The Honorable Judge Moshe Gal
Director of the Courts
Courts Administration
Re: Proper Supervision of Privatized Court Interpreting
Dear Justice Gal:
1. We hereby request that you take urgent action to ensure close professional supervision over the privatized system of court interpreting in light of the severe problems with this system today. We further request that you ensure that the tender for translation services due to be issued in several months include detailed directives about the professional quality of the interpreters, their ethical obligations, and the supervisory mechanisms over these functions in both the company that wins the tender and the Courts Administration itself.
2. For many years, a private firm has handled the interpreting of court proceedings. Since 2003, interpreting services have been provided by Protokol Ltd. The privatization of this service touches upon the core of human rights – the right of access to the courts – said to be “a supremely fundamental right…the upholding of this right is a necessary and essential condition for upholding all other fundamental rights” – and the right to due process, which includes the right of every person to have his matter heard by an impartial tribunal in a fair, public, and timely manner.
3. The importance of interpreting can be learned from the words of Justice Michal Agmon-Gonen:
The right of the respondent to a fair trial is undermined by the absence of an interpreter…The right of an individual to understand a criminal proceeding to which he is party derives both from the Basic Law: Human Dignity and Liberty and the Criminal Procedure (Enforcement Powers – Arrests) Law – 1996 (hereinafter the Arrests Law), which stipulates in section 29 that a detainee must be brought before a judge, but what is the point of bringing a suspect to court if he cannot understand the proceeding? The Arrests Law further stipulates that if the proceedings take place in the presence of the suspect, the suspect is entitled to question the police officer. This right is also devoid of meaning if the suspect cannot understand what is happening in the courtroom. The suspect’s right to due process is impaired [under these circumstances] since he cannot direct his legal counsel’s attention to what he believes to be inaccuracies in what the police officer said [had he been able to understand the testimony)…
Also:
The problem of interpreting disturbs me. Not just as President of the Court, but also as the citizen of a State whose laws apply to 160,000 Arabic speakers in Jerusalem alone. I believe that the State should have provided interpreting services for those who appear before the authorities, particularly in a courtroom where the whole art is that of speaking and understanding what is said. These people must be able to express themselves in addition to being able to understand in real time what is being said at the pace at which things are said. To my great dismay, this is not the case…My position is absolutely clear: It would not be fair to have a situation in which such a large population comes to court and they are unable to cope with the language.
4. In light of the critical importance of the interpreting of legal proceedings for the realization of basic rights, there is a need for State involvement and close supervision, which unfortunately do not currently exist.
The Right to Simultaneous Interpretation in Criminal and Civil Proceedings
5. Sections 140-142 of the Criminal Procedure Law – 1965 provide the legal framework for court interpreting in Israel:
140. Where the Court becomes aware that the accused does not know Hebrew, it shall appoint an interpreter for the defendant, or shall itself interpret for the defendant.
141. Evidence not in Hebrew or in some other language not spoken by the Court or the litigants shall be translated by an interpreter; and testimony so submitted shall be recorded in the court transcript in Hebrew translation, unless the Court instructs otherwise; the translation that appears in the transcript shall serve as prima facie evidence of the statements translated.
142. Remuneration of the interpreter shall be made by the State Treasury, unless the Court instructs otherwise.
6. Article 6.3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms states that every individual charged with a criminal offense has the right to be informed in detail in a language he understands of the accusations against him and what is taking place in the courtroom. If he does not understand, he has the right to the assistance of an interpreter. In the United States, as well as in other countries, this right is enshrined in the constitution.
7. It can be said that in a criminal proceeding, the right to have the testimony of a witness/suspect be properly brought to court, and the right to understand what is happening in the courtroom are derived from the right to a fair trial and, in particular, the right of access to the courts. Clearly when the testimony of a witness/suspect is not properly presented in court, these rights are harmed. It should be noted that there is insufficient research in Israel on the subject of faulty interpreting and its implications, but in other countries appeals have been filed, and some of them accepted by the court, on the grounds of faulty translation.
8. In civil proceedings, there is no legal obligation to provide an interpreter, and surprisingly this is also true regarding Arabic, which is an official language in Israel. If an interpreter is required, the decision to have one is left to the discretion of the judge or chief clerk. Whether to impose the cost of an interpreter on the litigants is also a matter of judicial discretion. In civil proceedings, too, the interpreters are employees of Protokol Ltd.
