Once the criminal procedure ends with a sentence convicting or acquitting the accused, the parties have an opportunity to submit that decision to other Tribunal occupying a superior hierarchic position. Although in some cases, the court of appeal is limited by the law and cannot change an acquittal for a conviction, all depends on the origin of the sentence and the procedure followed for appealing it. This is what we will see through the following lines, the two kinds of appeal that exist in the Spanish Criminal Procedure Act (in Spanish Ley de Enjuiciamiento Criminal, henceforth LECrim) and their differences.
– The appeals against the sentences dictated in the ambit of the Provincial Court and the first instance by the Magistrate-President of the Jury and against determined judicial resolutions dictated by the Magistrate-President of the Jury:
Article 846 bis a):
According to the art. 846 bis a), the sentences dictated in the ambit of the Provincial Court and first instance, by the Magistrate-President of the Jury, are appealable before the Criminal and Civil division of the High Court of Justice of the corresponding autonomous community. It adds to the above sentences, the judicial resolutions dictated by the Magistrate-President of the Jury settling questions regarding the article 36 of the Organic Law of the Jury (in Spanish Ley Orgánica del Tribunal del Jurado, henceforth LOTJ), and the cases established the article 676 of the LECrim. The article 36 of the LOTJ concerns the previous questions which must be solved before the commencing of the oral trial, it can be compared either with the article 666 of the LECrim for the Ordinary Procedure or the article 786.2 LECrim in the ambit of the Abbreviated Procedure. On the other hand, the article 676 LECrim concerns: the allegations of lack of competence of the Tribunal to try the case; res judicata, according to which over the facts that will be tried there already exist a firm sentence or an akin judicial resolution (the acquittal on all charges for any of the motives of the article 637 LECrim); the prescription of the crime, because the terms of the article 131 of the Spanish Criminal Code (in Spanish Código Penal, henceforth CP) has been fulfilled; and the amnesty or pardon, where we have to take into account that its request will not suspend the execution of the punishment save in the cases that this execution thwarts its likely concession (art. 4.4 CP).
Article 846 bis b:
This article grants a term of ten days from the notification of the sentence, to the Public Prosecution, the convicted and the rest of the parties, to lodge the appeal. It is the same term granted by the article 790 for appealing the sentences coming from the Criminal Judge.
The parties who has not appealed in the term of ten days, may lodge appeal during the phase of the challenge of the appeal (art. 846 bis d), but in this case their appeal will be conditioned by the maintenance of his appeal be the party who appealed within the term. Here may arise the doubt, whether the party who appealed outside the term may allege his own motives or, he can only support the motives of the party who appealed within the term. Nonetheless, if we compare this appeal with the appeal regulated in the article 790 and following, the answer to this doubt must be simple, he can allege the motives which advocate his own interests, yet being aware of the differences between both sorts of appeals.
Article 846 bis c):
This is an article specially important, since in it is gathered the motives according to which may be appealed the judicial resolutions mentioned in the article 846 bis a).
The first motive which is cited is, the breaking of the norms or procedure guarantees causing defenselessness, but only if the claiming of remedying has been previously done.
Although such claiming is not mandatory, when the infringement of the procedure norms affects to a fundamental right recognized in the Spanish Constitution (CE). Here we find another important difference with the appeal regulated in the article 790 and following, where there does not exist such exception, being always mandatory the previous claiming of remedying before the lodging of the appeal for this motive. A good example of an infringement of a procedure guarantee, which besides is recognized as a fundamental right by the CE (art. 24.2), is when is rejected, a proper proof solicited by some of the parties. This appeal will only be admitted if, the proof was requested in due term and form, in other words, in the writings of provisional qualification of the crime of the parties or in the audience before the commencement of the oral trial, and if the proof was capable of altering the judgement in favor of the appellant taking into account all the proofs practiced during the trial.
Another important difference between the appeal for breaking of procedure guarantees according to the rules of the article 846 bis a) and following, and the same appeal following the rules of the article 790 and following, is that the effects in case of being accepted the appeal for such motive are not the same. In the former case, the trial should be repeated (art. 846 bis f), while in the latter, it will be enough with the returning of the criminal procedure to the moment where the infringement was committed (art. 792.2 LECrim).
The second motive, is because the sentence has incurred in infringement of constitutional or legal precept either in the classifying of the facts which constitute the crime, in the determination of the punishment, the security measure or the civil liability. Under this second motive is alleged the motive commonly known as infringement of law. This motive will be admitted only if, the facts contained in the sentence as proved facts are respected, on the contrary, the appeal be rejected.
