Confusing Terms: expressions with instancia

tribunal de primera instancia; tribunal competente en primera instancia; tribunal competente en (primera y) única instancia; tribunal de última instancia; juzgado de primera instancia

These expressions are confusingly similar, but are definitely not interchangeable. Tribunal de primera instancia is a general term for any court of first instance and can probably be best rendered in English simply as “trial court.” In contrast, tribunal competente en primera instancia denotes a “court of original jurisdiction,” i.e., the “court where an action is initiated and first heard” (Black’s Law Dictionary), which is not necessarily a first instance or trial court. And if a court is described as competente en primera y única instancia (or simply en única instancia), it is a “court of first and last resort,” having original jurisdiction to first hear a case and whose decisions are not subject to appeal. Tribunal de última instancia is a “court of last restort,” a court that hears the final appeal of a case. And, finally, in Spain juzgado de primera instancia is a specific type of court, being the first instance court for civil proceedings. In that regard, juzgado de primera instancia may be appropriately translated as “civil trial court.”

What is silencio administrativo ?

Silencio administrativo (whether positivo or negativo) is frequently translated literally as “administrative silence,” and this may perhaps be understood by “insiders” from civil law countries. Nevertheless, I have never been able to find this literal rendering used in any truly Anglo-American legal source (US or UK government or court websites, etc.). It’s always used in translations from Spanish or in English texts that explain what “administrative silence” is by rendering it literally. In fact, it is often obvious that many Internet articles devoted to “administrative silence” were originally written in Spanish and then simply run through Google Translate.

So what is silencio administrativo and, more importantly, how can the concept be reasonably rendered in English? Briefly, silencio administrativo denotes a governmental agency or other authority’s failure to respond to a request, petition or appeal, and that failure to respond constitutes a decision in itself: in situations governed by silencio administrativo positivo, failure to respond is deemed a positive response, while under silencio administrativo negativo failure to respond is tantamount to a “no.”

In view of the above, silencio administrativo positivo may be translated as “constructive grant/consent/approval, etc.,” while silencio administrativo negativo may be rendered as constructive denial/rejection/refusal, etc., since this is really what those expressions mean. Here’s a simple example with a possible translation: Una vez vencido el plazo de contestación que las normas establezcan para los expedientes de autorización, se entenderá otorgado el mismo por silencio administrativo positivo (Once the legally-established term for responding to applications for authorization has expired, failure to respond shall be deemed a constructive grant of authorization).

Are cohecho and soborno the same?

What we might call “legal synonyms” can sometimes be a source of errors in legal translation. Cohecho and soborno are synonyms that can usually be appropriately rendered as “bribe” or “bribery,” but in Spanish criminal law there is an important difference. Soborno is simple “bribery” or a “bribe,” sobornante being the person who offers a bribe (“briber;” “bribe-giver”), and sobornado the person who takes or accepts a bribe (“bribee” or “bribe-taker”). In contrast, cohecho is a criminal offense (one of the Delitos contra la Administración Pública) involving the bribery of a public official or civil servant (autoridad o funcionario público), cohecho activo being the expression for “offering a bribe to a public official,” while cohecho pasivo refers to the “acceptance of a bribe by a public official.” Although cohecho is sometimes associated with judges, the Spanish Criminal Code (Article 422) likewise specifically mentions jurors, arbitrators and expert witnesses among the persons included in this category of offense (jurados, árbitros, peritos, o cualesquiera personas que participen en el ejercicio de la función pública). Thus, if a public official accepts a bribe he is guilty of the criminal offense of cohecho while, for example, “bribing a witness” is soborno a un testigo.

Cohecho is defined in the Criminal Code as solicitar o recibir dádiva o presente o aceptar ofrecimiento o promesa para realizar una acción u omisión constitutivas de delito u otro acto injusto (soliciting, receiving or accepting compensation or gifts or the offer or promise thereof in exchange for doing or refraining from doing something that constitutes a criminal offense or other unfair conduct). Spanish criminal law distinguishes between cohecho propio (bribery in which in exchange for a bribe the bribee commits acts that constitute a criminal offense) and cohecho impropio (bribery in which in exchange for a bribe the bribee commits acts that are not prohibited by law).

Cohecho is sometimes translated simply as “corruption,” a term that is perhaps too broad. Indeed, in many Anglo-American jurisdictions “corruption” and “corruption offenses” are umbrella terms that not only include bribery (cohecho), but also other corrupt practices committed by public officials such as embezzlement (malversación), misappropriation (apropiación indebida) or influence peddling (tráfico de influencias), among others.

