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.
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.
| 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 |
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.
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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.
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.
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.
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.
From the moment it is shown that the convicted person learned of the judgment, not from service by publication or on the court agent.
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.