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Sworn translators or interpreters (either term I use hereinafter will
include both translators and interpreters although the latter term is
the one which appears most frequently in French codes of law) in France
bear the title Expert Judiciaire près la Cour d'Appel. They owe
their official existence to Decree no. 74-1184 of 31 December 1974
which provides that each year a nation-wide list (for the Cour de
Cassation, the French Supreme Court) and a list for each Appeals
Court district will be drawn identifying the experts appointed by the
Court both for civil and criminal matters. These experts include
doctors, jewellers, art specialists and interpreters, to name a few. In
point of fact, translators and interpreters appear in the Code in a
chapter devoted to experts, but under a separate section which
explicitly sets them apart. In a much lamented ruling known as the arrêt
Dobertin, and in divers and sundry rulings handed down thereafter,
the Court stated that sworn interpreters were merely technicians and
were not called upon to give their expert opinion, wherefore they are
not, stricto sensu, experts. A number of colleagues continue to
argue the point, but for the moment, that is where we stand. However,
until further notice, we still enjoy the right to use the title Expert
Judiciaire.
Prior to the establishment of this corps of experts, each Tribunal de
Grande Instance (TGI--roughly, High Court, Superior Court, in some
cases, County Court) jurisdiction maintained a list of translators
referred to as assermentés, i.e. sworn translators. Subsequent
to the above-mentioned Decree, these translators were informed that they
should apply for an appointment to the list of experts. Many did so,
thereby making the transition; some, either because of their advanced
age or lack of competence, did not. I mention this point simply to
underline the notion that certain titles that one may see on
letter-heads and calling cards, such as assermenté or juré,
were supposed to have totally vanished after the Decree, the use of
which was further supposed to be subject to sanctions. A quick glance at
the "yellow pages" clearly shows that enforcement of the
measure has never been seriously carried out, and occasionally leads to
some considerable confusion in the mind of the general public.
APPOINTMENT TO THE LISTS
An application is made by the candidate simply by addressing a request
to the Procureur de la République. This official then sends a
file to be completed by the applicant who is generally obliged to return
the completed file before the first of March. The files are taken into
consideration by the Presidents of the respective TGIs and the actual
appointments are made by a plenary commission consisting of said
Presidents, the Procureur and the President of the Appeals Court,
usually in November. The results are announced to the individual
applicants some time around December. The lists are then published by
the Appeals Courts at varying dates, some of which don't see the light
of day until July of the following year. As of the date of this writing,
the total number of sworn translators in France is about 2,050.
Once appointed, the expert makes a sworn statement to "lend his
assistance to justice and carry out his mission conscientiously,
objectively and impartially".
At the crux of matter of appointments, the question lies, "What are
the required criteria?". Good question, no answer.
The criteria are as varied and numerous as French cheeses. A rare few
jurisdictions seem to take the appointments seriously and accept only
highly qualified candidates, or at least such candidates who have
substantiated some form of advanced linguistic studies. We know of one
Appeals Court which individually interviews the candidates to learn
their motivations in making their application, a measure which we highly
applaud. All in all, however, it is impossible to come to any conclusion
concerning the level of competence required by the Courts. Nor is the
presentation of the lists done on a uniform basis. On the bottom line,
some lists merely contain the appointee's name, address and telephone
number. On the other end of the spectrum, the lists contain the above
information in addition to a sometimes rather extensive list of the
person's training and real professional occupation. On the basis of the
latter type of list, we can see that the major occupation of the
appointees is that of teacher (secondary and university level).
Professional translators and interpreters are far from being in the
majority. Afterwards, an astonishing panoply of occupations is
represented, including, but limited to, such flabbergasting entries as
dentist, hydraulics engineer, gastro-enterologist, shopkeeper, car
engine fitter, manager of a floor tile shop, accountant, chemist and,
the one I love best: magician. (Aren't we all at times?)
The number of languages accepted for certain individuals is also
preposterous. While I can accept the possibility that certain people are
highly gifted for language, I find it very difficult to admit that they
are "expert" in up to six languages much less the legal
systems governing the countries whose tongue they claim to have
mastered.
The criteria, therefore, seem to be: I am of such and such origin
(Hungarian, Russian, ...); I speak the language of my mother country; I
live in France, ergo I am qualified to be an "expert"
translator. Most Courts buy this argumentation. Frankly, I do not
totally disagree with this principle. For one, it is very possible that
a well-meaning and conscientious person who has accepted the title of
expert has taken the title seriously and has done everything in his
power to acquire essential documentation and to learn the ins and outs
of the profession. Conversely, failing such ethics, most cases requiring
the services of an interpreter--at a police station for instance--even
the mediocre language skills of a bi-lingual shopkeeper are quite
sufficient: name, address, why did you shoot the fellow?
