Confusing Terms: antecedentes penales; antecedentes policiales

crime scene do not cross signage

antecedentes penales; antecedentes policiales

In English, expressions such as “criminal record” and “criminal history” denote a person’s “conviction record” or “record of criminal convictions,” which in Spanish are known as antecedentes penales. But antecedentes penales (conviction record, criminal history, criminal record) is sometimes confused with antecedentes policiales (“police record” or “arrest record”), which records arrests or other involvement with the police that may never have resulted in a criminal conviction.

In Spain this distinction is underscored by the fact that information concerning a person’s conviction record (antecedentes penales) and arrest record (antecedentes policiales) are kept in two separate databases. In that regard, it is often possible to achieve the expungement of a criminal record (cancelación de antecedentes penales) kept on file at the Ministry of Justice’s Registro Central de Penados y Rebeldes (similar to the centralized Criminal Records Bureau in England). In contrast, applications to expunge police records (cancelación de antecedentes policiales) held in the databases of both the Guardia Civil and Policía Nacional must be made through the Ministry of the Interior.

Español jurídico: Elementos del delito



tipicidad; antijuricidad; culpabilidad; punibilidad

These criminal theory terms often appear to elude translation since they are not familiar concepts in Anglo-American law. Briefly, the Spanish system for determining criminal liability (also adopted in many Latin American jurisdictions) follows the tripartite German model and is accomplished in three successive steps. First the tipicidad (Tatbestandsmäßigkeit) of the act is established, i.e., a determination is made as to whether when committing his crime the alleged offender has fulfilled each element of the statutory definition of that specific offense (tipo penal). Among others, these include both tipo objetivo and tipo subjetivo elements similar to the actus reus and mens rea requirements of Anglo-American criminal law. Then the antijuricidad (Rechtswidrigkeit) or wrongfulness of the act is assessed to determine whether the alleged offender’s act was antijurídico or wrongful (sometimes also translated as “unlawful”) and whether there are justification defenses (causas de justificación) that would render the act lawful. In a third step culpabilidad (Schuld), i.e., culpability or blameworthiness is examined to ascertain the alleged offender’s individual accountability for the offense and whether there are excuse defenses (causas de exculpación) which would exempt him from criminal liability. As a final consideration punibilidad (Strafbarkeit), that is, elements of individual punishability are then addressed.

Along with other concepts of Spanish criminal theory, the above are explained in English in:

 Bachmaier Winter, Lorena y Antonio del Moral García. Criminal Law in Spain. Alphen ann den Rijn: Kluwer Law International, 2010.

 Gómez Jara, Carlos y Luis E. Chiesa. “Spanish Criminal Law” in Kevin Jon Heller and Markus D. Dubber, eds. The Handbook of Comparative Criminal Law. Palo Alto: Stanford University Press, 2009, pp. 488-530.

Hermida, Julián. “Convergence of Civil Law and Common Law in the Criminal Theory Realm.” University of Miami International & Comparative Law Review, Vol. 13 (2005-2006) pp. 163-232.

Confusing Terms: acto and acta

Legal Synonyms,Confusing Terms(what's the difference between..._)

acto; acta—act

Acta is sometimes confused with acto and translated as “act.” These are multi-hued terms, but acto may often be rendered as “act,” while “act” is rarely an appropriate translation for acta.

Perhaps the most common meaning of acta is “record” in the sense of relación escrita de lo sucedido, tratado o acordado en una junta (DLE). In this context acta often denotes the “minutes of a meeting” (el acta de una reunion) and thus, for example, levantar acta de la Junta General is to “take the minutes of the shareholders meeting,” while libro de actas refers to a “minute(s) book.” In this context constar en acta refers to being “recorded in the minutes” (or, generally, to being “reflected on the record,”) while que conste en acta means “let the minutes (or) record reflect…”.

