Any academic work concerning interpreting necessarily involves the
usage of examples in multiple languages. Some care has been taken, where
such instances occur, to render these into English for the casual reader.
However, the fact that this study is written in English, and is primarily
concerned with English language examples, also necessarily means that
some of the interpreter errors and linguistic distortions that it highlights
may appear specific to that language and not easily transportable to other
linguistic contexts. An example is the common usage of so-called false
friends by interpreters (de Jongh 1992, p. 77). However, while the specific false friends discussed in the text may be particular to a certain language combination (such as “actually”-“aktuell” in English-German), the
practice of mistakenly using such apparently (but falsely) equivalent
terms is common to interpreters working in nearly every language combination. As such, even though the discussion may appear bound to the
particularities of English, the practice is, in most instances, applicable to
interpreters who work in other languages as well. Regardless, the intent of
the study is not to detail every possible interpreter error in every language
combination in the world; this is an obviously absurd task. Rather, it is to
assess the myriad ways that court interpreters may have an impact on the
right to a fair trial by analyzing those interpreter actions and errors that
appear most consequential and most prevalent. For this task, it is sufficient to confine the study to a single “home” language.
In addition, some explanation must be given with respect to certain
choices of phrasing and vocabulary that have been made throughout the
book. To increase the readability of the text and to reduce unnecessary
repetition, the terms “court interpreter” and “courtroom interpreter”
have been used interchangeably. Likewise, although “to translate” is normally restricted to the context of written texts, while “to interpret” generally involves spoken words, here each of these has also been used, unless
otherwise specifically noted, as generic terms meaning the alteration of
words from one language to another. However, the designations “translator” and “interpreter” are not used interchangeably, but rather remain
restricted to their specific contexts (written and oral, respectively).
Another linguistic choice concerns the gender of certain courtroom participants: an accused is always referred to as a male, while a court interpreter is continually referred to as a female. Neither of these assumptions
is meant as a slight to either sex, but rather the choice reflects the common reality of criminal proceedings and reduces unnecessary linguistic
confusion arising from an overabundance of identical pronouns. The
other, less-mentioned, courtroom participants are generally identified in
the plural (“they”).
2
The Source of a Right to an Interpreter
1 Introduction
When analyzing the possible impact of court interpreters on the right
to a fair trial under international law, the logical starting point is an
examination of the accused’s right to an interpreter. While not every
court interpreter is assigned to a criminal proceeding pursuant to this
right, as will be seen in the following Chapters, many of the general
standards to which court interpreters are held originate from the cases
and scholarly discussions associated with this right. Additionally, many
of the complications presented by the use of court interpreters in criminal proceedings are likewise foreshadowed by a detailed examination of
this right. As such, gaining a greater understanding of the right to an
interpreter at this early stage will pay dividends in subsequent Chapters.
2 Under International Law
The explicit right to an interpreter is found in Article 14 (3) (f) ICCPR,
which states that a criminal defendant shall be entitled to “have the free
assistance of an interpreter if he cannot understand or speak the language
used in court.” The fair trial rights guaranteed in Article 14 ICCPR are
considered to be customary international law (Boas et al. 2011, p. 12;
Boas 2010, pp. 329–330; Robinson 2009, pp. 6–7, 11; Orakhelashvili
2006, p. 60; Turner 2005, p. 22). Unfortunately, accepting Article 14 (3)
(f) ICCPR as the definitive statement of the right to an interpreter isn’t
overly helpful when it comes to understanding what exactly the right
entails. Despite its overwhelming acceptance by the international community, Article 14 (3) (f) has yet to be fleshed out by the Human Rights
Committee (‘HRC’). Thus, it is helpful in many instances to refer to the
more developed caselaw of the ECtHR concerning its interpretation of
the Article 6 (3) (e) ECHR right to an interpreter, which uses language
identical to that employed in Article 14 (3) (f) ICCPR (see also Nowak
2005, p. 343). Within reason, reference can also be made to the meanings ascribed to these provisions by selected domestic courts, given that
national level courts play a key role in the interpretation and implementation of international treaties and norms (Trechsel 2005, p. 6).
Furthermore, in addition to the explicit Article 14 (3) (f) right, there
also arguably exists a secondary right to an interpreter arising from the various specific fair trial guarantees set out in Article 14. In this context, it must
be remembered that the subsections of Article 14 (3) are explicitly minimum guarantees; as such, higher levels of protection may occasionally be
necessary to ensure a fair trial (HRC General Comment No. 13). Moreover,
since the right to an interpreter is, at its core, a part of the right to a fair trial
and is meant to achieve that overarching purpose, there may exist situations
where Article 14 (3) (f) ICCPR does not automatically grant an interpreter, but an interpreter is nonetheless necessary to fully realize the right to
a fair trial. For instance, where an accused wishes to call a foreign-language
witness to testify on his behalf, his right to call and examine that witness
under Article 14 (3) (e) may require the appointment of a court interpreter.
Likewise, fulfillment of the overall general right to a fair trial may also
necessitate the use of a court interpreter (Trechsel 2005, p. 335). As such,
in determining the right to an interpreter under international law, one
must look beyond the specific textual grant appearing in Article 14 (3) (f)
ICCPR, and evaluate the overall necessities of a fair trial as well. In this
instance, fair trial rights under customary international law may be more
expansive than those protected by Article 14 ICCPR, and the Article 14
fair trial rights do not act as a limitation on that customary right.
3 The Purpose of the Right to an Interpreter
In order to determine the actual boundaries and protections provided by
the right to a court interpreter under the ICCPR, it is helpful to understand what purpose the right serves within the fair trial framework. It is a
given that, as a formal part of the right to a fair trial, the right to an interpreter is meant to ensure the fulfillment of that overall goal. However, the
concept of a fair trial is rather broad and encompasses a variety of different
underlying rights, not all of which are effectively advanced by the right to
an interpreter. There are specific guarantees within the framework that are
enabled by the right to an interpreter: namely, those rights comprising the
so-called “right of defense” and considerations of equality.
