When an audiencia isn’t an “audience”

Audiencia has at least three meanings in legal contexts in which the term cannot be translated as “audience.” First, when audiencia is a synonym for tribunal it may be translated simply as “court.” (In Spain two types of courts are referred to as “audiencias,” the Audiencias Provinciales located in each province that hear civil and criminal cases, and the Audiencia Nacional, which has nationwide jurisdiction over certain types of criminal, administrative and labor proceedings and is located in Madrid). Audiencia may also mean “hearing,” being generally synonymous in that sense with vista. Thus, audiencia pública is a “hearing in open court,” while audiencia a puerta cerrada refers to a “closed hearing” or an “in camera hearing” (now referred to as a “hearing in private” in England and Wales). In other respects, for example, when a judge issues a ruling previa audiencia de las partes, this indicates that he has considered their opinions before taking his decision. As such the expression may be translated as “having previously heard (or considered the opinions of) the parties… .”

In Spanish civil procedure audiencia previa denotes a “pretrial hearing,” a specific stage in ordinary civil proceedings (juicio ordinario) that plays a role in case management, similar to the “pretrial conference” in US practice. And, in other respects, audiencia al demandado rebelde refers to a special procedure allowing a defendant to appeal a default judgment (sentencia dictada en rebeldía) rendered in his absence when his nonappearance proved to be involuntary.

And, finally, in the context of juvenile justice, audiencia designates the trial of a minor on criminal charges that is held in a juvenile court (Juzgado de Menores). In this sense, audiencia is the juvenile justice equivalent of the trial of an adult criminal defendant (juicio oral) under the Criminal Procedure Act (Ley de Enjuiciamiento Criminal). (For additional peculiarities of Spanish juvenile justice terminology, see https://rebeccajowers.com/2016/05/19/espanol-juridico-3/ )

False Friends: When social isn’t “social”

Social and “social” are only partially false cognates, since social may be translated as “social” in many legal contexts, as in seguridad social (“social security”); servicios sociales (“social services”) or asistente social (“social worker”).

But there are several legal contexts in which social cannot be rendered literally as “social.” In business law contexts social often has the meaning of “corporate”, “company”, “business”, etc. Some of the most common expressions in that regard include objeto social (“corporate purpose;” “business purpose”); denominación social (“corporate name”); domicilio social (“corporate address;” “registered offices”); órganos sociales (referring to the “governing bodies” of a company); gestión social (“corporate management”) or documentos sociales (“corporate records;” “business records”).

In this context, the translation of social may depend on the type of business entity it denotes, i.e., whether the term refers to “corporation” or “limited liability company” (sociedad anónima—S.A. or sociedad de responsabilidad limitada—S.L.), or whether the reference is to a “partnership,” which may be a “general partnership” (sociedad colectiva—S.C.), a “limited partnership (sociedad en comandita—S. en C., also called sociedad comanditaria—S.Com.) or a “partnership limited by shares” (sociedad comanditaria por acciones—S. Com. p. A.). For example, the patrimonio social of an S.A. or S.L. may be called “corporate assets,” while the patrimonio social of an S.C. or S.Com. is more appropriately termed “partnership assets.” Likewise, the estatutos sociales of an S.A. or and S.L. may be rendered as “bylaws” (US) or “articles of association” (UK), but the estatutos sociales of an S.C. or S.Com. must be translated as “partnership agreement” or “articles of partnership.”

Similarly, the adjective societario may often be appropriately rendered as “corporate:” Derecho societario (“corporate law,” called “company law” in the UK); delito societario (“corporate crime”); administrador societario (“corporate director”) or velo societario (“corporate veil”), etc. It should be noted, however, that when Derecho societario refers not only to the law governing corporate entities, but other business vehicles as well (cooperatives, associations, foundations, etc.), the expression is generally rendered as “law of business organizations.”

An additional sense in which social cannot be translated as “social” is in the context of labor law in which social means “labor.” Common expressions in which this holds true include legislación social (“labor laws”); jurisdicción social (“labor jurisdiction;” “the labor courts”); juzgado de lo social and juez de lo social (“labor court” and “labor court judge”) and Sala de lo Social del Tribunal Supremo (“Labor Division of the Supreme Court”).

Perhaps reference should also be made here to the often-mistranslated expression graduado social, which I have seen rendered variously as “social science graduate,” “personnel administration graduate,” etc. In Spain graduados sociales are specialists in labor and social security law who have completed a university degree in labor relations and who provide consulting services to companies (and sometimes to labor unions) on employment and social security matters. Thus graduado social may be described as a “labor relations specialist, “labor and social security law consultant,” or with a similar expression that accurately conveys the role they play in Spain. Graduados sociales colegiados (i.e., those who are members of their local professional association) may likewise represent clients in matters brought before the labor courts (tribunales sociales).

