One of the last articles regulating the cassation appeal is the article 904 of the Spanish Criminal Procedure Act (LECrim), which states that “Against the cassation sentence and the sentence dictated on account of it, there is no appeal”. Something which is only, almost true. Because there are appeals, although none of them are ordinary appeals. We have the incident of nullity of proceedings (art. 241 Organic Law of the Judicial Branch), which is aimed to restore a fundamental right of those mentioned in the art. 53.2 of the Spanish Constitution (CE) when its breach could not be denounced before the resolution which ended the procedure and always that this resolution cannot be appealed by an ordinary or extraordinary appeal. We have also, the application for amparo, a sort of appeal regulated in the Organic Law 2/1979, of the Constitutional Court, by means of which is possible to correct a infringement of the same fundamental rights mentioned above. And we have the review appeal.
There are differences between them, the incident of nullity of proceedings (art. 241 Organic Law of the Judicial Branch), can only have as object fundamental rights, and can only lodged when there are no ordinary or extraordinary appeals agains the resolution which ended the procedure, the application for amparo, has the same object of the incident of nullity of actions but in order to lodge it, first has to be exhausted all the means of appeal provided by the procedure norms, and the review appeal, is an extraordinary appeal which can only be lodged when any of the circumstances of the article 954 of the LECrim are met. Then, before lodging the application for amparo first we have to have terminated with all the ordinary appeals, included the incident of nullity of proceedings, but in order to lodge the review appeal is enough with meeting the requisites of the article 954 due to its special nature as an extraordinary sort of appeal. The review appeal is an extraordinary appeal which rather can be classified as an autonomous procedure through which is attempted to break the firmness of a conviction.
As is the case of the appeal or the cassation appeal, the current wording of the articles regulating the review appeal is a consequence of the reform carried out by the Law 41/2015. With this reform was achieved the goal of bestowing with a legal base the sentences coming from the European Court of Human Rights when through them was declared the infringement of any of the rights recognized in the European Convention of Human Rights, besides such reform served to make other adjustments, as a technical bettering of the rest of requisites of the article 954 LECrim, the possibility of impugning the criminal sentences which may be in contradiction with the sentences dictated afterwards in other jurisdictional order concerning a preliminary ruling, and the sentences dictated in the procedures of autonomous confiscation when a later criminal sentence does not consider accredited the criminal fact which justified the confiscation.
– The motives:
The motives according to which can be lodged the review appeal are all regulated in the article 954 of the LECrim, sharing the common characteristic that all are based in circumstances of facts unknown at the moment of being dictated the sentence appealed in review, which must be firm, in other words, against it cannot be lodged any other ordinary appeal. This is reason of why it has been said that the extraordinary review appeal attempts against the principle of legal certainty (art. 9.3 of the Spanish Constitution ), although it is in order to protect other fundamental right even more important, the fundamental right to effective judicial protection (art. 24 of the Spanish Constitution), giving priority of the authentic truth, and with this to the material justice in detriment of the formal.
The article 954 contains three motives according to which is possible to ask for the nullity of a firm sentence, although the first is also compounded of other five motives. Let us see them in order.
The first motive is regulated in the letter a) of the article 954.1: “Either when a person has been convicted be a firm sentence which has assessed as proof a document or testimony afterwards declared fake, or when the testimony of the accused was obtained through violence or coercion or whatever fact punishable done by a third party, with the condition that this facts has been declared as proven by firm sentence in a criminal procedure. The conviction will not be demanded when the criminal procedure initiated was concluded for prescription, the absence of the accused, the death of the accused, or whatever motive which does not suppose an assessment of the case”. As we can see, this motive affects to the proof taken into account by the judge or tribunal (art. 741 LECrim), in order to destroy the right to the presumption of innocence of the accused (art. 24.2 of the Spanish Constitution). If that sentence was based in a fake testimony or document, or the testimony of the accused was obtained either by means of violence or coercion, who was convicted by such firm sentence will have the right to obtain its nullity, but only if in other criminal procedure this facts were stated as proven by a firm sentence. This last requisite, though it may seem a formality, is the requisite which bestows of consistency the request of nullity, without such firm sentence declaring those facts as true, a review appeal based in this motive will not have success. The crime of false testimony is typified in the article 458 of the Spanish Criminal Code (CP), the use of a false document during a trial in the article 393 CP, and the coercions in the article 172 CP.
