Confusing Terms: inviolabilidad; inmunidad; aforamiento

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.

inviolabilidad; inmunidad; aforamiento

In the context of parliamentary practice, these terms are often confused because all three denote types of parliamentary privileges (prerrogativas parlamentarias). Inviolabilidad and inmunidad are both types of parliamentary immunity, but refer to two very different privileges enjoyed by Spanish senadores and diputados. Inviolabilidad refers to “immunity (or) non-liability for opinions expressed in the exercise of their duties” (inviolabilidad por las opiniones manifestadas en el ejercicio de sus funciones). In contrast, inmunidad refers to “criminal immunity” or “immunity from arrest and prosecution.” In that regard, members of parliament may only be arrested if apprehended in the actual course of committing a crime (sólo podrán ser detenidos en caso de flagrante delicto), and they cannot be subjected to a criminal investigation or prosecuted without the prior authorization of their respective chambers of parliament (no podrán ser inculpados ni procesados sin la previa autorización de la Cámara respectiva). In that event, a suplicatorio, i.e., an application to lift a member of parliament’s immunity (levantar la inmunidad) must be submitted to the Congreso de Diputados or Senado, and may be granted or denied (being referred to as concesión o denegación del suplicatorio).

To add to yesterday’s blog entry, in this context, aforamiento refers to the fact that, if members of parliament are prosecuted they have the privilege of being tried by the criminal division of the Supreme Court (Sala Segunda del Tribunal Supremo), rather than by a lower criminal trial court. In that regard, members of autonomous community parliaments would be tried by the Superior Court of Justice (Tribunal Superior de Justicia) of their respective community. In effect, aforamiento (or the fact of being aforado) implies being subject to a different forum (fuero) or venue than would be ordinary citizens. Thus, here aforamiento may perhaps be rendered as “jurisdictional privilege,” while aforados are “persons (in this case, members of parliament) who enjoy jurisdictional privilege.”

Mistranslations (?) of aforado and aforamiento

“Mistranslations?” includes examples of what I believe may be considered mistranslations that I have encountered over a twenty-five year period while working as a legal translator and teacher of legal English in Spain. Some may be actual mistranslations, while others are perhaps all-too-literal renderings of expressions that may have sufficiently close counterparts (“functional equivalents”) in the other language. Still others are translations that may simply not be accurate in the context in which they originally appeared.

aforado; aforamiento

Aforado has often been translated simply as “privileged” or “person entitled to privileges,” while aforamiento has sometimes been inappropriately rendered as “grant of parliamentary immunity.” Neither are really accurate translations, since in Spanish law aforamiento specifically refers to one’s being subject to a given “forum” or “venue” (fuero), and the fact that aforados have the privilege of being tried in a specific court. As an example, senadores, diputados and ministros are aforados in the sense that if prosecuted for a criminal offense, their court of original jurisdiction (tribunal competente en primera instancia) is the Criminal Division of the Supreme Court (Sala Segunda del Tribunal Supremo), rather than a first instance criminal court that would try an ordinary citizen accused of criminal wrongdoing.

For more on aforamiento and how “parliamentary immunity” may be expressed in Spanish see tomorrow’s post on inviolabilidad; inmunidad; aforamiento.

False Friends: seguridad ; security

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.

seguridad; security

Seguridad may certainly be rendered directly as “security” in many legal contexts. Common examples include seguridad social (“social security”), seguridad nacional (“national security”), securidad ciudadana (“citizen security”), empresa de securidad (“security company”), guardia de seguridad (“security guard”) or prisión de alta seguridad (“high security prison”).

But in other contexts, seguridad more appropriately denotes “safety.” This is the case in expressions such as seguridad e higiene en el trabajo (“health and safety in the workplace” or “occupational safety and health”), seguridad vial (“road safety”) or caja de seguridad (“safety deposit box”).

In addition to “security” and “safety,” seguridad must be rendered as “certainty” in the expression seguridad jurídica (“legal certainty”). And of course the opposite concept is falta de seguridad jurídica or inseguridad jurídica, which in English is “lack of legal certainty.”

In other respects, the expression Fuerzas y Cuerpos de Seguridad is often translated literally as “security forces,” but actually refers collectively to the various “police forces” operating in Spain as defined in Organic Law 2/1986. These include the national police forces (Fuerzas y Cuerpos de Seguridad del Estado) comprising the Guardia Civil and Cuerpo Nacional de Policía, and police forces at the regional (comunidad autónoma) and local levels. In that regard, several of Spain’s comunidades autónomas maintain regional police forces including Catalonia (Mossos d’Esquadra), the Basque Country (Ertzaintza), Navarre (Policía Foral) and the Canary Islands (Policía Canaria). At the municipal level there are likewise security forces known variously as Policía Municipal, Policía Local or Guardia Urbana.  In addition, and despite the name, Policía Judicial does not denote a separate police force within this scheme, but rather any member of the Fuerzas y Cuerpos de Seguridad who is assigned to the courts and/or who carries out a judicial order or acts in any way on behalf of the courts.

