The right to the challenge is a right comprehended inside the fundamental right to effective legal protection of the article 24 of the Spanish Constitution (in Spanish Constitución Española, henceforth CE), but as other fundamental rights of the CE, it is not an absolute right and its exercise must be developed by the law. This is the aim of the Chapter VI of the Title which regulates the Abbreviated Procedure in the Spanish Criminal Procedure Act (in Spanish Ley de Enjuiciamiento Criminal, henceforth LECrim), being this a peculiarity of the regulation of the Abbreviated Procedure, because whereas the Ordinary Procedure ends with the articles concerned with the suspension of the Oral Trial, the legislator has decided to extend the Title regulating the Abbreviated Procedure to the challenge of the sentence.
Does the above mean that a sentence which puts an end to a criminal procedure carried on according to the rules of the Ordinary Procedure cannot be challenged? No, both procedures, the Ordinary Procedure and the Abbreviated Procedure, shares the way in which their sentences finishing the criminal procedure can be challenged. First, a Provincial Court can be the judicial organ with competence to try a case according to both procedures (art. 14.4 and art.757 LECrim), it would have no sense to allow the challenge of a sentence when it ends one procedure and not when it ends the other. Secondly, the LECrim was reformed by the Law 41/2015, this law adapted the appealing of a sentence to the requisites previously established by the Spanish Constitucional Court (TC) and the European Court of Human Rights (TEDH), and included in the LECrim the art. 846 ter, which for the first time broadens the use of the second instance to the sentences coming from the Provincial Courts. And thirdly, through the reform carried on by the Law 41/2015, was returned to the Spanish Supreme Court (TS) its true function, the unification of the doctrine coming from the Spanish courts.
Let´s see with more detail how the art. 846 ter works. It states that, the judicial resolutions which suppose the end of the criminal procedure for lack of jurisdiction or acquittal on all charges and the sentences coming from the Provincial Courts or the Criminal Division of the National High Court in first instance are impugnable in appeal at the the Civil and Criminal Divisions of the High Courts of Justice and the Appeal Division of the National High Court, respectively. And in its last point the art. 846 ter adds that, the appealing against the judicial resolutions envisaged in the point one (those which we have just mentioned), will be in accordance with the rules established by the articles 790, 791, and 792 of the LECrim. We can conclude, therefore, that the articles which we will comment through the following lines are applicable to both procedures, the Ordinary Procedure and the Abbreviated Procedure, although they are included inside the Title of the LECrim regulating the specifically the Abbreviated Procedure.
The art. 790 begins establishing the competence of the Provincial Courts to know in appealing of the sentences coming from the Criminal Judges, and the competence of the Criminal Division of the National High Court to know in appealing of the sentences coming from the Criminal Central Judge, although afterward it states that, the appeal has to be lodged at the tribunal or judge which dictated the sentence that is being appealed (art. 790.2 LECrim), tribunal or judge which is bestowed by the LECrim with the capacity of admitting or not the appeal depending on whether it fulfills its requisites (art. 790.4 LECrim). In order to appeal the parties of the criminal procedure, the public, private and popular prosecution, and the defendant, have ten days from the next day in which the sentence was notified to them. In accordance with the art. 185.1 of the Judiciary Organization Act (in Spanish Ley Orgánica del Poder Judicial, henceforth LOPJ), and the art. 5 of the Civil Code (in Spanish Código Civil, henceforth CC), the days must be counted from the next day in which the sentence was notified, and must be excluded the nonworking days (Saturdays, Sundays, and festive days, either national or local), being, besides, possible, by effect of the art. 135.5 of the Spanish Civil Procedure Act (in Spanish Ley de Enjuiciamiento Civil, henceforth LEC), the lodging of the appeal till the 15 hours of the next day in which the period granted was concluded. To those who have not lodged the appeal within the period granted by the LECrim, the LECrim gives them the opportunity of adhering to the appeal lodged by the party who has appealed in time during the procedure of allegations (art. 790.5), but their appeal will be conditioned to the maintenance of the appeal by the party who appealed in time (art. 790.1 LECrim). Either when the party appeals within the time grated by the LECrim or when it adheres to the previous appeal of the party who appealed in time, they parties can propose the practice of new proof, although it is restricted to three cases (art. 790.3 LECrim): 1) When the proof could not be proposed during the first instance; 2) When the proof was proposed in first instance but was unduly rejected by the tribunal or judge, and; 3) When the proof was admitted but finally was not practiced during the oral trial of first instance for causes attributed to the tribunal or judge.
