European Legal Concepts in Scandinavian Law and Language

Nordic Journal of International Law 80 (2011) 321–349

© Koninklijke Brill NV, Leiden, 2011 DOI 10.1163/157181011X581191

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European Legal Concepts in Scandinavian Law and Language

Anne Lise Kjær University of Copenhagen, Denmark

Abstract In this article, I present the results of an empirical study of one aspect of what I call discursive implementation of human rights law in Scandinavian legal systems: translation strategies applied by Scandinavian Supreme Courts when referring to judgments of the European Court of Human Rights (ECtHR). My point of departure is a study of the roughly 85 accessible Danish Supreme Court decisions. I look for the strategies applied by Danish judges in their attempt to accommo-date the “novel line of thinking” characteristic of the ECtHR. Next I compare and contrast the Danish strategies with the strategies applied by the Norwegian and Swedish Supreme Courts in a selection of 38 and 28 decisions, respectively. Th e study is based on the assumption that transla-tions, mistranslations or non-translations are actions at the micro-level of law that aggregate with other micro-level actions to form and shape general processes of law. As primary legal actors, national judges determine the legal discourse that accompanies, supports, delays or promotes European legal integration. Th e results of the study are not conclusive; what is detected are diff er-ences in the translational attitudes and styles of the Scandinavian Supreme Courts and, as a general tendency, a transformation of the domestic law and language to hybrids of common European and national discourse.

Keywords European human rights ; legal integration ; discourse analysis ; translation studies ; legal cultures

1. Introduction

Th e common purpose of all contributions to this special issue of the Nordic Journal of International Law ( NJIL ) is to investigate the impact that international law has on Nordic law in general and Danish law in particular. A multitude of perspectives are off ered. Th is article addresses a key factor in any legal activity, viz. the language used to perform it, and outlines the contour of what I have termed the “discursive implementation” of European legal concepts in Scandinavian legal systems.

By “discursive implementation” I mean the linguistic processes that accom-pany internationalisation of Scandinavian law. My focus is on the language choices that Scandinavian Supreme Court judges make when referring to provi-sions of the European Convention on Human Rights (the Convention) and to

322 A.L. Kjær / Nordic Journal of International Law 80 (2011) 321–349

concepts and principles developed in the case law of the European Court of Human Rights (ECtHR). In a previous study, I examined from a discourse per-spective how Danish legal scholars in academic studies on European human rights law consciously and unconsciously distance themselves from or embrace the common legal culture developing across the divides of the national legal sys-tems. 1 In this article, my attention is directed towards the formal judicial dis-course on European human rights in Denmark, Norway and Sweden. I have identifi ed the translation strategies adopted by national judges when interpreting and applying sources of international law originating in the international dis-course community of European law and phrased in international legal English. My assumption is that the strategies employed, in the words of Schleiermacher either domestication or alienation , 2 to a certain extent reveal the judges’ mentalités vis-à-vis international courts and their impact on the national legal traditions. More generally, the study is a close-up view of the confusion, confl icts and dis-ruption that follow in the wake of the socio-legal processes that transform tradi-tional communities of national law and language into more unstable communities of the common European law and its autonomous legal language.

In the following survey my point of departure is a study of the roughly 85 accessible Danish Supreme Court decisions in which reference is made to the case law of the ECtHR. I look for the strategies applied by Danish judges in their attempt to accommodate the “novel line of thinking” characteristic of the ECtHR, 3 including the “autonomous” human rights concepts developed in the case law of the Court; 4 my focus is on translation strategies (section 5). Next I compare and contrast the Danish strategies with the strategies applied by the Norwegian and Swedish Supreme Courts when coping with the alienness of the common European law (section 6).

Before presenting, in brief outline, results of the empirical research, I give an introduction to legal rules of relevance in my study, with a view especially to lan-guage rules and language legislation (section 2). In section 3, the theoretical foun-dation of the empirical analysis is presented, and in section 4 the data and methodology are outlined. Section 7 sums up the preliminary results.

1) A. L. Kjær and L. Palsbro: ‘National Identity and Law in the Context of European Integration: Th e Case of Denmark’ Discourse & Society (2008) pp. 599–627. 2) In German: “Einbürgerung” vs. “Verfremdeung”; F. Schleiermacher, Ueber die verschiedenen Methoden des Uebersetzens ( On the diff erent methods of translation ) 1813. 3) Concept used by N.-L. Arold, ‘Th e European Human Rights as an Example of Convergence’, Nordic Journal of International Law (2007) p. 322. What she has in mind is the ECtHR’s dynamic style of interpretation, including the requirement that the Convention must be interpreted “as a living instrument in the light of present day conditions”, Tyrer v. Th e United Kingdom (1978), Series A no. 26. 4) Engel and Others v. the Netherlands (1976) Series A no. 22. See also G. Letsas, ‘Th e Truth in Autonomous Concepts: How To Interpret the ECHR’, European Journal of International Law (2004) pp. 279–305.

A.L. Kjær / Nordic Journal of International Law 80 (2011) 321–349 323

5) Finland did not sign the Convention until 5 May 1989. 6) It was incorporated into Danish law by act No. 285 of 29 April 1992, popular title: “ Inkorporeringsloven ”; Sweden and Iceland in 1994 and Norway in 1999. Th e European Convention on Human Rights has not been incorporated into Finnish law; in 2000, however, Finland adopted a new Constitution that closely mirrors the rights guaranteed by the European Convention on Human Rights. 7) Betænkning nr. 1220/1991 om ‘ Den Europæiske Menneskerettighedskonvention og dansk ret ’, pp. 111–13. 8) “ Regeringsformen ” – one of four basic laws that together form the Swedish Constitution.

2. Legal Framework

2.1. European Convention on Human Rights in Scandinavian Law

Th e European Convention on Human Rights was signed in Rome on 4 November 1950 by 12 European countries, including Denmark, Norway, Sweden and Iceland. 5 It entered into force three years later on 3 September 1953, but it was not until the 90s that the Convention was incorporated into the law of the Nordic countries, except Finland. 6

So far, the Convention is the only international human rights document that has been incorporated into the Danish and Swedish legal systems and now forms an integral part of domestic law. Especially in the 90s, in the fi rst years after incorporation of the Convention, it was debated and disputed in academic and judicial discourse in Denmark whether its incorporation included judgments of the Court or only the Convention text. Moreover, the Danish governmental report no. 1220/1991 Th e European Convention on Human Rights and Danish Law stressed the importance of keeping the right balance between the legislature and the judiciary, i.e. securing the supremacy of the Danish Parliament. 7 So far, the courts have hesitated to interpret the Convention unless an interpretation has clear support in case law of the ECtHR.

In Sweden, after incorporation of the European Convention on Human Rights, a provision has been included in the Instrument of Government 8 to the eff ect that statutes and other regulations may not be enacted in contravention of Sweden’s commitments under the Convention. Statutes enacted before the Convention was incorporated must be interpreted in accordance with the Convention and existing ECtHR case law. Legislation enacted later may not con-travene the Convention or existing case law.

In Norway, the Act Incorporating the Convention (popular title “ Mennesker-ettsloven ”) at the same time incorporated a number of other international human rights instruments (four United Nations (UN) conventions). Th e Act provides for the supremacy of the rules of the Conventions in cases of confl ict with other rules of Norwegian law.


9) Betænkning nr. 1407/2001 om ‘ Inkorporering af menneskerettighedskonventioner i dansk ret ’. 10) In the present context, I will not look further into the matter of divergence between the lan-guage versions and interpretation rules to be applied in cases of divergence.

Th e European Convention has been incorporated into the domestic legal sys-tems of Denmark, Norway and Sweden, but a possible confl ict between rules of the Convention and national rules has been handled diff erently in the three legal systems, with Norway representing the clearest solution in favour of international law. Moreover, according to the Danish governmental report Incorporation of Human Rights Conventions into Danish Law 9 the Norwegian Foreign Ministry believes that incorporation of human rights instruments into Norwegian law has led to increased awareness of human rights; provisions of human rights conven-tions are frequently invoked before Norwegian courts, and the courts apply human rights more extensively than previously (p. 38).

But, as will be clear from the study presented in this article, even if an increas-ing application of ECtHR judgments in the case law of all Scandinavian courts is indeed detectable in recent years, the total number of judgments is still limited, especially in Denmark and Sweden.

2.2. Language Rules of the European Human Rights System

2.2.1. Th e European Convention on Human Rights Th e European Convention on Human Rights is drawn up in English and French with equal authenticity. All other language versions available on the offi cial web-site of the Treaty Offi ce of the Council of Europe are offi cial translations without authenticity – provided by the Contracting States.

