TRANSLATION IN THE EUROPEAN COURT OF HUMAN RIGHTS AND THE INTER- AMERICAN COURT OF HUMAN RIGHTS: A COMPARATIVE ANALYSIS

Transcription

1 TRANSLATION IN THE EUROPEAN COURT OF HUMAN RIGHTS AND THE INTER- AMERICAN COURT OF HUMAN RIGHTS: A COMPARATIVE ANALYSIS The analysis of translation in the courts of human rights reveals some common and specific problems in the European Court of Human Rights (ECtHR) and the Inter-American Courts of Human Rights (IACHR). The role of translation in the development of international right system is growing as translation provides important standard of language access to a fair trial in the court and ensures access to all court services. Other important functions of translation in the ECtHR and IACHR are outlined. Key words: language of international law of human rights; translation of court judgments; comparative law; translation projects; the functions of translation in the court of human rights; In the post-world War II period the need to maintain peace and justice precipitated the processes of international cooperation. National governments engaged in the establishment of the United Nations (1945), the Organization of American States (1948), and the Council of Europe (1949), each including among its purposes the advancement of human rights. The Universal Declaration of Human Rights (1948), The American Declaration of the Rights and Duties of Man (1948) and the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) were drafted and adopted. A series of international human rights treaties and other instruments developed the body of international human rights. Human rights include civil, political, economic, social and cultural rights that are inherent and that all human beings are entitled to enjoy. International and regional oversight bodies have been created to oversee States implementation and compliance with the international human rights law. They include the UN Human Rights Commission (1946), later the UN Human Rights Council (2006), the European Court of Human Rights (1959), the Inter-American Court of Human Rights (1979), the African Court on Human and People s Rights (2004), the Arab Human Rights Committee (2009) and the ASEAN Intergovernmental Commission on Human Rights (2009), which have their commissions and monitoring bodies. These human rights bodies have different functions and jurisdiction which generally include: deciding complaints against States, engaging in independent monitoring, reviewing States reports on their compliance with human rights standards and others. Recently a greater attention has been attached to court judgments, their translation and dissemination. While international human rights courts and monitoring bodies oversee States implementation of international human rights treaties, a variety of other sources are also relevant to the determination of individuals rights and states obligations. These include the judicial and quasi- judicial decisions of international and domestic courts on international human rights law; analysis and commentary by scholars and others. The recent projects of European and Inter-American courts of human rights to translate the court judgments and other court documents are intended for further development of human rights legislation and protection. 1

2 Language access in court has been considered an important part of the justice system to ensure efficiency in legal proceedings and it has been of particular importance in the international courts. The Inter-American Court of Human Rights and the European Court of Human Rights attach great significance to their translation systems and face a lot of similar problems, but there are some particulars stemming from legislations they deal with, languages and legal cultures of the countries under their jurisdiction. Translation system of the European Court of Human Rights The European Court of Human Rights (ECtHR) was established in 1959 on the basis of the European Convention on Human Rights (ECHR), which deals mostly with civil and political rights. It is a powerful mechanism to implement international treaties on human rights in the member states of the Council of Europe. The official languages of the Court are English and French, though a claim to the court could be submitted in any official language of the 47 Contracting States. With regards to the language of law and legal documents, there have been a lot of criticism about the legal language, which is often unclear, vague and difficult to understand both to the general public and to specialists. Unlike treaties, conventions are often characterized as being less formal, containing general principles of law recognized by states. The European Convention s principles are drafted in broad terms, they often require extensive interpretation by courts to infer meaning in particular factual circumstances. This situation calls for linguistic awareness, and even greater awareness is needed when translation is involved. Translation is an important part of the legal process in court. Article 6 of the European Convention provides the right to a fair trial, stating among others the following rights: a) to be informed promptly, in a language which he understands and e) to have the free assistance of an interpreter, if he cannot understand or speak the language used in the court [European Convention]. In the European Court of Human Rights initial documents are submitted by the lawyers who speak the language of the member State in question and are fluent in English or French, the official languages of the ECtHR. The problems of translation are numerous, ranging from technical to specific ones. Judges approach language problems from their national and cultural backgrounds and from their experience as lawyers within the legal systems of member States from which they proceed. They have to take into account important differences in legal systems and terminology. The approach that translation of court s judgments could serve a greater awareness of national judges and a closer interaction between the national protection of human rights and the European Court was important considering the situation with the new member States joining the European Union [Wolfrum, 2009: 55]. 2

