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Translation at the European Court of Human Rights

Translation at the European Court of Human Rights. James C. Brannan, Senior Translator Strasbourg 8 April 2016. Set up in 1959 in Strasbourg by the Council of Europe – now 47 States, including 22 from Central and Eastern Europe (about 40 potential languages)

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Translation at the European Court of Human Rights

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  1. Translation at the European Court of Human Rights James C. Brannan, Senior Translator Strasbourg 8 April 2016

  2. Set up in 1959 in Strasbourg by the Council of Europe – now 47 States, including 22 from Central and Eastern Europe (about 40 potential languages) • Hears complaints about violations of the European Convention on Human Rights: right of individual petition, few inter-State cases and advisory opinions • Major reform in 1998 when single Court created (previously Commission + Court) • Heavy workload (2014): 2,388 judgments and 83,675 decisions (admissibility) • More important cases go to the Grand Chamber (17 judges)

  3. Language department • Two distinct divisions • French Language Division (6 translators, 2 revisers) • English Language Division (4 translators, 2 revisers) • Outsourced translation work – mainly pleadings and from non-official languages • A hierarchical structure similar to the UN (LT2 to LT5) • None of the translators do interpreting • Productivity: about 1,700 actual words per day • Translators who dictate their work use voice-recognition software (Dragon) • Language checkers for each language (French 4, English 9)

  4. General specificities of translators’ work • The ECtHR supervises the implementation of only one international instrument: the Convention • Just 2 working/official languages (French and English): the original draft will be in one or the other • Limited translation of parties’ observations, no verbatim reports of hearings (webcast) • Large amount of ‘hidden’ translation by Registry lawyers from third languages • Only a small minority of judgments and decisions actually translated (upstream or downstream) • Case-law dissemination issues (non-official languages)

  5. Translating for the public • Main decisions and judgments - in published reports and/or on HUDOC • Case-law information notes • Press releases, website announce- ments, speeches, Q&A sheets, factsheets, country profiles • Non-official language translations • Annual reports

  6. Translating in Grand Chamber cases • referral request after Chamber judgment or relinquishment • parties’ observations (non-confidential) • research report • rapporteur’s note (and national judge’s note) • public hearing (1st deliberation) • preliminary draft judgment (drafting committee) • draft judgment (2nd delib.) • amendments • judges’ separate opinions • delivery

  7. Translating judgments: structure • Judge Rapporteur’s note • Procedure and facts • Domestic (and international) law and practice • Law part (preliminary objections then alleged violation of Article x ...) • Just satisfaction (Art. 41) • Operative paragraph • Judges’ separate opinions (concurring, dissenting)

  8. “Single text or single meaning” See M. Derlen, ‘A Single Text or a Single Meaning’, Language and Culture in EU Law, 2015 - Convention in English and French (both texts authentic): multilingual interpretation for example in Stoll and Perinçek - GC case-law bilingual ‘done in English and French’, Chamber judgments ‘done’ in one language. Rule 76: ‘Unless the Court decides that a judgment shall be given in both official languages, all judgments shall be given either in English or in French’ - Separate opinions are the only texts identified as translations

  9. “Single text or single meaning” UK Supreme Court and multilingual interpretation • Convention: example of Assange, legal authority / autorité judiciaire – Article 5 § 1 (c) • Monolingual case-law: quotations from B.B. v. France and Polanco Torres v. Spain with unofficial English translations • Bilingual Chamber judgments: reference to Maumousseau and Washington v France using official translation • Bilingual GC judgments: analysis of French text of Salduz (actually a translation) in Cadder.

  10. “Single text or single meaning” SALDUZ v. TURKEY – opinion of Lord Rodger in UK Supreme Court case of Cadder v. HM Advocate (2010) “the English text of para 52 of the judgment in Salduz ... says that the right to legal assistance at the initial stages of police interrogation “has so far been considered capable of being subject to restrictions for good cause” (emphasis added) and that the question in each case “has therefore been” whether the restriction was justified.The language might seem to suggest that in Salduz the Grand Chamber was innovating and laying down a rule under which restrictions for good cause would now be treated differently. The language of the French text of para 52 is different and gives no support for any such inference, however. ...