It was established in the early case law of the Court that in case of divergence between the English and the French text interpretation of the Convention must take account of the wording in both languages in accordance with the rule in Article 33(4) of the Vienna Convention on the Law of Treaties. Th e wording of several provisions is clearly divergent in the two language versions, famously Article 5(3) ( Wemhoff v. Germany (1968) Series A no. 7) and Article 6(1) ( Golder v. Th e United Kingdom (1975) Series A no. 18); see also Th e Sunday Times v. Th e United Kingdom (1980), Series A no. 38, in which the Court interpreted the English expressions “prescribed by law”, “in accordance with the law”, “provided for by law”, and “in accordance with law”, all of which correspond to only one expres-sion in the French text, i.e. “ prévues par la loi ”. 10

In Sweden the Convention text was published in both offi cial languages, English and French, in Norway in only one offi cial language, viz. English, and in Denmark only in Danish. Th e Danish, Norwegian and Swedish texts pub-lished along with the original text(s) are offi cial translations for information


11) Cf. M. Garre, ‘Menneskerettigheder i Danmark – på dansk?’, EU-ret & Menneskeret (1995) pp. 210 et seq. , and M. Garre, Human Rights in Translation. Legal Concepts in Diff erent Languages (Copenhagen Business School Press 1999). 12) Applications may be submitted in one of the offi cial languages of the Contracting States. Moreover, the President of the Chamber can authorise the continued use of the language of the application during proceedings before the Court. 13) Cf. the Declaration of the Committee of Ministers Ensuring the Eff ectiveness of the Implementation of the European Convention on Human Rights at National and European Levels adopted by the Committee of Ministers on 12 May 2004. See also the Memorandum of the President of the European Court of Human Rights to the States with a view to Preparing the Interlaken Conference [on the future of the Court] of 3 July 2009, in which a short-term goal is mentioned to the eff ect that “[…] States must, with the help of the Council of Europe, take initiatives in the fi elds of […] translation of Strasbourg judgments […] etc.” (p. 5).

purposes only, i.e. their wording cannot be relied upon. At the time the Convention was incorporated into Danish law, the Danish government supplied a revised translation that was updated on several points. Whereas the fi rst transla-tion, which was prepared at the time of ratifi cation of the Convention, seems to have been translated from French, the revised version has been translated with reference also to the English text. Th e Danish version of the Convention available on the website of the ECtHR is the fi rst translation, whereas the translation pub-lished along with the act incorporating the Convention is the revised version. 11

2.2.2. Th e European Court of Human Rights According to Rule 34 of the Rules of Court, the offi cial languages of the Court of Human Rights are English and French, i.e. proceedings must be conducted in one of those languages. 12 As provided for in Rules 57 and 76, decisions and judg-ments of the Court are normally delivered in only one of the offi cial languages, i.e. either English or French, unless the Court decides that judgments shall be given in both languages with equal authenticity. Judgments and decisions selected by the President for publication in the offi cial reports of the Court ( Reports of Judgments and Decisions ) must be published in both offi cial languages in accord-ance with Rule 78.

Translations into the national languages of the Contracting States are recom-mended by the Council of Europe, 13 and as from 2010 (after the Interlaken conference on the future of the ECtHR), translations commissioned by the Council are off ered on the website of the Court as an integrated part of the HUDOC database, however with no responsibility on the part of the Court for their quality. It is for the governments of the Contracting States to prepare the translations.

In Denmark, offi cial translations are generally not prepared. A selection of judgments are summarised periodically in the privately owned law journal EU-ret & Menneskeret , but only few practitioners read this journal on a regular basis, and the journal is by no means their primary reference work. In Sweden, summaries


14) Even if this may be demanding or even impossible for some, judges are basically obliged to know the rules developed in the ECtHR case law. Th e principle of jura novit curia applies generally also to international law, at least if the relevant law is well-known and accessible, cf. the contributions by Clement Petersen and Joseph Lookofsky to this special issue. 15) In the following survey I leave out those aspects of Scandinavian language legislation that treats the status and protection of minority languages. 16) Cf. the Swedish offi cial version of the Act, ‘ Språklag ’ 6.6.2003/423. Finland is offi cially bilin-gual; according to paragraph 1 of the act, both Finnish and Swedish are national languages of Finland. 17) SFS 2009:600 (‘ Spåklag ’) adopted on the basis of a lengthy (almost 600 pages long) governmen-tal report SOU 2002:27 (‘ Mål i mun ’) issued by the Ministry of Culture in 2002. 18) ‘Stortingsmelding’ no. 35 (2007-2008), ‘ Mål og meining. Ein heilskapleg norsk språkpolitik ’, pub-lished by the Ministry of Culture.

of selected judgments are supplied by the authorities, the Swedish Courts Administration, that publishes a newsletter 11 times a year in electronic form. Moreover, important judgments are continuously reported in the law periodical Svensk Juristtidning. In Norway, summaries of ECtHR judgments are off ered on the website of the law information system, Lovdata , supported by the Norwegian Ministry of Justice.

In none of the three countries are full translations of all judgments available. As a consequence, while national judges when applying the European Convention on Human Rights have access to offi cial translations in their own languages, judges must normally base their understanding of the ECtHR case law on the authentic English and/or French texts 14 or on summaries reported and published in more or less offi cial journals.

2.3. Aspects of Scandinavian Language Rules 15

Unlike the other Scandinavian countries, Sweden and Finland 16 have language laws that govern the use of languages within their territory.

In Sweden, a thoroughly prepared language act 17 entered into force on 1 July 2009 after several years of public and political debate on ways to protect and sup-port the Swedish language in the age of globalisation. In paragraphs 4 and 6 of the Act it is established that Swedish is the main language of Sweden and that the public is responsible for securing the use and development of the Swedish lan-guage. More specifi cally, paragraph 10 stipulates that Swedish is the language to be used in law courts and before public authorities, and paragraph 13 defi nes Swedish as the offi cial language of Sweden in international relations.

In Norway, no formal language act has been adopted by the Parliament yet. Th e Norwegian government in 2008 issued a comprehensive language policy report (264 pages) 18 that suggests rules on the use and status of the Norwegian language with the purpose of strengthening its position in all sectors of society vis-à-vis global English. If the Norwegian Parliament follows the suggestions of


19) ‘ Sprog til tiden ’, Danish Ministry of Culture, March 2009. 20) It is not explicitly stated by any of the language rules that judgments must be written in the national language; however, the concept of “court language” or “language of procedure” in bilingual or multilingual countries and organisations usually also covers the language of judgments, cf. inter alia judgments of the European Court of Human Rights and the European Court of Justice. 21) Whether they choose the fi rst or the second alternative, Scandinavian judges generally only read the English text, overlooking the fact that in some cases, the French version of a judgment is the only authentic one.

the report, formal Norwegian language rules will be adopted, perhaps even on the constitutional level, offi cially establishing Norwegian as the main language of Norway.

In paragraphs 135–136 of the Norwegian Courts of Justice Act (“ Domstolloven ”), Norwegian is indicated as the language of procedure to be used before Norwegian law courts. Pleadings must be written in Norwegian or translated and confi rmed by a sworn translator. An interpreter must accompany parties that do not speak Norwegian, and the court records must be written in Norwegian.

In 2009 the Danish Ministry of Culture in a short policy paper of ten pages 19 decided not to adopt a language act, thus following an expert committee’s recom-mendation not to legislate unless prepared to pay the costs of an offi cial language policy. In consequence, no formal rules have been introduced in Denmark to protect the continued use and development of the Danish language. Correspon-dingly, no legislation establishes Danish as the offi cial language of Denmark, except for paragraph 149 of the Danish Statute on the Administration of Justice (“ Retsplejeloven ”), which states that the language of procedure in Danish law courts is Danish. 20

2.4. Perspective

Th e rules and facts of offi cial languages and language use on European and national levels leave domestic courts with a problem and a choice: (1) they may choose to translate the ECtHR judgments (or have them translated by profes-sional translators), at least those parts of the judgments that are of relevance in their adjudication; and (2) they may choose to leave quotations from ECtHR case law untranslated and quote the authentic judgment text verbatim.

Whatever they do, their choice rests on an inherent confl ict: on the one hand, national language rules in all Scandinavian countries prescribe the use of the national language in court; and, on the other hand, ECtHR judgments are authentic only in English and/or French and the Convention is incorporated into the domestic legal systems in both authentic language versions. Translating into the native language respects one formal rule; leaving quotations from ECtHR case law untranslated respects another formal rule. 21


But, irrespective of language rules and authoritative language versions, national courts and administrative authorities are left with the uneasy task of applying rules developed in the case law of the ECtHR that usually remain unpublished in the domestic legal system, and which are generally not available in the Scandinavian legal languages.

