The cassation appeal for criminal proceedings regulated in the Spanish Criminal Procedure Act (LECrim) is solved by the Second Chamber of the Spanish Supreme Court, and has suffered some modifications on account of the reform carried out by the Law 41/2015. It should, at least in theory, fulfill the function of unifying the jurisprudence coming from the tribunals which occupy an inferior hierarchal position, guaranteeing the homogeneity in the application of the sustantive criminal laws, mainly the Spanish Criminal Code (CP). This was one of the aims of the Law 41/2015, in it were redefined the limits of the appeal according to the jurisprudence coming from the European Court of Human Rights (ECHR) and the Spanish Constitutional Court, the scope of the second instance was extended to the sentences dictated in first instance by the Provincial Courts and the Criminal Chamber of the National High Court, and the sentences dictated in appeal by the Provincial Courts become appealable in cassation when before only were appealable the sentences dictated in first instance.
In this last aspect of the reform, is where in reality is more evident the function as unifier of doctrine of the Spanish Supreme Court, since by means of the motive of breach of the law is putted into question the application of a substantive criminal law by an inferior tribunal, this determines the arising of a jurisprudence coming from the Spanish Supreme Court delimiting the scope of such criminal precepts. It is said that in those cases, the cassation appeal is not as conditioned by the right to effective judicial protection (art. 24.1 of the Spanish Constitution) as by the principle of legal certainty (art. 9.3 of the Spanish Constitution), for the review of the sentence by a second instance, an exigence derived by the international treaties in which Spain is a party, as for example the art. 14.5 of the International Covenant on Civil and Political Rights, was fulfilled by the appeal court.
– The judicial decisions appealable by means of the cassation appeal:
The sentences which are appealable through the cassation appeal are enumerated in the article 847, an article which divides them into two sorts, those which can be appealed for breach of the law and for serious procedural defects, and those which can only be appealed for breach of the law.
Within the first group we have (art. 847.1.a LECrim), the sentences dictated in sole instance or in appeal by the Civil and Criminal Chamber of the High Courts of Justice, and the sentences dictated by the Appeal Chamber of the National High Court. Let us see with more detail each of them. The sentences dictated in sole instance by the Civil and Criminal Chamber of the High Courts of Justice, will be concerned with the special cases of jurisdiction mentioned in the article 73.3 of the Spanish Organic Law of the Judicial Branch (LOPJ): a) those established by the Statute of Autonomy where the High Court of Justice is located, and b) the investigation and trying of the criminal causes against the judges, magistrates or members of the Public Prosecution for crimes committed in the exercise of their charge in their respective autonomous community, except the cases in which this attribution corresponds to the Spanish Supreme Court. On the other hand, the Civil and Criminal Chamber of the High Courts of Justice will know in appeal of the sentences dictated in first instance by the Provincial Courts (art. 846 ter) which are those trying crimes either punished by the CP with more than five years of imprisonment, or fines or other punishments of different nature when they exceed of ten years (art. 14.4 LECrim), this comprehends the crimes tried according to the rules of the Ordinary Procedure or of the Abbreviated Procedure, depending upon they are within or outside the frame of the article 757 LECrim.
The sentences dictated by the Appeal Chamber of the National High Court, will know of the sentences dictated in first instance by the Criminal Chamber of the National Hight Court which has attributed the trying of crimes enumerated in the article 65 of the LOPJ.
The second group, those sentences which can only be appealed by breach of the law (art. 847.1.b LECrim), is compounded of the sentences dictated in appeal by the Provincial Courts and the Criminal Chamber of the National High Court. The Provincial Courts will know in appeal of the sentences coming from the Criminal Judge (art. 790 LECrim), which are those trying crimes punished by the CP either with up to five years of imprisonment, or with fines or other punishments of different nature when they do not exceed of ten years (art. 14.3 LECrim), a range which doubtless is within the scope of the Abbreviated Procedure (art. 757 LECrim), or of the Procedure for the fast trying of determined crimes (art. 795 LECrim). On the other hand, the Criminal Chamber of the National High Court knows in appeal of the appeals against the sentences fo the Criminal Central Judge (art. 790 LECrim).
