Ukrainian translation quality and the right of defence

Quality assessed by the meaning of statements

In criminal proceedings, translation must enable understanding of the charge and exercise of the right of defence. Directive 2010/64/EU links adequate quality to the fairness of proceedings and provides for reporting insufficient quality under national procedure. [2] Assessment of a particular problem should concern meaning, not simply the choice of a different word. What matters is whether the translation preserves who acted, the object, time, condition and scope of the statement. Different correct formulations can convey the same meaning, whereas omitting a negation may change the content despite similar wording elsewhere.

Verification requires a source passage to be linked to its translation. For a document, the page and paragraph should be specified; for interpreting, the date, type of act and the time of the statement as precisely as possible. Inaudibility, unfamiliarity with a term, ambiguity in the text and an actual difference in meaning must be distinguished. Each problem requires different material for checking. If the concern relates to a condition or exception, comparing a single word outside its sentence may be insufficient. Context is needed to establish to whom and in what circumstances the wording applies.

Establishing the language in which a person understands the case

Art. 72 KPK grants free interpreter assistance to an accused person who does not have sufficient command of Polish. [1] In Vizgirda v. Slovenia, the ECtHR assessed the failure to verify a participant’s actual language abilities. Such an assessment cannot be replaced with an assumption based on citizenship or merely the absence of an earlier complaint. [4] Assessing quality therefore also requires asking whether the person understands the language in which assistance is provided. A linguistically correct translation does not fulfil its function for a participant unable to understand its content sufficiently.

The need for Ukrainian can be described in relation to a particular procedural act and document. It is useful to explain difficulties understanding terminology, instructions or questions, even if everyday conversation in Polish is possible. A statement may involve several legal and temporal relationships that knowledge of individual words does not reveal. When assessing an earlier act, identifying what the person understood and where uncertainty arose is helpful. Such information relates the language need to actual communication rather than relying on a general declaration of knowing or not knowing the entire language.

Questions, negation and degree of certainty

A question’s meaning may depend on an assumption, a time limit or a negation. In an answer, expressions of certainty are equally important: “I saw”, “I think”, “I do not remember” and “I found out later” do not describe the same source of knowledge. The interpretation should retain these differences. When someone corrects an earlier statement, what is being corrected must be reproduced. If the interpretation shortens a statement, it is necessary to check whether the omission changes its meaning. Verification may reveal a problem with one condition even when people’s names and the main action were rendered correctly.

Sandra Beatriz Hale describes the importance of pragmatics in court interpreting, noting that a literal equivalent does not always preserve a statement’s function and force. [5] In practice, comparing a particular question therefore requires establishing whether the interpretation preserved its nature: an open question, a request for confirmation or a question containing an assumption. A witness's answer must likewise be distinguished from a comment about the sound. Material for checking should include the entire exchange if the answer's meaning depends on the preceding question. An isolated sentence may not show why a difference in meaning arose.

Checking the written translation and source version

To compare a written translation, use the document on which it was based. An earlier draft may differ from the signed contract or issued copy of a ruling. Art. 18(2) of the professional Act requires identification of whether the translation was made from an original, translation or copy; for an earlier translation or copy, it also states whether the source was certified and by whom. [6] This information helps establish the correct material for verification. If a document with an added annotation or annex was presented later, the source change must be identified before attributing a difference to the earlier translation.

When identifying a discrepancy, it is useful to compare the relevant passages in both texts and describe its type: omission, addition, incorrect attribution or change of meaning. For amounts and dates, specifying the point or table row is helpful. Legal terms require their context and references to definitions. If the issue concerns an illegible part of a scan, verification may require a better image of the source. The actual content of the document must not, however, be replaced with conjecture. Being unable to read a marking and correctly identifying that marking are different situations that must be distinguished.

Objections to the record and identifying the problem passage

Art. 150 KPK concerns signing the record of a procedural activity, except the record of a trial or hearing. Before signature, the record is read aloud, and the participant may object to its contents; the objections are entered together with the conducting official’s statement. Art. 152 separately allows parties and persons with a legal interest to request correction of the trial or hearing record and the transcript of an audio recording, identifying inaccuracies and omissions. [1] The two situations should therefore not be confused. When reporting an issue, the record type and precise content to be checked matter.

If a comment concerns interpreting, it is useful to identify the source statement and how it was rendered, as well as the participants in the exchange. If the entire passage cannot be reconstructed, what is remembered and where uncertainty remains should be specified. The number of a document shown during the question or a recording timestamp may help establish the context. A discrepancy in the record is not always the same as an interpreting error: the question, answer, interpretation and written record must be compared. Separating them in this way focuses attention on the actual source of the change in meaning.

Judicial review of interpreting quality

In IS, C-564/19, the CJEU required specific measures to ensure adequate interpreting quality and enable the court to verify it. The issue is the accused’s ability to understand the charge and exercise the right of defence. [3] What matters, therefore, is not only the presence of someone described as an interpreter but also the ability to establish whether the assistance fulfilled that function. When checking a particular passage, the material should identify the charge, statement and problem raised by the participant, rather than basing the assessment solely on a general assurance that everything was translated.

The Court also addressed conducting proceedings in the accused's absence. The provisions preclude such proceedings if inadequate translation prevented understanding of the charge, or if quality cannot be verified and it therefore cannot be established that the charge was understood. [3] This is a specific issue concerning effective participation and quality control. Analysis of a particular situation should therefore identify how the discrepancy affected understanding of the accusation. Merely finding a different equivalent for a word does not establish that connection; the context and the passage’s importance to the activity are needed.

Impartiality and communication with defence counsel

The professional Act requires a sworn translator to exercise special care, impartiality and confidentiality. [6] A faithful translation does not improve statements to make them more favourable to one party. Uncertainty, lack of recollection and corrections must also be preserved when they occur. Quality assessment should distinguish an expectation of a particular line of argument from discrepancies between source and translation. The more precisely the passage and its context are described, the easier it is to make an objective comparison and identify the element whose meaning needs to be checked again.

At the request of the accused or defence counsel, art. 72 § 2 also covers assistance in communication between them relating to an activity in which the accused is entitled to participate. [1] If the problem concerns precisely such a conversation, identify its connection with the activity and the material discussed during preparation. The document, question and answer should be clearly linked. This distinguishes inability to communicate information to defence counsel, failure to understand counsel’s answer and a problem in the document itself. These are different communication needs, although they may emerge during a single contact.

Questions and answers