Legal/judicial/sworn translation in Italy
All translation and interpreting professionals agree that the fields of legal, judicial and sworn translation require specialised knowledge, a high degree of skills and a firm ethical commitment. Nevertheless, and despite the recent transposition of Directive 2010/64/EU to its legal system, Italy (like other countries) lacks regulations to adequately guarantee the training and professionalism of those who are dedicated to this profession.
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The idea of writing an informative text about legal translation emerged for promotional purposes: when I started to offer translation services in the legal sector, I decided to write, alongside the Italian lawyer Simona Carofiglio, a detailed booklet about the main aspects of legal translation, aimed at potential clients.
To support the information obtained from our personal experience in the field of legal translation/interpreting and comparative law, we conducted an investigation into the legislation governing this field in Italy. Thanks to this research work, we created the booklet, the text of which is partially reproduced in this article. However, we are convinced that many issues related with the legal translation profession in Italy are not duly recognised by the same institutions that are there to protect this delicate field, which is currently fundamental to guarantee the exercise of the rights of citizens.
In this article, text from the aforementioned booklet has been included alongside information retrieved from the sources indicated in the bibliography and material from seminars about legal translation in which I have participated.
We conducted an investigation regarding the legislation governing this field in Italy.
We will not touch upon translation issues of a legal nature, but rather try to define the general framework and the different fields in which the professional figures involved in the legal translation sector in Italy operate.
After a brief introduction about legal translation in general, two main issues will be addressed in more detail: translation and interpreting in the judicial field and official translation in the extra-judicial field (sworn translation).
The progressive elimination of borders between States, increased mobility on a global level and the creation of transnational legal subjects have resulted in an increasing need to understand legal texts written in a foreign language.
Indeed, despite the fact that the international community has adopted and is constantly developing sources of law and supranational bodies, each State is responsible, for the most part, for regulating its own legal system, based on laws and state bodies. Thus, legal translations are necessary each time that original texts corresponding to one or more branches of law are required in another language.
Each State is responsible, for the most part, for regulating its own legal system, based on laws and state bodies.
In court cases in which the accused (in criminal proceedings) or at least one of the parties (in civil proceedings) are foreign citizens, it is necessary to translate the proceedings or documents arising from the trial into another language, or to orally interpret the statements or conversations that take place during certain stages of the proceedings, from and to the language of the foreign individuals.
To simplify matters, we will call all translation and interpreting that is carried out within judicial proceedings "judicial translation/interpreting".
Specialists in judicial translation/interpreting (both in Italy and abroad) share the opinion that professionals who carry out judicial translation/interpreting, besides knowledge of translation and/or interpreting techniques and of the languages in question (and their associated cultures), must also have full command of legal terminology, of the style and formal characteristics of procedural documents, a sound knowledge of the legal systems in the countries of their working languages and notions of different branches of law and of applicable procedural rules. However, many countries lack regulations, in general, to adequately guarantee the training and professionalism of those who are dedicated to this profession. In Italy, which is one such country, there are documents written by professional Italian associations of translators and interpreters, which provide ad hoc recommendations in their code of ethics and specific documents in the form of position papers.
To simplify matters, we will call all translation and interpreting that is carried out within judicial proceedings "judicial translation/interpreting".
In Italy, judicial translation/interpreting can be carried out at the request of a legal authority and, in this case, the professional who performs the task takes on the role of perito (expert) (in criminal matters) or consulente tecnico (technical consultant) (in civil matters). If the task is commissioned by the accused or by one of the parties, the professional provides his/her services as a consulente tecnico di parte (party-appointed technical consultant) (both in criminal and civil cases).
In the field of criminal proceedings, the accused has the right to be assisted by an interpreter in accordance with article 111 of the Italian Constitution and the Italian Code of Criminal Procedure (Codice di procedura penale, hereinafter C.p.p.). With regards to the transposition of Directive 2010/64/EU into the Italian legal system, in relation to the right to interpreting and translation in criminal proceedings, Italy has incorporated said directive through legislative Decree 32/2014, of 4 March, modifying articles 104 and 143 of the C.p.p., articles 67 and 68 of the Implementing Provisions of the C.p.p. and article 5 of the Consolidated Text with regards to legal costs (Decree of the President of the Republic 115/2002, of 30 May).
With regards to the transposition of Directive 2010/64/EU into the Italian legal system, (...) Italy has incorporated said directive through legislative Decree 32/2014, of 4 March.