3 In past years several projects were launched by the European Court of Human Right which confirmed the importance of translation of EctHR s judgments into national languages and of research in this field. The European Court of Human Rights has jurisdiction over the Council of Europe member States, with all its decisions being binding. That is why the awareness of the ECtHR activity, litigation system, judgments and their dissemination in member countries would contribute to a better understanding of the European human rights legal system and its influence. The JURISTRAS project was initiated by the European Commission to explore the processes of human rights litigation in the ECtHR and the effects of its judgments on national laws and at the same time to assess their impact on legal norms, institutional structures and policies of the states that are parties to the Convention. Eight European countries were selected as case studies. The empirical research carried out in Germany showed a limited influence of the ECtHR judgments against Germany on its domestic legal system and political debate. Recommendations provided on the basis of this research emphasized the importance of the interrelated nature of the national legal order and the supranational legal order of the Council of Europe. Among these recommendations the following issues were specified: the necessity of translating and disseminating ECtHR s judgments within Germany and translating and disseminating ECtHR s judgments at the level of the Council of Europe. Translation of ECtHR s judgments has been considered one of the important measures to enhance the role of the European Court of Human Rights [Gusy, Muller, 2009]. Another important sphere where translation plays an important part is comparative law studies in the European Court of Human Rights. The ECtHR often uses comparative law in its reasoning and regularly refers to international treaties and judgments from other jurisdictions. The main purpose of the comparative analysis in the court is primarily informative, it provides data and informs the judges about possible solutions. The impact of comparative analysis can be identified at the different levels of the court s reasoning, while the assessment of data comes at final stages and can affect the judgments. The challenges of comparative law have been explored in academic comparative analysis but they are not the same in comparative research conducted by the European Court of Human Rights. The most common identified problems are cultural bias of comparative research and translation of legal terms. These problems are closely interrelated, as the same terms could represent different legal concepts in different legislations. Even in English speaking countries there could be differences in terms and meanings, not to mention countries with different languages, social and political systems. Comparative research is intended to provide the European Court of Human Rights with objective information regarding particular legal matters and often proves to be a precondition for its ruling. Comparative analysis carried out by the European Court of Human Rights showed 3

4 that the analysis could be more exact when the norms were considered in the broader context rather than as pure legal provisions, thus describing the degree of their similarity. Another important point is that the comparative analysis might retain persuasive authority in some cases. This and other findings of comparative analysis are important for translation [Dzehtsiarou, 2010]. In 2012 the European Court of Human Rights launched the project Bringing Convention Standards Closer to Home: translation and dissemination of key ECHR case-law in target languages. It was stated that the project s aim is to translate the Court s key judgments and decisions in order to further disseminate its case law via HUDOC (the Court s database) and partners at national level [Wolfrum, 2009]. Under this project the translation of judgments and decisions of relevant cases into official languages of some member States has been commissioned, besides non-official translations could be submitted in non-official languages through internet sites. Recently the Court has commissioned the translations of key law case, legal summaries, factsheets, research reports and case-law guides into Russian. The status of these translations should be specified, they are annotated as not binding. Translation of ECtHR s key judgments is a new approach to reinforce the role of the court in the protection of human rights. The ECtHR s translation can be subdivided into two groups: translating documents and interpreting at the court proceeding and translation for research and for communication with European and world communities. Serious consideration should be given to challenges of translation in these spheres by law professionals, researchers and educators as it is often claimed that only cooperation could provide for their solution. Right to free translation has to be regarded as one of the important human rights in the globalizing world and an indispensable tool in enhancing the role of the European Court of Human Rights in protecting people s rights and advancing legislation. The Inter-American Court of Human Rights The Inter-American human rights system appeared with the adoption of the American Declaration of the Rights and Duties of Man in The Organization of American States established the Inter-American Commission on Human Rights in 1959 (based in Washington D.C.) and after the adoption of the American Convention of Human rights in 1969 the Inter-American Court of Human Rights was created in 1979 (based in San Jose, Costa Rica) to enforce and interpret the provisions of the American Convention. The court functions are adjudicatory and advisory; it hears and rules cases on human rights violations or issues opinions on legal matters. Under the Convention, cases can be referred to the Court by the Inter-American Commission on Human Rights or a State party. In contrast to the European human rights system, individual citizens of the OAS member states are not allowed to take cases directly to the Court. 4

