Aforamiento: making us unequal before the law and wreaking havoc in bilingual dictionaries

When the King of Spain Juan Carlos de Borbón decided to call it a day and abdicate, he put everyone into a frenzy, the media especially, but also the Spanish Government, which had to rush about making laws it hadn’t previously got around to.

Somewhat controversially (very hastily and without much parliamentary debate), the ex-king, now without the immunity from prosecution he had enjoyed during his reign, was granted a legal privilege than meant he could only be prosecuted in the Supreme Court.

A similar privilege is also given to over 10,000 politicians and judges in Spain, who can only be tried in certain courts: the Supreme Court or the competent High Court of Justice (Tribunal Superior de Justicia), depending on the jurisdiction of their position (national or regional).

Privilege or democratic guarantee?

This privilege has come under a lot of scrutiny and a fair amount of criticism in recent times owing to the amount of politicians protected by it involved in corruption cases appearing in the news. However, while it may look like just an unfair advantage that allows politicians to avoid being dragged through some lower court and have their cases heard by some unknown judge, it’s meant to be a democratic guarantee.

The aim is to provide the maximum chance for justice in cases involving people with important public posts by only having such cases come before the more specialised and expert higher courts, which are presided by a panel of judges (as a opposed to lower courts, where there’s often only one judge) and are supposedly more independent and less vulnerable to external and especially political pressure than say a local court of first instance.

It’s also often argued that the higher courts are less prone to admitting vindictive but groundless claims against public figures with many enemies (i.e., politicians!) from vengeful individuals. Although I’m not sure how central this is to the original purpose — it might just be a justification that came later.

Anyway, despite this supposed greater impartiality, I’ve also heard it suggested that Supreme Court judges may be more vulnerable to a type of indirect and nearly subconscious pressure that comes from having to judge cases involving people who often move in the same or similar social circles as them, which apparently is often the case with politicians and high-ranking civil servants.

It’s also true that when you have your case heard by the Supreme Court, you automatically lose the right of appealing to a higher court — an often cited disadvantage of having this special-jurisdiction privilege.

Unequal before the law

Either way, and there is a big area for debate here, at the very least we can say that the principle of us all being equal before the law is violated as a certain section of the population has a special channel, in this case, a special jurisdiction, for legal proceedings against them.

Additionally, you can also read this privilege to inherently recognise that the justice handed out in lower courts could sometimes be suspect, at least in the case of public figures, which might make it one of the more pragmatic elements of Spain’s civil-law system (which typically, or at least stereotypically, is not very pragmatic). However, if inherent recognition were the case, I’d prefer fixing justice in the lower courts than to make special arrangements for perceived defects.

Three privileges of parliamentary immunity

Known in Spanish as aforamiento, this privilege is one of three given to national and regional members of parliament in Spain, the other two being inviolabilidad and inmunidad, which correspond roughly to the parliamentary-immunity privileges of “freedom of speech” and “freedom from arrest” in England.

Aforamiento, though, doesn’t appear to exist in common-law systems. So while considering it as a form of or a privilege coming under parliamentary immunity may be helpful (apart from the fact that judges, other public servants and even ex-kings also benefit from it!), to translate it as “parliamentary immunity”, as the three dictionaries I just looked at do, might mislead some readers.

Even readers familiar with the Spanish legal system could, depending on the context, assume “parliamentary immunity” refers to inviolabilidad and inmunidad.

What’s the best way to translate aforamiento?

In most cases, the most important point will probably be to avoid translating it simply as “parliamentary immunity”, which is misleading. However, as aforamiento can be seen as a form of parliamentary immunity, defining it as one is a good option:

Spain holds the record for persons with parliamentary immunity from prosecution [in lower courts]: from 10,000 to 250,000

Defining it in some way, possibly as a type of parliamentary immunity, may be, along with even introducing the Spanish term, a good option.

This EU parliament working paper comparing parliamentary immunity in Europe describes aforamiento and similar privileges in Greece and the Netherlands as “special jurisdictional arrangements applicable in particular to Members of Parliament”.

I think some version of special jurisdiction or privilege/parliamentary immunity of special jurisdiction might be nearly always the best option for translating aforamiento. It’s concise, descriptive and signals something different from common-law parliamentary immunity. Even with very little context, the reader should come away with the right idea.

“Privilege of trial by the Supreme Court” is another good option used in the same EU working paper that gets the message across about meaning, at least for when we are talking about trial in the Supreme Court and not the High Courts of Justice in the case of regional jurisdictions.

A note on the translation of the other parliament immunities inviolabilidad and inmunidad

While the EU working paper mentioned above, which gives an insightful overview of the parliamentary privileges in the different member states, compares inviolabilidad and inmunidad to the English parliamentary immunities of freedom of speech” and “freedom from arrest”, in general it uses non-liability for the first privilege and immunity or inviolability for the second, which may be good translations or at least starting points for more neutral/international translations of the Spanish parliamentary immunities.

Further Reading

In English:

EU Parliamentary working paper: Parliamentary Immunity in the Member States of the European Union and in the European Parliament

Spain moves to protect Juan Carlos from paternity suits

In Spanish:

Aforados: ¿garantía o privilegio?

¿Qué es un aforado y qué ventajas tiene?

El aforamiento en España: una singularidad universal. (¿Y por qué?)