B. Objective of legal interpreting

The basic objective of legal interpreting is to enable defendants in the criminal procedure to communicate effectively with representatives of the judiciary institutions, defence lawyers, and other participants in the proceedings so that they can express themselves and exercise their legal rights to defend themselves, and to ensure that their rights stipulated under the constitution and the criminal procedure law are protected.
The guiding principle of criminal litigation is due process of law, which means that in the course of criminal procedure, one’s dignity and values as well as basic human rights should be protected. Under this principle, defendants, as the agent of litigation, can exercise their rights to defend themselves. Article 12 of the Korean Constitution protects the rights of criminal defendants,based on the principle of due process of law. The Criminal Procedure Act of Korea also stipulates that defendants have the right to speak for themselves (Article 26 Paragraph 8).
In line with the same principle of due process, defendants should not be disadvantaged against state prosecutors in preparing for their case and defend themselves. To that end, each country has its own criminal procedure laws which recognize defendants’ right to counsel and their entitlement to state defendersif they cannot afford their own legal representation. Therefore, in an adversarial system,if interpreting is not provided for foreigners of limited Korean language ability in order to enable them to communicate effectively with trial judges, prosecutors and attorneys and to follow witnesses’ testimony, their ability to defend themselves is severely undermined and they are at a great disadvantage in preparing their case. In that sense, one may argue that foreign defendants’right to an interpreter is equally important as their right to counsel.

5. Laws Governing Legal Interpreting Systems Abroad

According to the International Covenant on Civil and Political Rights Article 14.3 (a) and (f), everyone charged with a criminal offense shall have the right to be informed ly and in detail of the nature and cause of the charge against him/her in a language which he/she understands, and to have the free assistance of an interpreter if he/she cannot understand or speak the language used in court. If one stands trial not being able to understand factsrelated to criminal charges and their legal rights, it is nothing short of a grievous violation of human rights.Interpreting provided in the criminal procedure may influence the nature of charges because a different nuance may make a difference in meaning, and thus it requires utmost accuracy.
The U.S, which has a long history of immigration, introduced a judiciary interpreting system long ago. It developeda legal interpreting system partly because it is a nation of immigrants but also partly because it is based on the Anglo-American legal system which is characterized by an adversarial system, oral arguments, and the jury system. In the Anglo-American legal system, it is regarded essential for the testimony of defendants and witnesses to be accurately conveyed to non-legal professionals such as jurors through interpreters. In the U.S. the right to an interpreter has been recognized as a defendant’s right, and laws and regulations including the Court Interpreter Act have been enacted. Some states in the U.S. have state court interpreter accreditation programs which regulate court interpreter licenses and demands highly professional ethical standards from judiciary interpreters.
Australia, another multicultural nation, has a legal framework for legal interpreting. States like South Australia and Victoria have written laws on criminal defendants’right to an interpreter, while other states allow courts to exercise discretion to determine the provision of interpreters under common law. The National Accreditation Authority for Translators and Interpreters (NAATI), which is an independent entity funded by the Australian federal governments and state governments, administers the accreditation system for interpreters and translators in Australia. Australia has made efforts to improve court interpreting practices to the standards of international courts and tribunals.
European Union members provide legal interpreting based on the European Convention on Human Rights. With the view of improving the quality of legal translation and legal interpreting within the European Union, projectssuch as Grotius and AGIS have been instituted. Even so, European countries have yet to establish consistent and uniform legal interpreter systems across different jurisdictions, so that in some jurisdictions interpreters may be accredited on the basis of interviews and resume checks, whereas in others they may be accredited only through formalaccreditation examinations. Denmark, for example, has two classes of interpreters -qualified interpreters who have completed a Master’s course in interpreting and who have passed an interpreter test,and non-qualified interpretedwho have not done Masters level training but are allowed to work as interpreters. Formal ethical standards apply to both classes.
In the case of Hong Kong,the criminal defendants’right to an interpreter is legally stipulated. It is noteworthy that Hong Kong courts recognise the need for Chinese dialect interpreters as well as foreign language interpreters. Court interpreters in Hong Kong are selected based on the civil servant act and their professional duties are specified in the law.
A survey of legal interpreting systems in foreign countriestherefore indicates that many countries recognize interpreting service as defendants’ right or at least try to recognize it as defendant’s right. Many countries have legal and institutional framework for the employment and engagement of legal interpreters, and they maintain a rigorous accreditation system for legal interpreters in order to ensure professionalism, ethical practice and impartiality in legal interpreting

6. Legal Interpreting Issues in Criminal Matters

A. Issues in investigation

Foreigners who are charged with criminal offences often do not understand Korean well, while prosecutors and police officers often do not know the languages spoken by the accused. That is why an interpreter’s presenceis crucial during criminal investigation, court proceedings and the execution of sentence. Foreigners generally come from different cultural backgrounds and different social customs and legal systems, so they may not beproperly aware of the investigation procedures and trial system of Korea, and so it is not easy for them to grasp the exact meaning of their statement and testimony through interpreters. As such, it is necessary to help foreign nationals charged with criminal offenses understand the criminal procedure in Korea so that they are not limited in preparing their case and defending themselves.

