През октомври 2023 г. Европейската комисия изпрати на България официално уведомително писмо с номер INFR(2023)2111 за това, че страната ни не е транспонирала правилно разпоредбите на Директивата относно правото на устен и писмен превод в наказателното производство (Директива (ЕС) 2010/64). Комисията счита, че българските национални мерки за транспониране не отговарят на изискванията на директивата по отношение на правото на устен превод, правото на писмен превод на документите от съществено значение и обхвата на директивата.
От Сдружението на съдебните преводачи в България на 28.11.2023 г. изпратихме писмен отговор до служителите на ЕК, натоварени с проследяване на случая, за който на страната ни бяха дадени два месеца за предприемане на необходимите мерки за отстраняване на установените от Комисията недостатъци. В отговора си ние обясняваме пред какви трудности са изправени съдебните преводачи в България и как тези трудности дават пряко отражение на достъпа на заподозрените лица и обвиняемите до превод.
Накратко, проблемите, които очертахме, са че:
– броят на регистрираните съдебни преводачи у нас е недостатъчен;
– малцината, включени в списъците на съдилищата, рядко биват търсени от съдилищата;
– когато все пак бъдат потърсени, услугите им често се заплащат крайно неадекватно.
Пълния текст (на английски език) на нашия отговор можете да прочетете по-долу.
FAO: Christian Wigand, Yuliya Matsyk, Cristina Torres Castillo
Regarding: Interpretation and Translation in Criminal Proceedings in Bulgaria
Regarding the recently announced decision of the European Commission to issue a letter of formal notice to Bulgaria (INFR(2023)2111) for failing to correctly transpose the Directive on the right to interpretation and translation in criminal proceedings (Directive (EU) 2010/64), the Bulgarian Association of Court Interpreters and Translators wishes to highlight some of the challenges faced by registered court translators (hereinafter ‘translator’ shall refer to both translator and interpreter) in Bulgaria during their participation in pre-trial and court proceedings.
To summarise the main problems: the number of registered court translators is insufficient; those few that are included in the lists are seldom being contacted by the courts and other government bodies; and when contacted, their services are often inadequately compensated. The reasons for this are chiefly bureaucratic, coupled with a certain ‘ingenuity’ on behalf of the authorities to take advantage of the various loopholes in the laws.
I. Criteria for Selection and Appointment of Translators
There are currently two types of official translators in Bulgaria: registered court translators under the Ministry of Justice (MJ) and ‘sworn’ translators under the Ministry of Foreign Affairs (MFA). The latter category exists on the verge of the law: on 18 December 2018, the Supreme Court of Appellation rescinded the requirement of Article 18(1) and (2) of the 1958 Statutes on Legalisation, Certification, and Translation of Documents and Other Papers (SLCTDOP) mandating that only translators registered with the MFA are allowed to translate official documents as illegal because it established a special registration regime that may only be establish in a law. Nearly five years later, the list of ‘sworn’ translators still exists, is made available to various government bodies, and the MFA will not legalise any Bulgarian-to-foreign-language documents unless the translator is in their list. To register with the MFA, translators are not required to demonstrate knowledge in the field of legal translation, and they do not sit any kind of examination to prove competence – special or even general; they only need to submit a copy of a diploma (a secondary school diploma is sufficient!) or language certificate – hence the inverted commas around ‘sworn’.
While the same ‘relaxed’ educational level criterion is applied to court translators, too, there are other criteria that discourage translators from joining the ranks: to be registered as a court translator, the candidate is also required to produce (under Article 7 of Ordinance N-1 on Court Translators [OCT]): a certificate of an ‘occupational responsibility’ insurance, a no previous convictions certificate, and documents proving the applicant has translation experience (minimum recommended length: 5 years). Moreover, court translators are remunerated pursuant to the outdated provision of Article 25 OCT which sets an hourly rate of 15 BGN (~7.50 EUR) for both translation and interpretation but are liable to a penalty of up to 500 BGN (~250 EUR) for failing to appear before the court or refusing to do the translation without a valid reason (Article 395g(3) of the Bulgarian Penal Procedure Code [PPC]); both the OCT and PPC were promulgated in 2014.
Aware of the limited number of registered court translators, courts and law enforcement bodies frequently contact translation agencies or ‘sworn’ translators from the MFA list. Some public notaries appear to use the latter list, too. This is made possible by a loophole in the Bulgarian Law on Judicial Powers (LJP): Article 396(2) permits various bodies to appoint experts or translators/interpreters that are not included in the respective body’s list ‘if necessary’. When using the services of agencies or ‘sworn’ translators, the rate under Article 25 OCT does not apply; compensation is agreed to based on ‘market rates’. It is therefore of little surprise that certain courts only contact certain translation agencies.
Another problem, closely related to the above, is that no unified list of court translators exists: Article 398(1) LJP states that ‘lists of experts and translators shall be drawn up for each judicial region of a district or administrative court’ (emphasis mine); Article 398(2) LJP additionally provides that separate lists may be drawn up, if necessary, by the various supreme bodies. These provisions were last amended in 2014. An attempt to rectify the situation was made in 2020, when Article 402a LJP was created (effective from 1st January 2021), mandating the creation of a ‘Unified Registry of Experts’ by the Ministry of Justice encompassing the data entered in the lists as per Article 398(1) and (2) LJP. A registry was created but only of experts. Articles 3 and 4 OCT mirror the provisions of Article 398(1) and (2) LJP, but since OCT has not been amended since its promulgation in 2014, it fails to transpose the requirement of Article 402a LJP. Thus, three years later, no unified registry exists listing all court translators, this furnishing courts and law enforcement bodies with an excuse to not contact those few court translators included in their local lists.
