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.
Also cited as: article 849 Spanish Criminal Procedure Act · art. 849 LECrim · LECrim article 849 · artículo 849 de la Ley de Enjuiciamiento Criminal.
The law shall be taken to have been infringed, for the purpose of the lodging of an appeal in cassation:
1. Where, given the facts declared proved in the decisions covered by the two preceding articles, a substantive criminal precept or another legal rule of the same character which is to be observed in the application of the criminal law has been infringed.
2. Where there has been an error in the assessment of the evidence, based upon documents in the file which demonstrate the mistake of the court without being contradicted by other evidential material.
Working translation prepared by Société Juridique from the consolidated Spanish text published by the Official State Gazette. It has no official status: the only authoritative version is the Spanish original, available at the Official State Gazette and reproduced verbatim in our Spanish-language entry for this provision. Source: Royal Decree of 14 September 1882 approving the Spanish Criminal Procedure Act.
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.
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The provision imposes no penalty. Where the first ground succeeds the Supreme Court hands down a second judgment applying the law correctly to the facts declared proved, and where the second ground succeeds the statement of proved facts is corrected and the consequences of that correction drawn.
A decision which is open to cassation under Articles 847 and 848. In the first ground, absolute respect for the facts declared proved, whose alteration is not permitted by this route. In the second ground, a literosufficient document in the file which by itself demonstrates the mistake of the court. That the document invoked is not contradicted by other evidential material, which is the requirement which most frequently causes the ground to fail.
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.
Working translation prepared by Société Juridique from the consolidated Spanish text published by the Official State Gazette. It has no official status: the only authoritative version is the Spanish original, available at the Official State Gazette and reproduced verbatim in our Spanish-language entry for this provision. Source: Royal Decree of 14 September 1882 approving the Spanish Criminal Procedure Act.