B. Issues in Trial

Although interpreting may be provided throughout the trial, if it is not accurate, defendants may not be able to understand the sentence they face, even though they have received a translated copy of the bill of indictment. In such cases, Article 14 (a) of the ICCPR becomes meaningless for the foreigners and their rights guaranteed by international human rights laws are undermined. In the cases where inadequate interpreting is provided in courtroom trials, it also hinders discovery of substantive truth. That is why the engagement of competent interpreters is needed in order to defend the rights of foreign suspects and defendants.

C. The Legal Nature of Judiciary Interpreting

As well as a means of protecting defendants’ rights,judiciary interpreting can be viewed as a method of evidence and as a means to ensure a fair trial through effective communication between litigants. Legal precedents and theories appear to approach the role of interpreter as an assistant of the court in fact-finding. In Korea, when defendants ask for interpreting, it is deemed entirely up to the court to determine whether or not defendantscan communicate in the Korean language according to Section 180 of the Criminal Procedure Act, considering such factors as their educational backgrounds, careers, jobs, and so on, and decide on the matter of provision of interpreting. Japanese precedentsindicate that in the cases where the accuracy of interpreting provided for theinterview records during the preceding investigation stage has been assessed through questioning of defendants and/or the examination of witnesses, the inadequacy of interpreting and incompetence of interpreters does not threaten the due process in the criminal procedure. As for interpreters’competence required for criminal investigation, Japanese courts have shown strong tolerance by stating that the interpreter’s ability to understand everyday conversation and conveying one’s opinions and ideas to others is sufficient for investigation of foreigners, and general knowledge is rather than legal knowledge is sufficient in the pre-trial investigation stage.
However, in order for criminal suspects and defendants to understand their legal rights and understand the opposing party’s case and arguments and come up with proper defence, there should be effective communication between defendants and police,prosecution, legal institutions and defence attorneys, and the right to an interpreter is an essential precondition to one’s right to trial (the Korean Constitution Section 27 Paragraph 1) and to defend oneself. Given that ICCPR Article 14.3(a) and (f) specify free assistance of interpreters, and that the European Convention on Human Rights Article 6.3(e) has a similar provision, it would be reasonable to assert that defendants also have the right to an interpreter during the investigationphase, and that this right stems from the principle of due process of law.

D. Fairness and Accuracy in Interpreting

It is important that adequate interpreting service should be provided for foreigners, whose ability to understand and speak Korean is limited,from criminal investigation to prosecution and trials so that they can defend themselves. It is vital to the due process of law. The adequacy of interpreting is in turn closely linked to fairness and accuracy in interpreting.

7. Recommendations for Legal Interpreting System

Multicultural, multilingual, and multiethnic countries have offered legal interpreter training programs for many years now. Although Korean demographics are becoming multicultural with more and more foreigners staying in Korea,and although and the increasing demand for legal interpreting is clear, Korea has yet to adopt eithera system for the deployment ofcompetent and qualified interpreters in legal settings, or a system for the accreditation oflegal interpreters. Some people voice concerns that there are only a handful of competentinterpreters available for legal interpreting services while others say many people still lack understanding of what interpreting is and what it takes. In the absence of laws that govern legal interpreting in Korea, there are fewinterpreters equipped with the level of language skills, knowledge of legal terminology and professional ethics which are expected of legal interpreters.
For effective legal interpreting, interpreters should possess professional communication ability to interpret appropriately in various legal settings, and awareness of professional ethics as an expert who assists in the legal procedure. The competence and professionalism of interpreters are directly related tolegal issues such as admissibility in the criminal procedure. In short, legal interpreting is essential to efficient proceedings and for judicial justice and human rights for foreign suspects and defendants. In order to provide quality legal interpreting service of such legal nature, interpreters should be trained and have highly advanced level of language ability as experts in legal interpreting, and they shouldabide by ethical standards and professional codes of conduct.Accreditation for legal interpreters who possess such professional qualities needs to be introduced, and Korea can learn from the examples of foreign countries which have laws concerning court interpreters and codes of ethics for legal interpreters.
Korea introduced a jury system in criminal trials through the passing of a law on people’s participation in criminal trials. Such legislations and other revisions of Korean criminal procedure laws,coupled with the increasing population of foreigners from non-Korean speaking backgrounds, highlight the need and the importance of legal interpreting in criminal procedure. This study discussesthe urgent need to establish through legislation the means of raising the ethical awareness of legal interpreters, and the means of holding them accountable for the provision of adequate legal interpreting service. The institution of a system to screen the competence of interpreters in order to ensure complete and accurate interpreting during criminal court proceeding is central to this.