(ilustración: Fernando Vicente)
There are several keys to deciphering Spanish appellate terminology. The first is to have a clear understanding of the difference between recursos devolutivos and recursos no devolutivos. A recurso devolutivo is an appeal from (or against)* the decision of a trial court (or administrative agency) that will be heard and adjudicated by a higher court (or higher administrative authority). When an appeal is heard by a higher court or administrative authority, it is said to have efecto devolutivo. In contrast, a recurso no devolutivo is actually a petition for a rehearing or for reconsideration filed before the same court or administrative agency that issued the original decision being appealed.
This distinction may not be readily understood by English-speaking audiences since in Anglo-American law an appeal is, by definition, to a higher court or authority. Translations dealing with any of the many recursos no devolutivos existing in Spanish procedure should clearly reflect the fact that the appeal will be adjudicated by the same court or authority that issued the original decision. For this reason, this type of remedy is often described as a “reconsideration appeal” or, perhaps more appropriately, a “motion for reconsideration” since, in essence, it is a motion petitioning a court or administrative authority to reconsider and reverse its initial ruling.
A second aspect to consider is whether the appeal suspends the execution (enforcement) of the original decision while the appeal is pending (called efecto suspensivo). When an appeal is said to be admitido en un solo efecto, this is a reference to the fact that the appeal tiene efecto devolutivo, i.e., is a recurso devolutivo, an appeal to a higher court or authority. The expression recurso admitido en ambos efectos denotes a recurso devolutivo con efecto suspensivo, that is, an appeal to a higher court or authority that also stays (suspends) the execution of the lower court’s judgment while the appeal is pending.
A third point is to distinguish between recurso (or recurrir) and apelación (or apelar), which are often assumed to be synonymous. But recurso is actually a generic term for many types of appeal, while apelación denotes a specific remedy (called recurso de apelación), which is always adjudicated by a higher court or authority (i.e., it is a recurso devolutivo). Translators may be prompted to assume that recurrir and apelar are synonyms, given that recurso and apelación do indeed appear as such in many bilingual legal sources that inevitably translate both as “appeal.” However, they are not interchangeable. As indicated above recurso is a broad term used to denote generically many types of appeals and legal remedies, both judicial and administrative. Thus, recurso may be a superordinate term meaning “appellate remedy” or may refer to a specific type of appeal, depending on the context. In contrast, recurso de apelación specifically denotes an appeal from the decision of a trial court (tribunal de primera instancia). In that regard, recurso de apelación may be described as an “appeal in second instance” (or perhaps an “appeal to an intermediate appellate court” in those instances in which further appeal is available if the apelación is unsuccessful). The verb describing the filing of a recurso de apelación is recurrir en apelación.
Another classification divides appeals into recursos ordinarios filed as of right, and recursos extraordinarios that may only be filed in extraordinary circumstances and for reasons defined by law (motivos tasados en la ley). Appeals to the Spanish Tribunal Supremo, called recursos de casación, are extraordinary appeals (even the one called recurso de casación ordinario). Although often translated literally as “casation appeals,” recursos de casación may likewise be rendered simply as just that: “appeals to the Supreme Court.”
A final point to remember (and a source of much confusion) is the fact that the same type of appeal may have different names in different jurisdictions. For example, in Spain a recurso no devolutivo filed in civil courts is called recurso de reposición. That same type of appeal in the criminal and labor courts has different names depending on whether it is filed from a decision issued by a juzgado or órgano unipersonal (single-judge court) or tribunal or órgano colegiado (multi-judge court). Thus in criminal procedure recursos no devolutivos filed from certain decisions of juzgados de instrucción are called recursos de reforma, while recursos no devolutivos from the decisions of multi-judge criminal courts are called recursos de súplica. A similar distinction is a feature of labor procedure in which there are two recursos no devolutivos, the recurso de reposición (filed from certain orders issued by juzgados de lo social) and the recurso de súplica (filed from certain orders issued by the Salas de lo Social de los Tribunales Superiores de Justicia). This disparity in nomenclature likewise exists among recursos devolutivos. Indeed, as noted above, what might generically be termed a recurso en segunda instancia is a recurso de apelación in civil, criminal and administrative procedure, but is called recurso de suplicación in labor proceedings.
This summary certainly doesn’t address all of the pitfalls of translating Spanish appellate terminology and, ultimately, unless the context requires otherwise, the majority of these recursos may be translated simply as “appeal.” Likewise, both recurrente and apelante, as well as recurrido and apelado can usually be rendered respectively as “appellant” and “appellee” (or “respondent” in British English).
Read more here:
Víctor Moreno Catena and Valentín Cortés Domínguez. Derecho Procesal Civil, Parte General and Derecho Procesal Penal (Valencia: Tirant lo Blanch, 2015) pp. 339-398 and 579-655; Víctor Moreno Catena, dir. Esquemas de Derecho Procesal Laboral (Valencia: Tirant lo Blanch, 2013, pp. 117-135.
*US usage: “to appeal from a judgment;” form preferred in British English: “to appeal against a judgment”