In General Comment No. 13, the HRC stated that the right to an
interpreter is meant to alleviate language difficulties which “may constitute a major obstacle to the right of defence” (§13). As such, it can be said
that the right to an interpreter, itself, is meant to ensure that the right of
defense is effectively exercised. This right can be seen as encompassing
various different guarantees (Nowak 2005 pp. 337–338). Of these, from
the standpoint of interpreting at least, it is perhaps the right to be present
at, and participate in, one’s own trial that is most obviously implicated.
As Nowak has asserted, under the right to defense (Article 14 [3] [d]
ICCPR), “all persons charged with a criminal offense have a primary,
unrestricted right to be present at the trial and to defend themselves”
(2005, p. 339). To be present at one’s own trial is not satisfied simply by the physical presence of the defendant, rather the defendant must be able
to understand the proceedings (Schabas 2007, p. 288). This necessity has
been affirmed by the ECtHR in the Kamasinski case (Kamasinski v.
Austria [ECtHR 1989] §§82–83). In this respect, scholars often speak of
a defendant’s “linguistic presence” (de Jongh 2008, p. 21; Pantoga 1999,
p. 619; Mikkelson 1998b; González et al. 1991, pp. 49–50). But the
presence of the defendant, linguistically and physically, is not enough to
ensure a fair trial; the defendant must be able to participate in his own
defense (Nowak 2005, p. 339; Kamasinski v. Austria [ECtHR 1989]
§§82–83; Lagerblom v. Sweden [ECtHR 2003] §49). In this regard, where
the defendant is not able to effectively communicate with the court or his
counsel, the court interpreter is essential as a means of allowing the defendant to participate in his own defense (Trechsel 2005, p. 328). Thus, it
can be asserted that the right to an interpreter is also essential in guaranteeing the fulfillment of the rights to both have (Article 14 [3] [d]) and
communicate (Article 14 [3] [b]) with legal counsel as well.
The second purpose of the right to an interpreter is to uphold the
notion of equality: Article 14 (1) ICCPR specifically guarantees that “all
persons shall be equal before the courts and tribunals.” This has been
interpreted to guarantee the linguistic equality of a defendant vis-à-vis
any other defendant before the court on similar charges (HRC General
Comment No. 13, §14). The ECtHR has certainly interpreted the
ECHR’s nearly identical right to an interpreter provision in this manner,
stating that the purpose of the right was to attenuate the “disadvantages
that an accused who does not understand or speak the language used in
court suffers as compared with an accused who is familiar with that language” (Luedicke, Belkacem and Koç v. Germany [ECtHR 1978] §42).
The concept of equality also extends to the defendant’s linguistic equality
vis-à-vis the prosecutor, thus bringing the principle of the equality of
arms into consideration. Merrills and Robertson (2001) have actually
advanced the notion of equality (both of arms and in the sense of discrimination with respect to other defendants) as the principle purpose behind the design of the right to a court interpreter (p. 131).
However, viewing the right to an interpreter as a solution to
inequality is not without its critics. Trechsel (2005) has argued that
the right is meant to “constitute the key which opens the door of
communication between the accused and the judge” and any elimination of inequality is only a secondary effect (p. 329). This criticism,
while perhaps accurate with respect to civil law jurisdictions that center heavily on the actions of the judge as an investigating and inquisitorial authority at trial, is not convincing with respect to common law
jurisdictions, which adhere to an adversarial principle and place little
emphasis on communication between the judge and defendant
(Spencer 2005, pp. 25–26). Moreover, even if one assumes that the
primary purpose of the provision is indeed to establish communication between the court and the defendant, then one must ask why
such communication is necessary. One possible answer is that otherwise the defendant’s position before the court would not be equal
vis-à-vis the prosecutor or other similarly situated defendants. Thus,
even if Trechsel is correct, his assertion does little to undermine the
concept of equality as a driving purpose behind the right to an
interpreter.
When seeking to determine the actual legal boundaries of the right to
an interpreter, as will be done shortly, awareness of these underlying
purposes behind the right is of paramount importance. Knowing what
the right is meant to accomplish, and more specifically, the particular
aspects of the right to a fair trial that it is intended to buttress, allows one
to more accurately determine what its provisions actually mean (or
should mean). However, just as the right to an interpreter is meant to
have a positive impact on various aspects of the right to a fair trial, it can
also have negative ramifications on those very same aspects (and others
as well), as will be seen in Chap. 5. Unfortunately, since courts and
scholars have so far failed to acknowledge these negative aspects of the
use of an interpreter, they as yet do not factor into the current state of
the right under international law. As such, they will not be considered in
the current analysis of the right.
4 The Appointment of a Court Interpreter
The obvious place to begin the analysis of the right to an interpreter is
with the appointment of the interpreter herself. Article 14 (3) (f) ICCPR
states that:
3. In the determination of any criminal charge against him, everyone
shall be entitled to the following minimum guarantees, in full
equality:
…
(f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court
This language raises three initial issues concerning the appointment of
an interpreter. First, what individuals within the criminal justice system
are entitled to a court interpreter? Second, at what stage in the criminal
process are these individuals entitled to an interpreter? Third, what level
of language inability triggers the right to an interpreter? These questions
will be analyzed in order.
4.1 Identity of Legitimate Claimants
The explicit language of Article 14 (3) (f), which grants the right to an
interpreter to “everyone” “in the determination of any criminal charges
against him”, leads to the interpretation that only the criminal defendant
himself is entitled to an interpreter as a matter of law. This reading has
been advanced in several domestic jurisdictions as well (Brown-Blake
2006, p. 411; Laster and Taylor 1994, pp. 78–79). However, the necessities of a fair trial may require the right to broaden further.
