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Article 793 of the Spanish Criminal Procedure Act: application to set aside a conviction in absentia
Quick answerArticle 793 provides that a defendant convicted in absentia must, on appearing or being found, be served with the judgment and informed of the right to apply to have it set aside. That application is available whether or not the judgment was appealed, on the same time limit, requirements and effects as an appeal, running from the moment the defendant is shown to have learned of the judgment.
The provision is the procedural counterpart of the possibility of holding the trial in the defendant’s absence permitted by the second paragraph of article 786.1, where the sentence sought does not exceed two years of imprisonment or, being of a different nature, six years. Its purpose is to ensure that a person tried in absence has an effective avenue of challenge, in compliance with article 6 of the European Convention on Human Rights and with Directive 2016/343 on the right to be present at trial. Its operation is straightforward but demands rigorous control of the calculation of the time limit.
Also cited as: article 793 Spanish Criminal Procedure Act · art. 793 LECrim · LECrim article 793 · artículo 793 de la Ley de Enjuiciamiento Criminal.
Wording of the provision
1. At any time when a person convicted in absentia under the second paragraph of article 786.1 appears or is found, the judgment delivered at first instance or on appeal shall be served on him for the purposes of enforcement of any sentence not yet time-barred. On service of the judgment he shall be informed of his right to bring the application referred to in the following paragraph, with an indication of the time limit and of the competent court.
2. A judgment delivered in absence, whether or not it has been appealed, may be challenged by the convicted person by an application to set aside, within the same time limit and with the same requirements and effects as those laid down for an appeal. The time limit shall run from the moment it is shown that the convicted person learned of the judgment.
Consolidated text published by the Spanish Official State Gazette, Royal Decree of 14 September 1882 approving the Criminal Procedure Act. Unofficial English rendering; the Spanish text is the authentic one.
Sentencing range. A time limit of ten days, by reference to the appeal regime of article 790, running from the moment it is shown that the convicted person learned of the judgment.
Key facts
| Location | Book IV, title II, chapter III of the Criminal Procedure Act |
|---|---|
| Premise | Conviction delivered in absence under the second paragraph of article 786.1 |
| Standing | Exclusively the person convicted in absence |
| Time limit | The same as for appeal, ten days, from proven knowledge of the judgment |
| Compatibility | Available whether or not the judgment was previously appealed |
| Duty to inform | Personal service stating the time limit and the competent court |
| Current wording | Article 2 of Act 38/2002 of 24 October, in force since 28 April 2003 |
Elements and scope
- A conviction delivered in the defendant’s absence under the second paragraph of article 786.1, which presupposes lawful summons, an application by the prosecuting parties and a reasoned decision of the court.
- Subsequent appearance of the convicted person or his location by the police, at which point the duty of personal service arises.
- Personal service of the judgment, whether of first instance or on appeal, with express instruction as to the right of challenge, the time limit and the competent court.
- Proven knowledge of the judgment by the convicted person, which is the starting point of the time limit and not the date of service by publication or on the court agent.
- Subjection of the application to the appeal regime as to time limit, requirements and effects, covering the content of the written grounds and the grounds listed in article 790.2.
Points of application
Independence from appeal. The provision is explicit: the application lies whether or not the judgment was appealed. An earlier appeal lodged by appointed counsel does not consume the absent defendant’s own right to apply to set aside.
Calculation of the time limit. The starting point is not formal service on the file but the moment actual knowledge by the convicted person is shown. Case law construes this requirement flexibly in the applicant’s favour.
Duty of instruction. Failure to give information about the right of challenge, the time limit and the competent court prevents time from running and may found the nullity of the service.
Effect of a successful application. Setting aside the judgment returns the proceedings to the trial stage, which must be held afresh with the defendant present and with full safeguards.
Relationship with the European arrest warrant. In surrender proceedings, the existence of this avenue of challenge is decisive in satisfying the guarantee required by article 4a of Framework Decision 2002/584/JHA in respect of decisions rendered in absentia.
Defence strategy
Verify the regularity of the trial in absence. It must be checked that the summons was personal, that the prosecuting parties applied for it and that the decision to proceed is reasoned. The absence of any of those premises allows nullity to be sought under article 238.3 of the Judiciary Organic Act.
Control the moment of knowledge. The date on which the client actually learned of the judgment should be documented precisely, since the timeliness of the application depends on it.
Insist on the instruction of rights. If the service did not state the right of challenge, the time limit and the competent court, its ineffectiveness to start time running should be argued.
Frame the grounds of article 790.2. The written grounds must conform to the grounds of appeal: breach of procedural rules and safeguards, error in the assessment of the evidence, and infringement of legal provisions.
Coordinate with enforcement. Once the application is lodged, suspension of enforcement should be sought under the general appeal regime, particularly where an arrest order or precautionary measure is in force.
Defence in this area
If you or your company are facing proceedings in this area, the firm provides defence and prosecution in Alicante and Madrid, with 24-hour assistance to detained persons.
Are you under investigation or facing charges in Spain? Société Juridique acts for foreign nationals throughout Spain, with offices in Alicante and Madrid and a 24-hour custody line. +34 669 30 21 13 or enquire online.
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This page is provided for information only and does not constitute legal advice. The application of any provision depends on the circumstances of the case and requires review of the file by a lawyer. The English rendering of the legal text is unofficial.
Last reviewed: 21 September 2026.
Frequently asked questions
Can a criminal trial be held without the defendant?
Yes, in abbreviated proceedings, where the sentence sought does not exceed two years of imprisonment or, being of a different nature, six years, and the requirements of the second paragraph of article 786.1 are met.
What can a person convicted in absence do?
Bring an application to set aside under article 793, within the same time limit and with the same requirements and effects as an appeal, from the moment it is shown that he learned of the judgment.
Is it available even if the judgment was already appealed?
Yes. The provision says so expressly: the application lies whether or not the judgment was appealed, since it protects a right of the absent defendant himself.
When does time start to run?
From the moment it is shown that the convicted person learned of the judgment, not from service by publication or on the court agent.
What happens if the application succeeds?
The judgment is set aside and the proceedings return to the trial stage, which must be held afresh with the defendant present and with full safeguards.
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