A tribunal isn’t always a court

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.

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Weird Words You May Need to Know: imprejuzgado

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.”

Mistranslations? What is a texto articulado ?

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

 

Mistranslation? (“Next of kin”)

Who is my next of kin_

Yesterday I encountered a misleading translation in an online glossary on inheritance law terminology that I believe is worth noting. There the expression “next of kin” was rendered in Spanish as pariente consanguíneo más cercano. My first thought was, “What? My husband of 46 years isn’t my ‘next of kin’?” And of course, the Spanish definition is incomplete because “next of kin” denotes “the person or persons most closely related to a decedent by blood or affinity” (Black’s Law Dictionary), affinity (afinidad* in Spanish) being “kinship by marriage.”

Knowing someone’s next of kin is important in case of an emergency, and is used to distribute the estate of a decedent who has died intestate. Several sources that I’ve checked indicate that in many jurisdictions there is no legal definition of “next of kin.” But for what it’s worth, here are explanations of the term chosen at random from a US, UK and Australian perspective:

  • From Petrov Law Firm (California): Generally, the list of next-of-kin is as follows: spouse, children, parents, siblings, grandparents. Without a will to follow, a probate court will go down the list until it reaches a living person and assign that person your entire estate.
  • From Howells Solicitors in the UK: “Next of kin usually means your nearest blood relative. In the case of a married couple or a civil partnership it usually means their husband or wife. Next of kin is a title that can be given, by you, to anyone from your partner to blood relatives and even friends. It is also possible to name more than one person as your next of kin. This is a title that is primarily used in order for emergency services to know who to keep informed about an individual’s condition and treatment.
  • From Legalvision in Australia: The NSW Coroners Act 2009 assists in determining who will be a person’s next of kin. Where the Coroner is involved and a decision must be made by a deceased’s next of kin, the Coroner will decide who that person is based on an order of priority. First, the deceased’s spouse, then adult children, parents, adult siblings, then lastly any person named as executor under the person’s will, or who was their legal personal representative immediately before death. A spouse also includes a de facto partner.

*afinidad—parentesco que mediante el matrimonio se establece entre cada cónyuge y los parientes del otro (Diccionario Jurídico Thompson-Aranzadi)

Mistranslations: usufructo is not (necessarily) a “life interest” in property

Can this be a MISTRANSLATION_

In the past I have seen usufructo translated into English variously as “life interest,” “life interest trust” and “life estate.” All of these translations imply that usufructo is, by definition, always a grant of the use and enjoyment of property for the lifetime of the beneficiary.

This translation is misleading and may be patently incorrect in many contexts when, for example, usufructo is granted for a specific period of time (called usufructo a plazo, usufructo a término, usufructo temporal or usufructo constituido por tiempo determinado). An example of usufructo a plazo would be the usufruct of a dwelling granted to the guardian of a minor child until the child reaches the age of majority. In such cases usufructo may perhaps be rendered as “beneficial interest” or even “beneficial ownership,” given that “beneficial owner” is “one recognized as the owner of something because use and title belong to that person, even though legal title may belong to someone else” (Black’s Law Dictionary).

Usufructo is likewise often subject to a condition (usufructo condicional), being another mode of usufruct that cannot be translated as “life interest,” “life interest trust” or “life estate.” Indeed, usufructo may be subject to a condition precedent (condición suspensiva), such as usufructo granted to a son or daughter provided that he/she marries. Likewise usufructo condicional may be subject to a condition subsequent (condición resolutoria), such as usufructo granted to a son/daughter that will terminate if he/she doesn’t marry by the time he/she is thirty years old. These are admittedly silly examples but that, once again, demonstrate that usufructo cannot always be equated with a “lifetime interest” or “lifetime estate.”

In summary, perhaps it is best to translate usufructo (a secas) as “beneficial interest” and reserve “life interest,” “life interest trust” and “life estate” for situations that actually refer to usufructo vitalicio.