Depending on whether the practice of the proof is admitted by the tribunal with the competence of resolving on the appeal, a hearing will take place, which will resemble the Oral Trial of first instance though limited to the practice of the proofs which have been admitted in appeal. Nevertheless, such hearing may take place too, when the tribunal resolving the appeal regards it necessary (art. 791 LECrim).
Coming back to the appeal of the parties, it can be based on three motives (art. 790.2 LECrim): 1) An infringement of the procedure norms or guarantees; 2) An error in the appreciation of the proofs, or; 3) An infringement of the law.
– An infringement of the procedure norms or guarantees: A typical example of an infringement of the procedure guarantees, is the allegation that a proof proposed during the first instance was unduly rejected or finally was not practiced due to causes attributed to the judge or tribunal. The right to the practice of the pertinent proofs, is a right recognized by the CE, but this right, as other fundamental rights, is not absolute and its exercise depends on its development by the law and in this case more concretely by the LECrim. Therefore, in order to understand this right as infringed by the judge or tribunal of first instance, the Spanish jurisprudence has stablished some requisites. First, the proof has to be propose in time and form, in other words, during the writings of provisional classification of the crime (art. 650, art. 781, and art. 784 LECrim), or during the previous audience to the Oral Trial (art. 786.2 LECrim), or the proof should has been asked for during the Oral Trial in order to prove some circumstance which may influence the value of the testimony given by a witness (art. 729.3º LECrim). Secondly, the proof must be pertinent, because the own CE only recognizes the right to the pertinent proofs and equal or similar terms are used by the LECrim in its article 659 and 785 LECrim, a proof is pertinent when it is related with the object of the criminal procedure. Thirdly, it has to be necessary, with the capacity of changing the decision of the judge or tribunal embodied in its sentence, to assess whether this requisite is fulfilled the tribunal resolving the appeal hat to take into account all the proofs practiced during first instance. And fourthly, it has to be possible, its practice cannot demand from the tribunal a suspension of the criminal procedure or the uses of means, out of the common.
In these cases, the consequence will be the declaration of the sentence appealed as null an void, and the return of the criminal procedure to the point in which the procedure guarantee was infringed (art. 792.3 LECrim).
– An error in the appreciation of the proofs: Here is where the limited nature of the appeal is more clear. It has a limited nature because the second instance, cannot practice again all the proofs which were practiced during the Oral Trial of first instance, and save the cases we have mentioned above comprehended in the art. 790.3 or when the tribunal regards it necessary (791.1 LECrim) there will not be a hearing. In the majority of cases, therefore, the tribunal resolving the appeal will limit its labour to revise that the judge or tribunal of first instance has assessed the proofs according to the rules of the logic, the maxims of experience and science and that the sentence dictated in first instance is duly motivated (art. 790.2 LECrim).
Besides, the LECrim expressly forbids to the tribunal of second instance to convict those who have been acquitted in first instance or to worsen their condemn (art. 792.2 LECrim). In order to understand this prohibition, we have to depart from the idea that the only proofs which can destroy the presumption of innocence of the accused are those which have been practiced during a public, oral trial, in front of the tribunal trying the case and subject to contradiction by all the parties. This is the rule which has been utilized by the TEDH and the TC, to declare that a sentence which convicts someone who has been acquitted in first instance, infringes the principle according to which the proofs have to be practiced in front of the tribunal trying the case, the principle of immediacy.
Notwithstanding the above, not all the proofs need of this immediacy to be assessed by a tribunal. We can distinguish two kinds of proofs, the personal and the documentary proofs, and only the former needs of this immediacy. Furthermore, as we have mentioned above, there are cases (art. 790.3 LECrim) in which the tribunal of second instance can carry out the practice of proof. Hence, in these two cases, when the sentence of second instance is based on a new assessment of the documentary proof practiced in first instance or when the personal proofs is again practiced during the second instance for being in any of the exceptions offered by the article 790.3, we should understand that the prohibition of the art. 792.2 is not applicable.
– An infringement of the law: The sentence of first instance can be appealed for wrong application of a norm, between them we can understand comprehended a constitutional precept.
This motive of appeal needs that, the party who alleges it respects all the facts stated by the sentence of first instance as true, in other words, the allegations of the party has to depart from the facts stated in the sentence of first instance, without altering, suppressing, or adding the facts regarded as proved by the judge or tribunal of first instance.
The Spanish jurisprudence has deemed this motive as the adequate to appeal a verdict of not guilty and to substitute it for a conviction, since without a variation of the facts there is no infringement of the principle of immediacy.
Víctor López Camacho.
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