Year: 2019

Translating Spanish Criminal Procedure: actor civil

rebeccajowers Español jurídico

CRIMINAL L

In Spanish 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.

Thus, civil and criminal liability may 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 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.

Read more here: 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.

 

 

False Friends 101: trimestre; trimester

rebeccajowers False Friends

False Friends 101

These two terms probably belong in the “False Friends 101” category, but are nevertheless sometimes confused in translation. Both trimestre and “trimester” refer to a period of three months. In English “trimester” is perhaps most often used to refer to stages of human gestation: “the first trimester of pregnancy” (el primer trimestre del embarazo). In addition, many US universities divide the academic year into three trimesters (fall, winter and spring), each having a duration of approximately 12 weeks.

However, in legal, business or accounting contexts a three-month period is called a “quarter” (i.e., la cuarta parte de un año). Thus, in these contexts trimestre must be rendered as “quarter” rather than as “trimester.” To cite a few simple examples, the accounting year (ejercicio contable) is divided into “quarters,” (trimestres); VAT (IVA) is paid “quarterly” (trimestralmente), and business profits are typically announced in a “quarterly earnings report” (informe trimestral de resultados).

A tribunal isn’t always a court

rebeccajowers Mistranslations?

Tribunal not always court

Tribunal is often mistranslated due to the assumption that the term always designates a court. But tribunales are not necessarily part of the ordinary court system, and the term may be used to designate administrative “boards” or “tribunals” that review the decisions of governmental agencies (órganos adminstrativos). A prime example is Spain’s Tribunal Económico-Administrativo, which is often mistranslated literally as “Economic-Administrative Court.” But rather than courts, as part of the Ministerio de Economía y Hacienda, tribunales económico-administrativos are administrative tribunals that provide a procedure for challenging decisions of the Spanish tax authorities and, as such, they are perhaps more accurately described as “tax appeal boards.”

In that regard, an expression such as reclamación económico-administrativa describes an “(administrative) appeal of a decision of the tax authorities.” Once this administrative remedy has been exhausted (agotada la vía administrativa), appeals from the decisions of tax authorities may be subsequently taken to the administrative courts (tribunales contencioso-administrativos), which are indeed a part of the ordinary court system (tribunales ordinarios). But a tribunal económico-administrativo cannot be accurately described as a “court.”

In English “tribunal” often likewise designates an administrative review board rather than a court, especially when referring to those that decide tax or employment benefit claims. Examples in the US include the New York City Tax Appeals Tribunal, Michigan Tax Tribunal, Wisconsin Unemployment Insurance Appeal Tribunal or Tennessee Employment Security Appeals Tribunal.

Read more here

Weird Words You May Need to Know: imprejuzgado

rebeccajowers Mistranslations?

Weird Words You Need to Know

This admittedly strange term describes a proceeding in which the matter in dispute was for some reason not adjudicated and, for example, appears in expressions such as dejando imprejuzgado el fondo del asunto or habiendo quedado imprejuzgado el fondo del litigio. In this context imprejuzgado has sometimes been translated literally as “untried,” “still untried” or “passed untried,” etc.

Although “not adjudicated” might provide a possible rendering, in this context dejando (and) quedando imprejuzgado el fondo are actually synonymous with the expressions sin entrar al fondo and sin una resolución sobre el fondo, and both can be translated as “without a decision (or) ruling on the merits.” Thus, as an example, auto que estima la excepción de incompetencia, dejando imprejuzgado el fondo refers to an “order granting a motion challenging the court’s jurisdiction, without a ruling on the merits.”

Legal English: The “Color” of Law

rebeccajowers Legal English for Spanish-speakers

 

The Color of Law

“Color” is often used in legal contexts with the meaning of “appearance” or “semblance” and the expression “under color of…” suggests something done “under the pretext (or) guise of” something else. Thus, something done “under color of law” is done with the apparent authority of the law. Acting “under color of office” may describe someone pretending to be a public official, or a public official who abuses his position for gain. And possession “under color of title” may refer to an occupant who holds himself out as the owner of a given property, acting as if he is actually the titleholder.

Many actual colors are used in legal language in many areas of law. Here are some of the most common (there may be many more!):

RED

  • red herring prospectus—a preliminary prospectus for the sale of securities that has not yet been approved by the Securities and Exchange Commission

BLUE

  • blue law—a statute regulating or prohibiting commercial activity on Sundays
  • blue sky law—a statute establishing standards for offering and selling securities to protect citizens from fraud
  • blue pencilling—deleting or censoring the contents of a book or other work
  • bluewater seaman—an able-bodied seaman

GREEN

  • greenbacks—dollars; legal-tender notes in the US
  • greencard—US residency card; in the EU, an international auto insurance document
  • green-card marriage—marriage of convenience in order to obtain permanent US residency
  • greenfield site—undeveloped land, presumably uncontaminated
  • green paper—a government document that invites discussion concerning approaches to an issue of public interest