The article 847 ends adding in its second point that, the sentences which have only agreed nullity of the sentences coming from first instance are excepted of the possibility of being appealed in cassation. A good example of that kind of resolutions, which can be placed within the exception, are the sentences coming from the Criminal Judge, the Criminal Central Judge (art. 790 LECrim), the Provincial Court, or the Criminal Chamber of the National High Court (art. 846 ter), that have been appealed for an error in the assessment of the proof with the intention of either changing an acquittal for a conviction or worsening a conviction, because in those cases, the appeal court has constrained faculties and only can declare the nullity of the sentence in the case that the appeal has success (art. 792.2 LECrim).
The second kind of judicial decisions which appealable are those which must be motivated, because of their especial transcendence to the criminal procedure, they are enumerated in the article 141 of the LECrim, in Spanish they are named “autos” and I am going to maintain this nomenclature for the sake of simplicity. The autos which are appealable, are gathered in the article 848 LECrim: “The autos can be appealed in cassation only for breach of the law, either when the law expressly authorizes this kind of appeal or, when the autos are definitive autos dictated in first instance or in appeal by the Provincial Courts or the Criminal Chamber of the National High Court ending the procedure for lack of jurisdiction or acquittal on all charges and the cause had been directed against the investigated through a judicial resolution which supposed a formal accusation.” There has been some troubles concerning what can be understood as a judicial resolution which supposed a formal accusation, in the Ordinary Procedure the answer is easy, the committal for trial (art. 384 LECrim) fulfills this function, but the the answer is more complicated in the ambit of the Abbreviated Procedure, in these cases, according to the jurisprudence of the Spanish tribunals, the auto of transformation to Abbreviated Procedure (art. 779.1.4º LECrim) will be the substitute of the committal for trial, and the autos which agree a preventive measure has been admitted too.
We have to add to the above that, the current wording of the article 847 can only be applied to the criminal procedures which were initiated after the entry into force of the Law 41/2015, in other words, after the 6 December 2015.
And there is something more, because not all the judicial resolutions appealable in cassation are mentioned in the article 848. We can cite at least two more, the cassation appeal for the unification of doctrine in penitentiary matters which was introduced by the LOPJ in its Fifth Additional Disposition, and the autos concerning the paying or not of the preventive detention suffered by the convicted are appealable in cassation in accordance with the Law of 17 January 1901 on the paying of preventive detention.
– The motives for lodging the cassation appeal:
The motives for appealing a sentence in cassation are three, although the article 847 LECrim only mentions two, and the article 848 LECrim one of the previously mentioned in the article 847 LECrim. In cassation can be appealed sentences and autos for breach of the law (art. 847 and art. 848 LECrim), but for serious procedural defects and for breach of a constitutional precept can only be appealed the sentences, being excepted from them the the sentences mentioned in the art. 847.1.b), which only admit a cassation appeal for breach of the law.
The breach of the law is regulated in the article 849 LECrm, and is compounded of two motives, in the first we find what usually, being understood for usual how it is used by the rest of appeals, is known for a breach of the law, the contesting of the application of a substantive criminal precept by either the tribunal of first instance or the appeal court, this supposes the acceptance of the proven facts of the sentence appealed in cassation, otherwise the cassation appeal for this motive should be rejected. Due to its importance for appealing in cassation the sentences of the article 847.1.b) LECrim, I think that it is important to include the no jurisdictional agreement of the Second Chamber of the Supreme Court of 9 June 2016, which delimits the scope of the cassation appeal for breach of the law: “A) The article 847.1º.b) of the LECrim must be interpreted in its proper terms. The sentences dictated in appeal by the Provincial Courts and the Criminal Chamber of the National High Court only can be appealed in cassation for the motive of breach of the law envisaged in the article 849 LECrim, the cassation appeals founded in the articles 849.2º, 850, 851 and 852 must be rejected. B) The cassation appeals founded in the article 849.1 must be on the grounds of a substantive criminal precept or other law of the same character which must be observed in the application of Criminal Law (determining norms of classification), the cassation appeals founded in either the breach of procedural norms or constitutional norms must be rejected. Nevertheless, a constitutional precept can be alleged to reinforce the allegation of the breach of a substantive criminal law. C) The cassation appeals must respect the proven facts, those which do not respect them or are founded in allegations contrary to them trying to reproduce the proving debate must be rejected (art. 884 LECrim). D) The cassation appeals must have a cassation interest. Those which are lacking of such interest must be rejected (art. 889.2º LECrim), understanding that a cassation appeal has cassation interest, according to the exposition of motives: a) if the sentence is openly opposed to the Supreme Court’s doctrine, b) if the sentence solve questions treated in different form by the Provisional Courts, c) if the sentence applies norms with no more than five years into force, when there are no Supreme Court´s jurisprudential doctrine concerning older norms of identical of similar content.”