The third and fourth motives are for, the request for the dissolution of the jury when this request was unduly rejected, and when the dissolution of the jury was agreed and this decision was incorrect.
But let us move directly to the last motive of appeal regulated in this article, when the right to the presumption of innocence has been infringed because, according to the proof practiced in the trial, the conviction lacks any reasonable base. That is right, alleging the infringement of the right to the presumption of innocence of the accused (art. 24.2 CE) what it is done in reality is challenging the assessment of the proof done by the Tribunal of first instance. The repeated jurisprudence of the Spanish tribunals say that, there is no infringement of the right to the presumption of innocence when the proof utilized by the tribunal to sustain the sentence has been: obtained without breaking fundamental rights, practiced on the oral trial according to the rules of the procedure, and the inference obtained by the tribunal respects the norms of logic, the practice and the science. A motive which is really important in the practice of the Spanish tribunals, for the reviewing by a Tribunal of second instance of the assessment of the proof done by a Tribunal of first instance may be limited as consequence of the principles which rule the practice of the proof during the oral trial, the principles of immediacy, orality, publicity and contradiction. When the practice of this proof is not repeated in second instance, as it may happen in the appeal of the article 790 and following of the article 846 ter, the Tribunal of second instance is limited to determined whether the assessment of the proof done by the Tribunal of first instance is rational, logical, according to the rules of the practice, experience and science, nevertheless, this limitation only affects when is requested the conviction appealing an acquittal, or the worsening of a conviction. But in the case regulated in the article 846 bis f) and following this problem does not exist, since the existence of a hearing where the proof can be practiced is not a faculty of the tribunal (art. 846 bis e), as in the case of the appeal regulated in the article 790 and following of 846 ter (art. 791.1 LECrim), therefore we have to understand that there does not exist this limitation when the Tribunal of second instance repeat an assessment as a whole of the proof already assessed in first instance, and with it, changing an acquittal for a conviction on the grounds that there was and error in the assessment of the proof by the Tribunal of first instance.
This article ends stressing that, in the first, second and fourth motive, the proper protest (the claiming of remedying) has to precede the lodging of the appeal. Something already said in the wording of first motive, but which looks forgotten when the third and fourth motive were written.
Article 846 bis d):
Concluded the term of ten days granted for appealing by the article 846 bis a), the writing through which was lodged the appeal will be brought to the other parties, who will have five days from that moment, for opposing or adhering to it.
When the last term of five days ends, the parties will be summoned before the the Criminal and Civil division of the High Court of Justice in the term of ten days.
If the appellant do not appear or renounce to the appeal, the parties who have adhere to such appeal will also lose its opportunity to appeal the sentence, since their appeal is subordinated to the appeal of the party who appealed within the term of ten days granted by the article 846 bis a).
Article 846 bis e):
This article embody the great difference between the appeal of the article 790 and following and the article 846 ter, with respect to the appeal regulated in the article 846 bis a) and following. Perhaps it has been said before, but due to its importance we can repeat it again. Whereas in the former case, a hearing where can be practiced again the proof is a decision on the hands of the Tribunal, in the latter this hearing will take place always. This has an important effect upon the limits which affect each appeal, since this mandatory hearing supposes that a new assessment of the proof practiced in the first instance on account of an infringement of the right to the presumption of innocence and with it, an error in the assessment of the proof, will not be affected due to the lack of immediacy of the Tribunal of second instance, which will be in identical conditions to asses the proof that the Tribunal of first instance. In other words, the Tribunal of second instance will be able to asses again all the proof practiced in first instance, moreover, it will be able to practice all the proof, being capable of either changing an acquittal for a conviction, or worsening a conviction.
Article 846 bis f):
Either If the appeal has success for an infringement of the procedure guarantees, or because a dissolution of the Jury was agreed when it was contrary to the law, a new trial has to take place, in the rest of the cases the Tribunal of second instance may dictate the resolution which deems more correct.
Here there is another important difference with respect to the appeal regulated in the article 790 and following and the article 846 ter, because according to the regulation of this kind of appeal, when an error in the assessment of the proof is alleged either for changing a conviction for an acquittal, or worsening a conviction, such change cannot be directly obtained from the Tribunal of second instance, which can only declare null and void the sentence, and return the case to the judicial organ that dictated the judicial resolution appealed (art. 792.2 LECrim).
For the rest of the cases, the similarity between the two sorts of appeals seems to be maintained.
– The appeal of the article 846 ter:
The Law 41/2015, was used to adapt the appeal against the sentences coming from the Criminal Judge to the European and constitutional exigencies.