See more on usufructo here:

Mistranslations of Ministerio Fiscal and Ministerio Público

Can this be a MISTRANSLATION_

Several Spanish web sources and a monograph published in English on the Spanish legal system translate Ministerio Fiscal literally as “Fiscal Ministry,” and this rendering may prompt readers unfamiliar with Spanish institutions to assume that the Ministerio Fiscal is in some way related to taxes or the tax authorities. In English “fiscal” often denotes “of or relating to financial matters, public finance or taxation” (Black’s Law Dictionary) and, thus, the literal translation “Fiscal Ministry” may indeed erroneously suggest that the Ministerio Fiscal is a Ministerio para asuntos fiscales or “Tax Ministry.”

But in fact Ministerio Fiscal (as well as Ministerio Público and Fiscalía) all refer to Spain’s “Public Prosecution Service,” (or) “Office of the Public Prosecutor,” and in this context a fiscal is a “public prosecutor” (called “district attorney” in many US jurisdictions). In summary (and despite the name), the Ministerio Fiscal is not a government ministry and is totally unrelated to taxation, the term simply denoting Spain’s autonomous “Public Prosecution Service.” In contrast, as a part of the Ministerio de Economía y Hacienda (“Ministry of Economy and the Treasury”) the Agencia Tributaria is Spain’s tax service, similar to the Internal Revenue Service (IRS) in the US or HM Revenue & Customs (formerly Inland Revenue) in the UK.

Likewise, Ministerio Público has also often been translated literally as “Public Ministry,” and even as “ministerial office.” But, once again, these renderings fail to convey the fact that Ministerio Público is simply another term for Ministerio Fiscal.

For US audiences Ministerio Fiscal, Ministerio Público and Fiscalía have sometimes been translated as “Justice Department” or “Attorney General’s Office,” and Fiscal General del Estado has often been rendered as “Attorney General.” But, once again, these may not be accurate renderings for those Spanish institutions. The position of the Department of Justice within the executive branch of the US government is actually more akin to the Spanish Ministerio de Justicia. While the Attorney General is part of the US President’s Cabinet (as is the Ministro de Justicia who sits on the government’s Consejo de Ministros), as underscored above, the Ministerio Fiscal (despite being called a “ministerio”) is an autonomous entity that is not a government ministry at all. Moreover, the Fiscal General del Estado is not a cabinet member (miembro del Consejo de Ministros), but rather may perhaps be described as the “Chief Public Prosecutor” or “Head of the Public Prosecution Service.” Thus, “Public Prosecution Service” would again appear to be a more accurate translation for Ministerio Fiscal, Ministerio Público and Fiscalía, even for US readers. And, in other respects, rendering these three terms as “Crown Prosecution Service” for UK audiences may likewise be equally inappropriate, since criminal prosecutions in Spain are not brought “on behalf of the Crown” as they are in the UK and other Commonwealth countries.

What is alevosía?

CRIMINAL L

Alevosía appears as one of the basic agravantes (“aggravating circumstances” that may increase criminal liability) in the penal codes of Spain and other Spanish-speaking jurisdictions. It has been translated variously as “treachery,” “perfidy” and “malice aforethought,” none of which really reflects the true meaning of the term. “Treachery” is defined in the Oxford Online Dictionary as “betrayal of trust” or “the quality of being deceptive,” while “perfidy” is the “state of being deceitful and untrustworthy.” “Malice aforethought” is a criminal law term denoting “the requisite mental state for common-law murder” (Black’s Law Dictionary, 7th ed.).

But do any of these three terms express the meaning of alevosía? Article 22.1 of the Spanish Código Penal affirms that hay alevosía cuando el culpable comete cualquiera de los delitos contra las personas empleando en la ejecución medios, modos o formas que tiendan directa o especialmente a asegurarla, sin el riesgo que para su persona pudiera proceder de la defensa por parte del ofendido.

Thus alevosía implies committing a crime in a manner that prevents the victim from defending himself, ensuring both its consummation and that the perpetrator remains unharmed. Given this definition, instead of “treachery,” “perfidy” or “malice aforethought,” alevosía may perhaps be more accurately translated as “calculated impunity.”