Nevertheless, the above requisites only apply when the sentence is appealed in cassation according to the article 847.1.b) LECrim, for the rest of resolutions, those mentioned in the article 847.1.a) LECrim, it will be enough if the breach of the law alleged is founded in a substantive criminal precept which must be observed in the application of the Criminal Law (determining norms of classification) and if the cassation appeals respect the proven facts.
The second of the motives included in the article 849 LECrim as breach of the law is: “When there have existed an error in the appreciation of the proof, based in documents, that shows the mistake of the tries without being contradicted by other elements of proof.” A motive which reminds me more an cassation appeal for an error in the assessment of the proof than for breach of the law, although it is also true, that in any case it will be a cassation appeal for error in the assessment of the proof very limited. It can only be based in documentary proofs, excluding from the first moment all the personal proofs, as the testimony of the witnesses, and besides such documentary proof must have enough proving power by its own for altering the resolution appealed without the necessity of either additional proofs or complex argumentations. The document in which is based the cassation appeal, must be enough either to add a new fact into the proven facts which was omitted by the appealed sentence, or to exclude proven facts which in reality did not occur as they are stated in the appealed sentence, moreover, there must not exist other proofs in relation with the facts which the document tries to prove, for in such cases we are before of a problem of assessment of the proof which is always free for the tribunal of first instance or the appeal court (when there has been a hearing) (art. 741 LECrim). In order to better the clarity of the above explanation, let us see what is said by the Supreme Court´s sentence 3363/2020: “The requisites which has been demanded by the jurisprudence in order to allow this motive of cassation are the following: It must be founded, in authentic documentary proof, and not of other kind, as the personal proofs although they are documented in the cause; 2) It has to evidence the mistake of some data, fact or material of the appealed sentence, by its own proving power, in other words, without the necessity of the addition of other proofs nor complex argumentations; 3) The data which the document proofs must not be in contradiction with other elements of proof, for in those cases it is not a problem of mistake but of assessment, which corresponds to the tribunal: and 4) The contradictory data which has been proven by the document must be important in order to modify the sentence.
Consequently, this motive of cassation allows neither a new assessment of the documentary proof as a whole, nor other argumentation on the proof which could conduct to different conclusions of those reflected in the facts of the sentence, it only authorizes the rectification of the proven facts in order either to include into them a fact which the tribunal omitted to declare as proven, when its existence results from the documentary proof, or to exclude from the sentence´s proven facts one which the tribunal mistakenly declared proven, since its no existence results from the document.”
There has been controversy in relation with the expert´s reports on whether they must be assessed or not as documentary proof during a cassation appeal, but the Spanish tribunals has determined that they are no documentary proof, save two exceptions, let us see what is said by the Spanish Supreme Court’s sentence 3363/2020 about it: “Regarding the expert´s report, the Second Chamber has only exceptionally admitted its use to change the proven facts of a sentence appealed in cassation, in cases as the following: a) When existing one expert´s report or more than one with the same conclusions, and not having the Provincial Court more proofs on the same facts, the Tribunal has based its sentence in the expert´s report or expert´s reports but cutting them or in a contradictory sense, altering their content; b) When having only the expert´s report or expert´s reports with the same conclusions and not having other proofs on the same facts, the Tribunal of firs instance has achieved to different conclusions without arguing why nor a reasonable explication.”
Let us move now to the cases which comprehend the serious procedural defects. They are regulated in the article 850 and the article 851, being eleven motives. I do not think that is relevant a concrete explanation of each of them, it is enough with saying that they are what they are.
