Español jurídico : The Terminology of Juvenile Justice

CRIMINAL L

Perhaps to underscore the different treatment afforded minors, in Spain the terminology of juvenile justice (justicia penal de menores) is quite different from the terminology used to describe the criminal prosecution of adults. In that regard, in adult felony proceedings (proceso penal ordinario) the preliminary investigation is known as a sumario, while in juvenile justice the equivalent is expediente de reforma. Thus bringing a criminal action against an adult is expressed as incoar un proceso penal, while in juvenile procedure this is called incoar un expediente de reforma. The questioning of an adult suspect may be described as interrogatorio del investigado (formerly, imputado) and is conducted by an investigating judge (juez instructor). In juvenile justice terms the interrogation of a minor is known as exploración del menor and is carried out by a prosecutor (fiscal).

Pretrial detention, known as prisión provisional or prisión preventiva in adult contexts, is internamiento cautelar when it involves a juvenile. In certain circumstances an adult may for a limited period be placed in isolation or solitary confinement, known as prisión provisional incomunicada; but this is called internamiento incomunicado if imposed on a minor. And rather than juicio oral, the trial of a minor is referred to as an audiencia.

Criminal sentences, known as penas when imposed on an adult convicted offender, are called medidas when imposed on a minor. Thus, enforcement of a criminal sentence is ejecución de la pena in adult contexts, but is known as ejecución de la medida when applied to juveniles. A custodial sentence for adults, pena privativa de libertad or, more specifically, pena de prisión is called medida de internamiento when applied to juvenile offenders, who are known as menores infractores.

Convicted adults may be sentenced to incarceration in a centro penitenciario, while juveniles serve custodial sentences in a centro de internamiento (de menores) and are known as a menores internados rather than as internos or reclusos, as adult prisoners are called. In addition to these and other differences in terminology, it should perhaps be noted that the rules of procedure for trying minors set forth in Ley Orgánica 5/2000, de 12 de enero, reguladora de la responsabilidad penal de menores (and subsequent amendments) are radically different from those governing the prosecution of adults under the Ley de Enjuiciamiento Criminal. And cases against minors are always heard in a juvenile court (juzgado de menores) by a specialized juvenile court judge (juez de menores).

For further reading:

José Luis de la Cuesta and Isidoro Blanco. El enjuiciamiento de menores y jóvenes infractores en España.” Electronic Review of the International Association of Penal Law (Revista Electrónica de la Asociación Internacional de Derecho Penal) A-03, 2006.

Confusing Terms: agente de seguros; corredor de seguros

Confusing Terms2
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.

agente de seguros; corredor de seguros

Although sometimes confused, these expressions generally mirror the difference between the English terms “insurance agent” and “insurance broker.” In that regard, an agente de seguros (“insurance agent”) typically represents a single insurance company or agency (aseguradora), offering his customers the insurance policies (pólizas de seguro) marketed by that company. In contrast, a corredor de seguros (“insurance broker”) may offer his clients a series of products from different insurance companies. As underscored in Article 21.1 of Ley 26/2006 de mediación de seguros y reaseguros privados, corredores de segurosrealizan la actividad merantil de mediación de seguros…sin mantener vínculos contractuales que supongan afección con entidades aseguradoras.” In that regard, insurance brokers act as impartial mediators in insurance transactions: a diferencia del agente de seguros, el corredor es un mediador imparcial, no actúa en nombre y por cuenta de una entidad aseguradora, sino en beneficio de las dos partes contratantes.* Thus in this context, the expression correduría de seguros might be rendered as “insurance brokerage firm.”

*Juan Manuel Fernández Martínez. Diccionario Jurídico. Cizur Menor: Thompson-Aranzadi, 2004.

 

 

Mistranslations (?): Is Derecho anglosajón really “Anglo-Saxon Law”?

Anglo-saxon law

Derecho anglosajón; Anglo-Saxon law

I once saw the CV of an English-Spanish translator indicating that she was an “expert in Anglo-Saxon law.” That surprised me until I realized that what she most likely meant was “common law,” “English law” or perhaps even “Anglo-American law.” In effect, in Spanish the expression Derecho anglosajón is often used (as is Derecho angloamericano) to refer to “common law,” but in this context it can’t be rendered back into English literally as “Anglo-Saxon law.” If not an outright mistranslation, in this context “Anglo-Saxon law” is certainly at least misleading since, strictly speaking, the expression refers soley to the body of law that prevailed in England from the 6th century until the Norman Conquest (1066), i.e., el Derecho de los anglosajones.

Thus, as used in Spanish legal texts Derecho anglosajón is rarely intended to mean “Anglo-Saxon law,” but rather “common law,” “Anglo-American law,” or the “law of England and Wales.” Likewise, references to jueces (or) tribunales anglosajones generally denote “common law judges (or) courts,” rather than “Anglo-Saxon judges (or) courts.” When a Spanish lawyer comments on los jueces anglosajones y su acatamiento al precedente, he is probably not referring to Anglo-Saxon judges, but rather to the fact that common law or Anglo-American judges follow precedent. Likewise, when a Spanish law professor presents to his class an análisis comparativo de dos sentencias dictadas por tribunales anglosajones, he is most certainly referring to “two judgments rendered by the English courts,” rather than by Anglo-Saxon courts.

So, obviously, as translators we certainly need to be knowledgeable in the modern law of England and Wales. But we probably don’t need to be that familiar with the legal institutions existing during the reign of Alfred the Great.

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

 

CRIMINAL L

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.

allanamiento

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).