For instance, Article 14 (3) (e) guarantees a defendant the right “to
obtain the attendance and examination of witnesses on his behalf under
the same conditions as witnesses against him.” Where a defense witness
does not speak the language used in court, it is incumbent that a court interpreter be available in order to ensure the defendant access to that evidence on his behalf. As such, the right to an interpreter would appear to extend beyond the criminal defendant’s personal use and outside of the
defendant’s language abilities as well.
The HRC, for its part, seems to have confirmed this interpretation in
Guesdon v. France. In Guesdon (1990), a Breton-speaking defendant
asserted that Article 14 (3) (e) and (f) granted him the right to an interpreter for both himself and his witnesses, even though both he and his
witnesses were admittedly capable of expressing themselves in the native
language of the court (French, in this case). In holding that the defendant
was not entitled to a court interpreter, the HRC noted that “[o]nly if the
accused or the defence witnesses have difficulties in understanding, or in
expressing themselves in the court language, must the services of an interpreter be made available” (Guesdon v. France [HRC 1990] §10.2).
Although the HRC’s statement is largely dicta, its implication is clear: the
right to an interpreter is not necessarily limited to a criminal defendant,
but may extend to any non-conversant defense witnesses as well where the
right to a fair trial so requires.
Likewise, the right to a fair trial may also necessitate the appointment
of an interpreter to alleviate any communication problems between the
defendant and his attorney (Trechsel 2005, pp. 338–339). Article 14 (3)
(b) ICCPR states that a defendant is entitled to “have adequate time and
facilities for the preparation of his defence and to communicate with
counsel of his own choosing.” Where the language barrier prevents communication between the defendant and his chosen counsel, the necessity
of that communication to the realization of a fair trial would seem to
mandate the use of an interpreter. From a logic standpoint, this would
appear to be the case even where the defendant is conversant in the language of the court and it is the chosen attorney who is deficient (though,
from a practical standpoint, it is difficult to imagine that a court would
voluntarily appoint counsel with insufficient language skills). It must be
noted, however, that the choice of such an attorney may have ramifications as to who pays for the court interpreter (Trechsel 2005, pp. 338–339;
see also X. v. Germany [ECtHR 1983]).
4.2 The Timing of the Appointment
A second facet of the appointment analysis involves determining at what
point in the criminal justice process an individual becomes entitled to an
interpreter. Unfortunately, Article 14 (3) ICCPR is less than explicit in
this regard, though the exact alignment of the text with that of the ECHR
allows the caselaw of the ECtHR to be of some indirect guidance on the
issue (Nowak 2005, p. 318).
What is clear from Article 14 (3) ICCPR is that the right to an interpreter only adheres when an individual is the target of a “criminal charge”.
This term, however, is far from clear. Nowak has argued that it must be
autonomously interpreted, meaning that its definition must be independent from any “formal classification under national law”, since to do otherwise would allow domestic jurisdictions to avoid the limitations
imposed under Article 14 ICCPR by simply classifying criminal actions
as administrative matters (Nowak 2005, pp. 314, 318). Such an interpretation would align Article 14 with the much-criticized Article 6 jurisprudence of the ECtHR (see also Nowak 2005, p. 318; van Dijk 2003,
p. 361; Leigh 1997, p. 646). Under this approach, whether or not a criminal charge exists is dependent upon the type of sanctioned offense, as
well as the nature and severity of the possible punishment (Nowak 2005,
p. 318). Nor is the formal lodging of a criminal complaint determinative
as to when a “criminal charge” officially exists, rather it is “the date on
which State activities substantially affect the situation of the person concerned” that plays the decisive role (Nowak 2005, pp. 318–319). An
individual’s arrest may serve this purpose, but usually the initial “notification of a specific accusation” starts the process (Nowak 2005, p. 318).
Within the specific context of the right to an interpreter, however,
linking the attachment of the right to the official establishment of a
“criminal charge” under Article 14 (3) might not serve the overarching
necessities of a fair trial. Although Harris et al. (2009) confidently asserts
that the analogous ECHR right to an interpreter doesn’t “benefit suspects
being questioned by the police prior to their being ‘charged’”, it is far
from clear that allowing the police to gather evidence from such a suspect
without an interpreter would satisfy the underlying requirements of a fair
trial (p. 327). Where the suspect is later found to require an interpreter
for court hearings, such a finding would likely cast doubt on any evidence gathered in this manner. As such, the “autonomous” interpretation
of “criminal charge” in the broader context of Article 14 (3) ICCPR may
not function as well within the specific context of subsection (f) and the
use of interpreters.
Another possible drawback to the “autonomous” approach lies in its
lack of guidance to States concerning the actual application of Article 14
ICCPR. Given the minimal HRC practice in this area, States are generally left to their own devices when deciding whether a “criminal charge”
exists within their system or not (Nowak 2005, p. 318; McGoldrick
1994, pp. 397–398). Within the context of appointing an interpreter,
this can have substantial negative effects. Anecdotal evidence shows that
judges tend to be reluctant to appoint interpreters in general (Aliverti and
Seoighe 2017, p. 143 [with respect to the United Kingdom]; Laster and
Taylor 1994, pp. 96–97 [with respect to Australia]; Chang and Araujo
1975, p. 802 [with respect to the United States]), and the lack of a clear
mandate as to when the right to an interpreter attaches is unlikely to
alleviate this pattern. For the time being, however, the “autonomous”
approach, due to its scholarly backing and ECtHR roots, as well as the
absence of any contradictory HRC practice, would appear to be the likely
winner as to the definition of “criminal charge”. Thus, the right to an
interpreter can be seen to attach from the initiation of such a charge, and
remain applicable until the end of any criminal proceedings, including
any appellate procedures (Nowak 2005, p. 319).