Such reform of the LECrim was also used to extend the second instance to the sentences dictated in first instance by the Provincial Courts and the Criminal Division of the National High Court, which until that moment only could be appealed before the Spanish Supreme Court, deforming the true function assigned to that Court, the unification of doctrine.
This is how was introduced the article 846 ter in the LECrim, which basically reproduce what is established in the article 790 and following, with the exception of the article 793, which was excluded since it refers to the sentences dictated in absence according to the article 786.1 LECrim, in other words, when the punishment requested by the prosecution in his provisional writings of qualification of the crime, where besides it is designated the judicial organ with competence to try the case (art. 781 LECrim), does not exceed the two years of imprisonment, excluding the Provincial Courts as the judicial organs with competence for trying the facts (art. 14.4 LECrim).
But there exists a difference more, the article 790 LECrim restrains the appeal to the sentences coming from the Criminal Judge and the Central Criminal Judge, on the contrary, the article 846 ter adds two kinds of resolutions, either those which suppose the end of the criminal procedure for lack of jurisdiction or the acquittal on all charges.
Now let us comment the features which both kinds of appeal share. That which is shared is the great part of the regulation, how the appeal is structured, its motives, the consequences in case of being successful.
The appeals against the sentences coming from the Provincial Courts or the Criminal Division of the National High Court, must be lodge in the term of ten days since the notification of the sentence (art. 790.1 LECrim), and can be based in three motives (art. 790.2 LECrim), an infringement of the procedure norms or guarantees, an error in the assessment of the proofs or a breaking of the law. Achieved this juncture we are obliged to repeat what we have seen above: the allegation of an infringement of the procedure norms or guarantees must be preceded by the due protest (art. 790.2 LECrim ), without being exempt of this requisite the procedure norms or guarantees recognized in the CE (art. 846 bis c. a LECrim); the allegation of a breaking of the law must respect the facts regarded as proved fact by the sentence of firs instance; and an error in the assessment of the proof regarding an acquittal to transform it into a conviction, or worsening a conviction, can only suppose the declaration of null and void of the sentence appealed. The last is important, not only because the consequences in case of being successful the appeals are different, the success of the appeal for an infringement of the procedure norms or guarantees will suppose the return of the criminal procedure to the momento in which such infringement was committed, the success of an appeal for the breaking of the law can suppose the changing of an acquittal for a conviction or vice versa, but becase around the error in the assessment of a proof has flourished a jurisprudence which has modulated the scope of this appeal. I am going to assume some risks, and I will try to explain it briefly. Contrary to what happens in the appeal of the art. 846 bis a) and following (art. 846 bis e), another hearing, where can be practiced again the proof already practiced in first instance or new proof, is a faculty of the Tribunal of second instance (art. 791.1 LECrim), whether the appellant has requested the practice of new proof (art. 790.3 LECrim) or the watching of the proof practiced in first instance. This in the practice supposes that, save in the cases that the Tribunal of second instance regards a second hearing necessary, such hearing will not take place. This impedes the Tribunal of second instance to asses the proof according to the principles which should rule its practice, the principle of immediacy, of publicity, of contradiction and orality. Of these principles, the principle of immediacy is specially important, it means that the tribunal that will asses the proof, in order to dictate sentence according to it, has to be present during its practice, this is essential to asses the personal proofs, the testimony of the witnesses and accused, and the expert report when was impugned by any of the parties in their provisional writing of qualification of the crime and the expert has to appear in court in order to defend it. Due to the importance granted to this principle of immediacy, and to the principle according to which the proof has to be assessed as a whole, the European Court of Human Rights developed a jurisprudence which afterwards was adopted by the Spanish Constitutional Court, a Tribunal of second instance cannot convict for the first time without being present during the practice of the proof. This is the reason of the prohibition of the article 792.2 LECrim.
This is why it has been said that, the proper motive to transform an acquittal into a conviction is the breaking of law, since in it are maintained the proved facts, making unnecessary a second hearing in order to asses the proof in accordance with the principle of immediacy.
But we have to continue to in order not to lose the thread, then what happens with the documentary proofs in which the Tribunal of second instance has the same position, in terms of guarantees, that the Tribunal of first instance? For the reply does not seem easy and probably varies in function of the Tribunal that dictates sentence, is evident and no one disagree with the fact that the principle of immediacy does not affect to the assessment of the proof, but the principle according to which the proof has to be assessed as whole has not lose any of its importance and except the cases in which the only proof which is possessed by the Tribunal of second instance is the documentary proof, it has to be taken into account. Furthermore, in the case of being convicted for the first time the accused in the second instance making use only of documentary proof, the right to the last word of the accused (art. 739 LECrim) would be violated, since he would not have opportunity of defending himself, of being the last of giving an account of the fact for what he is being accused, being severely damaged its right to defense, as severely as to exists jurisprudence that determines that conviction without respecting the right to the last word is null and void.
