Confused by European Institutions? (European Council; Council of the European Union; Council of Europe)

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These three institutions are sometimes confused in translation, Consejo Europeo often being mistranslated as “Council of Europe,” rather than as “European Council,” even in academic publications. Examples I have encountered include mistranslating Directiva xxxx/xx CE del Parlamento Europeo y del Consejo Europeo as “EC Directive xxxx/xx of the European Parliament and the Council of Europe,” or rendering the expression “cuando el Consejo Europeo empiece a adoptar medidas en codecisión con el Parlamento…” incorrectly as “when the Council of Europe begins to adopt codecision procedures with the Parliament…”.

Likewise, in the other direction, “Council of Europe” has often been confused with Consejo Europeo when translating, for example, “Council of Europe Committee of Ministers” as Comité de Ministros del Consejo Europeo (rather than Comité de Ministros del Consejo de Europa) or rendering “Publication of the Council of Europe, Strasbourg” as Publicación del Consejo Europeo de Estrasburgo. And an article entitled “The Limited Powers of the European Parliament and the Council of Europe” most likely intended to address the limited powers of the European Parliament and the European Council.

So, to sort this out…

The European Council (Consejo Europeo) and the Council of the European Union (Consejo de la Unión Europea) are both institutions of the European Union; the Council of Europe (Consejo de Europa) is not.

Briefly, the European Council (Consejo Europeo) is composed of the heads of state or government of all EU member states, together with its president (currently Mr. Donald Tusk) and the president of the European Commission (at the time of this writing, Mr. Jean-Claude Juncker). At its quarterly summits the EU Council defines the general political direction and priorities of the European Union, setting its policy agenda and adopting conclusions identifying issues to be addressed and actions to be taken.

At meetings of the Council of the European Union (Consejo de la Unión Europea) ministers of the governments of EU member states adopt laws and coordinate policies in their respective policy areas. As the main decision-making body (together with the European Parliament), the Council negotiates and passes EU laws (based on proposals from the EU Commission), develops foreign and security policy, concludes international agreements and adopts the EU budget. The Council’s presidency rotates among member states every six months. Austria currently holds the presidency until December 31, 2018.

European Council summits and Council of the European Union meetings are generally held in Brussels. Since these “councils” are easily confused, the former may be thought of as a summit of heads of state, while the latter is a meeting of government ministers in their respective areas.

In contrast to the above, the Council of Europe (Consejo de Europa) is a totally separate international organization located in Strasbourg, France, devoted to working toward European integration and protecting human rights since its founding in 1949. The principal achievement of the Council of Europe (CoE) is the 1950 European Convention on Human Rights (Convenio Europeo de Derechos Humanos, not to be confused with the Charter of Fundamental Rights of the European Union—Carta de los Derechos Fundamentales de la Unión Europea). In close relation with the Council of Europe, the European Court of Human Rights, ECHR (Tribunal Europeo de Derechos Humanos, TEDH) rules on applications concerning alleged human rights violations in the 47 Council of Europe member states. All European Union member states are likewise members of the Council of Europe. Negotiations for the EU to accede to the European Convention on Human Rights are ongoing.

Perhaps two additional minor points of confusion are the fact that the EU Parliament’s seat is in Strasbourg where the Council of Europe is located, and both the Council of Europe and the European Union share the same flag (a circle of twelve gold stars on a sky blue background).

Further evidence that that these institutions are often confused, even by legal professionals, is evidenced in the fact that in a Duke University Law Library research guide on the Council of Europe, the librarians thought it necessary to warn students that “although it has a close relationship with the European Union, the Council of Europe (Conseil de l’Europe, Consejo de Europa, Europarat, Consiglio d’Europa) is not part of the EU. Be especially careful not to confuse it with an EU institution called the European Council (Conseil européen, Consejo Europeo, Europäisher Rat, Consiglio europeo).”

Read more here:

European Council

Council of the European Union

Council of Europe

 

Terminology of Testamentary Gifts (“devise,” “bequest,” “legacy”)

testamentary terms

Translators of English-language wills are often puzzled by the formulaic expression “I give, devise and bequeath,” used when specifying how a testator’s estate should be divided upon his death. Is the expression redundant, or would one of the three verbs actually suffice?

Strictly speaking, a “devise” (verb: “to devise”) is a testamentary gift of real property (bienes inmuebles), the beneficiary of which is known as a “devisee.” In contrast, a “bequest” (verb: “to bequeath”) usually refers to a testamentary gift of personal property (bienes muebles), often excluding money. In modern American usage “devise” is used to denote a testamentary gift of both real and personal property,* although the distinction between “devise” and “bequest” largely persists in British usage. “Legacy” is likewise a gift by will, especially of personal property and often of money, the beneficiary of a legacy being known as a “legatee.” And, of course, devises, bequests and legacies may all be equally described as “testamentary gifts.”

*This may be due, in part, to the fact that the US Uniform Probate Code uses “devise” to denote both real and personal property. Its Section 1-201 General Definitions (10) states that “’Devise,’ when used as a noun means a testamentary disposition of real or personal property and, when used as a verb, means to dispose of real or personal property by will.” Black’s Law Dictionary notes that although “devise” traditionally referred to gifts of real property, in American usage a disposition of any property by will is a “devise.”