Th us, Scandinavian judges are confronted with a double challenge when apply-ing human rights law: comprehending the foreign languages in which the judg-ments of the European Court of Human Rights are phrased, and understanding the alien line of thinking developing in the case law of the Court.

In fact, as I argue below, this is a triple challenge: Th e alienness of ECtHR judgments is caused not only by the fact that they are formulated in a foreign language and represent a legal culture diff erent from the national legal culture. European human rights law is beyond established languages and cultures: it is based on a hybridisation of the interacting national laws and languages and con-sists of autonomous concepts in the making, with no established and fi nal scope of meaning.

Th e real challenge that Scandinavian judges are facing is that they must adapt themselves to the common European discourse without abandoning their national law and language. How do they cope with this challenge?

3. Th eoretical Building Blocks

Why are questions of language choice and language versions of interest in a study on the integration of European law in the Scandinavian legal systems? Because questions of language and translation, while on the face of it trivial issues, reveal details of the rise and development of a common European law. How individual judges decide to come to terms with the “foreign” wordings of human rights texts are actions at the micro-level of law that aggregate with other micro-level actions to form and shape general processes of law. Translations, mistranslations or non-translations indicate the dynamics or inertia in the legal mindset of the national judges vis-à-vis legal concepts and principles developed at the European Court in Strasbourg. As primary legal actors, national judges determine the legal discourse that accompanies, supports, delays or promotes legal integration. In this respect, their translation strategies represent one aspect of what I tentatively call the dis-cursive implementation of European human rights law.

Th e theoretical building blocks of the study presented in this article are derived from a cross-disciplinary combination of discourse analysis, comparative law, theories of international legal interpretation and translation studies. Th e relevant concepts are discourse communities and legal cultures, international legal lan-guage and autonomous concepts, and translation strategies and legal transplants. In the following brief survey only core aspects of the full theoretical foundation


22) See e.g. G. R. de Groot, ‘Rechtsvergleichung als Kerntätigkeit bei der Übersetzung juristischer Terminologie’, in U. Hass-Zumkehr (Hrsg.), Sprache und Recht . Jahrbuch des Instituts für deutsche Sprache 2001 (De Gruyter, Berlin, New York, 2002) pp. 222–239. 23) Supra note 2.

of the study is presented, viz. strategies of translation measured against the wider discursive and interpretive processes of Europeanization of law.

3.1. Translation Strategies: Domestication or Alienation?

Translation in its prototypical form is the transfer of meaning from one language – the “source language” – into another language – the “target language”. Th e purpose is to give a target language readership access to writings in the source language, which they would otherwise be unable to understand.

Translation is not just code-switching; natural languages represent the stock of shared knowledge and history of a language community. Hence, translating means communicating ideas, concepts and experience inherent in the source lan-guage vocabulary to the target language community. Legal translation is a parade example of the diffi culties involved in translating, because, as comparatists often point out, legal translation not only involves two languages but importantly also two legal cultures. 22

Th e translator has to cope with the tension that exists between fi delity towards the source language culture and adequacy regarding the target language readers’ comprehension. According to classic translation theory, a successful translation enables the target language readers to understand the culture represented in the source language text without sacrifi cing its originality.

Th e German philosopher Friedrich D.S. Schleiermacher in his essay On the Diff erent Methods of Translation 23 famously coined the two opposite strategies that a translator can choose between in his or her attempt to mediate between the target language readership and the source language text: domestication or aliena-tion. Th e conceptual gulf between the languages and cultures involved may in principle be tackled in one of two ways: either by bringing the author’s linguistic-conceptual world closer to that of the reader (domestication) or bringing the reader towards the linguistic-conceptual world of the author (alienation).

Domestication implies making the translation “read like an original”; the read-ers may know that the text was originally written in another language, but all evidence of the foreign origin is blotted out. Alienation, on the other hand, retains the foreignness of the source text; the translation sounds peculiar, not like a text originally phrased in the target language.

With increasing internationalisation of law, Scandinavian judges cannot escape the linguistic-conceptual problem involved in translation. As Amnon Lev in his contribution to this special issue rightly points out, translation of foreign legal


24) R. Cotterell, Law, Culture and Society: Legal Ideas in the Mirror of Social Th eory (Ashgate, Aldershot, 2006) pp. 65–78. 25) E.-A. Gutt, Translation and relevance: Cognition and context (St. Jerome, Manchester, 2000); D. Sperber and D. Wilson, Relevance: Communication and Cognition (Blackwell, Oxford and Harvard University Press, Cambridge MA, 1986).

texts is no new phenomenon in Scandinavian jurisprudence and scholarship. In the writings of the Danish jurist Anders Sandøe Ørsted, e.g. , “foreign law enters seamlessly into the analysis”. But Ørsted acted in an institutionally purely national context of law, and therefore had no diffi culty in applying foreign law as a source of inspiration in his analyses of Danish law. He was not obliged to under-stand those sources in their own right and in compliance with their origin. He could read them just as he would read a novel or look at a piece of art originating in a foreign culture, and make use of them if they served some purpose that he designed for himself and the national legal system – or he could dismiss them as irrelevant. Th is is not possible for Scandinavian judges today; they are confronted with not only understanding but also interpreting and applying European legal sources with binding force within the boundaries of national law.

As judgments of the ECtHR are available and authentic only in English and French, Scandinavian judges are obliged to reproduce faithfully and successfully the meaning expressed in the original texts of ECtHR judgments in their own judgments. Th is entails deciding between translating into the conceptual frame-work of the national legal systems, i.e. domestication, and maintaining the rea-soning, arguments, principles and concepts of the ECtHR, i.e. alienation.

Both strategies are evidenced in the legal practice of Scandinavian law courts. Some apply a double strategy: using functional equivalents (concepts in the domestic legal language that come as close as possible to the concepts in the origi-nal text) and adding the wording of the original text. Often, however, the strate-gies seem to be chosen randomly, and in many cases “strategy” is too strong a terminology for the awkward translations applied. Examples will be provided in sections 5 and 6.

3.2. Discourse Communities

From the perspective of classic translation theory, this would be the end of the story, and there would be nothing more to add, except exemplifying. But transla-tion strategies also form conscious or unconscious socio-legal actions by means of which judges confess their sense of belonging to a discourse community. 24 According to more recent translation theories, this is exactly what translation is about: choosing the proper linguistic and textual means in relation to the dis-course community that one is addressing. 25


26) S. Fish, Is there a Text in this Class? Th e Authority of Interpretive Communities (Harvard University Press, 1982); R. Dworkin, Law's Empire (Harvard University Press, 1986); J. M. Swales, Genre Analysis: English in academic and research settings (Cambridge University Press, 1990). 27) A. L. Kjær, ‘Legal Translation in the European Union: A Research Field in Need of a New Approach’, in K. Kredens and S. Gozdz-Roszkowski (eds.), Language and the Law: International Outlooks (Peter Lang, Frankfurt am Main, 2007) pp. 69–95.

Legal discourse communities are interpretive communities. Th ey are groups with shared conventions, knowledge, beliefs and values. 26 Th rough discursive interaction the group members negotiate the meaning and common understand-ing of concepts that they use.

Discourse actors can be members of more than one community. When group members engage in new communities the established communities may lose their relevance as a prior frame of reference, but the conventionalised terms and con-cepts that resulted fr om previous discursive interactions in the group continue existing, representing the reservoirs of common knowledge of the previous group members, and in potential confl ict with the concepts that are developed in the discourse of the new community.

With the extension of the interpretive community accompanying the Europe-anization of law national legal languages and the stock of knowledge inherent in the terms and phrases of those languages become gradually obsolete. In legal communities that are in the process of transformation from a predominantly national frame to and increasingly international and global horizon, language use and language conventions will inevitably be aff ected. Discourses transgress lin-guistic borders, what was previously distinct languages now belong to the same legal community, and translation loses its direction. 27

Th e language that judges use in such periods of transformation refl ects changes in their legal outlook and mindset, and at the same time enacts them. Unlike professional translators, judges are not neutral mediators; they are legal actors, and when they translate they take part in a legal discourse that ultimately determines the direction and the speed of European legal integration. Th eir choice of translation strategy is at the same time an endorsement of a discourse community.

