Question:

The administrative agency is conducting a procedure in which the party is a foreigner who does not understand the Slovene language. Following GAPA, the administrative agency must appoint an interpreter for the party, which raises the following questions:
● As GAPA does not explicitly define a “judiciary interpreter” and a “registered interpreter”, who can therefore be appointed or how can the body verify their legitimacy so it is legally valid?
● Can the interpreter be a common law partner, relative or a friend of the party (who they suggest) if they do not have any proof of competency for interpreting?
● Can a foreigner revoke their right to an interpreter and if so on what legal grounds?
● Must the interpreter be appointed along with the deposition of the request if it is made orally on the record by a foreigner?
● Should the simultaneously translated statements be co-signed by the present interpreters on the record of the deposition of the party?
● Can the administrative agency take into account statements as evidence when they are spoken in a foreign language, the official does not understand their meaning, and are only translated by the interpreter, which may not be impartial, based on their relations with the party?

Answer:

The administrative procedure is conducted in the Slovene language. This language is also used in depositing applications, writing decisions, records and in all acts of the procedure. If an application is not filed in the official language the administrative agency acts as if the application is incomplete. Parties and other participants in the procedure, who do not speak the language of the procedure, have the right to follow the procedure with the help of an interpreter. The administrative agency is obligated to make this fact aware to the party (Article 62. of GAPA; see Jerovšek et. al., 2004, ZUP s komentarjem - comment on articles 62. 198 and 113).
As far as interpreters are concerned the mutatis mutandis provisions on experts (Article 198 of GAPA) apply. Mutatis Mutandis application means that there needs to be a distinction between an expert and an interpreter in connection with the form and substance of their work. An interpreter does not prepare an expert finding or opinion, therefore all the provisions of GAPA with regards to them are irrelevant. However the interpreter must be impartial and has to credibly interpret; otherwise they are legally responsible for the illegal act of perjury. Another important rule regarding experts, which is also analogously used for interpreters, is especially the exclusion of duality of roles that is the official and the interpreter, the party or their statutory representative and the interpreter, the witness and the interpreter, or the expert and the interpreter. If a person is already a participant in the procedure they cannot also act as an interpreter.
Keeping the above in mind a general rule is that the interpreter is appointed by the official with an order (following Article 190 of GAPA), after they have verified that the person meets the necessary criteria or there are no reservations regarding the appointment. It needs to be emphasised that the party may recommend the interpreter, even from among their friends or relatives. Such persons are however, after their appointment, in a legal relationship with the agency and not the party. They are therefore acting for the agency, as an assistant to the official and not the party, as for example their representative. Due to that the interpreter does not sign the record alongside depositions of the party or other persons present (or their translations). If the hearing of the party is done through the interpreter the subject matter of the record has to state who the interpreter was and in what language the person being questioned spoke (Article 74, paragraph 4, of GAPA): the only sign at the end during the conclusion of the record.
If there are no specific conditions, based on sectoral legislation, the expert as well as the interpreter are not required to meet any formal status, such as for example a formal education in languages, the obtainment of certain expert licences or registration as a judiciary interpreter. GAPA authorizes the official to appoint any expert, even one without the status of a judicial expert or interpreter. Therefore the official can, following GAPA, appoint any person as the interpreter, as long as they show the required knowledge of the Slovene language and the language of the party, even though they may not have any formal certificates for such (Jerovšek et al., 2004, commentary to Article 190). In no way whatsoever may the interpreter be tied to the person of the party, which would constitute lack of impartiality. The criteria for determination of impartiality and objectivity of the interpreter are the same as for the official leading and deciding in the procedure (see Article 35 of GAPA), that they are not, in the matter of the procedure: the party, co-beneficiary or co-obliged person, witness, expert, authorized person or statutory representative of the party; they are not a blood relative of the direct line or collateral line up to the fourth degree of the party, or their statutory representative or authorized person; or if they are married to these persons, or are their relatives in law up to the second degree, even if the marriage ended, or if they live or have lived with one of these persons in cohabitation without marriage; if they are a guardian, adopter, adoptee or foster parent of the party, their statutory representative or authorized person; if they participated in the inferior proceeding or in deciding. Meeting any of the mentioned criteria would mean an absolute inability to perform the role of an interpreter, as that would constitute a violation of the basic principles of the provisions of the administrative procedure, and could possibly be the grounds for a renewal of a complete and final administrative proceeding. The only option in such cases, to enable a legal execution of the procedure, is for the impartial person to eventually perform, in relation to the agency, as a possible statutory representative of the party. However that is only possible up to the moment when the party has to personally answer to questions by the agency, during which they cannot be represented by the statutory representative. At that point the representative cannot and must not perform the role of the interpreter or translator. If the party’s statement is decisive for the continuation or completion of the procedure, the party themselves must give the statement. If they cannot do so in the official language they must agree, regardless of the fact it is their right and not obligation to follow the procedure through an interpreter, to the appointment of an interpreter who meets all legal criteria. Otherwise the agency cannot conduct the procedure.
An interpreter has to be appointment for any procedural action where there is an apparent lack of understanding of the official language by the party. This is true even during the oral deposition of the application on the record, which requires bidirectional communication that is not possible without an interpreter.
With that said it needs to be realised that parties and other participants, who do not understand the language of the procedure, have the right to follow the procedure through an interpreter. GAPA explicitly emphasises that the agency must inform them of this right. It is therefore necessary that the act of informing and the response of the party be put on record. The fact that it is a right (and not obligation) holds true especially in relation to the party which commenced the procedure. In such cases the party needs to be given the option to decide whether or not they will exercise that right. The same applies in procedures started by virtue of the office in which the protection of the public benefit requires the adjudication of the obligations of the passive party. Regardless of the type of the procedure the party should be informed that they can follow the procedure with the help of an interpreter and that the official does so in a language the party understands. The fact that the party may waive their right to follow the procedure through an interpreter has no direct legal grounds in GAPA; it is derived by the nature of the matter of the right, as is defined by its Article 62, paragraph 7. Because GAPA equally treats both parties and other participants of the procedure (e.g. witnesses), we need to warn regarding the role of the latter, as they, from the point of view of their role in the procedure, do not have a free choice in deciding whether they need the interpreter or not. The agency must appoint one if they do not speak the official language of the procedure, otherwise it cannot conduct the procedure. In such case neither the party nor any other participant in the procedure has the procedural right to successfully contend the appointment of the interpreter if they are needed by the agency to perform the procedure or to determine and clarify the state of facts.
If the appointed interpreter is impartial and is able to interpret, his translations are considered statements of given persons in the foreign language. If the interpreter translates the statements of the party as statements of volition the agency must follow them. On the other hand if the interpreter translates the party’s statements after Article 188 of GAPA, or any other persons, such as witnesses depositing statements of facts, the agency follows the translations and treats the statements themselves under the principle of free evaluation of evidence.

The Administrative Consultation Wiki is a student project. See Privacy Policy and Disclaimer regarding content responsibility.

Comment:

Loading comments...