The second motive of the article 954.1 is: “When the judge or any of the magistrates who participated in the conviction, has been convicted for wilful malfeasance on account of such conviction«. This behavior is typified as a crime by the article 446 CP, in which either the judge or magistrate, knowingly, dictates an unjust sentence or resolution. The subjective element of the crime, “knowingly”, is the determinant fact according to which the wilful misconduct is proven, and with it the existence of a crime, something difficult to prove if it is not underpinned by external proven facts, making really expensive the success of an accusation based in this motive.
The third motive says: “When upon the same fact and accused there are two convictions”. The fundamental right to not be convicted in more than one occasion for the same facts is established in the article 25.1 of the Spanish Constitution (CE), although is also known like the principle “non bis in idem”. In these cases, when a review appeal has success, the second conviction, taking into account the date in which were dictated each of the sentences, will be declared null and void, being only valid the first sentence which tried the facts. As an example of the above we can mention the Supreme Court’s resolution 2811/2015: “…our jurisprudence has stressed that, in cases of double trial of the same person for the same fact, it has to be given prevalence to the first sentence y and declared the nullity of the second, for the effects of the res judicata of the firm sentences impede that the facts may be tried again.”
In the fourth position we find: “When after the conviction, new facts are known, which in the event of having been brought to the criminal procedure, would have determined the acquittal or a conviction less severe.” This is the motive which seems to have accumulated much more jurisprudence, since it is a motive usually alleged by those who lodge a review appeal. The first we have to take into account is that, it has to be fact or element of proof unknown by those who allege it, before the the sentence appealed was firm, in other words, such fact or element of proof may have happened before, but the important is that the party who alleges it does not know of its existence until the end of the criminal procedure by firm sentence. And the second relevant aspect is that, this new fact or element of proof must have the enough demonstrative capacity by itself, to make irrelevant the proofs that served to found the appellant´s conviction, who must be again protected by his right to the presumption of innocence. This does not mean that, through this new fact or proof must be proven his innocence, it is enough when this new element arises the doubt upon the tribunal on his guilt, a case in which must be of application the principle “in dubio pro reo”, which is not expressly recognized in the CE, but the jurisprudence of the Spanish tribunals has understood that it is part of the right to the presumption of innocence. Besides, it will be enough if it serves to reduce the conviction, for instance, proving that an aggravating factor in reality did not take place. Here we can have the doubt on what may be that type of proof which by itself turns upside down all the proof previously practiced, and in this sense, we can find resolutions coming from the Spanish Supreme Court that talk about documentary proof with the same characteristics that the required by the article 849.2º LECrim, a document that can prove a fact by itself without the help complementary proofs. This excludes the personal proofs. Let us see some examples of all what we have said above, first with the Spanish Supreme Court’s resolution 7883/2022: “In this sense, the STS 681/2021, of 13-9, with regard to this motive of review points out the exigency of the following requisites:
a) An element of proof of new knowledge. This presuppose that it was disregarded during the criminal procedure; in other words, either it has to appear or be known after the date of the sentence whose revision is being attempted.
b) It has to be proof which can be hypothetically asserted, would vary the sentence; having determined an acquittal or conviction less severe. Proofs which probably would have determined an acquittal (not only for proving he innocence, but also for arising doubts on the guilt) or a conviction less severe as consequence of leaving without proving support an aggravating factor. This new way respects more the right to the presumption of innocence. This is surmounted when there are enough proofs which can determine a conviction. It arises again when a gap is opened in the proofs supporting the conviction by new facts contrary to them. The situation is not turned upside down until the point of demanding new proofs proving the innocence, but proofs which break the proving frame. It is enough for the review that it can be reasoned that with this new proofs there would not have been a conviction. It is not demanded that the new proofs prove the innocence, but they must restore the presumption of innocence weakening the power of conviction of the proof which support the conviction. The in dubio may be in the current legality the basis of the review: the new proof does not prove the innocence, but introduces important doubts about the guilt which was asserted by the sentence.
c) It is still demanded that the proofs could not be proposed before the oral trial, for causes of reasonable appreciation.