For related terminology, see the previous entry on socio: https://rebeccajowers.com/2016/08/12/mistranslations-10/

 

False Friends 101: A Court’s Opinion is not its Opinión

Judgments rendered by Anglo-American courts are often referred to as “opinions.” In this context “opinion” is “a court’s written statement explaining its decision in a given case, usually including the statement of facts, points of law, rationele and dicta” (Black’s Law Dictionary, 8th. ed.). I’ve recently seen several Spanish texts that used “opinión” to refer to the decision of a court that would have perhaps been better described as either its “sentencia” or “fallo.” Other related expressions worth noting include

  • separate opinion (voto particular)
  • dissenting opinion (voto particular disidente/discrepante)
  • concurring opinion (voto particular concurrente)
  • judge delivering the opinion of the Court (magistrado ponente)
  • “It is the opinion of this Court…” (“Es el parecer de esta Sala/de este Tribunal…”)

In other respects, dictamen no vinculante is an “advisory opinion” and dictamen pericial is an “expert witness opinion,” while what is widely known in civil law countries as doctrina can be appropriately rendered as “academic opinion” (or also as “legal scholarship,” “scholarly writing” or perhaps “the writings of law professors and legal scholars”).

Don’t Confuse alimentos and “alimony”

Alimentos has been rendered as “alimony” in several bilingual dictionaries but in Spanish law these expressions are not cognates. “Alimony” (also called “spousal support,” “spousal maintenance,” “financial provision for spouse,” etc.) is the English-language equivalent of what in Spanish law is known as a pensión compensatoria, a court-ordered allowance that one spouse pays to the economically weaker one as the result of a separation or divorce agreement (called convenio regulador) “para compensar el desequilibrio económico padecido por un cónyuge ” (Art. 97 CC). In Spain spousal support orders may provide for “permanent alimony” (pensión compensatoria indefinida), “temporary alimony,” (pensión compensatoria temporal), or “lump sum alimony” or “alimony in gross” (prestación compensatoria única; prestación a tanto alzado).

Rather than referring to “alimony,” in this context alimentos refers to a pensión alimenticia para los hijos, denoting what in English is most commonly known as “child support,” the amount paid after separation or divorce (usually by the noncustodial or nonresidential parent to the custodial or residential parent) for expenses incurred for children of the marriage (also called “child maintenance,” “child support maintenance,” etc.)

In a broader sense alimentos may likewise denote an obligación de alimentos or deuda alimenticia, i.e., a family member’s legal obligation to provide economic maintenance to another (Arts. 142 ff. CC). In this context, alimentante refers to the family member who provides economic support or maintenance to another, i.e., the “support (or) maintenance provider,” while the “support (or) maintenance recipient,” is described as an alimentista.

Legal English 101: Is jurisprudencia really “jurisprudence”?

Jurisprudencia and “jurisprudence” are another pair of look-alikes that shouldn’t be confused. Jurisprudencia is the Spanish term for “caselaw” (“case law” in British English, also called “decisional law”), that is, judgments rendered by courts of justice, while in its strictest sense “jurisprudence” is the science of law or legal theory (sharing some of the content of the disciplines of Teoría del Derecho and Filosofía del Derecho as traditionally taught in Spanish law schools). Thus jurisprudencia del Tribunal Supremo refers to “Supreme Court caselaw,” while expressions such as jurisprudencia (or) doctrina jurisprudencial sentada/reiterada/pácifica denote “established (or) settled caselaw.” In that regard, in Spanish published collections of caselaw or electronically-accessible caselaw databases are called repertorios de jurisprudencia, which are variously known in English as “law reports,” “law reporters,” “caselaw reports,” or “caselaw reporters.”

Despite the above, it should be noted that the term “jurisprudence” is sometimes used in English with the meaning of “caselaw,” particularly in jurisdictions where French is or formerly was the official language, such as Quebec and Louisiana. In Louisiana, for example, established or settled caselaw is called “jurisprudence constante.” Likewise, “jurisprudence” is sometimes used with the meaning of “caselaw” in documents issued in English by international organizations in which French is one of the official languages, notably the European Union and Council of Europe. As an example, EU institutions often use “caselaw” and “jurisprudence” as synonyms, such as on the European Commission’s Banking and Finance webpage where the two terms are used interchangeably. In that regard, the webpage contains a “Guide to the case law of the European Court of Justice” and “Case law on ‘golden shares’” alongside a “Chronological overview of selected jurisprudence” and “Selected jurisprudence by topic.”*

* http://ec.europa.eu/finance/capital/framework/court/index_en.htm#maincontentSec1

Legal English 101: órgano can’t always be translated as “organ”

Órgano and “organ” are another pair of often-confused “false friends”. They are certainly cognates when used in legal (and other) contexts to refer to organs of the human body, as in transplante de órganos (“organ transplants”) or donantes de órganos (“organ donors”). And órgano may likewise be rendered as “organ” when referring to periodicals published by organizations such as political parties, as in Granma, Órgano Oficial del Comité Central del Partido Comunista de Cuba (“Granma, Official Organ of the Central Committee of the Communist Party of Cuba”).