When acta has the additional meaning of certificación, testimonio, asiento o constancia oficial de un hecho (DLE), it may be more appropriately translated as “certificate,” “certification” or simply “report.” Thus acta de diputado is a Spanish congressional deputy’s “certificate of election,” while acta de concejal is the “certificate of election” of a city council member (concejal de Ayuntamiento). In this context acta notarial refers to a notary’s certification of a given event, such as an Acta notarial de la Junta General (the minutes of a shareholders meeting taken and certified by a notary public); Acta notarial de deslinde con citación de colindantes (notarial certification of property boundaries made in the presence of abutting property owners) or Acta notarial de subasta (which records an auction conducted and certified by a notary).

The expressions acta de nacimiento, acta de matrimonio and acta de defunción are often used to denote respectively a “birth certificate,” “marriage certificate” and “death certificate.” However, perhaps it should be noted that in Spain these documents are officially called “certificados.” Thus the documents actually issued by the Registro Civil (Spain’s “Bureau of Vital Statistics”) are certificados de nacimiento, certificados de matrimonio and certificados de defunción.

Acta constitutiva often describes a document evidencing the formation of a corporation or other business entity. In that sense, and in certain contexts, the expression may be rendered as “articles of incorporation” (US) or “memorandum of association” (UK), although in Spain in order to be valid an acta constitutiva must be reflected in a notarial instrument (escritura constitutiva) and subsequently recorded on the Registro Mercantil (Companies Register).

And, finally, in many contexts acta can likewise refer to a report issued by a government official. For example, in the context of law enforcement, acta may denote a report filed by a law enforcement officer or agent. In that regard acta de intervención de drogas might be described as a (police officer’s) “drug seizure report” and acta de intervención de armas as a “weapons seizure report.” In this context levantar acta does not refer to taking the minutes of a meeting, but rather to recording a procedure or event, as in la Policía procedió a levantar acta de intervención del arma, indicating that a weapons seizure report was duly filed.

As for acto, the term may often be rendered literally as “act,” as in acto de guerra (“act of war”); acto contrario a la ley (“unlawful act”) or acto delictivo (“criminal act”). But this is not always the case. For example, rather than the literal “act of service,” the expression morir en acto de servicio might be more appropriately rendered as “to die in the line of duty.”

In procedural contexts, acto procesal refers to an individual step or stage in a judicial proceeding. Acto de conciliación generally denotes a “settlement hearing” in which the parties to a dispute attempt to reach an agreement, while in the context of employer-employee conflicts, in Spain the expression refers to a mandatory extrajudicial settlement hearing conducted by a labor conciliation board (Servicio de Mediación, Arbitraje y Conciliación) before the matter may be heard by a labor court (Juzgado de lo Social). Likewise, in first instance labor proceedings, the actual trial is often referred to as an acto del juicio. Thus, in this context se celebró el acto del juicio simply means that “the trial was held.”

In the context of Spanish criminal law the expression actos preparatorios denotes the initial steps taken in the comission of a crime before it is actually executed (actividad orientada a facilitar la realización de un delito). And in inheritance law, the expression acto de última voluntad is a synonym for testamento (“will”), while in Spain all notarially-certified wills (testamentos otorgados ante notario) are recorded on a Register of Wills called Registro de Actos de Última Voluntad.

In other respects, in English “act” is likewise used with different meanings in several legal contexts. The term commonly denotes laws passed by a parliament (leyes parlamentarias) or other legislative assembly, as in “Acts of Parliament” or “Acts of Congress,” (leyes emanadas del Parlamento británico o del Congreso norteamericano). Thus, laws passed by the Spanish Parliament (Cortes Generales) may appropriately be called “acts,” as in, for example, Ley del Mercado de Valores (“Securities Market Act”); Ley de Marcas (“Trademark Act”); or Ley de Enjuiciamiento Civil (“Civil Procedure Act”).

And the peculiar expression “acts of God” refers to natural disasters and events that may render contract performance impossible or impracticable, as opposed to “force majeure,” which also includes acts of man (strikes, war, etc.). In this sense “acts of God” is often equated with the Spanish concept of caso fortuito, while “force majeure” is most often rendered directly as fuerza mayor.

