False Friends 101: sentencia ; sentence

This pair of legal false cognates definitely belongs in the False Friends 101 category, terms that translators and legal professionals must avoid confusing. Sentencia denotes a court’s final disposition of a matter: decisión formulada por el juez o tribunal que resuelve definitivamente todas las cuestiones planteadas en el proceso.* In English, this is a court’s “judgment,” its “final determination of the rights and obligations of the parties in a case.”**

Previous blog posts have examined in detail the terminology of Spanish sentencias,*** but what about the legal meanings of “sentence”? The term generally denotes the punishment (condena or pena) imposed on a criminal defendant found guilty, and is used as both a noun and a verb: He served a 10-year sentence (Cumplió una condena/pena de 10 años); He was sentenced to 10 years in prison (Fue condenado a 10 años de prisión).

To look at some of the related terminology, under Spanish criminal law sentences are divided into penas privativas de libertad (custodial sentences), i.e., some form of incarceration, and penas no privativas de libertad (noncustodial sentences). Several types of alternative sentence (pena sustitutiva de la pena privativa de libertad) exist. Penas privativas de derechos entail the forfeiture of certain rights including, for example, several types of inhabilitación (disqualification from holding certain offices, exercising certain professions, etc.) or privación del derecho a conducir vehículos a motor (loss of the right to drive; suspension of driver’s license).

Mandatory community service (trabajos en beneficio de la comunidad) and fines (multas) are also often imposed. The most common fines are day fines (penas de días-multa) that take into account the offender’s financial situation based on his assets, income and family obligations and other circumstances (situación económica del reo deducida de su patrimonio, obligaciones y cargas familiares y demás circunstancias). Less common are proportional fines (penas de multa proporcional) expressed as an amount proportional to the damage caused or injury inflicted, the value of the object of the offense or the proceeds obtained from the crime (cuantía del daño causado, el valor del objeto del delito o el beneficio reportado por el delito) (arts. 50-51 CP).

Judges likewise sometimes place offenders on a type of probation, referred to in the Spanish Criminal Code as suspensión de la execución de la pena privativa de libertad (literally, “suspension of the execution of custodial sentences”) (art. 80 CP). Also sometimes called “condena condicional” or “remisión condicional,” this type of probation or suspended sentence may be granted first time offenders (delincuentes primarios) sentenced to less than two year’s incarceration (condena no superior a dos años de privación de libertad).

*F. Gómez de Liaño. Diccionario jurídico. Salamanca, 1979.

**Black’s Law Dictionary, 8th ed., 2004.

***  https://rebeccajowers.com/2016/07/07/espanol-juridico-7/ https://rebeccajowers.com/2016/07/06/confusing-terms-10/ https://rebeccajowers.com/2016/11/03/capsule-vocabularies-terminology-of-spanish-judicial-decisions-2/

False Friends: panfleto isn’t a “pamflet”

Panfleto appears in several bilingual dictionaries translated literally as “pamphlet.” But “pamphlet” is more appropriately folleto while, at least in Spain, panfleto is something quite different. Indeed, as defined in the DLE, panfleto denotes libelo difamatorio or an opúsculo de carácter agresivo. Fundéu likewise distinguishes between the two, indicating that “folleto” es una obra impresa, no periódica, de reducido número de hojas, while “panfleto” siempre tiene sentido difamatorio. Indeed, the term panfleto is often associated with political propaganda (un panfleto político) and is defined as such (papel o folleto de propaganda política) in *Clave. Thus the informal expression nos echó un panfleto implies “(he/she) subjected us to a (political) diatribe.” And the adjectives panfletario/a (estilo propio de los panfletos) and the noun panfletista (autor de un panfleto) also have this meaning. Thus “pamphlet” should be rendered as folleto rather than panfleto, unless the reference is to some sort of biased, partisan or propagandistic writing.

*Clave: Diccionario de uso del español actual. Ediciones SM, 2006.

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