The right of accused individuals who do not know Italian to be assisted by an interpreter free of charge, and the appointment and awarding of the case by the judicial authority to an interpreter/translator, along with the objection, abstention or substitution of the appointed interpreter/translator, are regulated by articles 143-147 of the C.p.p. (Part one - Book two: Proceedings – Title IV: Translation of proceedings).
The establishment, creation, revision and use of a list of expert translators and interpreters albo dei periti traduttori e interpreti), along with the requirements for translators and interpreters to become part of this list, are regulated in articles 67-69 of the Implementing Provisions of the C.p.p. (Title I, Chapter VI: Provisions on evidence).
In essence, the aforementioned laws are the basis for the following situation: each Italian court must administer a list of experts in different fields, including translation and interpreting. The lists of experts of each court are all part of a national list in electronic format, administered by the Ministry of Justice, which can be consulted by the judicial authority, lawyers and the judicial police. The experts admitted on the list must be "individuals who are particularly competent in the field". The body that is responsible for deciding on the experts to be added or removed from the list is a committee directed by the president of the Court and formed by the "public prosecutor of the same court, the president of the bar association council, the president of the national school or representative associations of the non-regulated professions to which the category of experts belong".
Each Italian court must administer a list of experts in different fields, including translation and interpreting.
As regards to the appointment and awarding of the case to the interpreter/translator, articles 67 and 67 bis of the Implementing Provisions of the C.p.p. provide for the possibility of the judicial authority naming translators or interpreters who are not on the list, based on specific requirements and providing grounds for its decision.
Furthermore, different provisions establish the compulsory nature of the service provided by the interpreter and translator, and the other experts appointed by the judicial authority, judicial police or State Prosecutor.
Finally, articles 225, 226 and 233 of the C.p.p. (Part one - Book three Evidence, Title II: Means of evidence, Chapter VI: Expert evidence) stipulate that both the prosecutor and the parties can name their own experts, known as CTP (consulente tecnico di parte, literally "party-appointed technical consultants"), after the judge has appointed the experts, or when the judge has not ordered any expert evidence.
In civil proceedings, the possibility of the judge appointing a translator or an interpreter is provided for in articles 122 and 123 of the Code of Civil Procedure (Codice di procedura civile, hereinafter C.p.c.).
The appointment of the expert, called CTU (consulente tecnico d’ufficio, literally "court-appointed technical consultant"), along with their objection, abstention or substitution and all matters related to their role in the field of civil proceedings is regulated in articles 61-64 of the C.p.c. (Book one: General provisions – Title I: On judicial bodies – Chapter III: On the technical consultant, on the custodian and on other assistants to the judge) and in articles 191-201 of the C.p.c. Book two: On the cognitive process – Title I: On proceedings before the court – Chapter II: On the substantiation of proceedings – Section III: On the evidence stage – Paragraph 1: On the appointment and the expert procedures of the technical consultant).
The establishment, creation, revision and use of a list of experts albo dei consulenti tecnici), along with the requirements for such experts to become part of this list, are regulated in articles 13-23 of the Implementing Provisions of the C.p.p. (Title II: On experts and assistants to the judge, Chapter II: On the technical consultants to the judge – Section I: On technical consultants in ordinary proceedings).
In conclusion, the aforementioned legislation determines that each Italian court must administer a list of experts in different fields. The compulsory fields are: medicine and surgery, industry, trade, agriculture and banking and insurance. The field of translation and interpreting is not compulsory, although Italian courts usually include this category. The experts admitted on this list must be "individuals who are particularly competent in a specific field, demonstrating exemplary moral behaviour and they must be a member of their corresponding professional association". The body that is responsible for deciding on the experts to be added or removed from the list is a committee directed by the president of the Court and formed by the "public prosecutor and a professional member of the bar association, appointed by the association's council, or by the professional association to which the person requesting inclusion on the list of technical consultants belongs".
As has been observed, both in criminal and in civil proceedings, in Italy the establishment, creation, revision and use of list of judicial translators/interpreters (the albo dei periti and the albo dei consulenti tecnici) falls under the competence of the different courts. This situation is reflected in the lack of unity and harmonisation on a national level of the different procedures implemented to administer the lists, based on the means of including the experts. Added to this is the possibility of commissioning judicial translation/interpreting tasks to individuals who are not part of the official lists and, therefore, judicial authorities often name translators/interpreters who are on other informal lists, which include individuals named by the police, by the city councils or by other judges. Other negative aspects surrounding the work of judicial translators/interpreters are the rate of pay (a gross rate of between 4 to 8 euros per hour) and the form and term of payment provide for by Law for tasks commissioned to experts and consultants appointed by the judicial authority.