But there is still more, because the cited limit of the article 792.2, only affects to the acquittals when by means of the error in the assessment of the proofs is attempted a conviction, and the convictions when through such motive is attempted their worsening. From this, we can deduce that, it is possible to change a conviction into an acquittal, or to better a conviction, something which has been confirmed by the Spanish Supreme Court in its sentence number 136/2022 of 17 February 2022.
– The sentence of the Spanish Supreme Court number 136/2022 of 17 February 2022:
This sentence is important for more than one motive, first because it is relatively recent, which means that it still has full efficacy, secondly, because it departs from the idea of doing what the Spanish Supreme Court has to do, to unify the jurisprudence of the rest of the Spanish tribunals, and thirdly, because this unification of doctrine enters within the scope of this writing.
The sentence confirms the assessment of the proof done by a Tribunal of second instance, which contradicts what was the previous assessment of the same proof by a Tribunal of first instance. The Tribunal of second instance finds motives to acquit where the Tribunal of first instance found motives to convict. It is also true that the facts tried are not clear, summing up, both sentences try to determine whether the touching of a camp monitor to child was punishable, something which mainly depended upon the intentionality of such touching, one night the mentioned camp monitor went to the bed of the child because he was afraid, and he wake up with one of his hands in the child’s genitals.
From the assessment of the proof done by the Tribunal of first instance resulted the guilt of the camp monitor, and consequently he was convicted. But, the Tribunal of second instance assessed again the proof practiced in first instance and determined that in no moment was intentionality, basing its argumentation for example in the fact that, the camp monitor immediately apologized to the child and the director of the camp after the facts.
The Public Prosecution, fulfilling with its function constitutionally assigned to it, as protector of the legality (art. 124 CE), appealed the sentence in cassation according to the article 852 LECrim for infringement of a constitutional precept: infringement of the right to effective judicial protection and the principle of prohibition of the arbitrariness. Arguing that, the Tribunal of second instance has exceded its functions assessing a proof without the required immediacy. You remember what we have seen before, no?
The Spanish Supreme Court in cassation confirms the decision adopted by the Tribunal of Second Instance. It argues that, the limits of the article 792.2 for an error in the assessment of the proof can only be applied to the acquittals and that, in any case, none of the Tribunals had the required immediacy, since the declaration of the child which was brought to the oral trial as a proof was practiced during the stage of preliminary proceedings.
Let us deepen a little more in each of these motives. The LECrim is clear, neither the acquitted in first instance can be convicted nor the already convicted in first instance can be more severely convicted in second instance for an error in the assessment of the proof. Then, perhaps the problem is not in the sentence of the Tribunal of second instance but in the law, since it is not less true that the acquittal arrives without a hearing in which it is practiced the proof again, and this hearing can be considered as necessary to convict as to acquit. In fact, the appeal of the article 846 a) and following seems to be of this opinion, when according to its rules the hearing of the second instance always will take place, whatever the motive of the appeal or its object.
The second motive, that the child testified during the preliminary proceeding and therefore it was recorded, looks more destined to underpin the first motive than a real motive. But the Spanish Supreme Court is wrong when affirms that neither of the tribunals had the immediacy necessary to asses the child’s testimony, that the proof was recorded does not means that afterwards it was not reproduce during the oral trial, as the article 730 allows, something which is some way make up this deficiency in the immediacy of the Tribunal of first instance and the rest of the principles which we cannot forget, publicity, orality and contradiction, because to this testimony at least had to assist the lawyer of the accused. And if it was not reproduced it was due to a poor performance of the parties, or at least becase they did not regard it as necessary.
The question is, must be guaranteed the hearing of the article 791.1 LECrim making it mandatory and therefore putting in the same level the guarantees of the defendant and the prosecution? In my opinion, it does not looks like something illogic and the appeal of the article 846 bis a) and following seems to share this opinion, because although such appeal has been designed for graver crimes, this cannot be a reason to underestimate those crimes which can be tried according the rules of the Abbreviated Procedure or even the Ordinary Procedure (art. 846 ter), since for the victims who suffered them there is no such difference.
Víctor López Camacho.
Twitter: @victorsuperlope.
More on my website: www.victorlopezcamacho.com