9. Repeated demands have been made for legislation to regulate interpreting in civil cases as well. The ability to articulate one’s message and be understood has a clear impact on the right of access to the courts and the extent to which this right is accessible. It is also clear that the victims are again mainly the disadvantaged. Justice (ret.) Tirkel noted:
In civil cases (including labor issues, family cases, and executions of judgment), there is no obligation [to provide an interpreter – M.P.]. As a result, the rights of the parties who do not know the language can be harmed. This matter should also be regulated by law.
Flaws in the Court System of Interpreting
10. Recent academic research indicates that interpreting in Israeli courts is fraught with problems. These are systemic and stem from a tender written by someone who lacks professional expertise and understanding of the system and the many aspects of translating as a profession. This unprofessionalism extends to all those involved with it – those who wrote the tender, the court administration, the winning bidder, the interpreters themselves, and even the judges. The findings of this research reveal many shortcomings in the system of court interpreting.
11. Problems in the system of interpreting fall into several categories:
First, problems related to government policymakers and authorities: The policymakers’ lack of awareness about professional parameters and complex issues involved in court interpreting (such as knowing legal terms in both languages, memory – the importance of subtleties – pauses, for example, interpersonal communication skills, diction, assertiveness, the ability to make corrections and admit errors, etc.); the lack of definition of the role of the interpreter and his court standing (judges, for example, who do not allow an interpreter to translate something that happens in the court, which conflicts with an interpreter’s ethical code, or a judge who reprimands an interpreter for conducting conversations with the translation-dependent person who asks for clarification); the lack of supervision over the level of interpreting, the only control being financial; the publishing of tenders that do not reflect the essential needs of the legal system; the failure to record the original testimony, which could serve as evidence in the event of an appeal; and the failure to examine whether there is a conflict of interest between the interpreters and either party or the lawyer.
Second, problems related to the interpreters themselves and the company that won the bid: The unprofessionalism of the interpreters stemming from inadequate knowledge of one of the languages, the omission of details, inaccuracies, inadequate education, etc. Lack of any guidance whatsoever or specific training (such as a signer for the deaf who does not know the signs for various drugs); lack of an ethical code that obligates the interpreter, lack of professional supervision;
Third, problems related to the working conditions of the interpreters: A large proportion of the interpreters are employed without salary slips or social benefits, given low wages, and not fully reimbursed for work-related travel; working conditions are difficult (performed standing, with no interpreters’ room or rest area, and working without breaks for long hours, all of which harm the quality of the translation). The employment of people under these conditions contravenes directives from the Accountant General concerning protection of the rights of subcontracted workers.
Tenders for Interpretation Services
12. As noted, court interpretation services are currently provided by Protokol Ltd., which won the bids in 2003 and 2007. The 2007 tender even included translation services to government ministries throughout Israel, as well as Judea and Samaria. The tender lists the languages in categories, each with a different pay scale. According to the terms of the tender, the vendor must provide both distance translation (not through an on-site interpreter) and simultaneous interpreting in each of the languages cited.
13. The 2007 tender raises many questions and concerns about the quality of the interpreters working in the courts. These stem from important mechanisms left out of the tender and from elements inherent to it, such as the inability to pay a fair wage, which leads to the employment of people for whom translation is not a profession, and who are not skilled at interpreting.
How the 2007 tender is written emphasizes the incorrect but prevailing belief that the knowledge of two languages is sufficient for discharging one’s responsibility to hold a fair and just proceeding. But this is not so – the work of interpreting embodies special elements that ensure the rights of a party at a legal proceeding: basic requirements such as fluency in the two languages and legal terms, knowing the ethical code, and the assertiveness sometimes required when facing an attorney and judges who do not insist on the obvious – that a speaker’s words be properly brought to the attention of all those involved.