WHITE

  • Whiteacre—a fictitious tract of land used in legal discourse (especially law school hypotheticals) to discuss real-property issues; when the discussion involves two tracts of land, they are generally termed “Blackacre” and “Whiteacre”
  • white paper—a government report on a given subject; a detailed or authoritative report
  • white-collar crime—crime committed by business professionals, usually involving a form of financial theft or fraud (may include bribery, embezzlement, insider trading, etc.)
  • white knight—a party that rescues the target of an unfriendly or hostile takeover bid
  • white slavery—forced prostitution

BLACK

  • Blackacre—a fictitious tract of land used in legal discourse (especially law-school hypotheticals) to discuss real-property issues; when the discussion involves two tracts of land, they are generally termed “Blackacre” and “Whiteacre”
  • black economy—illicit economic activity done in violation of official regulations (also called “shadow economy”)
  • black market—illicit trade in goods or commodities in violation of official regulations; a place where illicit trade is conducted
  • black-leg labor—a chiefly British term for “scab” (a strikebreaker or, generally, someone acting against union policies)
  • blackletter law (also: “hornbook law”)–fundamental and well-settled legal principles
  • blackmail—extortion or coercion of money or other benefit in exchange for refraining from publicizing damaging information about the victim

BROWN

  • brownfield site—a tract of land that has been developed for industrial purposes, but is underused or abandoned due to environmental pollution

PINK

  • pink slip—a slang term for a notice of termination of employment
  • pink sheet—daily publication of a listing of bid and ask prices for over-the-counter stocks, published by the National Quotation Bureau

YELLOW

  • yellow-dog contract—a contract of employment prohibiting union membership (generally illegal under US state and federal law)

(Sources: Black’s Law Dictionary, Merriam-Webster Dictionary of Law, Oxford Dictionary of Law, Investopedia)

Mistranslations? What is a texto articulado ?

rebeccajowers Mistranslations?

Is this really a mistranslation_

The peculiar term texto articulado has often been translated literally as “articulated text,” or understood as referring to the “sections” (artículos) of a given law. These renderings both ignore the fact that the expression actually denotes a specific type of delegated legislation. In Spain the legislative branch of government (Las Cortes Generales) may delegate to the executive branch (Gobierno) the power to prepare legislative texts having the force of law (con rango de ley). These are of two types: texto articulado and texto refundido.

Texto articulado denotes a legislative text designed to regulate a new area or aspect of law not previously addressed. In this case, Las Cortes Generales authorizes the government to do so in what is known as a Ley de Bases, which specifies the scope of subject matter of the future law, limits the legislative powers delegated, and establishes a time limit for presenting the final text. In contrast, and as its name suggests, a texto refundido is “consolidated legislation,” bringing together in a single text all existing laws regulating the same matter.

Spain’s Ley de Seguridad Vial is often cited as an example of each. The law was initially a texto articulado (Real Decreto Legislativo 339/1990, de 2 de marzo, por el que se aprueba el Texto Articulado de la Ley sobre Tráfico, Circulación de Vehículos a Motor y Seguridad Vial), to which other related regulations were later incorporated in a texto refundido (Real Decreto Legislativo 6/2015, de 30 de octubre, por el que se aprueba el texto refundido de la Ley sobre Tráfico, Circulación de Vehículos a Motor y Seguridad Vial).

To conclude, how should texto articulado be translated? In most contexts the expression may be rendered simply as “law.” But if context requires, it may perhaps be more specifically be rendered as “delegated legislation.”

 Read more here and here

 

Legal Meanings of “Call”

rebeccajowers Common words with uncommon legal meanings

Common Words with Uncommon Legal Meanings

The common word “call” is often used in legal expressions as a verb, noun or adjective in which it can rarely be translated literally as “call.” To cite just a few examples, “to call a meeting” is convocar una reunión, while “to call a meeting to order” might be rendered as abrir la sesión. “To call an election” is convocar elecciones, while “to call a loan” denotes a demand for accelerated repayment (exigir el reembolso anticipado de un préstamo). “To call a witness” or “to call to testify” are expressions that both may mean citar a un testigo. And in England “to be called to the bar” is to be admitted to the legal profession by one of the Inns of Court (professional associations for barristers).

As a noun, in the language of securities trading “call” or “call option” refers to an opción de compra, as opposed to a “put” or “put option” that denotes opción de venta (often paired together as “put and call”). “To call the roll” is pasar lista (noun: roll call), and in the context of shareholders meetings a “quorum call” is roll call of shareholders to determine whether a quorum is present.

And, finally, the adjective “callable” is also widely used in securities trading as a synonym of “redeemable,” as in “callable bonds” (bonos redimibles), i.e., bonds that may be redeemed by the issuer before maturity (que se pueden rescatar antes de su vencimiento).