I do, however, disagree from other points of view. First, while the
intervention may be a simple one, just getting an interpreter to go to
the police station or court house is a tormenting affair. Availability
is supposed to be one of the prime requisites of being appointed (along
with competence and discretion). Yet, there are few teachers who will
interrupt their natural science class and few dentists who will halt a
root canal to cross town to intervene at a commissariat (police
station), thereby leaving the arrested individual to the linguistic
competence of a police officer who studied English for five years in
secondary school and failed every year. Second, written translations are
sometimes no joking matter. Charging orders, enforcement orders of
foreign judgements, child custody orders and writs of fi fa might
be better entrusted into hands other than those of car mechanics. Third,
the list has created a fabulous corps of "illegals". At no
time--from the original filing of application to the day that appointees
are sworn in--are candidates informed of the obligations inherent to the
title of expert. Appointees are unaware that they are theoretically
obliged to answer a call for their service at any time of day or night
and that any paid intervention on their part automatically qualifies
them as independent, self-employed workers and therefore subject to the
occupational taxes, social contributions and other assessments payable
by other independent professionals. The right hand--the Ministry of
Justice--doesn't know what the left hand--the Finance Ministry--expects
of its appointees and obviously doesn't care. To be clear on this
subject, the result is this: the teachers, for example, are already a
civil servants and receive a salary as such. They "officially"
translate a birth certificate for a private client and, believing this
to be an exceptional service, do not see why they should be declared as
independent workers. They thereby receive a ticket for the gravy train,
with an approving nod from the Ministry of Justice, without paying the
fare. At best, they declare sums received for such work when they file
their income tax statements, but circumvent the payment of all
occupation-related taxes, social contributions and VAT. Their tariffs
defy competition when compared with those applied by self-employed
professionals who are subject to all those additional charges to be
added to their bills. As no definition has, or can be, given to the
notion of occasional work, there is no limit to the sums that some
people will cite as too paltry to be declared as income subject to
charges: FRF1,000? FRF3,000? One recently had the cheek to tell me that
she only made FRF39,000 last year and wasn't about to pay
charges on such a meagre sum.
WHAT THE LAWS SAY ABOUT SWORN INTERPRETERS
Section 102 of the Rules of Criminal Procedure says that an examining
magistrate may (not must) call upon the services of a translator
and, if said translator is not on the official list, will be sworn in by
said magistrate.
Section 272 says that the Presiding Judge of the Cour d'assises must
call upon an interpreters if the accused party does not speak French.
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Jurisprudence has proven, however, that such obligation has clearly been
left to the discretion of the judge.
Section 344 says that in the event that the accused party or any of the
witnesses do not speak French, or if it is necessary to translate any
documents presented to the Court, said Court may appoint a translator.
The subscripts to this section, however, clearly state that the lack of
the interpreter's signature on any record of the hearings or lack of
mention of any intervention by an interpreter during the hearings does
not constitute grounds to invalidate the Court's proceedings. Unless
challenge is entered by the accused party or his Counsel during the
hearings, they are either deemed to have been conducted with the
assistance of an interpreter or to have been understood by all parties
involved.
Sections 345, 408 and 443 provide for the appointment of an interpreter
for parties who cannot hear, speak and write. While there are
labio-gestual experts on the official lists, these sections basically
say that anybody who can understand the party in need may serve as
interpreter.
Other sections of various codes provide for sanctions in the event of
tampering, intimidation, bribing of witnesses, false testimony, wilful
distortion of testimony and procedures for appeal when an expert has
been expunged from the list.
This latter occurrence is rare, but it does happen, albeit not as often
as it should. Most often it occurs when the Court jurisdictions finally
realise that the expert has flown the coop. Normally, all experts are
required to submit a yearly report of their interventions. Considering
the fact that some names have remained on lists of people who have long
disappeared, and who should long ago have disappeared from the lists, it
is obvious that the Court authorities responsible for the verification
of the validity of these lists are not performing.
CONDITIONS IN THE COURT
The Court is theoretically obliged to call upon their services of an
expert appearing on the list failing which the Judge is supposed to
state his motive for not doing so. I know of no case in which this tenet
has been enforced.
Nevertheless, just for the sake of argument, let's say that an expert is
called from the list. Invariably, even though the case has been entered
on the cause list for weeks (or months), the interpreter is summoned by
telephone an hour before hearings. In fact, every person in the
courtroom has been called to appear at the same time, 2 p.m. It is
impossible therefore to know whether your case will come up at 2 or at
midnight. While I cannot speak for the situation in courtrooms in other
areas of France, I imagine that it is generally much the same as the one
encountered in the various court houses where I have been called to
intervene: appalling. The interpreter is rarely given any background
information concerning the case involving his "client".
