Appealing a criminal judgment in Spain: time limits and grounds

A criminal judgment is not final while it can still be appealed. An appeal (recurso de apelación) allows a higher court to review the decision given at first instance, whether it convicted or acquitted. The time limits are short and the grounds are limited, so it is worth knowing how it works.

Which judgments can be appealed?

• Judgments of the criminal division of the court of first instance, formerly the criminal court. They are appealed to the Provincial Court (article 790.1 of the Criminal Procedure Act, Ley de Enjuiciamiento Criminal, LECrim).
• Judgments given in a fast-track trial (article 803 LECrim) and in a minor offence trial (article 976 LECrim).
• Judgments given at first instance by the Provincial Court. They are appealed to the Civil and Criminal Division of the High Court of Justice — in Catalonia, the High Court of Justice of Catalonia (article 846 ter LECrim).

Any party may appeal: the convicted person, the Public Prosecutor and the prosecuting parties (article 790.1 LECrim).

Judgments given on a plea agreement have a special regime: they can only be appealed where the requirements or the agreed terms were not respected, not on the merits (article 785.10 LECrim).

What is the time limit?

In the procedures explained in this article, the time limits for lodging an appeal are:

• Ten days from service of the judgment, in the abbreviated procedure (article 790.1 LECrim).
• Five days in a fast-track trial (article 803.1 LECrim) and in a minor offence trial (article 976.1 LECrim).

On what grounds?

The notice of appeal must set out, in an orderly way, the arguments on which the challenge is based (article 790.2 LECrim):

• Breach of procedural rules and safeguards.
• Error in the assessment of the evidence.
• Breach of rules of law.

If the trial is challenged as void because of a procedural breach that impaired the defence, it must be shown that its correction was sought at first instance, unless that was no longer possible (article 790.2 LECrim). Hence the importance of formally objecting during the trial itself.

Can new evidence be filed?

Only to a limited extent. Three types of evidence may be requested in the notice of appeal (article 790.3 LECrim):

• Evidence that could not be proposed at first instance.
• Evidence that was wrongly refused, provided an objection was made at the time.
• Evidence that was admitted but not taken for reasons beyond the appellant's control.

An appeal is therefore not a full second trial.

How does it proceed?

1. The appeal is filed with the same court that gave the judgment (article 790.2 LECrim). 2. The other parties have ten days to file submissions (article 790.5 LECrim). 3. The file is sent up to the court that must decide (article 790.6 LECrim). 4. An appeal does not normally involve a fresh oral hearing. Proposing evidence does not guarantee one: the court decides both on the admission of evidence and on whether a hearing should be held (article 791 LECrim). 5. Judgment is given within five days of the hearing or, if there is none, within ten days of receipt of the file (article 792.1 LECrim).

In fast-track trials the periods are shorter (article 803.1 LECrim). In minor offence trials the time limit to file the appeal is five days (article 976.1 LECrim).

What can the court decide?

• Uphold the judgment.
• Set it aside in whole or in part and give a new one.
• Annul it and send the case back to the first-instance court, for example where there has been an essential procedural breach (article 792.2 and 3 LECrim).

There is an important safeguard: the appeal court cannot convict someone acquitted at first instance, or increase their sentence, on the basis of an error in the assessment of the evidence. In those cases it can only annul the judgment and order a fresh trial (article 792.2 LECrim).

In addition, where only the convicted person appeals, their position cannot be made worse as a result of their own appeal.

Can the appeal judgment itself be challenged?

Only in very limited cases. Judgments given on appeal by the Provincial Court may be challenged before the Supreme Court by way of casación on points of law alone, under article 847 LECrim (article 792.4 LECrim). In practice this is an exceptional remedy.

What to do if you want to appeal

• Consult a lawyer as soon as the judgment is served: the time limits run in days.
• Request a copy of the trial recording, if needed, within the first three days.
• Check whether the necessary objections were made at trial against possible procedural breaches.
• Assess with your lawyer the real prospects of the appeal: it is not a repeat of the trial.