Pitfalls in Legal Translation

Pitfalls in Legal Translation


by Davide De Leo









The process of
translating a legal text into a foreign language is littered with a
series of different obstacles which may be divided by type.

One of the following may exist in the two legal systems “featured” in the translation:

1. the same institution, governed in the same way. This case is extremely rare, if not non-existent;
   
2. the same institution, governed differently (albeit only slightly differently);
   
3. an institution that exists in one legal system but no longer exists in the other;
   
4. an institution that exists in one legal system but does not exist in the other.
   

The obstacles have been listed here in order of difficulty. Example 1,
where the institution exists in both systems, poses negligible
problems; the translator need only find the translation of the statute,
ruling or the like used in the target country.


Here
I will use a “trick” by seeking help from bilingual and trilingual
countries such as Switzerland or Canada. I use the word trick because
two or three languages are used in this case to describe the same law. Let us take as our example an offence from the Swiss Penal Code (sw.p.c.): falsità in certificati (Section 252 of the sw.p.c.). We may be one hundred per cent certain that the French Faux dans les certificats and German Fälschung von Ausweisen are the exact translation of the Italian falsità in certificati.
By exact translation I mean that they describe the same offence (with
an identical definition); the offence is punished in the same way:

1. Chiunque, al fine di migliorare la situazione propria o
   altrui, contraffà od altera carte di legittimazione, certificati,
   attestati, fa uso, a scopo di inganno, di un atto di questa natura
   contraffatto od alterato da un terzo, abusa, a scopo di inganno, di
   scritti autentici di questa natura non destinati a lui, è punito con la
   detenzione o con la multa.
   
   
2. Chiunque fa mestiere della contraffazione od
   alterazione di tali scritti o fa di essi commercio, è punito con la
   detenzione non inferiore ad un mese.
   
   

and in French:

1. Celui qui, dans le dessin d’améliorer sa situation ou celle
   d’autrui, aura contrefait ou falsifié des pièces de légitimation, des
   certificats ou des attestations, aura fait usage, pour tromper autrui,
   d’un écrit de cette nature contrefait ou falsifié par un tiers, ou aura
   abusé, pour tromper autrui, d’un écrit de cette nature, véritable mais
   non à lui destiné, sera puni de l’emprisonnement ou de l’amende.
   
   
2. Celui qui fera métier de contrefaire ou de falsifier
   de tels écrits, ou qui en fera trafic, sera puni de l’emprisonnement
   pour un mois au moins.
   

The offence is barred by statute after the same number of years and so on.


However,
this is not the case if I need to translate the French “loi” (vis-à-vis
example 2 into Italian); while the translation “legge” (law) springs to
mind, I am aware that the two terms are not identical in meaning. For
instance, a French law is voted in by an institution (parliament) which
is structured differently to its Italian equivalent; to be passed, the
same law might need a different majority to that required in Italy, and
so on.


While
I may appear to be splitting hairs, the real problem becomes evident if
I need to translate the French term “réclusion,” for example, into
Italian. Here we need to establish the source of the French text.



Section 35 of the sw.p.c. states:

la réclusion est la plus grave des peines privatives de liberté. Sa
durée est d’un an au moins et de vingt ans au plus. Lorsque la loi le
prévoit expressément, la réclusion est à vie.




And from the sw.p.c. in Italian:

la reclusione è la più grave delle pene privative della libertà
personale. La sua durata minima è di un anno, la durata massima di
venti. La reclusione è perpetua se la legge lo dichiara espressamente.


The term “detenzione” (“imprisonnement” in French) is defined as follows in Section 36 of the sw.p.c.:


La durata minima della detenzione è di tre giorni; la durata massima
è di tre anni, salvo che la legge disponga espressamente in altro modo.



However, Section 23 of the Italian Penal Code states:


La pena della reclusione si estende da quindici giorni a
ventiquattro anni, ed è scontata in uno degli stabilimenti a ciò
destinati, con l’obbligo del lavoro e con l’isolamento notturno.

Il condannato alla reclusione, [che ha scontato almeno un anno della pena], può essere ammesso al lavoro all’aperto.


The Belgian Penal Code makes a distinction (in French) between détention and reclusion. Section 13 reads as follows:


La durée de la reclusion est de cinq ans à dix ans,

while Section 6 makes reference to détention:


La détention est à perpétuité ou à temps.

La détention à temps est ordinaire ou extraordinaire.

La détention ordinaire est prononcée pour un terme de cinq ans à dix ans ou de dix ans à quinze ans.

La détention extraordinaire est prononcée pour quinze ans au moins at vingt ans au plus.


A distinction is made in the French spoken in France between emprisonnement: peine correctionnelle privative de liberté de six mois à dix ans au plus (Section 131-4) and réclusion criminelle: temporaire (trente ans au plus, dix ans au moins) ou pérpetuelle (Section 131-1).


Leaving aside the obvious lexical translation (réclusion = reclusione),
one should be aware that there are significant semantic differences. As
explained above, a distinction is made in Switzerland between réclusion (more serious) and imprisonnement, in Belgium between détention (more serious) and reclusion, and in France between réclusion criminelle (more serious) and emprisonnement.


