Translation in pre-trial phases of the judicial process: developing a norm-based framework to train translators working into Arabic

1 Introduction

In international multilingual contexts, legal translation intervenes in the context of international institutions and contributes to maintaining cooperation and diplomatic relations, with due regard for a balanced consideration for each country’s culture and power relations (Monzó Nebot 2019 citing Fishman 1993). In recent decades, it has increasingly touched on judicial and administrative settings in the context of international migration and its consequences on how highly sensitive official documents are translated, including birth or marriage certificates, family registers, statutory declarations, medical certificates, etc. Translation may intervene in documents that are part of judicial proceedings, either before the court, such as sentences, or as part of a police service, such as testimony statements. Due to global mobility, immigration has clearly become “a structural feature of all industrialized countries” (Kubal 2013: 56) and questions of legal adaptation surface when individuals of these groups are confronted with the host justice system. This has an impact on how translation and interpreting – which operates more and more in national public service settings, courts of law and police stations – is performed.

Translation that is carried out for the judiciary is known as judicial translation. The terms “translation” and “translator” include, respectively “interpreter” and “interpreting” on the basis of the categories comprised in the European Legal Interpreters and Translators Association’s (EULITA) description of legal interpreters and translators working in judicial contexts or similar settings (2013). This type of translation can involve foreign individuals who belong to immigrant or refugee groups. It is carried out by sworn translators for justice services in all types of proceedings, including civil, criminal and administrative matters, most frequently in both oral and written forms (Monjean-Decaudin 2012). Translating for justice services involves interacting with judicial authorities, either for proceedings that take place at the end of the judicial process before the court or at the beginning of the judicial process during a police interview. It therefore entails a high degree of accuracy and confidentiality in conformity with ethical and professional norms. As a starting point, we can assume that any departure from these norms is a translation error and, even more importantly, a breach of ethical principles that may affect the course of the judicial process itself.

In public service settings, the myriad of issues related to the reality of translator/interpreter’s interaction with refugees or migrants raises many social, psychological and ideological concerns (Valero Garcés 2007). The complexity of this interaction puts into question the faithfulness and impartiality of the translation/interpreting task, as the translator/interpreter is the only agent who is aware of the cultural background and traditions of both speakers (Wallace and Monzó Nebot 2019). A number of studies show that conditions in the field provide the translator/interpreter with a certain freedom to make decisions on the relevancy of the message that is to be translated and conveyed (Bancroft 2017: 205; Patel 2002: 223). Some argue that in order to prevent misunderstanding and, consequently, adverse legal and ethical effects, the criteria of absolute linguistic concordance cannot always be met when legal translation is carried out in contexts involving migrants or refugees. The particular conditions involved when translating for refugees or migrants may prompt the translator/interpreter to make pragmatic decisions as an adviser or mediator (Aguirre Fernández Bravo 2019). Those positions defend the social role of the translator/interpreter as a cultural mediator, asylum seeker interpreter or liaison interpreter (Aguirre Fernández Bravo 2019; Berbel 2020). In situations of conflict, such as war, the impartiality and neutrality of the translator is rarely preserved because of greater inequality in communication (Inghilleri 2008). According to Baker (2006), in such situations, a translator is expected to intervene in the translation process as a social agent.

By contrast, in courts of law and police stations, accuracy and neutrality are an absolute prerequisite in the linguistic transmission of information. They guarantee that the information being transmitted to the person is accurate, as what is or is not said at the interview may potentially have consequences on the trial (Conway et al. 2022). Consequently, judicial translation and liaison translation cannot be equated, even though both provide linguistic assistance in a particular context involving a foreign person. The translator’s professional experience and status determine their adherence to the code of conduct and compliance with ethical norms and frames of reference, and distances him or her from a politicised stance. Even when the translator must go far beyond simply translating words, he or she must still meet quality standards by providing accurate translations, as well as fulfilling the ethical imperatives of impartiality and neutrality.

In this study, the focus is on the imperatives that guide the judicial translator’s role. It does not cover the community or liaison translator, or cultural mediator. Nor does any association exist with interpreters who attend the hearings of refugees and asylum seekers and have a distinct job profile that is generally well defined.

More specifically, this study draws upon the scenario of a police interview in which it becomes difficult for a migrant person to understand certain basic legal concepts related to resolving a family and marital dispute due to differences in legal backgrounds. In terms of the relationship with the host country’s law, communication may also be affected by differing values and attitudes to law, as reported in the literature on migrants (Coutin 1998; Kubal 2013; Kurkchiyan 2012). How is a translator/interpreter to deal with differences in basic legal concepts in the particularly strict setting of a police interview? For a novice translator/interpreter, in addition to learning how to handle culture-related legal concepts that are anchored in the host country system, there is also a need for guidelines that will enable them to deliver a suitable translation, all while abiding by the principles and practices of judicial translation. This obliges us to go beyond the translation act to take into consideration the norms that control the behaviour of actors in the specific and demanding setting of an interview.

