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Somali pirates’ trials highlight role of interpreters

Language barrier compromises fairness, defendants' lawyers say

by Masami Ito

Staff Writer

In the quiet courtroom, the Somali defendant sat unhandcuffed and with an earphone in place, flanked by guards.

“The court is now in session,” the presiding judge said in Japanese. His words were immediately translated into English by one interpreter, and then into Somali by another. This “relay” style is how the trial sessions have been carried out for all four Somali defendants who were brought to Japan to be tried for allegedly attempting to hijack an oil tanker operated by a Japanese company.

The four defendants were taken into custody by the U.S. Navy on March 6, 2011, transferred to Japanese custody and immediately taken to Tokyo. But the legal procedures took a long time to begin and the actual trials only kicked off in January because authorities couldn’t find a Japanese-Somali interpreter, said Koichi Kodama, a lawyer for one of the defendants.

“I’ve never heard of anything quite like this before — that the legal proceedings couldn’t begin because there were no available interpreters,” Kodama said. “And the lack of interpreters for the defendants infringes on their human rights.”

A defendant is entitled to have an interpreter under the United Nations International Covenant on Civil and Political Rights, to which Japan is a signatory member. Article 14 of the treaty stipulates that the defendant has the right to “free assistance of an interpreter if he cannot understand or speak the language used in court.”

In Japanese criminal law, it is briefly stated that an interpreter must be used when anyone “who doesn’t speak the (Japanese) language makes a statement.” Legal experts including Kodama stressed the importance of having separate interpreters from the investigative authorities so that defendants receive a fair trial.

It is on this basis that the lawyers for the four Somalis are demanding that their cases be dismissed, Kodama said. From the beginning, the defense lawyers struggled with the cases, not only because of the language barrier but also because they had no access to the crime scene — the middle of the Arabian Sea — nor could they invite relatives to testify on behalf of their clients.

“These defendants are not guaranteed fair trials in Japan for various reasons, including the interpreter shortcomings. Japan just wasn’t ready and authorities should have remedied these fundamental problems before bringing them here to try them,” Kodama said.

Three professional and six lay judges are hearing the cases, which began in January. So far three of the defendants have been found guilty and have appealed those verdicts to the Tokyo High Court. The final defendant’s sentencing is set for April.

Many lay judges involved initially expressed apprehension about ruling on a case so removed from their daily lives. Some questioned whether they understood the defendants’ statements correctly, or whether the men understood what they were being told.

“How one understands what the other is saying is different for each person and I am wondering if we are truly hearing what the defendant is saying. I think it is very difficult to grasp what he is really saying,” one of the lay judges said of the interpretation during a recent news conference.

Mamoru Tsuda, a professor at the Osaka University Global Collaboration Center, however, said the courts did the best they could under the circumstances, considering the rareness of the Somali language. South Korea faced a similar problem when it tried Somali pirates in 2011. Five interpreters, three to translate from Korean to English and two for English into Somali, were employed for the five defendants.

In Japan, the same two interpreters have worked all the trials.

“I can understand that the police, the prosecutors, the defense counsel and courts may want separate interpreters . . . but a professional interpreter’s job is to connect the two sides that are there at that moment,” said Tsuda, a veteran court interpreter. “It is important for interpreters to have background information, but once they start forming their opinions or become prejudiced, they no longer are professionals.”

“Although the prosecutors and lawyers are on opposite sides at first glance, I think the police, prosecutors, defense counsel and the courts are all working toward the same goal — to achieve justice. And interpreters are also a part of that,” he said.

One potential problem, however, is that while lay judges have replacements on standby in case of emergency, interpreters have no backup, Tsuda pointed out.

“There may come a time when some sort of family or health emergency comes up for the interpreter and the whole trial may have to be put on hold. And if that were to happen, the interpreters should not be blamed,” Tsuda said. “There is no system to provide replacements for these interpreters and the courts are actually walking on thin ice.”

There were 4,067 interpreters handling 62 languages nationwide on the Supreme Court’s list last April, including Chinese, English, Tagalog and Korean. Other relatively uncommon languages such as Hebrew, Swahili and Arabic were also covered. But not Somali.

Listed court interpreters are not necessarily qualified: There is no accreditation, and to become one, candidates are interviewed at their local district court to determine whether they are qualified based on their background and linguistic abilities. Some are professional interpreters but others include regular company employees with overseas experience and housewives, according to the Supreme Court.

In several recent criminal trials, some interpreters had trouble understanding the English spoken by native speakers, often interrupting the proceedings to ask that statements be repeated, or they sometimes misinterpreted remarks without correction. Japanese interpreters often had trouble translating into English, unable to find the right words or condensing the contents. Some even struggled to form sentences in English.

“Errors made by the court interpreter could have a grave and tremendous impact on the outcome of a trial. . . . The law mandates that defendants have access to interpreters, and that means they should be skilled,” said Yumiko Terada, a lawyer at the Osaka-based Asunaro Law Office.

Terada is on a committee of the Japan Federation of Bar Associations aiming to draft a bill to establish an accreditation and training system for court interpreters. She stressed the need for an official system that specifies details, including standards of qualification, training and pay.

Many other countries have a national accreditation system for interpreters and translators, including Australia’s National Accreditation Authority for Translators and Interpreters Ltd. and the United Kingdom’s National Register of Public Service Interpreters. Some U.S. states meanwhile have their own systems.

Terada, who recently observed a two-day training session in Hawaii, noted there were problems similar to Japan’s, including a lack of interpreters for uncommon languages and that sometimes underqualified interpreters slip through the cracks. However, the payment system was transparent and remuneration increased according to skill level. Also, the judges were keenly aware of the need for highly qualified interpreters to ensure the fairness of trials.

“I think that it is a terrifying situation, to be in a country like Japan where the defendant’s fundamental rights are not guaranteed,” Terada said. “We cannot neglect this situation. . . . Not only do we lawyers and prosecutors need to have that awareness, the judges also need to have the strong determination not to tolerate misinterpretations in their courtroom.”

  • Omata

    The defense lawyers have the obligation to protect interpreters by not revealing their identities to the suspects or the accused. Mr. Koichi Kodama, the lawyer mentioned above, is not qualified to be a defense lawyer since he has no regard for interpreters’ rights to privacy.

  • Shane Reierson

    What was initially touted as taking a strong stance against piracy has only revealed the impotence of the current system.

    In a previous JT article Shigeki Sakamoto, an international law professor at Kobe University was quoted as saying, “Helping neighboring countries build their capacity (to prosecute and try
    pirates) instead of holding the trials in a faraway country like Japan
    is much more effective.”

    That seems like a much more realistic and efficient goal.

  • http://www.facebook.com/gamakin Guillermo Makin

    As an interpreter with many years experience I see the problem and fear that the UK because of the ill-advised reforms introduced by the Ministry of Justice, the National Register of Public Service Interpreters will cease to exist (it has lost 10% of its registrants since the reform began last year). Interpreters’ membership organisations have offered alternative solutions that we know would save money but the Ministry continues to be wedded to a system that causes trials to be aborted, adjourned, and suspects detained with no justification whatsoever. The obduracy of the HMG and particularly Helen Grant, the minister responsible for interpreting, is the cause of great consternation. All this whist intended economies have evaporated.