Vocabulary recap:

  • cohecho; soborno—bribe; bribery
  • cohecho activo; cohecho de particular—bribing; offering a bribe
  • cohecho pasivo; cohecho de funcionario—soliciting/accepting/receiving/taking a bribe
  • sujeto activo del cohecho; cohechador activo—briber; bribe-giver
  • sujeto pasivo del cohecho; cohechador pasivo—bribee; bribe-taker

Confusing Terms: Criminal Defamation

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 of Legal English and lawyer clients have found most difficult to distinguish.

injurias; calumnia; slander; libel

These terms denoting different types of defamation (difamación) are easily confused. Article 208 of the Spanish Criminal Code defines injuria as acción o expresión que lesiona la dignidad de otra persona, menoscabando su fama o atentando contra su propia estimación (action or expression that injures the dignity of another, damaging his reputation or undermining his self-esteem). Injurias constitute a criminal offense when they are made with the knowledge that they are false or with reckless disregard for the truth (cuando se efectúan con conocimiento de su falsedad o con temerario desprecio hacia la verdad). In common law jurisdictions “slander” and “libel” are the two principal types of defamation, slander being spoken defamation (“a defamatory assertion expressed in a transitory form, especially speech”*), while libel is written defamation, or defamation preserved in some permanent form (“a defamatory statement expressed in a fixed medium, especially in writing”*). Thus libel is defamation expressed in writing, but also in other fixed mediums (print, pictures, signs, effigies, etc.). The two concepts may perhaps be distinguished in Spanish as injurias vertidas de palabra (slander) and injurias vertidas por escrito (libel).

Calumnia is a specific type of defamation defined in Article 205 of the Criminal Code as imputación de un delito hecha con conocimiento de su falsedad o con temerario desprecio hacia la verdad (accusing someone of a criminal offense knowing that the accusation is false or with reckless disregard for the truth). “Calumny” (a false charge or imputation*) is not often used in modern criminal codes and, thus, since the distinction between injurias and calumnia is not readily made in common law jurisdictions, calumnia may perhaps be best translated descriptively as the “false accusation of a crime” or the “wrongful accusation of a criminal offense.”

And perhaps the most important aspect of the above is to note that in Spain (and in many Spanish-speaking jurisdictions) injurias and calumnias are both criminal offenses, while in common law countries slander and libel are generally torts. Thus, when speaking of the two Spanish concepts collectively it may perhaps be more accurate to describe injurias and calumnias in English as forms of “criminal defamation.”

*Black’s Law Dictionary, 8th ed.

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.”

Confusing Terms: sentencia definitiva ; sentencia firme

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.

sentencia definitiva; sentencia firme

Although sentencia definitiva and sentencia firme may appear to be synonymous, both meaning “final judgment,” a sentencia definitiva is a judgment that disposes of the controversy in question (resolución que pone final al proceso) but which is still appealable (recurrible), while a sentencia firme can no longer be appealed (no cabe contra ella recurso alguno). Since sentencia definitiva and sentencia firme may be confused if both are translated simply as “final judgment,” it may be useful to translate the former as “final appealable judgment” and the latter as “final unappealable judgment” or as “judgment that has become final”. Thus, la sentencia es firme y contra la misma no cabe recurso alguno denotes that the “judgment is final and unappealable” or “the judgment has become final.” The expression “the judgment has become final” indicates that either no appeal was filed against the decision or that the term for filing an appeal (“statute of limitations” or “limitation period”) has expired (el recurso ha prescrito), rendering it unappealable. In that regard, devenir firme and adquirir firmeza are the corresponding Spanish expressions for “to become final” in this context, as in: al devenir firme la sentencia… (“upon the judgment’s becoming final…”) or la sentencia adquirió firmeza (“the judgment has become final”).

Confusing Terms: “Brand,” “Brand Name,” Trademark” and “Tradename”

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.

“Brand;” “brand name” and “trademark” (spelled “trade mark” in BrE) are sometimes confused because they are most often rendered in Spanish simply as marca. But “brand” is perhaps more a marketing concept than a legal term, while “trademark” generally denotes the legal protection provided certain distinctive signs (signos distintivos) under trademark law (Derecho de marcas; Derecho marcario). Examples of the use of “brand” and “brand name” in the context of marketing might include “brand name watches” (relojes de marca); “brand name clothing” (ropa de marca); “brand name recognition” or “brand awareness” (conocimiento/notoriedad de la marca); and “brand name products” or “name brands” (productos de marca), as opposed to “house brands,” “store brands” or “own brands” (marcas blancas).

Common expressions with “trademark” and “mark” include “trademark application” (solicitud de marca); “trademark registration” (registro de marca); “trademark infringement” (violación del derecho de marca); “word mark” (marca denominativa); “device mark” (marca gráfica); “slogan mark” (marca publicitaria); “well-known mark” (marca notoria); and “renowned mark” (marca renombrada).

In other respects. “tradename” (spelled “trade name” in BrE) is nombre comercial, the name under which a business operates. Thus, for example, the expression “Kabushiki Kaisha Toshiba, doing business as Toshiba Corporation” means Kabushiki Kaisha Toshiba, que gira bajo el nombre comercial de Toshiba Corporation. In Spain trademarks and tradenames are protected under trademark law and are registered at the Spanish Patent and Trademark Office (Oficina Española de Patentes y Marcas), while company names (denominaciones sociales) are recorded on the Companies Register (Registro Mercantil).

(For additional trademark vocabulary see the list provided under “Capsule Vocabularies:” https://rebeccajowers.com/2016/03/18/capsule-vocabularies-2/ )