3.3. Autonomous Concepts

Th e development of a common European legal community is secured by a series of interpretive techniques. One such technique is the introduction of so-called “autonomous concepts”. Th ey are concepts used in the European Convention on Human Rights that enjoy a status of semantic independence: their meaning is not to be equated with meaning that the same concepts possess in domestic law. So far, the Court and the former Commission have characterised as autonomous


28) Letsas, supra note 4, pp. 282–283. 29) Twenty One Detained Persons v. Germany , EComHR (1968), Collection 27, at 97-116, para 4. Letsas, supra note 6. 30) Quoted from the Opinion of Advocate General Trstenjak, delivered on 11 May 2010 in Case C-467/08 Sociedad General de Autores y Editores (SGAE) v. Padawan S. L. , para. 61. 31) A similar style of interpretation is required by the UN Convention on Contracts for the International Sale of Goods (CISG); Article 7 lays down the rule that interpretation of the CISG is to take account of the “international character” of the Convention and the need for uniform application. 32) See also A. L. Kjær, ‘Nonsense: Th e CILFIT Criteria Revisited – from the Perspective of Legal Linguistics’, in H. Koch et al. (eds.): Europe. Th e New Legal Realism. Essays in Honour of Hjalte Rasmussen (DJØF Publishing, Copenhagen, 2010) pp. 297–316. 33) Dworkin, supra note 26.

a signifi cant number of concepts that fi gure in the Convention: criminal charge, civil rights and obligations, possessions, association, victim, civil servant, lawful deten-tion, home. 28

In one of the fi rst characterisations of autonomous concepts, the Commission noted that the Convention terms “criminal charge” and “civil rights and obliga-tions” “cannot be construed as mere references to the domestic law of the High Contracting Party concerned but relate to an autonomous concept which must be interpreted independently, even though the general principles of the High Contracting Parties must necessarily be taken into consideration in any such interpretation”. 29

Autonomous concepts that must be interpreted independently from domestic law are well known in European Union law as well. It is established case law of the European Court of Justice that

uniform application of Community law and the principle of equality require that the terms of a provision of Community law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an auton-omous and uniform interpretation throughout the Community. 30 31

Hence, the designation of concepts as “autonomous” is a warning to the national judge not to understand the concept as he usually does. Th e meaning that the concept possesses in the national interpretive community to which he belongs does not apply and may be misleading. 32

At the same time it is an invitation or an order (depending on the legal status of the legal instrument in question) to join the broader interpretive commu-nity that is developing across the confi nes of the national legal systems, and thus become co-author of the “chain novel” of European human rights law in the making. 33

But one thing is the autonomous character of such common European con-cepts; another thing is the national judges’ ability to understand them and inter-pret them independently from their prior knowledge. In the case of autonomous


34) See M. Weston, ‘Translating at the European Court of Human Rights’, 3 terminologie et traduc-tion (1995) pp. 121–134. 35) See Amnon Lev’s contribution to this special issue. 36) Ibid.

concepts of European human rights law, the judges’ hermeneutic endeavour is complicated by the fact that the concepts are framed in a foreign language (or two) and that due to the autonomous meaning of the concepts defi nitions in English and French law dictionaries and encyclopaedia may very well be misguid-ing as well. Such reference works will normally describe the meaning of the con-cepts in English law and French law. 34 In consequence, the national judge is confronted with concepts that are not anchored in a legal source language and must not be confused with equivalents in the legal target language of his national legal system.

Th e meaning of autonomous concepts of the European Convention on Human Rights depends on the use that judges make of them in the case law developing in the web of ECtHR precedents and the case law of national courts. Th ey are independent not only from the national legal systems, but also, notably, from the common heritage of European nation states. 35 Th ey are modern concepts developing along with modernisation of the European societies. For those national judges who dare to join the international discourse community, under-standing has become a matter of learning by doing, and translating a task of innovative thinking and authoring. Th is vision of translation diff ers profoundly from an understanding that sees all law as translation “in the sense of a continu-ous string towards the origin and font of law”. 36 Autonomous concepts are with-out history.

4. Th e Empirical Study

In the following I present samples of an ongoing empirical study of the transfor-mation of national legal languages in the wake of European legal integration. Th e methods employed will be unfamiliar to most readers of the NJIL , and I leave out details of the analysis. I hope to give the reader an impression of the disruptions in the language use of Scandinavian law courts that may be detected when analys-ing court decisions with the sole intention to dwell upon the linguistic means applied, without being interested in the legal content of the decisions. Th us, it must be borne in mind that my comments do not concern the legal impact that the incorporation of the European Convention on Human Rights has had on Scandinavian law, and I do not consider the correctness of national interpretation and application of the European Convention and ECtHR case law.


37) In addition, 26 decisions have been given by the Eastern High Court, 10 by the Western High Court, and 2 by the Maritime and Commercial Court. Th e numbers are based on a survey of deci-sions reported in the Danish weekly law reports ( Ugeskrift for Retsvæsen ); end of counting, 1 April 2011. Non-reported decisions are not accounted for. 38) Hauschildt v. Denmark (1989) Series A no. 154; Jersild v. Denmark (1994), Series A no. 298. 39) Th e statistics are based on a counting of Supreme Court Decisions reported at Lovdata Online . End of counting 15 April 2011. 40) Th e number of 106 covers 69 Supreme Court decisions and 37 Supreme Administrative Court decisions. In addition a total of 21 High Court decisions are reported. Th e statistics is based on decisions available at Domstolsväsendets rättsinformation and reported by the courts themselves as “indicative decisions”. End of counting 15 April 2011.

4.1. Data

Th e Danish Supreme Court has passed a total of 85 decisions in which not only the Convention text but explicitly also the case law of the European Court of Human Rights is invoked either by the parties or by the Court on its own motion. 37 In only about half of the decisions did the Danish Court apply ECtHR case law on its own initiative. Th e vast majority of the decisions were passed within the last ten years with an increasing tendency. Before incorporation into domestic law, the Convention virtually played no role in Danish jurisprudence. Th e shocking judgments against Denmark in the Hauschildt and Jersild cases in 1989 and 1994 38 marked a shift in national attention towards the European Court of Human Rights.

Th e Norwegian Supreme Court has passed 365 decisions 39 and the Swedish Supreme Court 106 decisions in which they refer to and apply ECtHR judg-ments. 40 Samples of 38 Norwegian and 28 Swedish decisions have been analysed for this article, see section 6 below.

4.2. Methodology

Th e study focuses on the way Scandinavian judges cope with the challenge of adapting themselves to the common European discourse without abandoning their national law and language. How do they deal discursively with human rights concepts developed at the European Court of Human Rights? Th e methodology employed is discourse analysis; I study the decisions at a linguistic micro level, believing that linguistic micro level processes are relevant for the understanding of larger socio-legal processes. My focus is translation choice at the lexical (“word”) level of discourse.

4.3. Overview over Translation Strategies

In accordance with the fundamental distinction between alienation and domesti-cation I set up a scale of discursive implementation ranging from complete alienation (untranslated concepts and quotations) to complete domestication


41) A. Watson, Legal Transplants: An Approach to Comparative Law (1974) (2nd ed., Th e University of Georgia Press, Athens, Georgia, 1993).

(translated concepts and quotations). Th e relevant subcategories are indicated in the following list:

1. Alienation: Keeping the foreign concepts foreign 1. Untranslated concepts (loan words) 2. Untranslated quotations 3. Mere reference

2. Domestication: Making the foreign concepts domestic 4. Translated concepts:

a. Neologisms: creating new concepts in the domestic language b. Calques: sticking to the exact wording of the foreign language

5. Paraphrasing: explaining the foreign concepts in the domestic language 6. Mistranslation: unsuccessful attempt at domestication

3. Double-strategies 7. Translated concepts accompanied by untranslated concepts in the for-

eign language 8. Untranslated quotations supported by paraphrases in the domestic

language 9. Untranslated quotations accompanied by translations into the domestic

language

When combined with a second scale that measures degrees of legal convergence, from transplantation, in the terminology of Alan Watson, 41 to integration, the scale of translation strategies may be extended to a two-dimensional model as shown in Fig. 1 .

Transplantation is evidenced when the national judge adopts international legal concepts as ready-made set pieces without adapting them to the domestic legal community. I regard as transplantation also instances of calques, i.e. literal translations of source language concepts; they are comprehensible, but not con-ventional in the target language community. Paraphrasing and neologisms, on the other hand, are strategies that have in common the aim of integrating the European legal concepts and line of thinking into domestic law.