4.3 Language Competence
The third and final facet concerning the appointment of an interpreter
revolves around the language ability of the defendant. Specifically, under
Article 14 (3) (f) ICCPR, the charged individual is only entitled to an
interpreter where “he cannot understand or speak the language used in
court.” This phrasing creates an obvious language threshold, and given
the inclusion of the right to an interpreter under the fair trial rubric, the
interpretation of that threshold must ultimately revolve around the ability
of the defendant to receive a fair trial given his respective language abilities (see for example R. v. Johnson [1987] [Australia] p. 440). The difficulty, of course, is in determining what level of language is adequate to
allow a defendant to participate sufficiently in his criminal proceedings
that a fair trial can be had.
This has yet to be satisfactorily addressed through caselaw at the international level. The leading HRC case is the previously-discussed Guesdon
v. France, wherein the HRC was confronted with a Breton-speaking defendant who asserted a right to an interpreter even though he admitted being
capable in the native language of the court. The HRC held that the defendant was only entitled to an interpreter where he had “difficulties in
understanding, or in expressing [himself] in the court” (Guesdon v. France
[HRC 1990] §10.2; see also Barzhig v. France [HRC 1991]). In the HRC’s
view, the right to an interpreter was one of necessity, not preference. This
is a view that has found favor in other international fora as well (see for
example Prosecutor v. Zejnil Delalić [ICTY 1997]). However, in so holding, the HRC unfortunately failed to define what exactly constituted sufficient linguistic “difficulty” in a court setting. As such, establishing the
threshold of linguistic inability that triggers the right to an interpreter has
largely been left to existing domestic legislation or caselaw.
Naturally, the threshold differs from jurisdiction to jurisdiction. This is
entirely logical, given that the domestic legal basis for the right to an
interpreter in many jurisdictions pre-dates the ICCPR, and thus owes its
origin to purely domestic sources ranging from express statutory or constitutional provisions to common law decisions (Brown-Blake 2006,
pp. 392–393). In the United States of America (‘U.S.’), for instance, the
determination of whether or not a defendant is entitled to an interpreter
hinges on whether he can “comprehend the proceedings and communicate effectively with counsel” (United States v. Febus [7th Cir. 2000]
p. 791). In making this decision, the trial judge is given wide discretion
to consider the “defendant’s knowledge of English and the complexity of
the proceedings and testimony” (United States v. Febus [7th Cir. 2000]
p. 791; see also Pettys 2009, p. 256; Hench 1999, p. 253; Shulman 1993,
p. 179). In Australian and British courts as well, the ultimate decision on
language competence is left to judicial discretion (Aliverti and Seoighe
2017, p. 142; Mikkelson 2000, p. 6; Laster and Taylor 1994, pp. 95–97).
This reliance on judicial discretion unsurprisingly leads to the result that
each individual judge follows his or her own standard and makes each
decision on a case-by-case basis (Trechsel 2005, p. 334).
The individual determination of language competence by judges creates numerous problems. For one, judges do not always understand the
significance of a court interpreter to the realization of a fair trial, nor are
they generally aware of the “unique needs of the linguistic minority in
the courtroom” (Davis and Hewitt 1994, p. 121). Likewise, they frequently underestimate the possible contribution that a defendant can
make to his own defense (Grabau 1996, p. 6), and just as frequently
overestimate a defendant’s ability to understand a sophisticated legal
process with which they, as judges, are intimately familiar (Laster and
Taylor 1994, pp. 89–90). As a result, judges are apt to turn to court
interpreters not as a matter of right for the defendant, but rather as a last
resort when all other forms of communication have failed (Laster and
Taylor 1994, pp. 89–90; Chang and Araujo 1975, p. 802; R. v. Tran
[Supreme Court 1994] [Canada] §15). This natural reluctance to
appoint an interpreter tends to hide itself behind a series of poor assumptions that judges make regarding language abilities in the courtroom.
For example, longtime residents of a country are assumed to speak that
country’s language at a competent level (Phelan 2011, p. 83; Trechsel
2005, pp. 334–335; Chang and Araujo 1975, pp. 802–803).
Furthermore, individuals who are conversant in normal circumstances
on everyday topics are presumed to be capable of understanding complex legal language in a stress-filled situation (Interpreters in the Courtroom
2008 [Foley Statement]; Shepard 2007, p. 643; McCaffrey 2000, p. 374;
Laster and Taylor 1994, pp. 89–90). These assumptions ultimately serve
to reinforce the judge’s natural reluctance, and lead to a subjective determination of language competence taken by an individual who is not
trained to assess language ability.
However, criticizing judges in this context seems overly harsh given
that a viable alternative to such decisions is not altogether apparent. As
Trechsel (2005) has noted, objectively measuring the language abilities of
a defendant is problematic at best, and impossible at worst (p. 334). Even
assuming that the defendant cooperates in such an assessment (which is
a sizeable assumption in some instances), any linguistic test would need
to be specifically tailored not only to legal language in general, but perhaps even to the particular complexity of the charged crime itself (Trechsel
2005, p. 334; Laster and Taylor 1994, p. 90). Furthermore, it is difficult
to imagine an objective test being able to assess whether an individual’s
language ability would withstand the increased stress inherent in a legal
proceeding (Laster and Taylor 1994, p. 90).
As can be seen from the above discussion, not only is there little guidance as to what level of language a defendant should possess in order to
“understand or speak the language used in court”, there is little scholarly
agreement on what such guidance would even entail. The end result is
that the current definition of language incompetence ultimately relies on
the discretion of national level judges and results in the appointment of
fewer court interpreters than many advocates (and even judges) would
prefer (Laster and Taylor 1994, p. 96; Schweda-Nicholson 1989, p. 711).
5 The Competence of the Interpreter
Even where a linguistically incapable defendant is granted a court interpreter, this doesn’t immediately ensure a fair trial (Lindie 1993, p. 409).