A
further case arises when dealing with an institution which exists in
one legal system but no longer exists in the other. Let us take the
death penalty as our example. If I am confronted with the English term “death penalty,”
I understand exactly what it means and how to translate it into Italian
(pena di morte), even though this penalty no longer exists in my
country (hence example 3).

Greater problems arise, however, if one is required to translate the
name of an institution which does not exist in the country of the
target language. Here I would advise leaving the term in the source
language (in italics, naturally) and, where necessary, providing a
translator’s note. In this case, matters are often made easier if the
institution exists in a third country, the language of which is the
same (or similar) to that of the target text. If we were asked by an
American magistrate to translate a text written by a Swedish magistrate
from Swedish into English, for example, we might presume that it is
based on an institution which exists—naturally—in Sweden but not in the
United States. Luckily enough the offence is defined—and therefore
mentioned—in English law. As a result we may use the English term in
the translation for the United States. This does not mean that a
translator’s note (an extremely useful way of explaining that the term
has been used with some caution) is unnecessary.

As
part of a request from the British legal authorities to their Italian
counterparts, I was recently asked to translate the term approprazione indebita
into English. As I was unable to find the British English equivalent
(the English magistrate suggested theft, which was later rejected) we
decided to use “fraudulent conversion,” which is in fact a US offence.
While the English magistrate had some initial reservations about using
a term he knew to be American, he eventually approved my choice.
Black’s Law Dictionary¹defines Fraudulent Conversion
as “Receiving into possession money or property of another and
fraudulently withholding, converting, or applying the same to or for
one’s own use and benefit, or to use and benefit of any person other
than the one to whom the money or property belongs.” In this case,
however, the problem was much more serious and went beyond concerns of
a lexical or translation-related nature. A judicial authority who
receives a request from a foreign authority (to confiscate an item of
property, carry out an examination or any other action within his/her
competence) must, of course, understand the offence of which the person
in question is accused (the foreign party must therefore explain the
offence so that the authority is able to understand it). Failure to do
so may result in refusal to accept the request (not quite as rare an
occurrence as one might think).

This leads us to a further issue. It is obvious that the care, training
and experience required to produce a legal translation and solve the
problems mentioned above make it essential for a professional
translator (and one who is worthy of such a title) to carry out the
translation. Unfortunately, the Italian legal system does its very best
to ensure that no professional translators come near the courts of
justice. This leads us inevitably to the question of tariffs.

I
should like to point out immediately that I have first hand experience
in this matter. What follows is a biased argument, but in my opinion it
is one that the judiciary should take into account. This is why.

In Italy tariffs for translators and interpreters appointed by magistrates are established using what is known as the “vacazione”
(or services rendered) system. The vacazione may be doubled (as often
occurs) if the service is deemed particularly difficult. However, a
maximum of four vacazioni may be paid on a daily basis. The tariff for the first vacazione is Lit. 18,000; Lit. 10,000 is paid for any successive vacazioni. The total for 4 vacazioni
is therefore Lit. 48,000 (or Lit. 96,000 if it is doubled). If a
translator translates five pages (or 6, 10 or 15) in a day—which the
magistrate may request—he or she will not be paid more than four vacazioni. Let me point out here that a vacazione is the equivalent of one page and therefore, at least in theory, 100 pages equals 100 vacazioni. But in order to receive payment for 100 vacazioni
the translator should not deliver the translation before 100÷4 = 25
days. It goes without saying that this is often impossible due to the
urgency of the case, with obvious effects on the amount of payment
received².

Furthermore,
the Italian Attorney’s Office prohibits translators from taking on more
than one job at a time; failure to comply results in loss of payment
for services rendered. In the case mentioned above, therefore, the
translator would not be able to accept other jobs during the 25 days he
or she takes (at least in theory³)
to translate the 100 pages. Other jobs here means any other translation
commissioned by the Attorney’s Office, the Magistrate’s Court, the
Law-Court, etc.

Last but by no means least is the trifling sum paid for the vacazione (and the page of translation). A double vacazione
(Lit. 20,000) is worth half what the market pays for the same service.
Many translation agencies have set their basic rate (1 page of English
translated into Italian) at Lit. 40,000. If the source or target
language is rare, the fee paid by the judicial authorities may reach
one-sixth or one-seventh of the market price (providing the vacazione is doubled, which is not always the case).


Under
these circumstances it is quite obvious that the judiciary will always
find itself dealing with young, inexperienced translators and
interpreters (at best). As soon as they gain some experience and find
clients outside the public system, translators and interpreters stop
working for judges or public prosecutors and, if they are lucky, start
working for lawyers. As a result, public prosecutors and judges will
always have less experienced consultants than those who serve the
defence.



¹ Black’s Law Dictionary—Definitions of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern by Henry Campbell Black, M.A.—Sixth Edition—St. Paul, Minn. West Publishing Co. 1990
² This is a real paradox: urgency is penalised. The quicker a job is completed, the less the translator is paid for it.
³ In theory, since even if the translator takes 15 days to finish the job, he or she will wait until the 25^th day to deliver it to avoid being paid for just 60 vacazioni.