Special mention should perhaps be made of medidas de seguridad, which in criminal law contexts are not simply “security measures” or “safety measures,” as the expression has sometimes been rendered. As a type of criminal sentence, medidas de seguridad penales are custodial or non-custodial treatment orders that, for example, may be imposed on the perpetrator of a criminal offense who for reason of mental disorder has been declared exempt from criminal liability (declarado exento de responsibilidad criminal) by a court of law. In that regard, possible custodial measures include commitment to a correctional psychiatric hospital, a rehabilitation facility or a special education institution (internamiento en un hospital psiquiátrico penitenciario, centro de deshabituación o centro educativo especial).

In English, and among many other meanings, “security” (often in the plural, “securities”) denotes a series of títulos valores negociables (“marketable securities”) such as stocks and bonds (acciones y bonos). Thus, for example, “securities exchange” is mercado de valores, “Securities Act” is Ley del Mercado de Valores, and the Securities and Exchange Commission (SEC) is the US counterpart of Spain’s Comisión Nacional del Mercado de Valores (CNMV).

Español jurídico: crisis procesales

crisis procesales; terminación anormal del proceso; modos anormales de terminación del proceso

Translators are sometimes at a loss as to how to render these seemingly cryptic expressions that simply describe the termination of a civil action without a decision or judgment on the merits (sin resolución o sentencia sobre el fondo). Indeed, since it is thought that civil proceedings should end with a judgment on the merits, these other means of concluding such proceedings are often described by legal scholars as terminación anormal del proceso or as crisis procesales, although such circumstances are perhaps more clearly described collectively as terminación anticipada del proceso por voluntad de las partes. These include allanamiento, desistimiento, renuncia, transacción judicial and caducidad en la instancia.

Allanamiento (a la demanda) is simply the defendant’s total or partial admission of the allegations set forth in the plaintiff’s complaint (demanda). This results in a judgment for the plaintiff (sentencia condenatoria) if the defendant admits all of the allegations (known as allanamiento total) or, if warranted, a trial of the allegations denied (cuestiones no allanadas) if the defendant admits only some of the plaintiff’s allegations (called allanamiento parcial).

Desistimiento and renuncia denote ways in which the plaintiff may dispose of the proceedings prior to trial. Desistimiento is the plaintiff’s abandonment of a proceeding without waiving his right to bring an action at a later date against the same defendant based on the same claims (el actor tiene por abandonado el proceso sin que ello suponga renuncia a la acción). The judge then dismisses the case without prejudice (el tribunal dicta auto de sobreseimiento y el actor podrá promover nuevo juicio sobre el mismo objeto). In contrast, renuncia (a la acción) denotes the plaintiff’s waiver of all claims against the defendant and results in a judgment for the defendant that has full res judicata effects (sentencia absolutoria con autoridad de cosa juzgada).

The parties may likewise bilaterally agree to terminate proceedings prior to trial by reaching an in-court settlement (transacción judicial; acuerdo transaccional judicial). The court approves or sanctions their settlement agreement (homologa la transacción), issuing an auto homologando la transacción, similar to what in US practice is called an “agreed judgment,” “consent judgment” or “stipulated judgment,” i.e., an in-court settlement that becomes a court judgment when the judge sanctions it.

And, finally, a proceeding may be terminated by the parties’ failure to prosecute (also called “lack of prosecution” or “want of prosecution”). A suit will be deemed to have been abandoned if the parties remain inactive for a statutorily defined period, after which the action lapses (caduca). This situation is known as caducidad en/de la instancia, and may be described as “constructive abandonment of action for failure to prosecute.” Since no decision on the merits has been rendered (la pretensión queda imprejuzgada), the plaintiff is free to bring another suit at a later date based on the same claim.

In other respects, proceedings may likewise terminate due to supervening circumstances in which the parties no longer wish to pursue their claims with regard to the subject matter in dispute (known as carencia sobrevenida de objeto or desaparición sobrevenida del interés légitimo).

And, in addition to the above, parties to a civil action may likewise reach an “out-of-court settlement,” which is variously known as satisfacción extraprocesal or transacción extrajudicial.

Read more here:

Prieto Blanco, María Pilar. Desistimiento, caducidad, terminación del proceso por satisfacción extraprocesal y desaparición sobrevenida del interés legítimo. Centro de Estudios Jurídicos (Ponencias Secretarios Judiciales), 2004, pp. 6988-7040.