14. The 2007 tender is replete with technical details, but missing are necessary and critical elements for safeguarding human rights in a legal proceeding:
a. Essential elements that appear in the 2003, but not the 2007, tender relate to the quality, ethics, and training of the interpreters; instead of this, details are sought about the quality of the bidding company, specifically its experience in supplying interpreters. There are no requirements at all about the suitability of the interpreters for the job. The only requirement of an interpreter appears in parag. 6.4, which states, “Concerning the translators, describe the knowledge of various languages and years of experience in providing the services requested.”
b. The bidder is required to provide details about its supervisory mechanisms, but no supervisory mechanism is noted that would represent the Court and the State. The supervision of the State over a privatized service is critical, as the rights of the parties to legal proceedings will be safeguarded only when this is ensured. Several supervisory mechanisms that could be operated by the Courts Administration might be considered, such as testing knowledge of common legal terms, spot checks during court sessions, periodic examinations, recording the deliberations and comparing the original with the interpretation, etc.
c. Despite its importance, sign language does not explicitly appear in any tender. This means that a deaf person who is the accused or a witness in a legal proceeding cannot, without an interpreter, express what he has to say, even though the Equal Rights for People with Disabilities Law (1998) stipulates in parag.6 (a) that access to public services is a fundamental right. Parag. 2 also emphasizes that the aim of the law is to protect the dignity and freedom of a person with a disability, to enshrine his right to equal and active participation in society in all spheres of life, and to provide an appropriate response to his special needs in a way that will enable him to live with maximum independence, in privacy and dignity, able to realize his full potential.
State Obligation to Protect Human Rights during Privatization of Public Services – Involvement and Supervision
15. Many problems with the system of simultaneous interpretation could have been avoided or resolved if emphasis had been placed on two elements that are essential for protecting human rights during the privatization of a public service: consultation with disinterested parties who have no financial interest and effective supervision over the privatized service. This derives from the understanding that privatization could have a significant and possibly damaging effect on human rights unless simple, pertinent rules are kept.
16. Regarding consultation with disinterested parties in shaping the privatization process, we mean consulting primarily, but not only, with professional experts as well as bodies representing people who could be harmed or otherwise affected by the measures, but not those with an economic interest. A directive to this effect was issued by the Attorney General with reference to the need to consult others before secondary legislation and the apparent underlying reasons – involving the public in matters that affect it, providing information and considerations to government ministries, and winning support and cooperation for the entire process – which apply also to the matter at hand.
17. Regarding supervision over interpretation services, when the interests of private companies striving to maximize their profits could conflict with the realization of fundamental individual rights, it is the obligation of the State to ensure effective supervision that will protect the rights of the service recipients. The privatization of public services, which touches upon the core of human rights, can win legal validity and public legitimacy only through effective supervision by government authorities:
The delegation of authority – to a private body in particular – is legal only when the original authorizing body retains effective supervision over the delegated body. The delegation of authority does not entitle the administrative body to shed its responsibility and allow the delegated body to define the criteria of its own performance. Even when the function under discussion is purely technical, “in transferring implementation of this function to an external body, the authority does not shed responsibility for its proper implementation.”
18. As regulator, the Courts Administration is supposed to plan the criteria for service provision, choose the vendor, activate the supervisory arms, and ensure that the rights of the service recipients are protected at the standards set; clearly the requisite supervision should also and primarily address the level of interpreting given during a legal proceeding to someone not fluent in Hebrew.
The Necessary Measures
19. For immediate attention, a supervisory and enforcement system must be put into place over the quality of the interpreting done in the courts. As noted above, only real supervision will ensure that the words of the accused and witnesses will be properly heard in court. Instructions should be issued to carry out periodic examinations of the fluency of the interpreter in both languages and in basic legal terms. In addition, observations should be conducted in the courtroom not just about language fluency, but also the interpersonal relations of the interpreter with those requiring this service and his ability to cope with courtroom pressure (from judges and hostile lawyers). In some countries, court sessions in which an interpreter is used are videotaped, since relying on the written transcript alone is sometimes not effective. This can also be adopted in Israel.
20. Furthermore, the courts should cooperate with professionals who can advise them in evaluating the quality of the interpretation. Continuous attention should be given to improving this service and training interpreters for legal work, as obligated by the 2003 tender. It is recommended, for example, that interpreters be trained in various skills, such as enriching their legal language and vocabulary, as many court interpreters have no legal background. Provisions should also be made to ensure application of a professional code of ethics that will obligate interpreters in the judicial system.
21. For the longer range, the contract with the bidder terminates in April 2009 and the State is expected to issue a new tender for judicial translations. In light of the current sorry state of court interpreting, it is our hope that this time the Courts Administration will ensure that the tender includes clear requirements for the professional quality of the interpreters, training prior to and during their work, and a supervisory mechanism – both from the winning bidder and the Courts Administration. A tender that does not clearly address these important points could continue to undermine human rights in court proceedings.
Yours very truly,
Michal Pinchuk, Attorney
The Association for Civil Rights in Israel