Summing up, the art. 954.1.d) LECrim requieres for its application, the knowledge after the conviction, either of facts or data of relevant proving power, which in the case of having been at the disposition of the Tribunal would have modified the sense of the sentence.”
On the other hand, concerning Supremo Court´s resolutions which talk about documentary proof when is alleged the motive of the letter d) of the article 954.1, we can cite the 11385/2010: “The bringing of new proofs is only possible in extraordinary cases, but the relevant in the new wording is that either the facts or elements of proof “in the case of having been brought, would have determine the acquittal or a less severe conviction”, it supposes, on one hand, that they are new to the tribunal, and on the other hand, that they determine the innocence of the accused, or a conviction less severe, it places the fact or element which has not been brought before to the procedure as a proving document of a mistake in the jurisdictional resolution, in the terms traditionally pointed out for the art. 849.2 LECrim, it is an error in the assessment of the proof resulting from a document with enough proving strength without the help of additional proofs, it excludes from that consideration proofs subjected to the immediacy of the tribuna or to an assessment of their proving content.”
The last motive which is part of the first motive of the article 954 is: “When, solved a preliminary ruling by a criminal tribunal, it is dictated afterwards a firm sentence by a no criminal tribunal with competence for the resolution of the question which is contrary to the criminal sentence.” This motive makes me doubt, it should be understood that the sentence which can be appealed in review is the definitive sentence of the criminal jurisdiction which solved the preliminary ruling, but it must be this jurisdiction, the criminal, the jurisdiction which fixes the proven facts and with them their legal consequences. In order to support the above argument, we can attend to the article 10 of the Organic Law of the Judicial Branch (LOPJ): “Article 10.
1. Concerning the preliminary rulings, each jurisdiction can know the matters which are not exclusively attributed to them.
2. Nevertheless, the existence of a criminal preliminary ruling which cannot be avoided for the duly decision or which directly conditions the sense of this, will determine the suspension of the procedure while it is not solved by the criminal organs with competence to its resolution, save the exceptions which the law may establish.”
From the this article we can extract that, the criminal jurisdiction occupies a superior hierarchical position than the rest of jurisdictions, then, ¿would not be better, if the resolution which can be appealed is the sentence contrary to what was said by the criminal sentence?
Let us move now to the second point of the article 954: “It will be a motive of review of the firm sentence of autonomous confiscation the contradiction between the facts declared as proven in it and the facts declared as proven in the criminal sentence, if it is dictated.” We have to start remembering that the confiscation according to the definition of the article 2.4 of the Directive 2014/42/UE is: “the definitive privation of a good by a jurisdictional organ with regard to one criminal infraction.”
The privation of the good to which this article if making reference, will usually take place with the firm sentence which puts an end to the criminal procedure trying the crime from which derived the goods confiscated, either for being effects which derive from the crime, or for being goods, means, or tools which served to prepare or execute the crime, or for being profits derived from the crime, whatever the transformations which they could have experienced (art. 127 CP). Nevertheless, this general rule according to which the confiscation must be agreed in a conviction finds its exception in the autonomous confiscation, when for motives alien the the judicial organ has been impossible to end the criminal procedure either for the death of the accused, or for his absence, or because hi is physically handicapped or mentally handicapped (art. 803 ter 2. b LECrim), although it is also possible when the Public Prosecution, organ with the exclusive competence for the exercise of the action of confiscation in the procedure of autonomous confiscation (art. 803 ter h. LECrim), has reserved in his writing of accusation the determination of the goods in such procedure (art. 803 ter 2 a). Then, the contradiction the facts declared as proven by the firm sentence which ended the procedure of autonomous confiscation, and the facts declared as proven by the firm criminal sentence which served to try the facts which are the basis of the confiscation, may occur when, either the criminal procedure is resumed after the accused has been found, or the accused has healed from his handicap, or the Public Prosecution has reserved in his writing of accusation the determination of the goods that has to be confiscated in the procedure of autonomous confiscation.