This study focuses on challenges related to language, translation and legal/ethical norms. By language norms, we mean norms that underlie communication between the interviewee and translator, whether in standard written form or spoken form. Translation norms refer to norms that determine the transfer of legal notions and fit into the sociolinguistic framework of the interviewee. On this specific point, attention is given to contextualized terminology choices in addressing conceptual gaps, as terminology is considered as a major source of difficulty in legal translation (Cao 2007) even though there is a lack of empirical studies that investigate the nature and difficulty of terminology in translating legal genres (Prieto Ramos and Cerutti 2021). As for legal/ethical norms, they refer to binding rules and ethics that govern participants in the legal relationship within the limits established by law and codes of conduct. We propose a three-pronged framework that is based on defined norms and their application in a real-life setting. The framework seeks to guide the translator/interpreter in a judicial interview and provide rules for judicial translation training. Each level in the proposed framework is supported by accounts from three translators – two experienced and one novice – who are working with the judiciary.

The second section spotlights one specific stage of judicial translation: the judicial interview. It describes how the translator must address the language norm, legal/ethical norm and translation norm during the rigorous exchange of questions and answers. Section three proposes a three-pronged framework based on the defined norms and the way in which they are applied in a real interview. Finally, it presents a translation technique that conveys communication between the interviewer and interviewee accurately and comprehensibly, including system-related concepts that are new to the interviewee. Our objective is to identify the best technique to handle the strict communication between the interviewee and interviewer. The conclusion proposes guidelines to enhance the linguistic efficiency of the translation task and make sense of this experience for the migrant or refugee.

2 Translation and interpreting during the judicial interview

One premise of this study is that translators working for the judiciary are crucial to guaranteeing that the suspect is not unfairly disadvantaged by the language-barrier and non-access to the process, in accordance with international instruments and domestic laws. This can only be achieved with the assistance of judicial translators who are aware and knowledgeable about binding codes of ethics and statutory instruments that strive to guarantee equal communication in this particular situation of communication. The present study’s framework claims to define shared and binding rules inherent to this particular situation of judicial interview, towards attaining that objective.

At the international level, the right to interpreting is provided under Article 14(3)(f) of the United Nations International Covenant on Civil and Political Rights (United Nations 1976), which states that a person charged with a criminal offence is entitled to minimum rights, including the right “to have the free assistance of an interpreter if he cannot understand or speak the language used in court”. This provision is incorporated, word for word, in Article 6(3)(e) of the European Convention on Human Rights of the Council of Europe (Council of Europe 2013), with the assumption that under the right to a fair trial, the right of interpretation in court “applies also to interactions with police prior to the trial, therefore including the police interview” (Conway et al. 2022: 610).

This linguistic human right has since been reiterated in Directive 2010/64/EU of the European Parliament and of the Council on the right to interpretation and translation in criminal proceedings (European Parliament and Council 2010), and Directive 2012/13/EU of the European Parliament and of the Council on the right to information in criminal proceedings (European Parliament and Council 2012).

Under domestic Swiss law, judicial translation and interpretation is provided as a procedural safeguard for any person who does not understand or express her or himself adequately in the language of the proceedings. It is guaranteed by Article 68(1) of the Swiss Criminal Procedure Code (SCPC). As for the police interview, Article 143(1) of the SCPC clearly states that a person shall be questioned in a language that he or she understands.

Local regulations on interpreting and translation for the judicial power underline the obligations that are imposed upon interpreters and translators when performing their duties. They also define professional requirements, which explicitly require that they hold a master degree in translation or interpreting, or an associated field such as law. The interpreter or the translator is entered into the Register of the judiciary and can attend court trials, meetings with solicitors and police interviews. In exceptional cases, and as a last resort, the judiciary may call upon the services of an interpreter or translator who is not on the Register, for instance, when no registered translator has the required language combination.^[1]

3 Norm-based framework for judicial translation

The question of norms in translation studies has been thoroughly discussed in the literature (Chesterman 1993; Kozanecka et al. 2017; Toury 1995). As it is impossible to describe all of its linguistic aspects in this limited space, this study makes use of the legal definition of “norm” in Black’s Law Dictionary, which defines the term as: “1. A non-stated set of guidelines which specify normal behaviour in a social context. […] 2. A set of standard rules and laws laid down by the legal system, religions or persons of social authority which judges the appropriateness or inappropriateness of an individual’s actions”. This use is supported by the sociological definition of norms in the Sociology Dictionary: “The rules or expectations that determine and regulate appropriate behaviour within a culture, group, or society” (Open Education Sociology Dictionary).