Multiple Meanings of allanamiento

Legal Terms with Multiple Meanings
One of the major difficulties of learning legal language is that so many terms have one meaning in everyday usage, but may mean something radically different in legal contexts. And sometimes the same word may have several different legal meanings, depending on the practice area in which it is used. Linguists may describe such terms as “polysemous,” and they are certainly present in abundance in both legal Spanish and legal English. Under “Multiple Meanings” I offer a sampling of expressions that I believe are likely to give rise to miscues in legal translation. Logically, the focus is on usage in legal contexts, and their nonlegal meanings have generally been excluded.


In the terminology of civil procedure (Derecho procesal civil) allanamiento (a la demanda) is the defendant’s acceptance or admission of the claims set forth in the plaintiff’s complaint (conformidad del demandado con las pretensiones contenidas en la demanda), in which case the proceedings will generally terminate with a judgment for the plaintiff (sentencia estimatoria). There may be allanamiento total when the defendant admits all of the plaintiff’s claims, or allanamiento parcial when only some of the claims are admitted and the others can be adjudicated separately (i.e., son susceptibles de pronunciamiento por separado).

In contrast, in the terminology of criminal procedure (Derecho procesal penal) allanamiento (de morada)  refers to the unauthorized entry to a dwelling or other premises. In this context allanamiento may be translated as “trespass,” “unlawful entry,” or if force is used perhaps as “forcible entry,” “housebreaking” or “breaking and entering.”* A frequent source of confusion for translators is the fact that in Mexico, Argentina and other Spanish-speaking jurisdictions allanamiento refers to the legal entry and search of premises by the police (allanamiento policial) under a search warrant (orden de allanamiento). In contrast, in Spain allanamiento always denotes unlawful entry, while entrada y registro is the term used for a legal entry and search of premises by the police or other authorities incident to an arrest or criminal investigation. Thus, in Spain and in this context, “search warrant” is an orden de entrada y registro or, more properly, auto de entrada y registro,” and is often shortened to orden (or) auto de registro.

*Several bilingual terminology sources translate allanamiento as “breaking and entering” but in Spain, at least, the offense does not involve the use of force of any kind . Thus, allanamiento  is probably more accurately translated as “trespass” or “unlawful entry,” being defined as entrar en morada ajena o mantenerse en la misma contra la voluntad de su morador (Article 202, Código Penal).

False Friends: actor and “actor”

false friends purple
When learning legal terminology in a bilingual context one of the first pitfalls encountered are so-called “false friends,” words or expressions that appear to be cognates, but are actually unrelated in meaning. Many years ago I set about identifying the “Top 40 False Friends in Spanish-English Legal Translation.” As the list grew I had to change the title to “101 False Friends.” In my collection I now have well over that number and will be sharing some of them in this blog. To be fair, many are only partial false friends that may actually be cognates when used in one branch of law, while perhaps qualifying as false friends in another legal practice area. And in some instances the cognate may simply not be the most appropriate rendering in legal contexts.

actor; actor

The term actor is used in Spanish procedural terminology in at least two different contexts in which the term cannot be appropriately translated literally as “actor.” In civil procedure, at the trial (primera instancia) level actor and la parte actora are synonyms for demandante, denoting the “plaintiff” or “claimant” in a civil action.

In criminal procedure actor civil refers to a party to a criminal proceeding who is seeking compensation for damages for civil liability arising out of the criminal act being tried. In Anglo-American jurisdictions claims for compensation for damages arising from criminal offenses are typically filed in a separate civil suit and, thus, the role of the actor civil in the Spanish criminal process may often be unclear to English-speaking audiences. In brief, in Spain claims for compensation for damages arising during the commission of a crime (reclamación de la responsabilidad civil derivada de la comisión de un delito) are usually tried simultaneously with the prosecution of criminal defendants during criminal proceedings. Actor civil designates the party who enters an appearance in a criminal proceeding to file a claim for damages in what amounts to a civil liability action conducted simultaneously with (or within) a criminal procecution. Civil and criminal liability may thus be determined in the same proceeding if the actor civil enters an appearance and asks to be acknowledged as a party to the criminal proceedings as a plaintiff claiming damages based on the same incident for which a conviction for criminal liability is being sought (la parte solicita que se la tenga por personada en el procedimiento en calidad de actora civil). And in perhaps most cases the victim and and person seeking civil redress are obviously the same.

