Article 847 Spanish Criminal Procedure Act: Decisions Open to Appeal in Cassation

Article 847 of the Criminal Procedure Act determines which decisions may be taken to the Supreme Court in cassation. Two routes exist. Judgments of the Civil and Criminal Division of the High Courts of Justice and of the Appeal Division of the National Court may be challenged for infringement of law and for procedural irregularity. Judgments given on appeal by the Provincial Courts and by the Criminal Division of the National Court may be challenged only for infringement of law under article 849.1, that is for an error in the application of a substantive provision. Decisions that merely annul a first-instance judgment are excepted.

Wording of Article 847 of the Spanish Criminal Procedure Act

Requirements and procedure

1. A final judgment falling within one of the categories listed. Interlocutory decisions and judgments merely annulling a first-instance decision are outside the article.
2. For judgments of the High Courts of Justice and of the Appeal Division of the National Court, either ground: infringement of law or procedural irregularity.
3. For judgments on appeal of the Provincial Courts and of the Criminal Division of the National Court, only the ground in article 849.1.
4. Compliance with the time limits and with the requirement to announce the appeal before the court that gave the judgment.

Defence strategy

Formulating the ground correctly. Under the narrow route the appeal must accept the facts as found and identify the substantive provision wrongly applied. Appeals that in substance dispute the evidence, however framed, are inadmissible. The work therefore consists in translating the disagreement into a question of legal classification: whether the conduct found satisfies the elements of the offence, whether an aggravating circumstance was applicable on those facts, or whether a mitigating circumstance was ignored.

Preserving the point below. Cassation is not an occasion to raise new arguments. The ground must have been raised on appeal and, where it concerns a procedural matter, protested at trial. This means that the cassation strategy is built during the appeal and even at trial, by ensuring that each legal submission is recorded and ruled upon, which is a practical reason for making legal submissions in writing.

Selecting what to challenge. Because the Supreme Court will not revisit the facts, the appeal concentrates on points with a clear legal answer: the erroneous application of a penalty bracket, the double counting of a circumstance already inherent in the offence, the misapplication of the rules on concurrence, or the failure to apply the rules on limitation. A focused appeal on one or two such points has materially better prospects than a broad challenge.

The interest of the appeal for a foreign client. Cassation extends the proceedings by many months and does not suspend the enforcement of the sentence unless suspension is expressly obtained. For a client who wishes to close the matter and leave Spain, the decision whether to appeal is taken by weighing the realistic prospect on a narrow ground against the delay and cost, and where a sentence has been suspended on conditions, against the risk to that arrangement.

• Article 790: appeal against judgment
• Appeals: frequently asked questions
• Spanish Criminal Procedure Act by article
• 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.