In Italy the establishment, creation, revision and use of list of judicial translators/interpreters falls under the competence of the different courts.
In addition to the judicial translators/interpreters named by the judicial authority in the field of civil or criminal proceedings, Italian legislation also provides for other professional figures called "cultural mediation operators" or "intercultural mediators", who act in other judicial fields such as, for example, prisons and other places related to immigration.
Finally, other professionals who act as translators and interpreters within the judicial field are public officials employed by the Ministry of Internal Affairs, called "linguistic officials".
Italian legislation also provides for other professional figures called "cultural mediation operators" or "intercultural mediators".
To ensure that a translated document has legal value in the country where it will be used, the law stipulates that the document should be certified as a faithful and complete translation of the text written in a foreign language.
Although this regulation is in force throughout the world, the procedure to obtain the certified translation varies from one country to another. The lack of uniformity, on an international level, of translation certification systems sometimes means that sworn translations carried out in one country are not recognised as such in the destination country. Therefore, it is always advisable to contact the foreign body where the translated documents will be used, requesting exact information about the methods and individuals recognised for the purposes of certifying the translation.
Generally, translations certified by the competent diplomatic or consular authorities are recognised as official. Likewise, in many countries there are official translators who are qualified to certify their own translation using their stamp, signature and the translator's attestation.
In Italy, certified translations with official value for legal purposes are sworn translations, technically called "asservations" (traduzioni giurate or asseverazioni). The oath consists in declaring the conformity of the translation before the judicial clerk at the court's Ufficio Volontaria Giurisdizione (Voluntary Jurisdiction Office), or before the justice of the peace or in the presence of a notary. The sworn translation (asseverata) should include the original, the translation and the oath, signed by the translator and by the clerk/justice of the peace/notary.
Furthermore, in Italy there is no official professional qualification for sworn translators. The figure of official translator in the Italian legal system is defined by a circular issued by the Presidency of the Council of Ministers. There are also interpretive contrasts in relation to the regulation that governs the translation of documents notarised abroad, and the attestation of conformity with the original.
In Italy there is no official professional qualification for sworn translators.
The definition of an official translator provided by the aforementioned circular is as follows:
"Official translators" are understood as all those who are able to provide an "official" translation of a foreign text. In other words, all individuals who, besides being particularly competent in foreign languages, are able to produce a faithful version of the original text, thus granting it with an "official nature", on the basis of a pre-existing authorisation or through subsequent procedures (e.g. an oath).
In fact, in Italy there is not an official list of sworn translators. There are university degrees or professional translation courses, professional certificates issued by professional associations, lists of expert translators and interpreters associated to the chambers of commerce and to the courts. However, specific degrees, professional certificates or being included on the lists of the chambers of commerce or the courts are not compulsory requirements to be able to certify a translation. Therefore, in the majority of cases, anybody who knows a foreign language can certify a translation, without having to demonstrate knowledge of the language from which (or to which) the translation has been performed.
Finally, and in conclusion, here are some general reflections regarding sworn translation in Italy.
In light of the above, and given that the requirements, the methods and even the costs to carry out a sworn translation depend on the criteria of the courts and of the public officials who receive the oath, in Italy there is a significant lack of uniformity on a national level, which affects both the translators who are dedicated to sworn translation (the professionals) and those who require sworn translations (the clients).
Sworn translations carried out in Italy involve greater costs in terms of time and money compared to other countries.
Furthermore, sworn translations carried out in Italy involve greater costs in terms of time and money compared to other countries. The fact of the matter is that, to certify a translation, the translator must physically go to the court (which involves travel, the distance of which will depend on the location of the nearest court). Furthermore, when calculating the price of sworn translations, it is necessary to include taxes, which vary depending on the length of the translation, and when certified before a notary public, the fess for doing so.
This article was originally published in Spanish at "La Linterna del traductor". Click here to see the original article.
Valeria Uva has been translating and interpreting in the legal field for more than ten years. She is registered at the Court of Bari as an expert translator and interpreter, she is also affiliated with Asetrad and sits as a full member of the Italian Association of Translators and Interpreters (AITI). You can visit her website by clicking here.