5. Danish Case Law

Below follows a selection of examples that illustrates translation strategies applied in the 85 Danish Supreme Court decisions analysed for this study. Th e technique


Fig. 1. Translation strategies in the light of European legal convergence. Th e examples are authentic concepts and phrases drawn from the Danish corpus of texts in my study; they are simple illustrations of four possible translation strategies.

most widely used is a special case of alienation: mere reference to case numbers of specifi c ECtHR judgments or to the case law of the Court in general. Th is prac-tice must be evaluated in the light of the usually very brief reasoning of Danish judgments.

Th e overall impression is that the Danish Supreme Court seems reluctant in its approach. One reason may be the clear presupposition expressed in the govern-mental report Th e European Convention on Human Rights and Danish Law that incorporation of the Convention should not aff ect the traditional balance between the legislature and the judiciary. Accordingly, in some cases the Supreme Court states that a question of interpretation should be treated by the Parliament as it deems the issue to be a matter of legislation not adjudication. It falls outside the scope of my article to discuss the legal consequences and implications of this. Th e discursive eff ect of keeping status quo of the distribution of power is, inter alia , the somewhat reluctant and vague handling of the interplay of European and national norms on the part of the Supreme Court.


42) Cf. Jesper Lau Hansen in his contribution to this special issue. 43) Quotation in the Supreme Court decision from a decision by the Western High Court. 44) Quotation in the Supreme Court decision from a decision by the Western High Court.

In the quoted examples I highlight with italics the discourse part that docu-ments the translation strategies applied.

5.1. Alienation

• Untranslated concepts (loan words) Loan words inserted in English, seldom French, without translation or explanation. Th e strategy resembles the strategy employed by the Danish government when implementing EU directives, viz. clinging to the exact same wording as applied in the European original text. 42

1. U.1990.13H: 43 Menneskerettighedsdomstolen har […] i sin afgørelse i Hauschildt-sagen lagt den forståelse af mistankekravet til grund, at forskellen mellem fængslings- og domfældelsesgrundlaget er ‘ tenuous ’.

[Th e Human Rights Court based its ruling in the Hauschildt case on the view that the diff erence between the degree of certainty as to the question of guilt that must be satisfi ed when deciding to prolong an intention on remand and when giving judgment is ‘ tenuous ’.]

• Untranslated quotations Full quotations from the case law of the ECtHR in the English version of the judgments and from the English version of the Convention without supplying a translation or summary in Danish. Th is strategy may in some cases imply an endorsement of a common European discourse that the judges feel to be part of, a discourse conducted in the lingua franca of global law, international legal English. Hence, translation may be regarded as superfl uous. However, my assessment is that lack of translation in most cases is evidence of reluctance to embark on the demanding task of trans-lating and transferring European arguments into the national context (or sheer time pressure).

2. U.1995.9H: 44

Tværtimod synes det i Menneskerettighedsdomstolens dom af 7. oktober 1988 (Salabiaku Case) forudsat, at sådant ansvar – i hvert fald under visse betingelser – må anses for kon-ventionsmæssigt. Det hedder således bl.a. i dommens præmisser:

[On the contrary, the Human Rights Judgment of 7 October 1988 (the Salabiaku Case) seems to imply that such liability – at least under certain conditions – may be in accor-dance with the provisions of the Convention. Th us, it is stated in the grounds of the judgment:]


“In particular, and again in principle, the Contracting States may, under certain condi-tions, penalise a simple or objective fact as such, irrespective of whether it resulted from criminal intent or from negligence. Examples of such off ences may be found in the laws of the Contracting States.”

• Mere reference General reference to ECtHR case law or to specifi c judgments, sometimes only in a footnote. No quotations, no application of European Human Rights concepts, and no further reasoning or refl ection on the part of the domestic court. An alternative interpretation, which I do not endorse, is that this is an instance of domestication as reference is made in the same manner as to any other legal source, while the “foreignness” of the ECtHR judgments is not stressed or indicated at all. Except in few well-known and thoroughly analysed cases, especially those in which the ECtHR ruled against Denmark (e.g. the Hauschildt and Jersild judgments), mere refer-ence is rather an indication of reluctance on the part of the domestic court to engage in an independent and serious hermeneutic endeavour that would force the court to integrate the European line of thinking directly and explicitly in its reasoning.

3. U.1990.181H I lyset af Den Europæiske Menneskerettighedsdomstols dom af 24. maj 1989 i Hauschildt-sagen må det stille sig tvivlsomt, om denne praksis er i overensstemmelse med art. 6 i Den Europæiske Menneskerettighedskonvention.

[ In light of the ECtHR judgment of 24 May 1989 in the Hauschildt case it is doubtful whether this practice is in accordance with Art. 6 of the European Convention on Human Rights.]

4. U.1992.877H Dette resultat fi ndes bestyrket af Den europæiske Menneskerettighedsdomstols afgørelser af 26. juni 1991 og 27. november 1991 i sagerne Letellier mod Frankrig (E.C.H.R. A 207)og Kemmache mod Frankrig (E.C.H.R. A 218).

[Th is conclusion is corroborated by the ECtHR decisions of 26 June 1991 and 27 November 1991 in the cases Letellier v. France (E.C.H.R. A 207) and Kemache v. France (E.C.H.R. A 218)]

5. U.1994.988H Dette resultat er tillige bedst stemmende med Den Europæiske Mennesker ettighedsdomstols praksis vedrørende konventionens artikel 10, jf. senest Doms tolens afgørelse af 23. septem-ber 1994 i sagen Jersild mod Danmark.

[Moreover, this result is best in accord with the practice of the European Court of Human Rights regarding Article 10, cf. the Court’s decision of 23 September 1994 in the case Jersild v. Denmark .]

6. U.1995.992H Varetægtsfængslingen er derudover ikke i strid med de af Den Europæiske Men nesker-ettighedsdomstol opstillede krav til anvendelse af retshåndhævelsesarrest.


45) Quotation from a district court decision (“ Herning Ret ”).

[Th e detention is not inconsistent with the requirements established by the European Court of Human Rights for the use of custody on remand.]

7. U.2009.1143H Under hensyn til kriminalitetens alvorlige karakter og grovhed tiltrådte Højesteret, at der – uanset længden af T’s ophold i Danmark – ikke forelå omstændigheder, der talte afgørende imod udvisning, og Højesteret stadfæstede dommen. 1)

1) U 1999.1500 H, U 2001.1085 H, U 2002.736 H, U 2002.1411 H, U 2004.2083 H, U 2004.1282 H, U 2005.1279 H, Den Europæiske Mennesker ettighedsdomstols dom af 27.03.1996 i sag 16/1995/522/608 (Boughanemi mod Frankrig), sammes dom af 07.12.2000 i sag 62.444/00 (Caglar mod Tyskland) og sammes dom af 08.01.2009 i sag 10.606/07 (Grant mod UK).

[Considering the seriousness and gravity of the crime the Supreme Court acceded that – regardless of the length of T’s stay in Denmark – no circumstances spoke decisively against deportation, and the Supreme Court dismissed the appeal 1)

1) U 1999.1500 H, U 2001.1085 H, U 2002.736 H, U 2002.1411 H, U 2004.2083 H, U 2004.1282 H, U 2005.1279 H, the judgments of Th e Euro pean Court of Human Rights in Case 16/1995/522/608 (Boughanemi v. France), Case 62.444/00 (Caglar v. Germany) and Case 10,606 / 07 (Grant v. UK) .]

5.2. Domestication

• Translated concepts Concepts and principles developed in the case law of the ECtHR are translated into the national language. Provisions of the Convention are invoked quoting the Danish version of the Convention. For further exam-ples, see Mistranslations below.

8. U.1990.13H 45 Vedrørende anvendelsen af retsplejelovens § 762, stk. 2, udtales i dommen, at forskellen mellem dommerens konstatering af tilstedeværelse af en særlig bestyrket mistanke om et strafbart forhold og resultatet ved en fældende dom er meget lille . [Italics added]

[English version of the Hauschildt judgment: “Th e application of section 762(2) of the Act requires, inter alia, that the judge be satisfi ed that there is a ‘particularly confi rmed suspicion’ that the accused has committed the crime(s) with which he is charged. Th is wording has been offi cially explained as meaning that the judge has to be convinced that there is ‘a very high degree of clarity’ as to the question of guilt (see paragraphs 34–35 above). Th us the diff erence between the issue the judge has to settle when applying this section and the issue he will have to settle when giving judgment at the trial becomes tenuous .”] [Italics added]

• Paraphrasing concepts in the domestic language Paraphrasing concepts, principles and criteria developed in the case law of ECtHR in the domestic language. Conventional language is applied as a means of discursively implementing the European concepts and adapting


them to domestic legal thinking. I see such examples as indications of judicial maturity in understanding, accommodation and integration of European human rights thinking and reasoning. Th e European concepts are embraced, not held out as something alien that must be kept in the foreign language.