Now we can talk about the article 852 LECrim, here the cassation appeal seem to lose all the constraints which limited it in the former two motives, the breach of law and the serios procedural defects. The cassation appeal can be founded in the breach of a constitutional precept. Between all of them, logically the most utilized is the article 24 of the Spanish Constitution, in it we can find a broad variety of procedural guarantees, which can be framed inside the right to effective judicial protection, like the cases in which the sentence is not enough motivated, or can be developed as independent and autonomous rights as the right to the presumption of innocence. Of all the procedural guarantees mentioned in the article 24.2, the latter, doubtless, is the right which is more alleged. It is a relevant right because through it, what is appealed in cassation is the assessment of the proof done by the tribunal of first instance or the appeal court, but with similar boundaries that those applied in the appeal. It is true that, in the regulation of the cassation appeal, in the articles which are being object of commentary, such boundaries are not expressly mentioned, but it is not less true that, the jurisprudence of the Spanish Constitutional Tribunal concerning the principle of immediacy and the rest of the principles which must rule the practice of the proof during the oral trial, also are applicable to the cassation appeal. Then, the Spanish Supreme Court may review the assessment of the proof done by either the tribunal of first instance or the appeal court, but it can neither transform an acquittal for a conviction nor worsen a conviction. The principle of immediacy, determines that the tribunal that asses the proof must be present during its practice, and although it is possible that the Spanish Supreme Court agrees a hearing previous to the solving of the cassation appeal, in fact it is mandatory when all the parties ask for it and the punishment that can be imposed or was imposed is of more than six years of imprisonment (art. 893 bis a. LECrim), in such hearing, in the case of being a hearing, it is not allowed the discussion about the existence of the appealed sentence´s proven facts, save in the cases this discussion is in regard to the documentary proof of the art. 849.2º LECrim (art. 897 LECrim). It makes indifferent the hearing for the outcome of a cassation appeal founded in the breach of the right to the presumption of innocence. Nevertheless, the Spanish Supreme Court can check whether the proof assessed by the tribunal of first instance or the appeal court was obtained without breaching fundamental rights, whether this proof was introduced into the oral trial according to the LECrim, and whether the assessment of the proof which determined the innocence or guilt of the accused is according the rules of the logic, the practice and the science. Although it is more complicated than it can seem at first sight, first, because in the cases that what is appealed is a sentence of second instance the assessment of the proof by the Spanish Supreme Court must be with respect the sentence of second instance and not of first instance, and secondly and even more important, becase the limits of the principle of immediacy only apply either to an acquittal, which cannot be transformed into a conviction, or to a conviction, which cannot be worsened. But on the other hand, nothing has been said in anyplace that the Spanish Supreme Court, even without having the necessary immediacy and without a hearing, cannot either change a conviction for an acquittal, or better a conviction for an error in the assessment of the proof, when either the appealed tribunal´s reasoning followed neither the rules of the logic, nor the rules of the practice, nor rules of the science, or the proof was illicitly obtained, or was not properly introduced into de oral trial. In short, we have to understand that this possibility exists, and according to that possibility the Spanish Supreme Court has two options when the cassation appeal for an error in the assessment of the proof has success, either it can declare null and void the sentence when what was asked for was the the changing of an acquittal for a conviction or the worsening of a conviction, with the repetition of the trial from first instance, or it can acquit who was convicted in first instance and confirmed in second instance or even acquitted in second instance, or bettering a conviction.
Coming back to the two other motives, for breach of the law and for serious procedural defects, the LECrim expressly states the consequences for the case in which the Spanish Supreme Court rules in favor of a cassation appeal based in any of these motives, something which does not happen when the alleged was the breach of a constitutional precept, making us to recur to complex argumentations as the above one. If the motives for serious procedural defects have success, the cause will return to the moment where the mistake was committed and to the tribunal which committed such mistake (art. 901 bis a). Besides, only when the motives for serious procedural defects have not success, the Spanish Supreme Court can examine the motives based in a breach of the law (art. 901 bis b), something which means that the latter has a subsidiary character with respect the motives based in a serious procedural defect. When a motive based in a breach of the law has success, the Spanish Supreme Court can dictate the sentence more adequate to the interpretation of the precept misinterpreted by the appealed court, but limited by the prohibition of not imposing a higher punishment than the appealed sentence or a higher punishment than the demanded by the appellant in the case a higher punishment was asked for (art. 902 LECrim).
