Article 849 Spanish Criminal Procedure Act: Grounds of cassation for infringement of law

Article 849 defines the two grounds of cassation for infringement of law: the infringement of a substantive criminal precept given the facts declared proved, and an error in the assessment of the evidence based upon documents in the file which are not contradicted by other evidential material.

Wording of Article 849 of the Spanish Criminal Procedure Act

Requirements and procedure

1. A decision which is open to cassation under Articles 847 and 848.
2. In the first ground, absolute respect for the facts declared proved, whose alteration is not permitted by this route.
3. In the second ground, a literosufficient document in the file which by itself demonstrates the mistake of the court.
4. That the document invoked is not contradicted by other evidential material, which is the requirement which most frequently causes the ground to fail.

Defence strategy

Respect for the facts declared proved. The first ground presupposes the account of the facts as it stands. Any submission which in substance disputes the assessment of the evidence, while formally invoking the infringement of a precept, is inadmissible, so the appeal must be constructed strictly upon the legal consequence of the facts as declared.

Literosufficiency of the document. The second ground requires a document which by itself demonstrates the error, without the need for further reasoning or additional evidence. Statements, expert reports and records of proceedings are not, as a rule, documents for these purposes, which considerably narrows the ground.

Absence of contradictory evidence. The document must not be contradicted by other evidential material. Identifying at the outset whether the file contains such material determines whether the ground is viable, and it is preferable to concentrate the appeal upon the first ground where it is not.

Consequence of a successful appeal. Where the first ground succeeds, the Supreme Court hands down a second judgment. Setting out precisely the penalty or the classification which is sought in that second judgment is part of the appeal itself and should not be left to the court.

• Article 847 LECrim: decisions open to cassation
• Cassation before the Supreme Court
• Criminal appeals in Spain
• Constitutional amparo appeal

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.