The right to an interpreter implies a certain minimum level of quality
with respect to the court interpretation (Nowak 2005, p. 344). Where
this minimum level is not met, it is unlikely that the defendant involved
will have “understood … the language used in court” adequately enough
to have received a fair trial. Indeed, some scholars have argued that the
appointment of a bad interpreter is worse than not having an interpreter
appointed at all; as such, the right might be better understood as one to
a competent interpreter (LaVigne and Vernon 2003, p. 889).
5.1 Defining the “Competence” of a Court Interpreter
As with the definition of language incompetence, the difficulty in this
context is that there exists little or no guidance at the international level
as to how to assess whether or not an interpreter is competent (Trechsel
2005, p. 339). Indeed, international caselaw on the issue is generally
uninterested in the qualifications or abilities of the interpreter, but is
rather solely interested in the quality of the resulting interpretation. The
ECtHR’s Kamasinski v. Austria is a good example. In Kamasinski the
defendant was interrogated by police on several occasions using a variety
of different interpreters, including an unregistered interpreter and a fellow prisoner of limited English-speaking skills. The ECtHR held that the
defendant’s right to an interpreter was not violated because an “interpreter was present on each occasion” (Kamasinski v. Austria [ECtHR
1989] §77). The court emphasized that it was unconvinced that the
interpretation “led to results compromising [the defendant’s] entitlement
to a fair trial or his ability to defend himself ” (Kamasinski v. Austria
[ECtHR 1989] §77). Thus, it can be assumed from Kamasinski that the
identity and training of the interpreter is less important to fair trial considerations than the actual end result of the interpretation. This is an
entirely logical approach, given that the interpretation of the proceedings
is what ensures a fair trial, not the mere presence of a well-qualified interpreter. However, as will be discussed in more detail below, it must be
questioned whether an appellate court is in any position to judge the
adequacy of an interpreter’s work, especially considering that most appellate records consist of only the native language of the court (Kahaner
2008–2009, p. 226; Shepard 2007, p. 645).
The veritable absence of international caselaw and guidance on this
issue means that the domestic jurisdictions have largely been left to create
and enforce their own competency standards (Trechsel 2005, p. 339).
Unfortunately, even at the national level, there are often “no universally
acceptable standards for assessing competency” (Steele 1991–1992,
p. 238; see also Heller 1994–1995, p. 368). For the most part, national
courts and legislation focus as much on the qualifications and abilities of
the interpreter as they do on the actual work product in any one given
trial. In U.S. federal courts, for example, the competency of a court interpreter is linked to certification or accreditation (Court Interpreter’s Act of
1978, §1827 [b] [2]). The federal court system currently administers a
certification regime only for Spanish language interpreters (though in the
past it has also offered certification in both Haitian Creole and Navajo)
(de Jongh 2008, p. 25). Under the Court Interpreter’s Act of 1978, federal
judges are required to use only federally certified court interpreters when
they are reasonably available (§1827 [b] [2]). Where such certified interpreters are not reasonably available (which, given that certification only
exists in 3 languages, is often), the judge may use “otherwise qualified”
interpreters (Court Interpreter’s Act of 1978, §1827 [b] [2]; see also
Kahaner 2008–2009). The U.S. state court systems each use their own
organization and standards, some involving certification programs in various languages, and some that do not (see generally Griffin and Cole 2007).
Denmark also employs a certification system; §149 Danish
Administration of Justice Act requires that all court interpreters “should
be authorized” (Hertog and Vanden Bosch 2001, p. 13; SchwedaNicholson and Martinsen 1995 p. 262). In addition to meeting certain
technical requirements (such as possessing Danish nationality and being
over 25 years of age), an aspiring interpreter must either: (for English,
Spanish, French, German, or Italian) undertake training and pass a language examination administered by a part of the Danish Ministry of
Industry; or (for every other language) pass an oral examination from the
National Commission of the Danish Police (Hertog and Vanden Bosch
2001, p. 13; Schweda-Nicholson and Martinsen 1995, p. 262). Belgium,
on the other hand, is less regulated. Each Court of First Instance, in conjunction with the public prosecutor’s office, creates a list of approved
“sworn interpreters” for that court to use (Hertog and Vanden Bosch
2001, p. 11). However, in practice, the qualifications and competence of
these interpreters is rarely checked, and there currently exists neither a
national registration or certification system, nor any law mandating any
particular quality prerequisites (Hertog and Vanden Bosch 2001, p. 11).
Canada is even less regulated. Under Canadian law, interpreters must be
competent and impartial, but the determination of competence is left to
the individual judges, and the caselaw on the issue has not been entirely
conclusive (see for example R. v. Tran [Supreme Court 1994] §§56–68).
At the end of the day, according to one Canadian scholar, the only necessity is that the interpreter takes an oath to interpret to the best of his or
her ability (Heller 1994–1995, p. 368). No nationally accepted standard
for determining the competence of court interpreters exists (Heller
1994–1995, p. 368; R. v. Tran [Supreme Court 1994] §64).
As can be seen in the examples above, there is no common standard for
determining the competence of court interpreters (see for example ed.
Hertog and van Gucht 2008). Some jurisdictions employ relatively strict
certification regimes, others require professional or community accreditation, while others require nothing at all outside of an oath (Michael 2016,
pp. 228, 230 [with respect to Nigeria]; Martin and Ortega Herráez 2011
[no enforceable accreditation in Spain] p. 14; Hayes and Hale 2010 [voluntary accreditation in Australia] p. 123; O’Brien 2010 [no accreditation
in Ireland]; Tursun 2010 [“no specific test or minimum standard of
expertise” in China] p. 562; Kolb and Pöchhacker 2008 [no accreditation
in Austria] p. 28; Court Interpreter’s Job Is No Easy Task 2002 [no accreditation in Japan]; Morris 1998 [“no quality assurance standards” in Israel]
p. 7; see also Spronken and Attinger 2005 [with respect to the varying
E.U. standards]). Indeed, some jurisdictions employ a flexible combination of all three, depending upon the comparative availability of interpreters in a particular language. The result is that there is no agreed upon international law standard for what constitutes a “competent” court interpreter. Unhelpful and uninformative as it may be, all that can be said is that the likely standard almost certainly revolves around the defendant’s ability to receive a fair trial, since this is the overarching reason for the right to an interpreter in the first place.