Expressing Civil Law Concepts in Common Law Terms: saneamiento

Saneamiento

Saneamiento is a peculiar term whose meaning in legal usage is not always obvious. In the Spanish law of obligations (Derecho de obligaciones) the expression obligación de saneamiento usually refers to a warranty obligation. The Spanish Civil Code provides for three types of warranty: 1) Saneamiento por evicción (Art. 1475 CC)—seller warrants that buyer will enjoy undisturbed and unopposed legal possession of purchased property. Here saneamiento por evicción may be translated as “warranty of title,” “warranty of good title,” or “warranty against loss of title.” When saneamiento por evicción applies to leased property, “warranty of quiet enjoyment” would be an appropriate rendering. 2) Saneamiento por cargas o grávamenes ocultos (Art. 1483)—seller warrants that the property sold or otherwise transferred is free of charges, liens or other encumbrances. Here a possible translation would be “warranty of clear title” or “warranty against hidden charges/liens/encumbrances.” And, 3) Saneamiento por vicios ocultos (Art. 1484 CC)—seller warrants that property/goods sold are free from hidden/latent defects, usually undertaking to repair or replace items found to be defective. This may often be translated as “warranty against hidden/latent defects.”

Saneamiento is also used in other legal contexts. For example (and these are certainly not the only legal meanings of the term), saneamiento contable may refer to the “write-down” of the value of an asset or the “write-off” of losses or a debt. Saneamiento financiero may denote some type of “financial restructuring (or) streamlining,” while saneamiento monetario often refers to “monetary reform.” And, as a final example, saneamiento ambiental may describe some form of “environmental remediation” or “environmental clean-up.”

Latinismos in Common Law Courts

Many legal translators simply choose not to translate Latin expressions into English or Spanish, leaving them as they appear in the original text. And, indeed, there are certainly dozens of latinismos used “as is” in both legal Spanish and legal English. Nevertheless, many of them do have accepted renderings in the other language that should probably be used instead of the Latin in translated texts. And when the Latin phrase in question is not in general use in the other language, a definitional translation may be warranted. In blog entries under Latinismos I will highlight some of the Latin expressions that I have encountered most often in my work.

 A few Latin expressions used in common law courts

When a party files a “motion to proceed in forma pauperis,” he is asking for legal aid and to be allowed to litigate without costs. In Spanish this is often rendered as solicitud de asistencia jurídica gratuita or, formerly, solicitud del beneficio de pobreza. A party who decides to defend himself at trial is said to “proceed pro se (or) pro per” (litigar sin abogado or ejercer el derecho de la autodefensa) and is known as a “pro se (or) pro per litigant”. In order to bring an action or appear in court a party must have standing (legitimación procesal), often rendered in Latin as locus standi, especially in British usage. One of the parties at trial will bear the burden of proof (carga de la prueba), called onus probandi, or simply onus, also most often used in Latin in British usage. And a lawyer who renders free legal services is said to work pro bono or pro bono publico (“for the public good”), a Latin expression also used among Spanish lawyers who provide trabajo pro bono.

Terminology of Spanish Judicial Decisions

resolución judicial; providencia; auto; sentencia

These four terms all denote types of judicial decisions issued by Spanish courts, but they are in no way interchangeable. The broadest is resolución judicial, a generic term for all types of judicial decisions, including providencias, autos and sentencias. Providencias are court orders that resolve issues arising during a proceeding (defined as ordenación material del proceso), and may generally be described as “interlocutory orders” or perhaps, depending on the context, as “case management orders.” The most salient feature of providencias is that they may be issued without stating the legal grounds for the decision (sin motivar).

In contrast, an auto is a court order requiring certain formalities and in which the reasons for the ruling must be stated (debe ser motivado). Autos decide appeals from providencias, resolve interlocutory issues and in some instances may also be used for the final disposition of a case. Thus, depending on the context, auto may perhaps be rendered as either “interlocutory order” or “final order.” As examples, in criminal procedure an auto is required to order pretrial custody (auto de prisión provisional), to order an arrest (auto de detención) or to order a search incident to an arrest (auto de entrada y registro). The latter two are often informally referred to as órdenes (órden de detención; órden de registro), but both arrest warrants and search warrants must be issued in the form of an auto (deben revestir la forma de auto).

Sentencia (“judgment”) denotes a court’s final disposition of a case in a ruling on the merits (decision sobre el fondo). Sentencia definitiva is a final appealable judgment, while sentencia firme is a judgment that has become final because no appeal was filed against it and the term for appealing the judgment has expired (el recurso ha prescrito). (For more on sentencia definitiva-sentencia firme, see the previous Confusing Terms post).