9. U.2010.1027H Det følger heraf, at retten ved behandlingen af en sådan sag skal iagttage de retssikkerhedsga-rantier, der i medfør af artikel 6 gælder for tiltalte i straff esager . Dette […] indebærer bl.a., at de beviskrav, der gælder i straff esager, jf. herved reglen om uskyldsformodning i artikel 6, stk. 2, fi nder anvendelse.

[It follows that the court when hearing such a case shall observe the procedural guarantees under Article 6 for defendants in criminal cases. Th is […] implies in particular that the standard of proof applicable in criminal cases, cf. the principle of presumption of inno-cence under Article 6. 2, applies.]

10. U.1995.9H Menneskerettighedsdomstolen har i sin dom af 7. oktober 1988 i ‘Salabiaku-sagen’ givet udtryk for, at fravigelse af uskyldsformodningsgrundsætningen i art. 6, stk. 2, alene er berettiget, hvis det er rimeligt begrundet i de interesser, der står på spil og de omstændigheder, der gør sig gældende på området, og at retten til forsvar skal være opretholdt.

[Th e European Court of Human Rights in its judgment of 7 October 1988 in the ‘Salabiaku case’ established the rule that departure from the principle of presumption of innocence pursuant to Art. 6, para 2, only be justifi ed if it is reasonably justifi ed in the inter-ests at stake and the circumstances prevailing in the area, and that the right to defense shall be maintained. ]

11. U.1999.1390H For så vidt angår udvisning af udlændinge som følge af kriminalitet indebærer dette efter Den Europæiske Menneskerettighedsdomstols praksis, at der gælder et krav om proportion-alitet, således at en udvisning ikke må medføre et indgreb i den pågældendes privatliv og fami-lieliv, som ikke står i rimeligt forhold til de formål, udvisningen skal varetage, og til den begåede kriminalitet .

[As regards the expulsion of foreigners on the grounds of crime this involves according to the case law of the European Court of Human Rights that there is a requirement of propor-tionality, to the eff ect that an expulsion may not lead to an interference with his privacy and family life which is not proportionate to the purposes that the expulsion pursues, and to the committed crime .]

• Mistranslation Frequently, equivalents chosen in the national language are infelicitous translations. Th is may be interpreted solely as a question of poor transla-tion skills on the part of the judge. Alternatively, poor translations may at least in some cases reveal lacunae in the understanding, not only of English (and French), but also of the European line of thinking.

12. U.2010.2910H Den ordning, der er gennemført ved disse reler, må som sådan anses for at være forenelig med Den Europæiske Menneskerettighedskonvention, jf. herved bl.a. Den Europæiske Menneskerettighedsdomstols dom af 19. februar 2009 i sagen A m.fl . mod Storbri tannien.


46) Translation in this case is complicated by the fact that the English and French versions of the ECtHR decision are divergent. A comparison would have rendered the Court’s reasoning more clear. 47) Reference to two circular letters issued by the public prosecutor. 48) Th e correct translation would have been “social uorden”, i.e. “social disruption”. “Social forstyr-relse” means “social disorder” and normally designates a mental disorder.

I dommen, som angik frihedsberøvelse, udtalte Domstolen bl.a., at den frihedsberøvede gennem det åbne materiale skal modtage tilstrækkelige oplysninger om beskyldningerne mod ham til, at han på eff ektiv måde kan give instruktioner til den særlige advokat.

[English version of the judgment: “However, the special advocate could not perform this function in any useful way unless the detainee was provided with suffi cient information about the allegations against him to enable him to give eff ective instructions to the special advocate.”

French version of the judgment (equally authentic, but divergent): Toutefois, les avocats spéciaux n’étaient aptes à remplir effi cacement cette fonction que si les détenus avaient reçu d’informations sur les charges retenues contre eux pour pouvoir leur donner des instructions utiles. ] 46

13. U.1992.877H 47 Indledningsvis bemærkes, at Den europæiske Menneskerettighedsdomstol i to afgørelser […] har udtalt, at bestemte strafbare handlinger på grund af deres særlige grovhed og off entlighedens reaktion kan give anledning til social forstyrrelse , som kan retfærdiggøre varetægtsfængsling i alt fald for en tid.

[To begin with reference is made to the European Court of Human Rights which in two decisions […] has ruled that certain crimes because of their specifi c gravity and due to the public reaction can give rise to social disorder , which may justify detention at least for a time.] 48

5.3. Double Strategies

• Translated concepts accompanied by concepts in the source language (mostly English) Th e strategy resembles the strategy employed by the Danish government when implementing EU directives, viz. clinging to the exact same word-ing as applied in the European original text. Even if concepts of human rights law are translated, to be on the safe side the court also quotes the wording of the original text. In some cases this may be a relevant strategy to apply, viz. when the European concept is an autonomous concept of European human rights law that has no established translation in Danish, cf. examples 15 and 16 “appearance of independence”. In other cases, the strategy seems unnecessarily apprehensive about the wording in the origi-nal text, cf. example 17.

14. U.1994.536H Efter Den europæiske Menneskerettighedskonventions art. 6, stk. 1, skal bl.a. straff esager afgøres af ‘en uafhængig og upartisk domstol.’ Konvention sorganerne, det vil sige


Menneskerettighedskommissionen og -domstolen, har i deres praksis antaget, at bestem-melsen indebærer et krav om, at den, der udøver dømmende myndighed, skal være uaf-hængig af bl.a. regeringen både med hensyn til de enkelte sagers afgørelse og med hensyn til fj ernelse fra stillingen (‘irremovability’) , jf. herved bl.a. Menneskerettighedsdomstolens domme af 28. juni 1984 i sagen Campbell og Fell § 79-80 (Serie A vol. 80 s. 20), af 22. oktober 1984 i sagen Sramek § 38 (Serie A vol. 84 s. 18) og af 29. april 1988 i sagen Belilos §§ 64 og 66 (Serie A vol. 132 s. 29f ).

15. U.1994.536H Menneskerettighedsdomstolen har endvidere fundet, at en dømmende myndighed organ-isatorisk og funktionelt skal fremstå udadtil som et uafhængigt organ (formuleret som et krav om ‘appearance of independence’) og har herved henvist til den tillid, domstolene bør nyde i et demokratisk samfund, jf. således f.eks. Belilos-sagen § 67.

16. U.1994.536H På baggrund af det tillidshensyn (‘appearance of independence’) , som efter konventionsor-ganernes praksis er et væsentligt led i uafhængighedskravet efter Menneskerettighed-skonventionens art. 6, stk. 1, fi nder Højesteret det imidlertid ikke foreneligt med denne bestemmelse, at den foreliggende straff esag blev behandlet under medvirken af en kon-stitueret dommer, der samtidig var tjenstgørende i det kontor i Justitsministeriet, hvo-runder de foran nævnte arbejdsopgaver hører.

17. U.1996.234/2H Menneskerettighedsdomstolens dom i sagen bygger på det almindelige synspunkt, at en dommer af hensyn til tilliden til domstolene i et demokratisk samfund ikke blot faktisk skal være, men også udadtil skal fremstå (‘appear’) som upartisk, idet der ikke må kunne rejses berettiget (‘legitimate’) tvivl om en dommers habilitet. Ved afgørelsen heraf er tiltaltes opfattelse væsentlig, men ikke afgørende, jf. dommen par. 48. Ved dommen blev det lagt til grund, at der kun er en spinkel (‘tenuous’) forskel mellem mistankekravet i retsplejelovens § 762, stk. 2, og skyldspørgsmålet, som dommeren skal tage stilling til ved den endelige domsafsigelse, jf. dommen par. 52.

6. Comparison with Norwegian and Swedish Case Law

6.1. Norwegian Case Law

My impression of the judicial discourse of the Norwegian Supreme Court in human rights cases is based on the analysis of only 38 decisions, a little more than 10 per cent of the total number of decisions (365) in which the Norwegian Court refers to ECtHR judgments. However, what seems to stand out, as a distinctively Norwegian strategy, is the strict and formal adherence to parallel language use. Supreme Court judges tend to be extremely conscious about the language that they choose and often systematically quote the authentic English language ver-sion supported by a translation into Norwegian. In contrast to their Danish col-leagues they seem to refl ect meta-theoretically on the diff erences and tensions between the source language concepts of the ECtHR and the Convention on the one hand, and the target language of their national legal system on the other.