5.2 The Difficulties in Enforcing Competency Standards
In spite of the flexible standards, or even complete absence of standards
in some jurisdictions, many courts still experience significant difficulties
both finding and keeping competent court interpreters. These difficulties
can, in part, be traced back to the natural complexity of court interpreting itself, which requires a specific educational, cultural, and training
background (as will be discussed in the next Chapter). Understandably,
not many individuals in society possess these attributes. The relative scarcity of capable individuals can be most obviously seen in the extremely
low pass rates on certification exams in the U.S. federal system: the overall certification rate invariably hovers below 10%, which is astonishing
given that generally only the most experienced court interpreters even
attempt to gain certification (de Jongh 2008, p. 25; Hewitt and Lee
1996, p. 26). The exotic nature of the language required often also contributes to the lack of skilled interpreters (Mikkelson 1998b, pp. 5–6;
Hammond 1993). Regardless of the objective reason for the shortage of
competent court interpreters, the existence of this shortage has real effects
on the actual enforcement of domestic competency standards. While
these effects will be more closely examined in Chap. 6, it is helpful to
quickly visit them in this context.
The shortage of obviously qualified court interpreters can lead attorneys and judges to settle for “good enough” (Shepard 2007, p. 646). In
some instances, this involves accepting bailiffs, building janitors, the
arresting officer, the judge’s secretary, the prosecuting attorney, or even a
co-defendant as an acceptable court interpreter in a criminal proceeding
(Shepard 2007, p. 646; Heller 1994–1995, p. 368). Judges sometimes
merely administer the requisite interpreter oath and commence the proceeding without questioning the court interpreter’s capabilities or possible conflicts of interest (Davis and Hewitt 1994, p. 132). Often, simply
being bilingual in the requisite language is enough to attain an appointment (Hale 2011, p. 15; Moeketsi 1999, p. 7; Grabau 1996, p. 6; Laster
and Taylor 1994, p. 91; Benmaman 1992, p. 448; González et al. 1991,
p. 51). Naturally, such flexible standards can create a wide variance in the
competence of practicing court interpreters. And while one must be tolerant of the fact that “interpreter error is inevitable” (McCaffrey 2000,
p. 393), it is not difficult to see how the appointment of random bilingual individuals (even one without an obvious conflict of interest) can
undermine the concept of a “competent” court interpreter, regardless of
how stringent the competency standards are in a particular jurisdiction.
6 Practical Considerations
The eventual appointment of a competent individual as interpreter does
not, by itself, fulfill a defendant’s right to an interpreter. Since the overarching purpose animating the right is the necessity of a fair trial, it is
logical that this necessity places certain demands on the practical aspects
of the right to an interpreter. In other words, simply having a competent
interpreter is not always enough to ensure a fair trial; there are other practical considerations in the implementation of the right to an interpreter
that need to be considered.
6.1 Multiple Interpreters
Although most of the discussion, and existing legal standards, concerning
competency and the right to an interpreter revolve around the competence of the appointed interpreter, it must be remembered that the general abilities of the interpreter are only a more easily verifiable substitute
for the actual adequateness of the proceedings themselves. This distinction is important, because the necessity of a satisfactory interpretation may require more than one interpreter be appointed. The general practice in national courts is to appoint a single court interpreter for a defendant (or witness) (Stern 2011, p. 332; Mason 2008, p. 8; see also Heller 1994–1995, pp. 381–382; Shulman 1993, p. 193; Steele 1991–1992, pp. 243–44). This interpreter’s job is to make the oral
proceedings of the courtroom understandable for the defendant (or to eliminate the language barrier with respect to a testifying witness) (Steytler 1993, p. 206; Steele 1991–1992, pp. 223–224; González et al. 1991, pp. 17–18). However, court interpreting is an inherently stressful and difficult task, more so even than other forms of interpreting (such as conference interpreting) (Davis and Hewitt 1994, p. 135; Craney 1989–1990, p. 27). It requires an intensity of concentration so demanding that studies have noted a significant diminishment in both accuracy and efficiency after only 30 minutes of continuous court interpreting (Mason 2008, p. 9; Davis and Hewitt 1994, p. 135). Chapter 6 will discuss in more depth the possible impact of interpreter fatigue on accuracy and its
ramifications on the right to a fair trial; it is enough here to simply note that ensuring a competent interpretation (and thus a fair trial) in some instances may require either the imposition of frequent breaks for a solitary interpreter or the appointment of multiple interpreters to share the workload (Heller 1994–1995, p. 381).
There are also logistical situations that may necessitate the use of two
or more interpreters. For instance, where both the accused and a testifying witness do not speak the language of the court, employing a single
interpreter for the proceedings may be insufficient (Heller 1994–1995,
p. 381; Chang and Araujo 1975, pp. 821–822). Assuming that the
accused and the witness both speak the same language (the simplest form
of this problem), the interpreter would likely be used to interpret the witness’s testimony for the court. Obviously, in this situation, the defendant
would be able to understand both the court’s questions and the testimony
from the witness’s original language, but he would not be in a position to
understand the entire proceedings (any discussions between the judge
and the attorneys, for instance) unless the interpreter interpreted these
interactions for the witness, which is not assured. And even where this is
done, it is likely done simultaneously, and quietly enough so as not to
disturb the entire courtroom, which naturally makes it unlikely that the
accused would be able to hear the interpretation. Furthermore, using the
single interpreter for the witness makes it impossible for the accused to
communicate with his attorney during the proceedings, which is an obvious impediment to an adequate defense (Chang and Araujo 1975,
pp. 821–822). Finally, allowing a single interpreter to handle both the
defendant and any subsequent witnesses is to invite the risk of bias. Since
the interpreter has likely been involved in sensitive attorney-defendant
discussions, as well as the overall preparation of the defense, her eventual
interpretation of the witness’s testimony may be subconsciously influenced by the privileged information she possesses about the case (González
et al. 1991, p. 496; Chang and Araujo 1975, pp. 821–822).