And lastly, the third point of the article 954 says: “The review of firm judicial resolution can be requested when the European Court of Human Rights has declared that such resolution was dictated n infringement of some of the rights recognized in the European Convention for the Protection of Human Rights and Fundamental Freedoms, if the infringement, for its nature and gravity, has effects which persist and cannot cease in any other way.
In this case, the review can only be requested for whom, being legitimized for lodging the appeal, has been the plaintiff before the European Court of Human Rights. The request should be lodged within one year from the firmness of the sentence of such Tribunal”. In this case, the Law 41/2015 reformed the LECrim in order to adapt it to the Protocol number 14 to the Convention, which entered into force for Spain on 1 June 2010, according to the article 19 of such Protocol. Its article 46 expressly states that: “…The Parties agree to comply the definitive sentences of the Tribunal when they are one of the parties…” The requisites which must concur can be extracted from the own article: the European Court of Human Rights has to declare that the resolution was dictated infringing some of the rights contained in the Convention; the review has to be requested for whom was the plaintiff before the European Court of Human Rights; and the request of review must be lodged within one year since the firmness of the European Court of Human Rights´ sentence declaring the infringement.
Direct application of a resolution coming from an international tribunal, which does not take place when it is a United Nations Human Rights Committee´s resolution. In that cases, there is no article within the LECrim proclaiming its efficacy. This has derived in its not application by the Spanish Tribunals, when someone has dared to request the review of a conviction based in a resolution coming from such Committee. Although the motive usually utilized to request the review, is the established in the letter d) of the article 954.1 LECrim, the motive usually chosen by those who cannot find the motive which in reality adjust to its claim. We can find an instance of the above in the Supreme Court’s resolution 7886/2022: “The text is clear: The States who are a party of the Agreement must envisage an appeal against decisions which may infringe the rights recognized in it. But they are not obliged to establish an appeal based in a Human Rights Committee’s decision. If the States would have want to recognize such effect to its decisions, they would have regulated its effects and its way of execution, in other words, something different from an appeal.”
– The legitimized to request the review and the difference between both:
The legitimized to request the review of a firm sentence is the punished by it, and when he has died his spouse, or who has maintained coexistence as such, ancestors and descendants (art. 955 LECrim).
To the above we have to add the Public Prosecution, when he is aware of some case in which it can be appealed through a review appeal (art. 961 LECrim). Therefore, without understanding this possibility limited to the state’s attorney general. Besides, the Public Prosecution does not need of the previous authorization of the Second Chamber of the Supreme Court to lodge the appeal, this is how has been interpreted by the Spanish jurisprudence the difference in the wording of the article 955 and the article 961, while the former talks about “to promote and to lodge”, the latter only says “to lodge”.
– The procedure to lodge the review appeal:
The procedure to lodge the review appeal has two stages, the first consists in the request to the Second Chamber of the Supreme Court of the authorization to lodge it (art. 957 LECrim), and in the second is decided the nullity of the sentence appealed.
The Second Chamber fo the Supreme Court must authorize the lodging of the appeal when any of the circumstances contained in the article 954 is met. Against such decision there is no appeal (art. 957 LECrim).
Once the Second Chamber has authorized the lodging fo the appeal, this will be ruled according to the norms established in the LECrim for the cassation appeal when it is alleged a breach of the law according to the article 849 LECrim (art. 959 LECrim).
As we have mentioned at the beginning, in case that the review appeal has success, the result will be the nullity of the sentence appealed.
Víctor López Camacho.
Twitter: @victorsuperlope.
More on my website: www.victorlopezcamacho.com