FIT Europe Position Paper on the Right to Translation in Criminal Proceedings
Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings requires the Member States to set up a national register of legal translators and interpreters and to take measures to ensure that translation and interpreting services meet the quality required. Given that the Maastricht Treaty has imposed swingeing cuts on all our governments, our justice ministries have to find ways of doing much better with much less.
In some countries legal translators and interpreters are paid as little as half of what their colleagues in better-off countries receive, leading to a situation where magistrates and police services struggle to find people who are suitably qualified. Ways mapped out for squaring the circle are digitization, prioritisation and, chiefly, the magic recipe: free competition by means of government procurement.
In the United Kingdom and the Netherlands, the services are entrusted to a single company. FIT Europe believes that there are convincing arguments against this procedure.
The company that is eventually selected benefits from a monopoly for the entire duration of the contract. This leads to competition distortions. The experience of the United Kingdom indicates that this monopolistic situation prevents the authorities from ensuring the contract is properly executed: even though penalty clauses are incorporated in the contract, they cannot be enforced despite numerous failures as the government has no other choice than to continue the contract. Once the company has landed the contract, the quality of the services it provides is no longer of key interest to it. Quality evaluation should not be left to a company in a monopolistic position, acting as litigant, judge and jury. It should be carried out by an independent body. This particularly holds true in cases involving minority and rare languages.
Many legal translators and interpreters work only in the areas of justice and law; they have a single work provider, able to dictate fees, control work location and set working hours and conditions. This is really ‘false-self-employment’.
This system brings with it an additional cost – the middleman’s profit margin. This profit margin is gained by the simple expedient of reducing the fee paid to the sub-contracted freelancers and cutting reinbursements of ancillary costs (transport, travel time, waiting time etc). General experience also shows a real risk that a company, taking advantage of its exclusive position, can simply not honour the rights of its subcontractors and not meet payment deadlines.
With many countries already experiencing a serious shortage of providers and major problems with quality, the inevitable downward pressure on pay levels can only make it even more difficult, if not impossible, to achieve the aims of the Directive.
The court loses control over the choice of language professional, since the selection of service provider is now the job a project manager, without any guarantee of qualification.
Confidentiality cannot be totally guaranteed by commercial companies where large numbers of people have access to documents, where working on shared platforms is increasingly popular and documents are stored in the cloud. Neither is it sufficient guarantee to have a code of conduct to be signed by service providers working for the company.
Ultimately the use of government procurement could lead to a situation where many providers stop working in this area and move on to work in other language-related markets, as is already the case in the United Kingdom and France or Spain, where hundreds of experienced linguists have abandoned courts and tribunals and focused on other areas of employment.
In conclusion, FIT Europe believes that the use of government procurement for the outsourcing of translation and interpreting services works in direct opposition to the fundamental rights to confidentiality and to translation and interpretation in criminal proceedings.