The practice of contacting a translation agency also contradicts Article 2(4) OCT which stipulates ‘confidentiality and abiding by professional ethics’ (emphasis mine) as the main criteria for selecting court translators. When an agency is contacted, the texts to be translated will change at least one pair of hands: from the agency’s project manager to the translator and vice-versa. In the case of a translation service, the government body requesting it will know who the translator is only when the completed translation is received bearing the translator’s name and signature. The said translator’s compliance with the criteria of selecting court translators (mentioned above) remains unverified when chosen through this process. To aggravate matters, certain translation agencies are known to assign the job to one translator (cheaper and unqualified) but will print the translation on a form signed by another who is registered in the MFA list (without the knowledge of the latter). In the case of interpreting services being requested, unqualified interpreters will sometimes appear before the court, who are not required to show proof of legal interpreting experience.
An additional encumbrance to the work of registered court translators (and of ‘sworn’ translators) is that where the translation is from a foreign language into Bulgarian and the document is to serve before a (local) government institution, the translator is required to have their signature certified by a notary public (under the provision of Article 21a SLCTDOP, added in 2017). In order to confirm their competence, the translator needs only sign a declaration that they are conscious of the criminal responsibility they bear under Article 290(2) of the Bulgarian Criminal Code for providing an inaccurate translation. Since Article 18(1) and (2) SLCTDOP were annulled in 2019, anyone can sign such declaration.
II. Remuneration
Let us elaborate on the issue of remuneration. Article 403(2) LJP mandates that OCT establish the conditions and procedures for determining the remuneration of translators and Chapter Four OCT implements this. However, while Article 20 OCT distinguishes between interpreting and translation, Article 24 OCT provides that compensation is calculated on an hourly basis only. Despite Article 23’s provision to consider factors such as task complexity (item 1), translator/interpreter competence (item 2), time spent (item 3), volume of work (item 4), accompanying expenses, e.g. travelling to the court, especially if in another city/town (item 5), urgency and/or work on weekends or holidays (item 6), an hourly compensation does not inadequately reflect these key aspects (except the one under item 3).
As mentioned above, Article 25 OCT sets the hourly rate under Article 24 to 15 BGN (~7.50 EUR); this was inadequate to the reality of the Bulgarian translation and interpreting market even in 2014, when the Ordinance was promulgated. Although Article 26 allows for a potential 100% increase for highly qualified court translators (it is unclear who and how determines this) and for services performed on weekends and holidays, the overall compensation – if at all increased – is still below acceptable standards in 2023. Low remuneration is one of the main factors discouraging experienced professionals from pursuing the profession of registered court translators, which consequently creates a shortage of translators in certain regions, particularly outside the capital Sofia, and ‘justifies’ some courts resorting to contacting translation agencies or non-registered translators.
III. Identification of court translators
Against the background of the above, the issue with identifying court translators is a minor one. Article 6(1) OCT stipulates that court translators shall be identified by a ‘court translator card’; when applying for a court translator, the applicant is required to submit a passport-sized photo of themselves. Article 16 OCT outlines the identification details to be included in such a card, with the decision on the card model to be made by the Supreme Judicial Council. However, as of the end of 2023, nine years after the promulgation of the Ordinance, no such cards or their model have been introduced or created.
IV. Conclusion
In light of the above, the Bulgarian Association of Court Interpreters and Translators recommends the following measures, believing their prompt implementation will play a positive impact on the situation:
- Amend the Bulgarian Law on Judicial Powers (LJP) and the Ordinance on Court Translators (OCT) to disallow appointment of non-registered court translators to pre-trial and court proceedings. Amend the Bulgarian Penal Code (PC) and Penal Procedure Code (PPC) to the same effect. Prohibit the Ministry of Foreign Affairs and other bodies from creating their own lists of translators. The urgent creation of a Unified Register of Experts and Court (or Sworn) Translators is therefore necessary.
- Amend OCT to define strict criteria for the selection and approval of court translators. These include requiring a university degree (if the degree is not in translation, then also a language competence certificate), introducing an examination in legal matters (written and/or oral depending on whether the candidate wishes to apply as a translator and/or interpreter) and the subsequent award of the status of ‘sworn translator’. Additionally, we recommend that court translators who use computer-assisted translation software to ensure translation quality and terminology consistency be considered highly qualified and be given priority over those who do not.
- Amend OCT to establish distinct rates for interpreting and translation, introducing per-source-word and/or per-standard-page rates for the latter. Consideration for differentiation among language groups in compensation calculations is also recommended.
- Remove the requirement for court (sworn) translators to have their translation certified by a notary public. Sworn translators (approved in accordance with item 2 above) should be able to certify their translation by placing their signature and seal only. This will also reduce the cost of the certified translation service to citizens and companies.
Kind regards,
Ilka Encheva
Chairperson
Bulgarian Association of Court Interpreters and Translators