According to the above, when motive based in the article 849.2º LECrim has success, in other words for an error in the assessment of documentary proof, although in reality it is an error in the assessment of the proof like the cases in which it is alleged by means of the article 852 LECrim and 24.2 of the Spanish Constitution, it will not be limited by any of the jurisprudential boundaries we have mentioned as consequence of, above all, the principle of immediacy, something which evidences the importance given to such principle by the Spanish legislator but only with respect the personal proofs.
– The procedure for lodging, substantiating and deciding the cassation appeal:
The party that wants to lodge the cassation appeal will solicit, before the Tribunal that has dictated the resolution which it attempts to appeal in cassation, a testimony of it, and it will manifest the motives in which its appeal in cassation will be based (art. 855 LECrim).
The petition should be made in a writing authorized by a lawyer and solicitor, within the next five days to the last notification of the sentence or auto agains which the cassation appeal will be aimed (art. 856 LECrim). Here we have to comment two details, the first in relation with the way in which the period to lodge the cassation appeal should be estimated, the five days will start the next day of the last notification which must be practiced, the nonworking days must be excluded from the compute (art. 182.1 LOPJ), and the writing can be presented up to the fifteen hours of the next working day of the day in which the period to lodge the cassation of appeal ends (art. 135.5 of the Spanish Civil Procedure Act). It is very important to lodge the cassation appeal within this term, on the contrary the cassation appeal cannot be admitted, according to the Spanish tribunals the term to lodge an appeal is no remediable defect. The second detail is concerning the validity of the notification from where the period to lodge the cassation appeal starts to run, if the solicitor of the party is the only notified, in this cases this notification is altogether valid without being necessary the notification to those whom the solicitor represents, the Autos of the Spanish Supreme Court of 18/07/17 and 22/02/2018 say: “The reading of the article 160 LECrim allows us to check that the precept is referring to the definitive sentences dictated after an oral trial, in which, as a general rule, the presence of the accused is mandatory (art. 786 LECrim), whose right to the reviewing of a conviction, internationally recognized (art. 2.1 of the Protocol 7 of the European Convention of Human Rights and the art. 14.5 of the International Covenant on Civil and Political Rights), can only be guaranteed by the personal notification of the conviction. On the contrary, in the cases of a sentence dictated as consequence of an appeal, against which only is possible the extraordinary cassation appeal (art. 847 LECrim), after a hearing before the Civil and Criminal Chamber of the High Courts of Justice (art. 791.1 LECrim), to which is not mandatory the presence of the appellant, and therefore, a cause of suspension, but the presence of his lawyer and solicitor, it must be regarded enough the notification to the solicitor of the appellant.”
Once the appellant has manifested the motives according to which he attempts to appeal the resolution, the tribunal that dictated such resolution have three days to decide whether the appeal is prepared or not, taking into account whether the resolution is appealable in cassation, and the rest of the requisites of the articles 855, 856 and 857 are fulfilled (art. 858 LECrim). In these cases can occur that the tribunal exceeds its reviewing functions, and for example, it reject the lodging of the cassation appeal for lack of cassation interest (art. 889 LECrim), but according to the jurisprudence of the Spanish Supreme Court the tribunal which dictated the resolution appealed can only reject the cassation appeal for motives of form. We can cite the Auto of the Spanish Supreme Court 9978/2020: “In a similar question, between others the Auto of 24 July 2018, we said: “the rejection for lack of cassation interest is a decisión reserved by the law to the Spanish Supreme Court: art. 899. The appealed tribunal cannot reject the preparation of the appeal for this reason”. In the same Auto citing the Auto of 28 June 2018, we said: “…the rejection of the cassation appeal can only be agreed by the tribunal that dictated the resolution appealed for objetive reasons (art. 858 LECrim: an appeal out of the term, serios defects of form, lack of legitimation, a not appealable resolution…). It cannot reject a resolution for reasons aliens to he procedure, as the lack of cassation interest.”