These elements, taken together with the obvious benefit of having an
extra interpreter in the courtroom checking the accuracy of the interpretation (Heller 1994–1995, p. 381; Chang and Araujo 1975, pp. 821–822),
counsel in favor of using multiple interpreters in such situations. However,
that is seldom the case in national courtrooms, for a variety of
understandable reasons. First, judges are rarely educated as to the drawbacks of using only a single interpreter in these situations. Second,
employing multiple interpreters increases costs, an outcome most courts
seek to avoid (Heller 1994–1995, p. 381; Chang and Araujo 1975,
pp. 821–822). Third, as previously mentioned, the scarcity of competent
court interpreters makes it difficult in some instances for courts to find
one adequate interpreter, let alone two or more. Thus, even though using
multiple, alternating interpreters is the norm at international criminal
tribunals, (Stern 2011, p. 332; Karton 2008, pp. 22–23; Stern 2001,
p. 21) the practical impediments to such a policy make it quite rare at the
national level. The question, though, is whether multiple interpreters are
required in order to ensure a fair trial. There is little doubt that multiple
interpreters may be helpful in order to render a complete and accurate
word-for-word interpretation of the proceedings, but it is not clear that
such a complete interpretation is necessary to a fair trial. Something less
than word-for-word may be sufficient, and if this is in fact true, then the
arguments mandating the use of multiple interpreters are correspondingly weakened.
6.2 The Extent of the Interpretation
The question, then, becomes to what extent must a criminal proceeding
be interpreted in order to ensure a fair trial. Regrettably, Article 14 (3) (f)
ICCPR is not specific in this regard, stating only that a defendant is
entitled to an interpreter “if he cannot understand or speak the language
used in court.” Nowak (2005) has interpreted the reference to the “language used in court” as implying that “the entire oral hearing must be
translated” (p. 343 [emphasis in the original]). Trechsel (2005) is in
accord, arguing that the entire trial must be interpreted “from start to
finish” and that the accused must “be able to understand every sentence
that is uttered” (p. 337). If these interpretations of Article 14 (3) (f)
ICCPR are correct, then a complete interpretation of the proceedings
would be necessary, thus raising the minimum level of interpreter competence required while simultaneously bolstering the arguments in favor
of multiple interpreters.
However, it is difficult to see this necessity in the language of Article 14
(3) (f) ICCPR. Subsection (f) sets a limit on when an interpreter is given
to a defendant; it doesn’t appear to imply or mandate any particular level
of interpretation. Rather, as previously argued, the requirement of an
adequate interpretation would appear to come from the overall purpose
of ensuring a fair trial. Kamasinski supports this analysis. In Kamasinski,
the court interpreters failed to interpret the entire proceedings for the
defendant, instead simply summarizing the events (§27). The ECtHR
held that this fact alone was insufficient to find a violation of the right to
a court interpreter, placing great worth in the fact that the defendant was
not “unable because of deficient interpretation either to understand the
evidence being given against him or to have witnesses examined or crossexamined on his behalf ” (Kamasinski v. Austria [ECtHR 1989] §83). In
other words, the attributes of a fair trial existed, even where the interpretation left something to be desired.
Kamasinski, of course, involved the ECHR, and as such, is not a definitive interpretation of the identical ICCPR provision. It is still unsettled
whether the ICCPR requires more or less precision with respect to the
interpretation of criminal proceedings. Scholars, as noted, find fault with
the Kamasinski decision, and argue that fair trial standards require a complete, non-summarized interpretation (a “comprehensive” interpretation)
(Nowak 2005, p. 343; Trechsel 2005, p. 337). International criminal
courts (the ICC, ICTY, and ICTR most prominently) employ this standard as well, utilizing multiple interpreters and producing comprehensive
simultaneous interpretations of court proceedings (Elias-Bursać 2015,
pp. 74, 89–92; Namakula 2014, pp. 131, 136; Stern 2011, p. 330).
Several prominent national jurisdictions, such as the U.S. (United States
v. Joshi [11th Cir. 1990] p. 1309; United States ex rel. Negron v. New York
[2nd Cir. 1970] pp. 389–390), Canada (R. v. Tran [Supreme Court
1994] §§61–62) and Australia (De La Espriella-Velasco v. The Queen
[Court of Appeal Western Australia 2006] pp. 144–145), also require
non-summarized interpretations as the baseline standard. However,
national courts naturally follow a variety of different procedures, which is
entirely logical given the various levels of emphasis that national jurisdictions place on oral proceedings (Stern 2011, p. 329; Trechsel 2005,
p. 338). As such, it is nearly impossible to distill any absolute guidance as
to the level of comprehensiveness required in this area. What is clear,
though, is that enough of the proceedings must be interpreted so as to
allow the defendant not only to understand what is occurring in the
courtroom, but also to allow him to participate in his own defense. On
this principle, at least, scholars, national jurisdictions, and Kamasinski all
seem to agree.
6.3 Translation
To this point, the entire discussion concerning the right to an interpreter
for linguistically incapable defendants has revolved around the interpretation of the oral portions of any criminal proceedings. Given that, in the
linguistic field, “to interpret” involves the transfer of oral content from
one language to another, as opposed to “translation” which concerns the
same process in relation to written documents (Benmaman 1992, p. 445),
this limitation is entirely appropriate (Harris 1967, p. 368). There is,
however, more to criminal proceedings than oral hearings. And it is questionable whether an accused can receive a fair trial where he is unable to understand or read any documentary evidence submitted against him at trial (Nowak 2005, p. 343). This is especially true in jurisdictions that rely more heavily on written documentary evidence (Trechsel 2005, p. 338). For this reason, the “right to an interpreter” has expanded to include a limited right to the translation of written documents as well
(Nowak 2005, p. 343).