  11. “Single text or single meaning” SALDUZ v. TURKEY [GC] (2008), § 52 (translation into French) (Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer already at the initial stages of police interrogation.) However, this right has so far been considered capable of being subject to restrictions for good cause. The question, in each case, has therefore been whether the restriction was justified ... Ce droit, que la Convention n’énonce pas expressément, peut toutefois être soumis à des restrictions pour des raisons valables. Il s’agit donc, dans chaque cas, de savoir si la restriction litigieuse est justifiée ...

  12. “Single text or single meaning” SALDUZ v. TURKEY (into non-official languages) Italian (based on French): Tale diritto, che la Convenzione non enuncia espressamente, può tuttavia essere sottoposto a delle restrizioni per valide ragioni. Si tratta dunque, in ogni caso, di conoscere se la restrizione controversa sia giustificata ... Romanian (based on English): Totuși, până acum, acest drept a fost considerat capabil de a fi supus restricțiilor pentru motive rezonabile. Prin urmare, întrebarea în fiecare caz a fost dacă restricția a fost justificată ...

  13. “Linguistic precedent” Term probably coined by Martin Weston, ‘The Role of Translation at the ECtHR’ 1988 • quotations from the Court’s own previous judgments (however much a translation could be improved upon) • example of ‘margin of appreciation’ • where, however, the quotation is not a formal one (not between inverted commas), there may be some licence to modify the wording slightly See more recently: K. McAuliffe, ‘Precedent at the ECJ: The Linguistic Aspect’, Current Legal Issues, vol. 15, 2013 Kjaer, ‘Theoretical Aspects of Legal Translation in the EU’, Language and Culture in EU Law, 2015

  14. “Linguistic precedent” monolingual precedent to be translated for the first time Une certaine hostilité (E.K. c. Turquie, no 28496/95, § 79-80, 7 février 2002) et la gravité éventuellement susceptible de caractériser certains propos (Thoma c. Luxembourg, no 38432/97, § 57, CEDH 2001-III) ne font pas disparaître le droit à une protection élevée compte tenu de l’existence d’un sujet d’intérêt général (Paturel c. France, no 54968/00, § 42, 22 décembre 2005). from Morice v. France § 125 bilingual precedent with variants / errors • Kamasinski: A defendant not conversant with the court’s language may in fact be put at a disadvantage if he is not also provided with a written translation of the indictment in a language he understands. • Kamasinski (translation), Hermi (original French): Un accusé à qui la langue employée par le tribunal n’est pas familière peut en pratique se trouver désavantagé si on ne lui délivre pas aussi une traduction de l’acte d’accusation, établie dans un idiome qu’il comprenne. • Hermi (English translation): A defendant not familiar with the language used by the court may be at a practical disadvantage if the indictment is not translated into a language which he understands.

  15. Dealing with (new) legal concepts Rohlena v. the Czech Republic (2015) “A. Terminology 28. It transpires from the legal systems of the Contracting States that there is a need to distinguish between two situations, the second of which is in issue in the present case: (a) a “continuing” criminal offence (trvající trestný čin, Dauerdelikt, infraction continue, reato permanente), defined as an act (or omission) which has to last over a certain period of time ... (b) a “continuous” criminal offence (pokračující trestný čin, fortgesetzte Handlung, infraction continuée, reato continuato), defined as an offence consisting of several acts all of which contain the elements of the same (or similar) offence committed over a certain period of time ....”

  16. Key points for ECtHR legal translators • Don’t stray from the source text (by interpretation, paraphrase, change of structure ...)and maintain the logic of the original; consider how it might be misinterpreted • Be consistent in the use of terms • Try as far as possible to find a functionally equivalent concept in the relevant area of law – otherwise use a linguistic or generic equivalent and/or retain the foreign-language term • To translate features of domestic law, avoid terms that are too specific to the common law; for expressions, think of readers who are not native speakers • Stick to the Court’s language and style, influenced as they are by international law, the ECHR and precedent • Be careful to use the institutional/legal collocations and wording that would be expected by a lawyer reading the text • Consult the drafting lawyer for “hidden translation” doubts

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