49) All Scandinavian legal systems subscribe to the dualist notion of the relationship between national and international law. Th e Norwegian Incorporation Act, by giving Convention norms supremacy, solves the problem that always arises in dualist systems when international and national norms confl ict. Th e clear “dualistic” thinking (in a non-technical sense) in Norwegian Supreme Court decisions maintains a national line of thinking – “internal law”, “external law”.

Th e other side of the coin is that the systematic parallel language use and the explicit comparisons of European and Norwegian law tend to maintain a “dual-istic” thinking, 49 which is conceptualised in terminology like “internal Norwegian law”. All Scandinavian legal systems subscribe to the dualist notion of the rela-tionship between national and international law. Th e Norwegian Incorpo ration Act, by giving the Convention norms supremacy, solves the problem that arises in dualist systems when international and national norms are in confl ict. However, the clear “dualistic” thinking (in a non-technical sense) in Norwegian Supreme Court decisions maintains a national line of thinking also in the fi eld of human rights law, expressed by the concept of “internal law”.

Th e overall impression of Norwegian judicial discourse is infl uenced by the fact that reasoning in Norwegian Supreme Court judgments is traditionally much more comprehensive and detailed than in the other Scandinavian countries, espe-cially Denmark. Moreover, the fact that the Incorporation Act establishes the supremacy of rules of the Convention in cases of confl ict with other Norwegian rules may explain the more explicit and conscious strategies applied by the Norwegian Supreme Court.

Below, I give only a few examples of the strategies that I have found to be a speciality of Norwegian discourse practice, while leaving out strategies already mentioned in the illustration of Danish practice. Italics are added to highlight the strategies described.

• Untranslated quotations accompanied by paraphrasing in the domestic language

18. HR-2004-2124-A I avgjørelsen uttales følgende (side 12): [Th e decision states as follows (p. 12):]

“[…] While national law may satisfy this requirement in various ways, whatever method is chosen should ensure that the other party will [sic] be aware that observations have been fi led and will have a real opportunity to comment thereon. ”

Jeg mener etter dette at kjernen i artikkel 5 nr. 4 er hvorvidt siktede, eventuelt hans forsva-rer, har fått kjennskap til det påtalemyndigheten påberoper seg som fengslingsgrunnlag og har hatt anledning til å imtegå dette.

[I believe that the core of Article 5, paragraph 4 is that the defendant, or his lawyer, has been informed of the reason why the prosecutor claims detention and have had opportu-nity to oppose it.]


• Untranslated quotations from the Convention and ECtHR judgments accom-panied by translations into the domestic language

19. HR-2000-30-B EMK artikkel 6 nr. 1 første punktum har i den norske oversettelse denne ordlyd: [ECHR Article 6, paragraph 1, fi rst sentence has the following wording in the Norwegian translation:]

“For å få avgjort sine borgerlige rettigheter og plikter eller en straff esiktelse mot seg, har enhver rett til en rettferdig og off entlig rettergang innen rimelig tid ved en uavhengig og upartisk domstol opprettet ved lov.”

Som følge av inkorporasjonen er konvensjonen norsk lov i sin auten tiske språkdrakt, […]. Det er således konvensjonens ordlyd på originalspråkene engelsk og fransk som er avgjørende dersom det skulle foreligge forskjeller i forhold til den norske oversettelse. Jeg gjengir derfor også den engelske tekst:

[As a result of incorporation, the Convention is Norwegian law in its authentic language versions, […]. Th us, it is the Convention’s wording in the original languages of English and French, which is essential if the Norwegian translation is divergent. I therefore also quote the English text:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an inde-pendent and impartial tribunal established by law.”

Jeg påpeker at uttrykket ‘straff esiktelse ’, som tidligere var oversatt med ‘straff erettslig anklage’, ikke kan gis noen snever språklig forståelse, jf. den engelske uttrykksmåten ‘any criminal charge’ og den franske tekst ‘toute accusation en matière pénale’.

[I point out that the expression straff esiktelse’, which was formerly translated as ‘straff erett-slig anklage’, can not be given a narrow literal interpretation, see the English expression ‘any criminal charge’ and the French text ‘touts an accusation matière penal’.]

20. HR-2010-1613-A P 7-4 nr. 1 om retten til ikke å bli stilt for retten eller straff et to ganger for samme forhold (non bis in idem) lyder:

[P 7-4(i) on the right not to be tried or punished twice for the same crime (non bis in idem) reads:]

P 7-4 No. 1 on the right not to be tried or punished twice for the same off ence (non bis in idem) reads:

“No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an off ence for which he has already been fi nally acquitted or convicted in accordance with the law and penal procedure of that State.”

I norsk oversettelse heter det:

[In Norwegian translation, this reads:]

“Ingen skal kunne bli stilt for retten eller straff et på ny i en straff esak under den samme stats domsmyndighet, for en straff bar handling som han allerede er blitt endelig frikjent eller domfelt for i samsvar med loven og rettergangsordningen i straff esaker i denne stat.”

21. HR-2004-1889-A Artikkel 10 lyder: [Article 10 reads]


“1. Enhver har rett til ytringsfrihet. […]” I engelsk originaltekst: [In the English original text] “1. Everyone has the right to freedom of expression. […]”

• Focus on the distinction between European human rights and ”internal Norwegian law”

22. HR-2011-182-A Høyesterett kom til at det ikke er naturlig å se det slik at retten til eksaminasjon ved dom-meravhør av barn alene er forankret i EMK og EMDs praksis, men at den er etablert i et samspill mellom norsk rett og de internasjonale menneskerettigheter. Kontradiksjon er des-suten både innenfor EMK og intern norsk rett en meget viktig rettighet, jf. kravet til ‘fair trial’ i EMK artikkel 6 nr. 1.

[Th e Supreme Court concluded that it is not natural to regard the child’s right to examina-tion in court as being solely anchored in the Convention and ECtHR’s practice, but that it has been established in an interplay between Norwegian law and international human rights. Moreover, both within the Convention and internal Norwegian law contra-examina-tion is a very important right, cf. the requirement of ‘fair trial’ in the Convention Article 6 para 1.]

23. HR-2010-303-A Jeg nøyer meg med å bemerke at jeg ikke kan se at det foreligger praksis fra Den europeiske menneskerettsdomstol som kan underbygge en slik forståelse av konvensjonen. Etter min mening må det, i et tilfelle som dette, være en forutsetning for at en slik regel skal kunne legges til grunn og gjøres gjeldende som intern norsk rett , at den kan forankres i en slik praksis, jf. Rt-2000-996 Bühler side 1008-1009.

[I merely note that to my knowledge there is no practice of the European Court of Human Rights that can support such an understanding of the Convention. In my opinion, in a case like this, it would be a prerequisite for such a rule to be applied and invoked as internal Norwegian law , that it can be anchored in such a practice, cf-2000-996 Bühler p. 1008-1009.]

6.2. Swedish Case Law

My analysis of 28 Swedish Supreme Court decisions, including decisions by the Supreme Administrative Court (a little less than 25 per cent of the 106 the total number of decisions referring to ECtHR case law) indicates that the Court seems concerned with supporting its reasoning by reference to its own previous practice and to the ECtHR’s case law as interpreted and reported in one particular work: Hans Danelius: Mänskliga rättigheter i europeisk praxis in one of its editions. Compared with the discursive strategies applied by the Norwegian and the Danish Supreme Courts, this reliance on a national textbook is so striking that I take it to be an important characteristic of the Swedish style. It should be men-tioned that Danelius has been Supreme Court judge himself (1988–2001).

Th e general impression is that the Swedish Court, in comparison especially with the Danish Supreme Court, is meticulous and careful in its discursive han-dling of ECtHR case law. Moreover, due to the frequent application of a Swedish


textbook, quotations from ECtHR judgments are often rendered in Swedish. Although other strategies are documented in my corpus of Swedish decisions as well, the following examples all illustrate the strategy which seems to be most widely used, paraphrasing in Swedish. In decisions 27 and 28, Danelius was still a Supreme Court judge; in 28 he adds a remark on the proper interpretation of Article 6 of the Convention.

• Paraphrasing in the domestic language

24. Ö 2303-07 Enligt Europadomstolen krävs att det för en objektiv iakttagare inte får föreligga några legitima

tvivel om domstolens opartiskhet (Danelius, Mänskliga rättigheter i europeisk praxis, 3 uppl. 2007, s. 182).

