In France, for civil proceedings or criminal investigations judges may appoint as expert translator any person of their choice, subject only to the restrictions specified by law or regulations. They may thus appoint any person to act as translator in criminal or civil proceedings as long as the appointed person takes an oath before undertaking the required translation. However, judges generally prioritize the use of translators registered on the official list.
Specifically, for the judges’ information a national list is drawn up each year in France by the office of the Court of Cassation, along with a list, compiled by each Appeal Court, of experts in civil matters, including approximately fifty specializations classed in alphabetical order.
1) Protection of the title
The title of translator is not a title protected by law in France, as is also the case in most foreign countries (2). However, the title of sworn translator is protected by law and may not be used without the translator being registered on a list compiled by the Appeal Court or on the national list. By law, persons registered on one of the lists in question may only describe their capacity with the wording: "by an expert certified by the Court of Cassation" or "by an expert of the Appeal Court of... ". The wording may be followed by an indication of the specialization of the expert translator with all details concerning the person’s foreign languages.
The French system recognizes honorary status. Thus, experts granted honorary status may continue to use their title, on condition that that it is prefaced with the term “honorary”. Honorary expert translators cannot provide sworn translations, but are free to practise the profession of translator in the private sector.
Any person, other than those featuring on the official lists, who has made use of one of the appellations mentioned above, will incur penalties specified by Article 433-17 of the French Penal Code, which punishes the illegal use of a title attached to a profession regulated by the public authorities, by one year of prison and a fine of 100 000 Francs. The protection of the title by law even extends to prohibiting, by virtue of Article 4 of the Act of 1971, the use of an appellation exhibiting a resemblance of a kind to cause the public to mistake it for one of the appellations addressed above.
2) General conditions of registration on the expert translator lists
French law specifies two categories of provision, firstly for physical persons and secondly for legal persons. For the first, no person may be registered on a list of experts as translator unless he satisfies the following conditions:
- He has not committed any deeds that have resulted in a conviction for actions contrary to honour, probity or morals.
- He has not committed any deeds of the same nature that have resulted in a disciplinary or administrative sanction of removal from office, suspension, revocation, withdrawal of license or authorization.
- He has not been declared bankrupt or the subject of any other sanction in application of Title VI of Act n°85-98 of January 25th 1985 relating to compulsory administration and winding-up proceedings of companies or, in the system prior to this act, in application of Title II of Act n°67-563 of July 13th 1967 on “legal regulations, personal insolvency and bankruptcy".
- He practises or has practised for a sufficient time a profession or activity related to translation. This condition is interpreted in a very wide sense encompassing any activity having a relationship with foreign languages. Thus, language teaching, bilingual secretary work and administrative work in foreign languages are considered as valid activities for meeting this condition.
- He has practised this profession or activity in conditions that have been able to invest the candidate for registration with sufficient credentials. The conditions in question may be the result of a temporal or circumstantial criterion.
- He does not practise any activity incompatible with the independence necessary for the discharging of expert legal duties. There is no list of incompatibilities and the question is dependent on the appraisal of the magistrates that examine the application.
- He is of age (18 years old in France) and under seventy years of age.
- For candidates for registration on an Appeal Court list, the interested party must practise his main professional activity in the judicial area of this court or, for those no longer practising any professional activity, be resident there. Thus, it is for example not possible to reside in Geneva and apply for registration on the list of the Lyon Appeal Court. It is specifically necessary to have a residence in Lyon and another in Geneva. Dual residence is not prohibited.
With regard to this, it should be noted that French nationality is not required of candidates. Specifically, foreigners can be appointed expert translators and in practice it is observed that a very large number of translators registered on the Appeal Court lists are of foreign nationality. Moreover, the registration of a legal person, a commercial company or a non-profiting-making organization, on a list of experts requires the evidence that:
- The company directors of the person in question meet the stated conditions concerning physical persons in points 1, 2, 3 and 6
- The legal person has been practising an activity for a period of time and under conditions providing them with sufficient qualifications with respect to the specialization in which they are requesting registration, namely translation or interpretation
- This activity is not incompatible with the independence necessary for undertaking expert legal duties. Thus, an enterprise of foreign nationality working with a foreign embassy in Paris can have their application rejected on the grounds that the main functions practised by it (being in the service of a foreign government) are incompatible with the independence necessary for the practice of translation in the service of the French legal authorities
- The legal person possesses technical means and qualified and appropriate personnel
- For registration on an Appeal Court list, whether it has its own headquarters, a subsidiary or a technical institution connected to its specialization, within the judicial area of the French Appeal Court concerned.
Furthermore, the legal person in the form of a company requesting registration must present these statutes and indicate the name of each of the associated persons holding a fraction of at least 10 % of the shareholder equity. This provision allows the legal authorities to verify the probity of the shareholders and avoid persons for whom it is impossible to register individually circumventing the regulations by creating a legal person that serves as a screen between him and the legal authorities.