5 They have to bring a complaint before the Commission, which either provides recommendations to the state, and if the state fails to abide by these recommendations, the Commission refers the case to the court. Proceedings before the court are divided into written and oral stages [Pasqualucci, 2003]. There are four official languages of the Court, which are the languages of OAS Spanish, English, Portuguese and French and two working languages defined every year by the court, usually Spanish and English. Judgments are usually written in Spanish and English, but could be translated into other official or non-official languages. The Court may authorize any person appearing before it to use his or her own language if they do not have sufficient knowledge of the working languages. In these circumstances, however, the Court has to ensure that an interpreter is present to translate the testimony into the working languages. The Court determines the authentic text which is usually a Spanish version [Annual Report, 1991]. There is no court translation department. The court hires translators; translations may be corrected by English speaking lawyers. Since 2007 the Court translated not only judgments, but also judgments drafts, orders, memos, legal research and other documents. During public hearings the Court uses the services of interpreters. In 2010 the translation system was modified with a group of external translators and native English speaking attorneys, having previous experience within the Inter-American System; due to these measures, the quality of translation has improved. Translation problems in the Inter-American Court of Human Rights have been outlined by Alvaro Paul [2012] who considered translation of Spanish and English, though these problems are relevant to translation of other languages as well. One of the most important problems is the lack of special legal knowledge by the translator. There is a need for special training of court translators and interpreters, at the same time some individual approaches and attitude to translation process also matter. The most serious problem lies in the conceptual sphere, when, for example, the concepts of the civil law and of the common law have to be translated. In this case the legal translation has to deal with the problem of comparative law when it is necessary to understand how this or that concept is understood and presented in different legal systems. This is the case when specialized knowledge is required. Another problem is the lack of consistency in translating when different expressions are used to translate the same concept. Translators are required to be careful in such cases and adhere to the original version of the document. Attention has to be given to such details in the text as dates, year, missing materials, etc., as mistakes could lead to serious consequences or change in meaning. In some cases there is no need to translate some expressions or footnotes if they are clear or borrowed from the target language. 5

6 The author has offered some ways to improve court translation. One suggestion is the creation of a special department in charge of translation in the Inter-American Court of Human Rights. The use of new technologies is considered an effective way to facilitate and improve court translation. Conclusion Considering translation practices in the European Court of Human Rights and the Inter- American Court of Human Rights, it is necessary to emphasize the important role of translation in these courts and in developing the international system of human rights. Translation has become an important standard for language access to the fair trial. Legal translation has been described as the practical application of both linguistic and legal knowledge; thus, translators and interpreters competences are crucial in this whole process. The search for theoretical explanations of the processes occuring between different legal systems and languages resulted in the growing awareness and interest in the studies of court translation. These studies have become an interdisciplinary field encompassing different scientific approaches to translation. Translation performs important functions in comparative studies of national and international legislations, communicating the court judgments to all member States and enhancing the role of the Court in protecting human rights globally. Cooperation in this sphere of international system of human rights is significant for dissemination of the best practices and strengthening the system of international human rights. REFERENCES 1. Dzehtsiarou K. Comparative Law in the Reasoning of the European Court of Human Rights. University College Dublin Law Review, Vol.10, 2010, pp European Convention of Human Rights - URL: 3. Gusy C., Muller S. How can the role of the European Court of Human Rights be enhanced? Bielfield: Bielfield University, Accessed May, 20 - URL: 4. Pasqualucci J.M. The Practice and Procedure of the Inter-American Court of Human Rights. Cambridge: Cambridge University Press, Paul A. Translation Challenges of the Inter-American Court of Human Rights and Cost- Effective Proposals for Improvement. Inter-American and European Human Rights Journal, 5, 2012, pp Rules of procedure of the Inter-American Court of Human rights. Annual report of the Inter- American Court of Human Rights, Accessed August 15, URL: ) 7. Wolfrum R., Deutsch U. Eds. The European Court of Human Rights Overwhelmed by Applications: Problems and Possible Solutions. Berlin, Heidelberg: Springer-Verlag, 2009 P.55 6