Case law and legal doctrineCriminal lawA 105,000-euro property fraud: why the prosecution cannot rewrite the established facts on appeal

The facts and the procedural route

• Deception about the continuing validity of a house sale for 200,000 euros
• A co-defendant falsely presented as the owner’s lawyer
• Transfers by the buyer totalling 105,000 euros
• Destination of the funds: accounts of the agent, her family and the co-defendant
• Provincial Court of Santa Cruz de Tenerife: four years of imprisonment and joint compensation of 105,000 euros
• High Court of Justice of the Canary Islands: judgment upheld
• A third defendant was acquitted
• The Supreme Court dismisses all three appeals with costs

The legal keys

• Established facts cannot be revised on appeal to the defendant’s detriment
• The limit is reinforced where subjective elements of the offence are involved
• Constitutional doctrine and European Court of Human Rights case law
• Immediacy cannot be replaced in an instance that takes no evidence
• Review of court-appointed defence: professional adequacy is presumed
• Intervention only where shortcomings are clear and obvious

The prohibition on revising facts to the defendant’s detriment

The Chamber restates settled doctrine that should be borne in mind before drafting any prosecution appeal. Neither cassation nor appeal permits the established facts to be altered so as to worsen the defendant’s position where that alteration requires reassessing personal evidence, that is, statements by defendants, witnesses or experts taken with immediacy before the trial court. The reason is structural: the reviewing body did not witness that evidence and cannot substitute direct perception with a reading of the record.

Reinforcement where subjective elements are involved

The limit intensifies where what is sought to be revised are subjective elements of the offence, such as intent to profit or fraudulent intent. Constitutional case law and the doctrine of the European Court of Human Rights have drawn a particularly firm line here: the inference about the defendant’s state of mind is built from their statement and from the personal evidence as a whole, so revising it to their detriment without having heard them infringes the right to a fair trial.

What can be reviewed

The scope of the rule should be stated precisely so as not to overstate it. Cassation does allow review of the characterisation exercise, that is, whether the facts held proven make out the elements of the offence. Here the Supreme Court confirmed that the statement of facts contained all the elements of fraud: sufficient deception, error on the victim’s part, an act of disposal of assets, loss and intent to profit. What cannot be done is to expand that statement to incorporate facts the trial court did not hold proven.

Review of court-appointed defence

The ruling adds a doctrinal development of practical interest on claims of deficient defence. The Supreme Court holds that judicial review must start from a presumption that the lawyer’s conduct was professionally adequate, intervening only where shortcomings are clear and obvious. Disagreeing after the event with the strategy adopted is not enough, nor is pointing out that another professional would have acted differently. Material prejudice must be real and demonstrable, not a reconstruction made from an adverse outcome.