If we draw upon both descriptions, norms relate to ‘standard rules’, ‘normal behaviour in a social context’ and ‘expectations’ that govern communication between – for the purpose of this study – parties in an interview situation that involves translation/interpreting. Here, ‘norm’ has a descriptive function and is based on observations of ordinary translation behaviour from an empirical perspective. The observed variable is a behavioural regularity that is inherent to a situation of communication, which may be represented in a demonstrative proposition described by Chesterman as follows: “Under conditions ABC, translators (tend to) do (or refrains from doing) X” (Chesterman 2017: 198).

As previously mentioned, the existence of regularities is corroborated by discussions with practitioner colleagues, including two sworn translators and one young translator. In other words, the previously cited norms are prerequisite conditions that translators and interpreters take into account in interviews. They ensure high quality translation services by guaranteeing that the principles of accuracy (translation), understandability (language) and neutrality (ethics) are complied with in the interaction.

Having a framework for judicial interviews provides translators/interpreters with options and techniques to deal with culture- and system-related concepts during police interviews. Young translators working into Arabic are increasingly requested to assist with judicial interviews, especially against the background of global mobility and international migration. There is also a need to incorporate a judicial translation framework in training courses so that students can familiarise themselves with the main norms that specify how to perform and behave when translating/interpreting for the judiciary.

This norm-governed framework takes, as a point of departure, Chesterman’s conceptual division of norms (1993) into professional and expectancy norms. What is important in Chesterman’s professional norms is that the standards of translation are integrated in the process and product, in addition to professional translation behaviour. This behaviour gives rise to professional norms, which are divided into “accountability norms, relation norms and communication norms” (Kościałkowska-Okońska 2011: 26). These three norms govern the system of rules related to linguistic precision and professional integrity, which generally guide professional translators. In this sense, both professional and expectancy norms generate linguistic precision, which ensures linguistic transfer and intercultural communication, and guarantees that the translation will be relevant and function effectively in the target space. The notion of translation accuracy and the normative environment in which it is performed seem to be particularly relevant for the setting under study. The value of Chesterman’s division of norms lies in the notion of acceptability of the translation-product in the target language and its compliance with the recipient’s expectations, in addition to its objective of providing a precise rendering within a given community.

4 Concluding remarks

This study has examined the implications of judicial translation in the context of international migration and its relationship with the law of the host country. Judicial translation in this context involves highly sensitive documents that are as varied as family registers and statutory declarations. It also refers to specific legal instances of interaction with judicial authorities, where the observance of certain communication norms is of paramount importance. This is particularly true in the strict setting of a judicial interview.

This paper describes in detail how translation is performed in a pre-trial police interview when the communication of some basic legal obligations becomes difficult for a migrant person, due to differences in legal concepts and backgrounds. In such a situation, the central question is as follows: how can differences in basic legal notions be dealt with in the particularly strict setting of a judicial interview?

To answer this question, a norm-based translation framework has been proposed to handle the judicial interview stage. The rationale behind this guiding framework is, first, to address differences in basic legal notions when translating in the norm-guided context of police interview. It can also serve as a tool for judicial translation training in order to provide novice translators with an approach that is fitting for the rigorous exchange of questions and answers in the interview.

The study proposes a three-dimensional framework based on language, translation and legal/ethical norms. By language norms, we mean norms that underlie communication between the interviewee and translator, whether in standard written form or spoken form. Translation norms refer to norms that dictate the transfer of legal notions and bring new concepts closer to the legal background of the interviewee. As for legal/ethical norms, these refer to binding rules and ethics that govern participants in the legal relationship within the limits established by law and codes of conduct. This framework represents key variables in the judicial interview.

The study shows too that in real-life settings, the interview is guided by those norms which correspond to the proposed guiding framework, thereby validating it as an approach for judicial translation training in the context of migrants. As a tool for judicial translation training, we argue that familiarity with the framework not only crystallises the contextual constraints related to an interview and associated translation challenges, but also introduces trainees to a professional setting where the translation knowledge is only one domain out of a set of other domains related to legal norms and ethics and language use. Hence, the complexity of the situation is represented through this structure and gradually absorbed by trainees. The reliability of the training framework will be assessed in a future work of evaluation.

With regard to the translation norm, the validity and relevance parameters have been taken into consideration in order to ensure that challenging source concepts and phraseological contents will be understandable and acceptable for the interrogated person. In view of the entire extralinguistic setting of the judicial interview, discursive creation appears to be a relevant technique to represent system-bound concepts as the relevance parameter is considered to ensure understandability whatever the educational background of the interrogated person Although the foreign element in the new terminology marks the boundary between the foreign law and the target legal institution, this technique also leads to the creation of new concepts in the target institution.

In future studies, it would be interesting to see how this new terminology contributes to or conflicts with the target law. It would also be compelling to see to what extent the newly forged terminology is accepted by the receiver. To this end, a multi-language terminology data base may be elaborated to provide translators with a tool to address basic but challenging notions in Family Law, such as Communauté universelle ‘general community of property’, Parents nourriciers ‘foster parents’, Tuteur et curateur ‘legal guardian and legal representative’, etc.