CASE COMMENTARY · SPANISH SUPREME COURTTried after her co-defendants: the Supreme Court denies any principle of joint trial
DECISION
Judgment of the Second Chamber (2026)
COURT
Spanish Supreme Court, Criminal Chamber
IDENTIFICATION
Separate trial under Article 842 of the Criminal Procedure Act
OUTCOME
Appeals by the defence and the private prosecution dismissed
A woman initially declared absent was tried after her co-defendants, before the same section of the Provincial Court that had already convicted them. She argued in cassation that her conviction was predetermined, because that earlier judgment already identified the person who inflicted the stab wound. The Supreme Court rejects the argument and takes the opportunity to recall that there is no principle of joint trial requiring all participants to be tried simultaneously.
The issue arises more often than might be supposed: absence, supervening illness and partial adjournments regularly fragment the trial of cases with several defendants.
The facts and the procedural route
- A stab wound to the back during an argument in the courtyard of a dwelling
- The victim required emergency surgery and was left with lasting injuries
- The defendant, initially absent, could not be located for the first trial
- The first trial was held in respect of the other two participants
- Once located, she was tried in a second trial before the same section
- Provincial Court of Madrid: five years of imprisonment for attempted homicide
- The Supreme Court dismisses the appeals of the defence and of the private prosecution
The legal keys
- Article 842 of the Criminal Procedure Act covers separate trials
- There is no principle of joint trial requiring simultaneous proceedings
- The earlier judgment has no res judicata effect against a non-party
- A plea of bias not raised at the time is incompatible with procedural good faith
- The court must form a fresh conviction with immediacy and adversarial debate
- The prosecution evidence was plural: victim, direct witness, officers and biological expert evidence
THE DOCTRINEWhat the court holds
The statutory basis for separate trials
The Chamber recalls that Article 842 of the Criminal Procedure Act expressly authorises the continuation of proceedings in respect of defendants who are present where another is absent. This is not a tolerated practice or an emergency solution but a statutory provision. It follows that the legal system expressly contemplates the possibility of the same facts being tried at different times in respect of different people.
The limits of res judicata
The appellant’s central argument presupposed that the judgment against the other defendants bound her in some way. The Supreme Court rejects it on an elementary premise: a criminal judgment has no res judicata effect against someone who was not a party to those proceedings. A person who could not take part, propose evidence or contest matters is unaffected by what was declared there. Hence the second court was required to form a fresh conviction through the evidence taken at its own trial, with full immediacy, adversarial debate and opportunity to defend.
Indirect identification does not prejudge guilt
The Chamber further examines the specific content of the earlier judgment and finds that it allowed the appellant to be identified indirectly as the person who physically inflicted the wound, but contained no ruling on her criminal guilt and did not assess the subjective elements of her conduct. That distinction is decisive. It is one thing for the statement of facts in a decision to mention a third party’s involvement, and quite another for it to declare that person responsible, which would have required hearing them.
The plea of bias not raised
To this is added a procedural obstacle worth stressing for its practical frequency. The appellant did not seek recusal when she learned of the composition of the court. Raising a lack of impartiality for the first time in cassation, after tacitly accepting the judges and obtaining an unfavourable judgment, is incompatible with the requirements of procedural good faith. Impartiality is defended when it can still be remedied, not once the outcome is known.
Dismissal of the prosecution appeal
The victim, appearing as private prosecutor, appealed on the opposite ground: she considered the five-year sentence disproportionately lenient given the objective gravity of the act and the risk to life created. The Supreme Court also dismisses that appeal, noting that the Provincial Court weighed the circumstances and chose a reduction of a single degree for the attempt, a decision lying within its margin of individualisation.
THE FIRM’S READINGWhat it means in practice
For the defence. If a risk of contamination from an earlier trial is detected, recusal must be sought immediately, as soon as the composition of the bench is known. Saving the point for cassation means losing it. And if recusal is refused, an express objection should be recorded to preserve the ground.
On the content of the first judgment. When defending a defendant at a trial from which other participants are absent, it is useful to request that the statement of proven facts avoid pronouncements on the conduct of those who have not been heard. That precaution protects all parties and avoids later disputes about impartiality.
On attempt. The decision to reduce the sentence by one or two degrees under Article 62 of the Criminal Code is where the sentence is really decided in such cases. The argument about the degree of execution reached and the danger inherent in the attempt must be built on medical expert evidence, not on generic submissions.
FREQUENTLY ASKED QUESTIONSFrequently asked questions
Can defendants charged with the same act be tried separately?
Yes. Article 842 of the Criminal Procedure Act allows proceedings to continue in respect of defendants who are present where another is absent. The Supreme Court confirms that there is no principle of joint trial requiring all to be tried simultaneously.
Does the earlier judgment bind the defendant tried later?
No. A criminal judgment has no res judicata effect against someone who was not a party to those proceedings. The second court must form its conviction from the evidence taken at its own trial.
Is impartiality breached if the same section tries the case?
Not automatically. It must be shown that the court ruled on the guilt of the person tried later. Mere indirect identification in the statement of facts is not enough.
When must a plea of bias be raised?
As soon as the ground and the composition of the court are known. Raising a lack of impartiality for the first time in cassation, after an unfavourable judgment, is incompatible with procedural good faith.
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Commentary prepared by the SCJE team from public sources on the decision. Its content is summarised for informational purposes, without full reproduction. It does not constitute individual legal advice. Source consulted: Tirant lo Blanch, actualidad jurídica.
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