Article 792 Spanish Criminal Procedure Act: Judgment on appeal in the abbreviated procedure

Article 792 fixes the periods for handing down the judgment on appeal and prohibits the appellate court from convicting a person acquitted at first instance, or from aggravating a conviction, by reason of an error in the assessment of the evidence. The remedy in such cases is the annulment of the judgment.

Wording of Article 792 of the Spanish Criminal Procedure Act

Requirements and procedure

1. A judgment on appeal handed down within five days of the oral hearing, or within ten days of the receipt of the proceedings where no hearing was held.
2. The prohibition of a conviction of a person acquitted, or of an aggravation of a conviction, founded upon an error in the assessment of the evidence.
3. Where the judgment is annulled, a determination as to whether the nullity extends to the trial hearing and as to whether a new composition of the body of first instance is required.
4. Where the annulment is for a breach of an essential form, the restoration of the procedure to the state in which it stood, retaining the acts whose content would have been identical.

Defence strategy

Limits upon the review of the evidence. Paragraph 2 codifies the case law on the immediacy of the evidence. Where the appeal of the prosecution rests upon a different reading of the oral evidence, the appellate court may not convict, and identifying that ground precisely in the response to the appeal is decisive.

Annulment as against a fresh conviction. Where the appellate court annuls the judgment, the case returns to the body of first instance. Arguing that the principle of impartiality requires a differently composed body is a specific point which the provision expressly requires the judgment to address.

Scope of the nullity. Paragraph 3 preserves the acts whose content would have been identical notwithstanding the defect. Delimiting which acts must be repeated, and which are preserved, determines whether the evidence already taken is retained and is habitually the real object of the dispute.

Access to cassation. Paragraph 4 confines the appeal in cassation to the cases of Article 847. Identifying at the outset whether the case falls within that provision determines the drafting of the appeal on appeal, since grounds not raised there cannot be introduced later.

• Article 849 LECrim: grounds of cassation for infringement of law
• Criminal appeals in Spain
• Cassation before the Supreme Court
• Arrest warrants and trial in absentia

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.