Microphones are unheard of and comments by the Prosecutor and the Bench
are often unheard for the background din from the spectators' galley.
Magistrates have little experience with and little regard for
interpreters, talk a mile a minute and give one second for translation
of all the foregoing. If conditions do lend themselves to any form of
simultaneous translation, the Bench may frown upon it. During an annual
meeting of sworn translators in Paris some years ago, one magistrate
told the assembly, "I will not have interpreters whispering in my
Court".
FEES
Once the translator has accomplished his mission in the court context,
he then presents himself to the court clerk for the moment of truth: the
reckoning of fees. This is a crucial moment involving a decision left
almost entirely to the appreciation of the clerk. Some may take no
account of the amount of time that the interpreter has spent in court
waiting for the case to be heard. Some will not even begin to entertain
the question of travelling expenses. As the majority of interpreters are
"illegals", asking for inclusion of VAT on the reckoning gives
rise to raised eyebrows and interminable debate. And all this takes
place in between hearings. When the interpreter ultimately quits the
courtroom with his memorandum of fees in hand, he will find that
whatever the amount of time allotted to him, the fees have been
calculated on the basis of Section R.122 of the Code of Penal Law, i.e.
FRF72 (approximately £7.50/$12.00) an hour for the major European
languages. (Written translations are paid at FRF60 (£5.80/$10.00) a
page, and it is most often the Court and not the translator who defines
what a "page" means.) Finally, the interpreter then submits
the memorandum to the payment office. The fees may be paid anywhere
between three to six months later, and sometimes never. I had one some
years ago that went one and half years without payment. When I enquired
at the payment office, I was told that the person who handles expert's
fees was on maternity leave. There is no easy procedure for collection
of unpaid memos from the court. I have been told that the one possible
procedure is to refer the matter to the Administrative Court which
requires the intervention of an Avocat. If the memo is paid and
the expert does not agree with the sum, he can refer the claim by
registered letter to the Procureur, and the matter is ultimately
and curiously ruled upon by the Chambre correctionnelle (court
handling misdemeanours and criminal offences punishable by up to 10
years' imprisonment).
Little wonder that getting a professional into the courtroom is no minor
task.
RELATIONS WITH COURT AUTHORITIES
France has one national association representing sworn translators (UNETICA)
with several local chapters, and a myriad of associations representing
individual Appeals Court jurisdictions. The latter may be associations
of sworn translators, but are generally multi-disciplinary groups
encompassing all categories of experts. Membership in any of these
associations is not compulsory, therefore none of the associations has
managed to amass any significant clout for translators and interpreters.
Local associations sometimes enjoy good relations with Court
authorities, especially if their leaders are dynamic and have
professional or social contacts in the right circles. On a nation-wide
basis, however, the overall results of actions instituted have been
disappointing. This is primarily due to the deaf-ear attitude of the
authorities.
In 1996, the national association launched a petition campaign targeting
an increase in the tariff scheme, which has not been revised since 1984.
While they did not expressly name an amount, they did call for an annual
indexing of the tariffs. Some 1,600 petitions were sent out to sworn
translators throughout France. Returns amounted to about 615. While this
figure only represents a little under 40%, we view it as encouraging.
Account has to be taken for the experts who have accepted the title as a
way to embellish their calling cards but who never intervene, and
experts who are unhappy with the tariffs but, being entirely in
violation of the law with regard to their fiscal obligations, would
prefer not to rock the boat.
Encouraging as the result may be, the next step for the union was to
arrange an appointment with the Ministry of Justice so as to deposit the
petitions into the right hands. Deaf ear. Letters, phone calls and faxes
unanswered. At the insistence of the president of that association, an
appointment was finally received from the Ministry followed by a reply
claiming that the overall justice budget was the object of spending
cuts, that the 1997 budget had already been voted, but that he would
transmit the file to the to the appropriate department for inclusion
into the draft budget for 1998. As of 1 January 1998, no increase
has intervened.
CONCLUSION
The situation in France concerning translators in general, and sworn
translators in particular, is deplorable. Translators enjoy no official
status in that country. Many practice the profession under flagrantly
unlawful conditions, to the detriment of duly declared professionals and
apparently without the slightest fear of sanction. Sworn translators are
afforded little respect by Court officials, the totally unacceptable
amount of their fees being just one manifest sign of this lack of
esteem. Campaigns and meetings of concerned associations have recently
multiplied throughout the country giving professionals at least some
encouragement of a change for the better in the not-too-distant future.
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Rodger
E. GIANNICO
Marseille,
France
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