When the preparation of the cassation appeal has been rejected by the tribunal which dictated the resolution appealed, the appellant can appeal this decision before the Second Chamber of the Spanish Supreme Court (art. 862 LECrim), which will review that decision. If the appeal before the Spanish Supreme Court has success, it will order to the appealed tribunal the fulfillment of the provisions contained in the articles 858 and 861 (art. 870 LECrim).
Either, when the tribunal appealed has approved the preparation of the cassation appeal (art. 858 LECrim) or when the appeal before the Spanish Supreme Court has have success (art. 870 LECrim), the appealed tribunal will send to the Second Chamber of the Spanish Supreme Court the certification of the reserved votes and it will notify to those who have been a party the testimony, summoning them before the Spanish Supreme Court within fifteen days (art. 861 and art. 859 LECrim). Within such fifteen days, the cassation appeal must be lodged by the appellant before the Second Chamber of the Spanish Supreme Court (art. 873 LECrim), fulfilling the requisites of the article 874 and specifying whether it solicit a hearing (art. 882 bis LECrim).
The party that has not appeal within the initial term of five days (art. 856 LECrim) can adhere to it in the term of the fifteen days of the art. 859 alleging its own motives, including a hearing (art. 861 LECrim). For the determination of the scope of the adhesion of the party which not appeal within the initial term, it is important that we attend to the own wording of the article 861 LECrim, which says, “alleging the motives which support its interests”, therefore, the adhesion will not be limited to the motives of the party that appealed within the initial term. Notwithstanding, if the party that appealed within the initial term desists from the cassation appeal (art. 861 bis c), the party which adhered to it, will also lose its opportunity to appeal in cassation the resolution, the withdrawing of the principal appellant indirectly entails the withdrawing of the adhering appellant.
Having been admitted the preparation of the appeal, the second stage begins, this time before the Second Chamber of the Spanish Supreme Court. At the beginning of this phase, the Public Prosecution and the rest of the parties will have ten days to impugn the admission of the preparation of the appeal and the adhesion to it (art. 882 LECrim). Afterwards, there will be another term of ten days in which the Second Chamber of the Spanish Supreme Court will decide whether to admit the cassation appeal (art. 883 LECrim), based in any of the motives of the art. 884 or 885 LECrim. If the cassation appeal is rejected, the rejection will have the form of an auto (art. 888 LECrim), on the contrary, if the cassation appeal is admitted, it decision will have the form of a “providencia” (a providencia is the term used by the LECrim in order to name those resolutions which does not need to be motivated), which can signal the date when the cassation appeal will be solved when there will not be a hearing, or can order the signaling of a date for the hearing (art. 893 LECrim).
The hearing will only be mandatory when all the parties have solicited it and the duration of the punishment either imposed or which can be imposed exceeds the six years, otherwise it will be a decision of the Second Chamber of the Spanish Supreme Court. In both cases, with a hearing or without a hearing, the assessment of the proof carried out by the appealed tribunal cannot be discussed (art. 897 LECrim), therefore a hearing will never determine the outcome of the procedure. At this juncture it is important that we remember what we have seen in the point concerning the motives to appeal a cassation appeal, when we talked about the error in the assessment of the proof.
The Second Chamber of the Spanish Supreme Court will be constituted by three magistrates, save in the cases that either the punishment imposed or which can be imposed exceeds the twelve years, because in that occasions it will be constituted by five magistrates (art. 898 LECrim). When the hearing is concluded the Second Chamber has to solve the cassation appeal within ten days since its termination, the same magistrates which were present during the hearing must solve the cassation appeal.
Against the sentence of cassation there is no appeal (art. 904 LECrim), save the reviewing appeal (art. 954 and following LECrim). But within the next two working days to the publication of the resolution, either the parties or the Public Prosecution may solicit the clarifying of some dark concept or the rectification of a material error, something which can be done ex officio within the same term (art. 161 LECrim and art. 267 LOPJ).
Víctor López Camacho.
Twitter: @victorsuperlope.
More on my website: www.victorlopezcamacho.com