A legal person attributing to itself the main or accessory objective of executing translation or interpretation duties cannot be allowed on a list of experts. Specifically, the assistance of the legal person to the workings of justice must remain a secondary or accessory activity for said person and not its reason for existing. On the other hand, a physical person can specialize in legal translation or interpretation before the tribunals and make his activity of expert translator his main activity.
It is obvious that persons registered on the lists must uphold the conditions required by law during the entire period of their registration. Any change arising in the situation of physical or legal persons who have requested or obtained their registration on a list, with regard to conditions referred to above, must be brought without delay to the attention of the Public Prosecutor. If these modifications make the translator cease to meet conditions of registration, a removal procedure can be engaged against the interested party.
No physical or legal person may be registered on several Appeal Court lists. Registration on an Appeal Court list may be cumulative with registration on the national list. An expert already registered on one of the lists mentioned above does not have to renew this registration application every year. He may, of course, practise his activity anywhere in France and provide assistance to any judges resorting to them independently of the place where the translator is based and independently of the Appeal Court of registration and of the court in question.
3) Registration procedure
In French law, the registration procedure is legal in the sense that it takes place within the legal authority with magistrates whereas in Geneva, as will be seen below, it is exclusively administrative, as it takes place with an administrative authority, in this case the State Council. The procedure also varies in France according to whether it is the national list or the Appeal Court lists whereas in the State of Geneva there is only a single list.
A. Lists established by the Appeal Courts
Applications for registration on one of the lists compiled by the Appeal Courts are sent before March 1st of each year to the Public Prosecutor at the High Court in the judicial area wherein the candidate practises his activity or resides.
The application is drafted on a separate sheet of paper without any particular formalities. It can be a short letter accompanied by a CV in the form of a table or a detailed letter specifying the profile of the candidate. It is accompanied by all useful details, and in particular the following information:
- Indication of the specialization or specializations for which registration is requested. The candidate must thus specify whether he is requesting registration as a translator only, or as a translator and interpreter, or as an interpreter only. He must also specify the foreign languages of his specialization.
- Indication of the titles or degree certificates of the applicant, of his scientific, technical and professional works, of the different functions that he has performed and the nature of all the professional activities he has practised with, where applicable, statements of the name and address of his employers. It is pointless to attach scientific works to the file or to submit a few examples of completed translations. Indeed, as will be seen, the files of the candidates are not examined by translators but by magistrates who judge on title and not on work.
- Evidence of the credentials of the applicant in his specialization. Thus, candidates who have graduated from a translation college have a greater chance of obtaining registration than a law graduate skilled in foreign languages.
- Where applicable, specification of the means and installations the candidate possesses, such as computers, fax machines, telephones etc.
- As soon as the file is received the Public Prosecutor examines the application. He verifies that the candidate fills the requisite conditions. He collects all the necessary information on the merits of the application, particularly taking into account the skills of the candidate. He orders the police services to conduct an enquiry into the candidate. This candidate is then summoned to a police station for a short questionnaire including a few requests for information on his personal environment and professional life. This procedure has the aim of ensuring the probity of the candidate to hold a function having a very close relationship with the workings of justice. However, this request for information must not concern either the political and religious opinions or the home life of the candidate.
- After examining the application, the Public Prosecutor submits the file for the opinion of the General Assembly of his respective judicial area, to the President of the High Court, as well as to the Presidents of the Commercial Courts and the Presidents of the Employment Tribunal, if such jurisdictions exist within his judicial area.
- The General Assembly of each of these jurisdictions may meet in restricted composition, comprising at least one member of each individual panel.
- The members of the General Assembly of the High Court sitting in restricted formation, must, if they are not already present in another capacity, include a President of the Court of First Instance, of Social Security and a President of the Departmental Pensions Tribunal (if such jurisdictions exist within the judicial area), a President of the Agricultural Land Tribunals, as well as at least one Justice of the Peace, one Juvenile Court judge and one committing magistrate. This composition of course has the aim of allowing the greatest number of magistrates to express an opinion on the candidacy of the translator.
- During the second fortnight in September, the Public Prosecutor submits the opinions of the General Assemblies to the General Prosecutor who seizes the First President of the Appeal Court for the purposes of examination by the General Assembly of the court.
- When the Court includes over five chambers, the General Assembly can meet in a restricted formation in which all the chambers of the Court are represented.
- The High Courts, Commercial Court and Employment Tribunals within the judicial area of the Appeal Court are represented at the General Assembly, even if it sits in restricted formation, by one of their members participating in the examination of the applications, with an advisory vote. However, the First President may exempt certain jurisdictions from being present, provided that at least one member of each category of jurisdiction sits at the General Assembly.
