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The accusatorial principle and the correlation between charge and judgment in Spain
Quick answerThe accusatorial principle prevents conviction for facts other than those charged, for an offence heterogeneous to the one charged, or to a sentence heavier than that sought. It derives from the right to be informed of the charge under article 24.2 of the Spanish Constitution and is given concrete form in article 789.3 of the Criminal Procedure Act for abbreviated proceedings.
Also cited as: accusatorial principle · principio acusatorio · correlation between charge and judgment · homogeneous offences · reformatio in peius.
The accusatorial principle is not expressly stated as such in the Constitution, but the Constitutional Court has derived it from the right to be informed of the charge and the right of defence. Its essential content is the correlation between charge and judgment: no one may be convicted of that against which they could not defend themselves. In practice it is invoked in three situations above all: conviction for facts not described in the indictment, conviction for a different and heterogeneous offence, and imposition of a sentence higher than that sought by the prosecution.
Legal framework
Article 24.2 of the Spanish Constitution: everyone has the right to be informed of the charge against them and to a defence.
Article 789.3 of the Criminal Procedure Act: the judgment may not impose a sentence heavier than that sought by the prosecution, nor convict of a different offence where this entails a difference in the protected legal interest or a substantial change in the facts tried, unless one of the prosecuting parties has adopted the view previously put forward by the court under the procedure of the second paragraph of article 788.
Article 788.4 of the Criminal Procedure Act: where, in its final submissions, the prosecution changes the legal classification of the facts or relies on a greater degree of participation or execution or on aggravating circumstances, the court may consider adjourning the session, up to a limit of ten days, at the defence’s request.
Statutory texts cited from the consolidated versions published by the Spanish Official State Gazette. Unofficial English rendering; the Spanish text is the authentic one.
Key rule. The limit is twofold: the facts, which may not change substantially, and the sentence, which may not exceed that sought. The legal classification may vary within homogeneous offences.
Key facts
| Basis | Right to be informed of the charge and right of defence, article 24.2 of the Constitution |
|---|---|
| Essential content | Correlation between charge and judgment |
| Factual limit | Prohibition of a substantial change in the facts tried |
| Legal limit | Prohibition of conviction for a heterogeneous offence |
| Sentencing limit | Prohibition of a sentence heavier than that sought, article 789.3 |
| Associated safeguard | Adjournment of up to ten days under article 788.4 where the classification changes |
| On appeal | Prohibition of reformatio in peius |
Elements and scope
- Substantial identity of the facts between the indictment, the final submissions and the judgment. Incidental details may be refined, but the factual core must remain unaltered.
- Homogeneity between the offence charged and the offence of conviction, requiring identity of the protected legal interest and that the elements of the latter be contained in the narrative of the former.
- Respect for the maximum sentence sought by the prosecution, both in its length and in its nature, including ancillary penalties and civil liability.
- The possibility of an effective defence against the classification ultimately adopted, secured through the adjournment of article 788.4 where the prosecution aggravates its case in final submissions.
- On appeal, the prohibition on worsening the appellant’s position where only he has appealed, a safeguard known as the prohibition of reformatio in peius.
Points of application
Homogeneity and heterogeneity. The Second Chamber of the Supreme Court allows conviction for a different offence where it is homogeneous and of equal or lesser gravity, for instance from robbery with violence to theft, and rejects it where the protected interest changes, since that entails a different defence.
Binding effect of the sentence sought. Following the non-jurisdictional plenary agreement of 20 December 2006, the court may not impose a sentence higher than that sought by the prosecution, even if the statutory penalty would be greater. It is an absolute limit flowing from the accusatorial principle.
Final submissions as the subject matter. The subject matter is fixed by the final submissions and not by the provisional ones, which is why the adjournment under article 788.4 is the corresponding safeguard for the defence.
Facts not described in the charge. Introducing into the judgment factual circumstances not contained in the charge, particularly those founding an aggravating circumstance, breaches the principle even if they emerged at trial.
Reformatio in peius. Where only the convicted person appeals, the appellate court may not worsen his position. The safeguard extends to the sentence, to civil liability and to ancillary rulings.
Defence strategy
Compare the provisional charge, the final submissions and the judgment. The work consists in a literal comparison of the three documents, identifying any fact or circumstance appearing for the first time in the judgment.
Request the article 788.4 adjournment. Faced with any change in final submissions that worsens the client’s position, the adjournment must be expressly sought and, if refused, an objection recorded.
Argue heterogeneity. It must be reasoned that the offence of conviction protects a different legal interest or requires elements the defence had no opportunity to contest.
Check the quantum of the sentence. It should be verified that the sentence imposed, including ancillary penalties, does not exceed that sought by any prosecuting party, a point frequently overlooked.
Invoke reformatio in peius on appeal. If only the defence appeals, any worsening is a ground of nullity, including an increase in civil liability or an order for costs not made at first instance.
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 the court convict of an offence other than the one charged?
Only if it is homogeneous, that is, if it protects the same legal interest and its elements are contained in the narrative of the charge, and provided it is not more serious. Otherwise the accusatorial principle is breached.
Can a sentence higher than the one sought by the prosecutor be imposed?
No. The court is bound by the sentence sought by the prosecution, even if the statutory penalty would be higher.
What if the prosecution changes the classification at the end of the trial?
The defence may request an adjournment of up to ten days under article 788.4 to prepare submissions and produce exculpatory evidence.
Can my position worsen if I am the only one who appeals?
No. The prohibition of reformatio in peius applies: where only the convicted person appeals, the appellate court may not worsen his position in any respect.
Which counts, the provisional charge or the final submissions?
The subject matter is fixed by the final submissions. The provisional ones frame the initial debate, but it is against the final ones that correlation with the judgment is measured.
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