(Illustration: website of Sánchez-Gago, Vieira & Gallego Abogados, León, Spain)

 

Confusing Terms: “breach,” “default,” “infringement,” “violation,” “infraction”

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

Although these nouns may be considered legal synonyms that are very close in meaning, they are rarely interchangeable when used in standard expressions (frases hechas) in specific contexts. Here are a few examples of the most common expressions in which they appear (there are many others!):

Breach: In contract law, “breach of contract” denotes incumplimiento contractual and is synonymous with “nonperformance” or “failure to perform.” Breach may be described as a “material breach” (incumplimiento grave) or “partial breach” (incumplimiento parcial), and it is often possible to “cure (or) remedy a breach of contract” (subsanar el incumplimiento contractual). In this context “breaching party” denotes the parte incumplidora, while “non-breaching party” is the parte cumplidora.” In contrast, in criminal or administrative law the expression “breach of the peace” refers to alteración del orden público while, in general, “breach of trust” denotes abuso de confianza. In other contexts “breach” may sometimes be rendered as quebrantamiento, as in the expressions “breach of duty” (quebrantamiento del deber) or “prison breach” (quebrantamiento de prisión), also called “breach of prison” or “prison breaking.”

Default: Like “breach,” “default” can denote incumplimiento contractual (“contractual default”). In this case, “defaulting party” denotes the parte incumplidora, while the “nondefaulting party” is the parte cumplidora.” In the context of civil procedure, “default” may refer to the nonappearance of a defendant in court (incomparecencia del demandado) or to his failure to respond to a complaint (demanda). In this instance, “to declare in default” is declarar en rebeldía, “default proceeding” is juicio en rebeldía, and “default judgment” or “judgment by default” is sentencia dictada en rebeldía. In banking law and the law of obligations in general, “default” has the additional meaning of “failure to pay a debt when due” (mora). In that sense “to be in default” (which may also be expressed as “to be in arrears”) is estar en mora, while the expression “default interest” refers to intereses moratorios, and a “default debtor” is a deudor en mora or deudor moroso.

Infringement: “Infringement” is frequently used in the context of intellectual property law to denote interference in an owner’s exclusive rights in a patent, trademark or copyright. The term is often rendered in Spanish as violación, as in “patent infringement” (violación del derecho de patente), “trademark infringement” (violación del derecho de marca) or “copyright infringement” (violación de derechos de autor).

Violación: “Violation” is used generically to denote general contraventions of law or rights and is often rendered as vulneración: “violation of the law,” (vulneración de la ley); “violation of constitutional rights,” (vulneración de los derechos constitucionales). In other respects, the expression “traffic violations” may denote lesser traffic offenses (referred to generically in the Spanish Ley de Seguridad Vial as infracciones de tráfico).

Infraction: Similarly, “infraction” often refers to petty offenses and minor contraventions of rules or local ordinances and, indeed, there may be quite a bit of overlap with the term “violation”. In many US jurisdictions lesser violations of law that were previously classified as criminal offenses have been decriminalized and are now known as “infractions.” The most common are “traffic infractions” (infracciones de tráfico) for which the penalty is usually a fine, but not incarceration. Depending on local law, other civil infractions might include smoking in no-smoking areas, littering or violation of noise ordinances, among many others.

Confusing Terms: expressions with instancia

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

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 indeed 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., a “court where an action is initiated and first heard” (Black’s Law Dictionary), which is not necessarily a first instance or trial court. Thus, competencia en primera instancia is “original jurisdiction.” As an example, in the event that a deputy or senator (diputado o senador) of the Spanish Parliament (Cortes Generales) were accused of a criminal offense, he would not be tried by a criminal first instance (or) trial court, but rather would have the privilege (called aforamiento) of being tried by the Criminal Division of the Supreme Court (Sala Segunda, de lo Penal, del Tribunal Supremo). Indeed, the Supreme Court is the “court of original jurisdiction” (tribunal competente en primera instancia) for trying Spanish deputies and senators for criminal offenses, or expressed otherwise, the Supreme Court has “original jurisdiction” (competencia en primera instancia) to hear criminal cases against deputies and senators.

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, but 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 simply as “civil trial court.”

What is silencio administrativo ?

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 jurisdictions in which the expression is used. Nevertheless, I have never been able to find this literal rendering in any truly Anglo-American legal source (US or UK government or court websites, etc.). It’s always found 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 and depending on the context, 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 these 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?

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Cohecho and soborno are synonyms that can both usually be appropriately rendered as “bribe” or “bribery,” but in Spanish criminal law there is an important difference. Soborno is a generic term for “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) specifically involving bribery of a public official or civil servant (autoridad o funcionario público). In that regard, 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  constituting a criminal offense or other unfair conduct). A distinction is made between cohecho activo (offering a bribe to a public official), and cohecho pasivo (acceptance of a bribe by a public official). Spanish criminal law likewise distinguishes between cohecho propio (bribery in which in exchange for the bribe the bribee commits acts constituting a criminal offense) and cohecho impropio (bribery in which in exchange for the bribe the bribee commits acts that are not prohibited by law and that may simply fall within the official’s normal duties).

Although cohecho is sometimes associated with judges, the Spanish Criminal Code 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 bribery involving private individuals might simply be referred to as soborno.

Cohecho is sometimes translated as “corruption,” a term that is perhaps too broad. Indeed, in many Anglo-American jurisdictions “corruption” and “corruption offenses” are umbrella terms that include not only 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—bribing; offering a bribe
  • cohecho pasivo—soliciting/accepting/receiving/taking a bribe
  • sujeto activo del cohecho; cohechador activo—briber; bribe-giver
  • sujeto pasivo del cohecho; cohechador pasivo—bribee; bribe-taker

Read more here.

Confusing Terms: Criminal Defamation

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 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.