- The First President appoints one or more magistrates within the judicial area of the Appeal Court belonging to the sitting to perform the function of reporter. This choice is of course made independently of the language skills of the reporting magistrate. In most cases, it is a choice motivated purely by imperatives of administrative organization of the jurisdiction. Moreover, said magistrate is usually responsible for several files of candidates for judicial assessment at the same time, including both translators and, other specializations ranging from plumbing to radioactivity measurement techniques via translation and interpretation.
- The General Assembly of the Appeal Court compiles the list of experts during the first fortnight of November. It pronounces after hearing the magistrate responsible for the report and the public ministry. A vote in favour leads to registration on the list, which is normally published at the end of November/beginning of December and distributed free of charge to all civil, criminal and administrative jurisdictions within the judicial area of the Appeal Court. The list of legal experts of the Appeal Court is also kept available to the public in the premises of the Registry of the Court and the High Courts within the judicial area of this same Appeal Court. It can also be displayed in these premises. Lawyers, bailiffs, notaries or even private individuals may obtain a copy on request to the service responsible for experts of the Appeal Court, subject to payment of an excise stamp.
- Before performing their function, the experts swear an oath before the Appeal Court of their residence that they will bring assistance to justice, carry out their duties, provide their report and give their opinion in honour and conscience. For legal persons, the oath is sworn by the representative of this legal person, appointed for this purpose. If he is prevented from attending, the First President of the Appeal Court may authorize the expert to swear an oath in writing.
B. National list
- A single national list exists, kept by the Court of Cassation, the supreme jurisdiction in France. No one may feature on the national list of experts if they do not provide evidence of their registration for at least three consecutive years on one of the lists established by the Appeal Courts.
- However, the office of the Court of Cassation can, on an exceptional basis, register on the national list a candidate who does not meet the conditions referred to above, or the age condition specified by the legislation. The number of experts thus registered for each specialization may not exceed one-fifth of the total number of experts featuring in this specialization on the national list.
- Anyone wishing to be registered on the national list of experts must apply to the Public Prosecutor at the Court of Cassation. This magistrate investigates the application, collects the opinions of the First Presidents and the General Prosecutor of the Appeal Court, having compiled the list on which the expert translator features, and obtains his file. The opinion of the General Prosecutor at the Appeal Court of the place of activity or of residence of the candidate is collected.
- The office of the Court of Cassation compiles the national list of experts during the first fortnight in December. This list is not distributed over the whole French territory, but is made available to all jurisdictions and lawyers requesting it. It is addressed solely to all the Appeal Courts and all the High Courts. It is kept available to the public at the premises of the Registry of Court of the Court of Cassation, the Appeal Courts and the High Courts. It can be found displayed in several jurisdictions in Paris and the Greater Paris region. Before performing their function, the experts registered on the national list swear an oath under the same conditions as their colleagues registered on the list of an Appeal Court.
C. Provisions common to both lists
- Every year, before September 1st, expert translators, like their colleagues from other specializations, inform the President of the Appeal Court or, for those who are only registered on the national list, the First President of the Court of Cassation, of the number of reports they have submitted over the legal year as well as, for each of the expert assessments in progress, the date of the decision and the deadline assigned for the submission of the report.
- Each year, without the interested parties having to renew their initial application, the body responsible for compiling the list examines the situation of each previously registered expert translator, to make sure that he is continuing to meet the requisite conditions, is observing the obligations imposed on him and is discharging them in a punctual manner. Thus, each year in July or August the councillor responsible for the experts of the Appeal Court or the Court of Cassation issues a questionnaire based on the model reprinted in the Appendix asking the expert to provide an update on these activities during the year that has passed. The councillor makes a report on each expert translator, proposing the re-registration or removal which can only be done according to a disciplinary procedure that we will examine in a future publication.
- Re-registration on a list is decided under the same conditions and with the same formalities as the registration.
- The reporting magistrate provides information about all complaints made, any explanations of the experts in question as well as the observations of the legal authorities regarding each of the experts.
- Any candidate who has not registered may apply for registration again the following year. There is no limit on the number of applications that can be submitted.
- If the expert requests his removal from the list for causes other than any disciplinary fault, or if this removal is made necessary by factual circumstances such as prolonged absence, illness or severe and permanent illness, the First President of the Appeal Court or the Court of Cassation may, on a provisional basis and during the year, decide to remove him from the list.
- Newly registered experts, persons whose candidature has not been successful, experts whose registration has not been renewed and those who have been the subject of a decision of provisional removal from the list receive written notifications of the measure concerning them.
- It can thus be seen that the French procedure, independently of its legal character, is onerous, lengthy and relatively complicated.
Maher Abdel Hadi University of Geneva, Switzerland