Who said “whose” is only for people? (Using “whose inanimate”)

rebeccajowers Legal English for Spanish-speakers

Legal English for Spanish Speakers

This aspect of English grammar is not limited to legal usage, but the convenience of using “whose inanimate” arises so often in legal writing that I cannot resist the temptation to address it here. Generations of native speakers of English have been taught categorically that in relative clauses “whose” should only be used when referring to people, while “which” must be used to refer to things. Thus, as a simple example, the expression cuyo contenido se tiene aquí por reproducido will most often be translated using “of which” as “the content of which is incorporated by reference herein.” However, the use of “whose” in this example would be perfectly correct: “whose content is incorporated by reference herein.”

The authoritative Fowler’s* English usage dictionary includes numerous examples of “whose” used as a relative pronoun with an inanimate antecedent. In the Burchfield edition, which contains many examples of this usage taken from the Oxford English Dictionary, Fowler puts this matter to rest by saying,

“…in the starch that stiffens English style one of the most effective ingredients is the rule that whose (as a relative pronoun) shall refer only to persons. …Let us, in the name of common sense, prohibit the prohibition of whose inanimate; good writing is surely difficult enough without the forbidding of things that have historical grammar, and present intelligibility, and obvious convenience, on their side, and lack only—starch.”

And lawyer-lexicographer Bryan Garner has expressed the same opinion in both of his usage dictionaries:**

“Whose may usefully refer to nonpersons (an idea whose time has come). This use of “whose,” formerly decried by some 19th-century grammarians and their predecessors, is often an inescapable way of avoiding clumsiness.”

 

*The New Fowler’s Modern English Usage, R.W. Burchfield, ed. Oxford: OUP, 1998.

**Bryan Garner, Garner’s Dictionary of Legal Usage and Garner’s Modern American Usage, both 3rd ed., OUP, 2011 and 2009.

Español jurídico: Distinguishing Jurisdictional Disputes

rebeccajowers Confusing Terms

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

conflicto de jurisdicción; conflicto de competencia; cuestión de competencia

The principal difficulty in finding a suitable translation for each of these expressions lies in the fact that all three may perhaps be described in English simply as “jurisdictional disputes,” since in this context both jurisdicción and competencia are “jurisdiction” in English. In effect, in most contexts “jurisdictional dispute” may suffice for all three, but if further clarification is necessary a “descriptive translation” may be warranted.

In that regard and as used in Spain, a conflicto de jurisdicción may be described as a “jurisdictional dispute between the courts and the public administration” (conflicto entre los tribunales y la administración). In this case it must be determined whether a given decision should be adopted by a court or by a governmental agency.

 Conflicto de competencia might be translated as a “dispute between courts of different jurisdictions” (conflicto entre tribunales de distintos órdenes jurisdiccionales), such as a dispute as to whether a case should be heard in the civil or the administrative courts (tribunales civiles o contencioso-administrativos).

And cuestión de competencia might be rendered as “dispute between different courts within the same jurisdiction” (conflicto entre tribunales dentro del mismo órden jurisdiccional), such as, for example, a dispute as to whether a civil case should be heard by a lower or higher court within the civil court hierarchy.

In general, the above may sometimes categorized as either positiva or negativa, depending on whether the entities in question seek to claim or decline jurisdiction. In that regard, in a conflicto de jurisdicción positiva both the court and the governmental agency involved in the dispute claim jurisdiction (se declaran competentes) over the matter. In a conflicto de jurisdicción negativa, the two entities claim that they lack jurisdiction (se declaran incompetentes) to decide the case.

Terminology of Criminal Procedure in English: 20 Verbs (and their Prepositions)

rebeccajowers Legal English for Spanish-speakers

legal english crimpro terms

In our unit on the Criminal Law and Procedure, my students of Legal English often express surprise at the number of seemingly simple verbs used in describing criminal proceedings, many of which are collocations that must be coupled with the right preposition. In the event that they may be of interest to readers of this blog, here are what perhaps may be considered the Top 20 Legal English Crimpro Verbs:

  • to suspect (someone) OF having committed a crime
  • to commit a crime
  • to accuse (someone) OF a crime
  • to be charged WITH a crime
  • to bring charges AGAINST (someone)
  • to arrest (someone) ON a charge OF (X)
  • to be arrested FOR an offense
  • to be brought BEFORE a judge
  • to plead guilty/not guilty TO a crime
  • to confess TO a crime
  • to be released ON bail
  • to prosecute (someone) FOR an offense
  • to be tried FOR an offense
  • to defend the accused AGAINST the charges
  • to pass verdict ON the accused
  • to find the accused guilty AS charged
  • to convict/acquit the accused
  • to sentence the accused TO 10 years in prison
  • to serve a 10-year sentence
  • to be released FROM incarceration