But in other legal contexts órgano often more appropriately denotes an “institution,” “governing body,” “board” or “agency.” Examples include órgano consultivo (“advisory body,” “advisory board”); órgano de gobierno (“governing body”); órgano de la Unión Europea (“institution of the European Union”) or órganos de la Administración del Estado (“governmental agencies”).

As another example, órganos constitucionales del Estado denotes the principal “institutions of the Spanish state” created and regulated in the Constitution, including the Crown (la Corona), the Spanish parliament (las Cortes Generales) comprising the House of Deputies (Congreso de los Diputados) and Senate (Senado), the government (Gobierno), Constitutional Court (Tribunal Constitucional) and the General Council of the Judiciary (Consejo General del Poder Judicial).

And special mention should be made of the use of órgano in the sense of “court.” In that regard, órgano jurisdiccional and órgano judicial are generic expressions for “court” that are used when no distinction needs to be made between juzgados (courts with a single sitting judge) and tribunales (multi-judge courts in which several judges, usually three, sit in panels). Indeed juzgados and tribunales are often referred to respectively as órganos unipersonales and órganos colegiados. Thus, for example, in this context el órgano que dictó sentencia denotes the “court that rendered judgment,” órganos judiciales competentes are “courts of competent jurisdiction,” and the expression órganos jurisdiccionales del orden civil is a general reference to the “civil courts.”

Legal English 101: Don’t Confuse “magistrate” and magistrado

I recently began developing a new unit for my students that I call “Inglés Jurídico 101” in which I outline the mistakes that they just can’t afford to make if they claim to know legal English. The first section focuses on the most common legal “false cognates” (false friends; falsos amigos), those dangerous look-alikes that can make you say something you really don’t mean if you don’t distinguish between the two terms in question. In this and in future blog posts I will be sharing some of my favorites.

A really basic pair of “false friends” is magistrado and magistrate. Distinguishing the difference shouldn’t present a problem but, unfortunately, magistrado has been mistranslated as “magistrate” dozens (or maybe hundreds) of times, even on official judicial websites.

So what is a “magistrate”? In England and Wales magistrates (also known as “justices of the peace”) are lay judges (jueces legos) who have no formal legal training. They preside over Magistrates Courts, lower courts where criminal proceedings are first brought, and which likewise handle some civil matters. The webpage of the UK Courts and Tribunals Judiciary describes them as “21,500 volunteer judicial office holders who serve in magistrates’ courts throughout England and Wales… Magistrates do not require legal training or qualifications.”* In the United States, US federal magistrate judges (who do hold law degrees and have been admitted to the bar) assist in district courts (i.e., the federal trial courts) exercising the jurisdiction delegated to them by law and assigned to them by the district court judge.

So why can’t magistrado be translated as “magistrate”? Because in contrast to magistrates, magistrados are the highest level of judge in Spain (and in other Spanish-speaking jurisdictions), defined as funcionario perteneciente a la carrera judicial de categoría superior a la de juez (Diccionario Jurídico Colex). Indeed, magistrados generally sit in panels on the higher, appellate courts. In that regard, the judges on the Spanish Supreme Court and Constitutional Court are known respectively as Magistrados del Tribunal Supremo and Magistrados del Tribunal Constitucional.

Thus, confusing magistrado and magistrate would appear to be a beginner’s mistake and, yet, this mistranslation has been propagated by many, even official, sources. As an example, the English translation of the Ley Orgánica del Poder Judicial appearing on the webpage of Spain’s Consejo General del Poder Judicial** refers to “Magistrates of the Constitutional and the Supreme Court.” Likewise, the expression jueces y magistrados, so often repeated in the law, is rendered as “judges and magistrates.”

As for an appropriate translation, magistrado can most often be rendered simply as “judge.” If a distinction has to be made between juez and magistrado, perhaps magistrado may be translated as “senior judge,” described as a member of a multi-judge court (órgano colegiado) or, where warranted, referred to as an “appellate court judge.”

*https://www.judiciary.gov.uk/about-the-judiciary/who-are-the-judiciary/judicial-roles/magistrates/

**www.poderjudicial.es/…/20160125%20LOPJ%20inglés%2012-2015.pdf

Note: Judges promoted to the category of magistrado who chose to continue to preside over a lower court (juzgado) are called magistrado-jueces.