The ECtHR, in its jurisprudence, has explicitly extended a defendant’s
right to a court interpreter to include the translation of any documents
“which it is necessary for him to understand … in order to have the benefit of a fair trial” (Kamasinski v. Austria [ECtHR 1989] §74; see also
Luedicke, Belkacem and Koç v. Germany [ECtHR 1978] §48). The “necessary for a fair trial” language, however, precludes the necessity of translating each and every document for the defendant, since not every
prosecutorial document is essential to a defendant’s understanding of the
proceedings (Kamasinski v. Austria [ECtHR 1989] §74). Furthermore,
indulging in such an extensive translation program for defendants would
not only likely delay trials to an extent that could “jeopardize the right of
the accused to an expeditious trial” (de Meester 2010, p. 472), but would
also likely be cost-prohibitive (Merrills and Robertson 2001, p. 131).
Article 67 (1) (f) of the Rome Statute of the International Criminal
Court is in accord with the ECtHR practice in this respect, requiring
“translations as are necessary to meet the requirements of fairness.” In its
Decision on the Requests of the Defence of 3 and 4 July 2006 in the
Lubanga case, the ICC took great pains to emphasize the ECtHR caselaw
when interpreting Article 67 (1) (f), going so far as to declare that their
interpretation was “fully consistent with the case law of the ECHR on
this matter” (Prosecutor v. Thomas Lubanga Dyilo [Pre-Trial Chamber I
ICC 2006] p. 466). The practice of the ad hoc criminal tribunals, however, appears to broaden this entitlement in the name of equality, allowing defendants access to translated documents well beyond what the
ECtHR would consider “necessary” (Dingfelder Stone, J. 2012, p. 172).
The HRC, though, has been less clear in its approach. In Harward v.
Norway (1994), the applicant asserted that he was not provided with adequate translations of the documents used against him at trial, and that he
was therefore denied the right to have adequate time and facilities to prepare his defense (§3.3). The HRC held that the right to a fair trial required
that the defense be given the “opportunity to familiarize itself with the
documentary evidence against an accused”, but that this did not necessarily require the translation of relevant documents, so long as they were
furnished to the accused’s counsel, who presumably would be linguistically capable of reading and understanding their contents (Harward v.
Norway [HRC 1994] §9.5). Although this case would seem to preclude
the necessity to translate a
English to Arabic: Act like a owl, think like a fox General field: Art/Literary Detailed field: Journalism
Source text - English Act like a owl, think like a fox
Why is it that some people thrive in the cut-and-thrust of the business environment, and others fail? The answer may lie in the type of animal cunning employed in your office politicking: are you a fox, a sheep, a donkey or, best of all, a wise owl? John van Maurik reports on a guide to survival - and lethal tactics - in the corporate jungle.
It was Benjamin Franklin who coined the saying, "In this world nothing can be said to be certain, except death and taxes." But anybody who has worked in an organisation will probably add a third element to the list: organisational politics. Avoiding any of the three is downright impossible, no matter how important you are, and - as Julius Caesar found out - by the time you get to say "Et tu, Brute" it is usually too late to do anything about it.
Translation - Arabic 1. نظرية المعنى:
تصرف بحكمة و فكر بمكر (خبث)
نتساؤل في بعض الأحيان لماذا ينجح بعض العمال في حياتهم المهنية عندما يكون محيط عملهم مليئا بالتحديات ؟يعتمد معرفة السبب وراء ذلك في التفريق بين أنماط العاملين حسب شخصيتهم و معاملاتهم في محيط العمل. و من بعض أنواعهم هناك الماكرين و الجبناء و هناك أيضا الحصفاء. و في هذا الصدد يقدم لنا جون فان موريك تقريرا عن كيفية التعايش في ضل ظروف العمل الصعبة.
من أقوال بنجامين فرانكلن المشهورة "لا نستطيع أن نقول على أي شيء في هذا العالم أنه ثابت باستثناء الموت و الضرائب" .و مع ذلك فإن الموظفين بالضرورة سيزيدون شيا آخر إلى هاتين ألا و هي السياسة في العمل و في هذا الصدد فإن كلا من هؤلاء الثلاث حتميات ثابتة في حياة الناس مهما كان ذلك الشخص فلا تستطيع أن تفعل أي شيء حيال ذلك.
2. نظرية الهدف:
تصرف كالهدهد ،و فكر كالثعلب
لماذا يتفوق بعض الناس بفضل التحدي القائم في وسط العمل و البعض الآخر يفشل؟ قد تتواجد الإجابة في نوع الحيوان الذي يرمز إلى كل موظف في وسط التسييس في مكان العمل: هل أنت ثعلب ،نعجة ،حمار أم أفضلهم هدهد حكيم؟ يعطي تقرير جون فان موريك دليلا عن كيفية التعايش مع قانون الغابة الذي يسود الشركات.
"لا نستطيع أن نقول على أي شيء في هذا العالم أنه ثابت باستثناء الموت و الضرائب" مقولة مرسخة و منقولة على لسان بنجمان فراكان و لكن أي أحد عمل في مؤسسة من المحتمل أن يضيف عنصرا ثالثا للقائمة: السياسة في العمل ،و تحاشي أي واحد من العناصر الثلاثة هو من المستحيلات كما لم يستطع سينيمار تحاشي جزائه بمجرد إنهائه لعمله.
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Master's degree - High Arab Institute for Translation (ISAT)
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Years of experience: 4. Registered at ProZ.com: Jul 2020.
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