Actor civil has often been rendered literally as “civil plaintiff” or “civil claimant,” translations that perhaps fail to reflect the fact that the expression actually denotes a party to a criminal proceeding. And, indeed, since this “civil action within a criminal trial” concept will perhaps be foreign to English-speaking audiences, actor civil may require a more detailed descriptive translation such as “party claiming civil damages in a criminal proceeding.” In other respects, the civil claim heard during a criminal trial is often referred to as a proceso civil acumulado, precisely because it is, in effect, a civil action joined or consolidated with (within) a criminal procecution.

See: Víctor Moreno Catena and Valentín Cortés Domínguez. “El llamado ‘actor civil’ en el proceso penal.” Derecho Procesal Penal. Valencia: Tirant lo Blanch, 2005, p. 125 ff.



Confusing Terms: a título oneroso; a título gratuito; a título lucrativo

Legal Synonyms,Confusing Terms(what's the difference between..._)
Many confusing terms in legal Spanish and legal English are simply legal synonyms that are not always clearly distinguishable, often making it necessary to learn how each one is used in a specific context or in set phrases (frases hechas). Some may be interchangeable; others are limited to use in specific contexts. Those highlighted in this blog are ones that I have seen confused in translation or that my students and lawyer clients have found most difficult to distinguish.

a título oneroso; a título gratuito; a título lucrativo

These expressions are sometimes confused in translation. Título oneroso is defined in the DLE as el que supone recíprocas prestaciones entre los que adquieren y transmiten, and in that regard a título oneroso has been appropriately translated as “for valuable consideration,” “for (or) against payment” or “subject to obligation.” A título gratuito is easily recognizable as the opposite of a título oneroso and accurately rendered as “free of charge,” “without consideration” or “subject to no obligation.” But the term lucrativo (DLE: que produce utilidad o ganancia) in a título lucrativo has often prompted translators to assume that, like a título oneroso, the expression means “for profit,” “for payment” or “for valuable consideration,” when actually the case is just the opposite. Título lucrativo is el que proviene de un acto de liberalidad, como la donación o el legado, sin conmutación recíproca* and, thus, a título lucrativo and a título gratuito are actually synonyms and may both be rendered as above (“free of charge,” “without valuable consideration” or “subject to no obligation”).

*Santiago Segura Munguía Lexicon (incompleto) etimológico y semántico del Latín y de las voces actuales que proceden de raíces latinas o griegas. Bilbao: Universidad de Deusto, 2014, p. 332.


Legal Meanings of “Avoid” and “Determine”

Common Words with Uncommon Legal Meanings
In his 1963 work  “The Language of the Law,” the eminent legal linguist David Mellinkoff observed that legal discourse often uses “common words with uncommon meanings.” Indeed, in both Spanish and English common words and expressions often take on unexpected meanings when used in legal contexts, and there are many simple, seemingly inoffensive everyday words and expressions that can prompt translation mistakes if their special legal meanings are ignored.  In this section I include some of the presumably simple legal English expressions that my students and translation clients have found most puzzling, along with a selection of legal Spanish terms that may stump translators when initially entering the legal translation field.

Legal Meanings of “Avoid” and “Determine”

In nonlegal usage “avoid” is a synonym for “escape” or “evade,” commonly rendered as evitar, esquivar or evadir, etc. But in legal writing “avoid” sometimes means “to make void or undo”* and in this context “avoid” (and “avoidance”) are actually synonyms (or perhaps archaic forms) for “void” and “voidance”. Thus, for example, one may “avoid a contract” (anular un contrato) and a contract may be deemed avoidable (anulable).

Similarly, in everyday usage “determine” is a synonym for “ascertain” (determinar, decidir, etc. in Spanish). But in admittedly archaic legal usage “determine” may also mean “terminate,” as in the redundant doublet “cease and determine” (literally, cesar y terminar). Thus, “this Agreement shall cease and determine…” simply means “el presente contrato se resolverá… .” In that regard, the adjective “determinable” means “terminable” or “liable to be terminated upon the occurrence of a contingency,”* and is used in that sense in several standard expressions such as “determinable easement” or “determinable estate.”

*Merriam-Webster Dictionary of Law