[According to the European Court of Human Rights an objective observer may not have any legitimate doubts about the Court’s impartiality (Danelius, Mänskliga rättigheter i europeisk praxis, 3 edition 2007, p. 182)]

25. Ö 3088-07 Artikel 3 kan vara tillämplig också i fall då riskerna härrör från personer eller grupper av personer som inte är off entliga befattningshavare, om myndigheterna i det mottagande landet inte kan undanröja risken genom att anordna erforderligt skydd (se Europadomstolens dom i målet H.L.R. v. France, judgment of 29 April 1997, Series A no. 36, p. 745, särskilt punkt 40 samt Danelius, Mänskliga rättigheter i Europeisk praxis, 3 uppl. 2007, s. 81 och Påle, a.a., s. 225).

[Article 3 may be applicable also in cases where the risks come from persons or groups of persons that are not public offi cers, if the authorities of the receiving country can not elimi-nate the risk by off ering the appropriate protection (see ECHR Judgment in case HLR v. France , Judgment of 29 April 1997, Series A No. 36, p. 745, particularly paragraph 40 and Danelius, Mänskliga rättigheter i europeisk praxis, 3 edition 2007, p. 81 and Påle, a.a., p. 225).

26. B 1050-05 En utgångspunkt vid bedömningen är vad Europadomstolen uttalade i sin dom den 7 december 1976 i målet Handyside mot Förenade Konungariket (Publications Serie A nr 24): “Yttrandefriheten utgör en av de väsentliga grund valarna för ett (demokratiskt) sam-hälle, en av de grundläggande förutsättningarna för dess framsteg och för varje människas utveckling. -- den omfattar inte endast ‘information’ och ‘idéer’ som mottas positivt eller kan anses ofarliga utan också dem som kränker, chockerar eller stör staten eller någon del av befolkningen. Detta är de krav som ställs av den pluralism, den tolerans och den vidsyn-thet utan vilken inget ‘demokratiskt samhälle’ kan existera.” (Efter Danelius, a.a. s. 306.)

[A starting point for the assessment is the statement made by the European Court in its Judgment on 7 December 1976 in the case Handyside v. United Kingdom (Publications Series A No 24): “Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10 (art. 10-2), it is applicable not only to ‘informa-tion’ or ‘ideas’ that are favourably received or regarded as inoff ensive or as a matter of indiff erence, but also to those that off end, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness with-out which there is no ‘democratic society’.”]


27. B4882-98 För bedömningen av vad som utgör skälig tid har Europadomstolen uppställt ett antal kriterier. Av betydelse är hur komplicerat målet varit, hur den tilltalade själv agerat under förfarandet och hur domstolar och myndigheter handlagt målet. (Se Danelius, Mänskliga rättigheter i europeisk praxis, 1997, s. 194 ff .)

[For the assessment of what constitutes reasonable time, the European Court has set up a number of criteria. Of importance is the complexity of the case, how the accused acted himself during the proceedings and how the courts and the authorities handled the case. (See Danelius, Mänskliga rättigheter i europeisk praxis, 1997, p. 194 et seq.)]

28. 2786-92 JustR Danelius tillade: […] Artikeln är – förutom på det straff rättsliga området – tillämp-lig på sådana förfaranden som gäller prövning av vad som i artikeln benämns civila rät-tigheter och skyldigheter (“civil rights and obligations”, “droits et obligations de caractére civil”). […] För att artikel 6 skall vara tillämplig krävs också att det föreligger en tvist med avseende på den rättighet eller skyldighet som är i fråga. Detta har fastslagits av Europadom-stolen under hänvisning särskilt till artikelns franska språkversion, i vilken det direkt talas om tvister (“contestations”) med avseende på civila rättigheter och skyldigheter.

[Judge Danelius added: Th e article is – in addition to criminal matters – applicable to procedures that concern the determination of what the article calls civil rights and obliga-tions (“civil rights and obligations”, “droits et obligations de caractére civil”). Th e applica-tion of Article 6 also requires the existence of a dispute with respect to the rights and obligations in question. Th is is established by the European Court, referring in particular to the French language version of the Article, which directly refers to a dispute (“contesta-tion”) concerning civil rights and obligations.]

7. Conclusion

Th e above presentation treated one aspect of the discursive processes that accom-pany, support and enact European legal integration: translation strategies applied by Scandinavian Supreme Courts when referring to judgments of the European Court of Human Rights. Many other relevant aspects have been left out, and some readers may miss a more detailed discussion of some of the points made. Th is would, however, exceed the frame of this article.

Th e study of translation strategies in judicial discourse is multifaceted and multilayered, both theoretically and empirically, and drawing a simple and clear conclusion is diffi cult. What we see is not conclusive, but indicative for conscious and unconscious strategies and attitudes among national judges whose decisions ultimately enact European legal integration in the context of their domestic legal systems.

Fundamentally, translation is about understanding. Th e translator transfers the meaning of a source text into the language of a readership that would otherwise be unable to understand the text. She can do so by showing the foreign origin of the text (by alienation) or by blurring it and make the translation read like an original (by domestication). But whatever solution she chooses, no translator can translate if she does not understand the text herself.


When we apply these basic concepts of translation theory on the relationship between European human rights law and domestic law, as it is refl ected in the judicial discourse in Scandinavia, we may wonder what the domestic legal judges should do in order to come to terms with European human rights law; what they can do to obstruct or slow down legal integration (if they want to) or alternatively to promote and accelerate integration. Is translation into one’s own language a sign of parochial thinking? Is sticking to English evidence of an international orientation? Th e answers are not as simple as the questions.

A few guidelines are relevant:

1. Th e legally correct thing to do is to quote from the authentic language ver-sions in English and French, as they are authoritative in case of divergence.

2. Th e culturally and democratically legitimate thing to do is to translate European concepts into the national languages and adapt them to domes-tic legal discourse.

3. In any case, there are always two evils to choose between: subscribe to the international discourse in English (and ideally also French) or transform it, at the risk of distortion, to domestic law and language.

Sometimes, a language needs the words of another language, 50 as Ludvig Holberg once wrote. Th is may well be the reason why it does make sense in some cases to import words from European human rights law, which have no equivalents in the domestic legal languages. Rule of law, margin of appreciation and fair trial are, of course, obvious examples. Autonomous concepts could also be kept untranslated, as they are independent concepts that are not to be confused with corresponding concepts in the national legal systems.

In some cases, Scandinavian judges avoid translating quotations from the orig-inal ECtHR judgments in English (and French) because they want to be precise. A translation can never be an exact copy of the original. Any translation entails either loss of information or added information – no translation can render the meaning of the source language expression with absolute precision.

However, only few (primarily Norwegian) judges feel uncomfortable when referring to the Convention text in their own language even if it is only a transla-tion for information purposes. Th us, the reason why Scandinavian Supreme Court judges fail to translate may be much less rational; they may simply feel insecure. Bernhard Grossfeld, the German comparatist, once described compara-tive law in the following terms:

50) ‘Ligesom en Nation trænger iblandt til en andens Varer, saa trænger ogsaa et Sprog til et andet Sprogs Gloser’, Den Store Danske, Gyldendals åbne encyklopædi , entry ‘Holberg’.


Comparative law looks deceptively simple to some. But the reality of comparative analysis for those who actually do it is very diff erent. Comparative law provides the ultimate shock experi-ence for any nationally trained and conditioned lawyer. It throws him into confusion by tak-ing away all language-based feelings of security about understanding the world. Th e result is a loss of control. 51 [Italics added]

Th e metaphor of shock eff ect may be an exaggeration; but the confusion that a comparatist experiences when the “language-based feelings of security about understanding the world” disappear is certainly a relevant description of the state of mind of any person engaged in comparing and understanding across linguistic and cultural barriers.

Translation is a subject of major importance for the debate of commensurabil-ity of legal worldviews that has governed comparative law studies for the past decade. Analyses of the transferability and transplants of legal ideas and concepts often neglect translation, but the diffi culties of translation becomes evident if one notices the techniques of translation and transplantation that Scandinavian judges use when dealing with European human rights.

One thing is to read the judgments of the European Court of Human Rights and to read and even write comments on them in English as well. Another thing is to translate the texts and to transfer the ideas and concepts applied and devel-oped in those texts into one’s own language. Th e shock appears when you fi nd out that there is no exact rendering of the Court’s argument in your own language. Th e next shock sets in when you begin doubting that you have actually under-stood the argument of the Court.

Th e loss of control is evidenced in the fact that many Scandinavian judges tend to give up their own language when writing and commenting on European human rights law. When lacking exact translations in their own language, they simply stop translating. Th e resulting language is a hybrid between English and the national legal languages of Scandinavia.

51) B. Grossfeld, ‘Comparatists and languages’, in P. Legrand and R. Munday (eds.), Comparative Legal Studies: Traditions and Transitions (Cambridge University Press, 2003) pp. 154–155.

European Legal Concepts in Scandinavian Law and Language

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