Article 787 Spanish Criminal Procedure Act: Attendance at Trial and Trial in Absentia

Article 787 of the Criminal Procedure Act, as amended by Organic Law 1/2025 of 2 January, no longer regulates the agreed disposition, which is now dealt with in the defence pleading under article 784.3 and at the preliminary hearing under paragraphs 4 to 6 of article 785. The article now governs the compulsory attendance of the accused and of defence counsel at trial, the conditions on which a trial may proceed in the absence of the accused, and the opening of the sessions. For a foreign national who has returned home, the second paragraph of its first subsection is the provision that determines whether the trial will go ahead without him.

Wording of Article 787 of the Spanish Criminal Procedure Act

Requirements and procedure

1. Compulsory attendance of the accused and of defence counsel as the general rule.
2. A valid summons, served personally or in the terms of article 775, which is the essential precondition of any trial in absentia.
3. An application by the prosecution, the defence having been heard, and a reasoned assessment that there are sufficient elements for the case to be tried.
4. The two penalty limits: two years for the most serious penalty sought, six years for a penalty of a different nature, and five years for the total of custodial penalties sought.

Defence strategy

Nullity of the summons. A trial in absentia stands or falls on the summons. A summons served at an address the accused had left, one served by publication without exhausting the enquiries, and one served without translation on a defendant who does not read Spanish are all defective, and the defect renders the trial and the judgment void. For foreign nationals this is the most frequently successful ground of appeal, and it requires the complete record of the attempts at service, which is obtained from the docket rather than from the summons itself.

Insufficiency of the elements for trial. The decision to proceed in absentia must be reasoned and must find sufficient elements. The defence opposes it by identifying precisely what cannot be established without the accused: an identification that requires him to be seen, the individualisation of conduct among several participants, or an account that only he can give. Recording that objection is essential, since an unreasoned decision to proceed is itself a ground of appeal.

The penalty limits. The limits are computed on the penalties sought by all the prosecuting parties and for all the offences charged, not on the principal offence alone. A total exceeding five years, or a most serious penalty exceeding two years, excludes trial in absentia and obliges the court to adjourn. The calculation is set out in writing before the hearing, because it is frequently made incorrectly.

Evidence at the opening of the sessions. The third paragraph permits reports, certificates and documents to be produced at the opening, and evidence unknown at the time of the article 785 hearing to be proposed. The defence uses this route to introduce the final medical report, an independent valuation or recordings obtained later, and where the application is refused it records a formal protest, which preserves the point for appeal.

• Article 801: guilty plea at the duty court
• Arrest warrants and trial in absentia
• Plea agreements in Spain
• Spanish-language entry

This entry is provided for information only and does not constitute legal advice. The application of any provision depends on the circumstances of the individual case and requires examination of the case file by a qualified lawyer.