Decisions Declining Objective Jurisdiction May Be Appealed in Cassation

The cassation appeal in criminal matters is an extraordinary remedy whose access is strictly defined by the Criminal Procedure Act (LECrim). One question that frequently causes uncertainty in practice is whether interlocutory decisions — those that do not resolve the merits or bring the proceedings to an end — may access this avenue at all. The Supreme Court has clarified this point for a specific situation: the order by which a court declines its objective jurisdiction.

Objective jurisdiction in criminal proceedings

Objective jurisdiction is the prerequisite that determines which court within the criminal order — Juzgado de Instrucción, Juzgado de lo Penal, Audiencia Provincial, Audiencia Nacional, Tribunal Superior de Justicia — must hear a case, based on the gravity of the offence, the penalty it carries and, in some cases, the status of the person under investigation. Its correct determination is not a formality: a court that lacks objective jurisdiction cannot issue a valid judgment and, if it does, incurs a nullity of proceedings that may be raised at any point in the process.

An order declining jurisdiction does not archive the proceedings or rule on the guilt or innocence of the accused. What it does is transfer the knowledge of the case to the court considered competent. That decision may be decisive: a change of court alters the appeal regime, the rules governing the composition of the tribunal and, sometimes, the standard applicable to the trial.

Article 848 LECrim and the appealability of orders

The Supreme Court bases access to cassation on Article 848 of the Criminal Procedure Act. The wording of that provision and its interpretation by the Second Chamber, in the light of the case law that took shape after the 2015 procedural reform, allows decisions on objective jurisdiction to be appealed in cassation. That reform made substantial changes to the system of criminal appeals — in particular the generalisation of second-instance review before the Tribunales Superiores de Justicia — which forced the Supreme Court to redefine and clarify the scope of cassation and the types of decisions that have access to it.

The settled case law distinguishes between decisions that bring the proceedings to an end and interlocutory decisions of particular significance. The former have broader access to cassation; the latter can only access it through the avenues expressly provided in the LECrim. Article 848 limits cassation against orders to the cases expressly authorised by law.

A different regime from that of a free dismissal

The Chamber also clarifies that the regime applicable to an order declining jurisdiction differs from that of a free dismissal. A free dismissal amounts to an early acquittal and, for it to be appealable in cassation, it requires a prior formal charge to have been issued against the person under investigation. An order declining jurisdiction, by contrast, does not resolve the merits or charge anyone: it simply transfers competence. Its access to cassation is therefore not conditioned on that additional requirement of a prior formal charge.

This distinction matters so as not to confuse the challenge regimes of two types of interlocutory decisions that, even though both have extraordinary access to cassation, access it through different routes and on different conditions.

Practical use for shaping the appeal

The ruling is of direct interest to the defence and to the prosecution parties in any proceedings in which the objective jurisdiction of the instructing or trial court is in dispute. The existence of a clear cassation route against orders declining jurisdiction prevents the risk of a decision on jurisdiction that is objectively wrong producing irreversible effects without any supervision by the Supreme Court.

The ruling also recalls that bringing the appeal requires compliance with the formal and substantive requirements inherent in cassation: identifying with precision the provision alleged to have been infringed, the ground to which the challenge is attached and the case law that supports the review. Mere disagreement with the jurisdictional finding is not enough; the appeal must be framed in accordance with the technical requirements that the LECrim and the Second Chamber's case law set for this extraordinary avenue.

The 2015 reform and the new map of cassation

The 2015 procedural reform — introduced principally through Law 41/2015 and Organic Law 13/2015 amending the LECrim — transformed the system of criminal appeals in essential respects. The introduction of a generalised second instance before the Tribunales Superiores de Justicia as a mandatory prior step before cassation changed the position of the Supreme Court: it ceased to be the first ordinary reviewer of convictions and became instead the guarantor of doctrine and of the uniform application of the law. That new position has led the Chamber to define, decision by decision, which decisions have access to this avenue and under what conditions.

The ruling commented on here is an example of that task of delimitation: it establishes clearly that orders declining objective jurisdiction may be reviewed by the Supreme Court by way of cassation, under Article 848 LECrim, regardless of whether there has been a prior formal charge and without needing to assimilate them to a free dismissal. A useful guide for any proceedings in which a conflict of objective jurisdiction has arisen.