Cassation Interest in Spanish Criminal Appeals (Art. 847.1.b) LECrim)

Act 41/2015 made a full second instance general in Spanish criminal cases and, in exchange, opened a different kind of cassation: narrow, limited to a single class of ground and filtered by a concept the statute does not define, cassation interest. Understanding that filter is the difference between a viable appeal and a wasted deadline.

Your appeal has been dismissed: what happens next

Before 2015, a judgment given on appeal by a Provincial Court closed the ordinary route. Since then there is one more step, but it is not a third instance: Art. 847.1.b) LECrim allows a party to reach the Supreme Court only for infringement of law and only on the ground in Art. 849.1.

The full map is worth setting out, because the two cassation routes coexist and are easily confused:

• Art. 847.1.a). For infringement of law and for procedural defects, against judgments given at single instance or on appeal by the Civil and Criminal Divisions of the High Courts of Justice and against those of the Appeals Division of the National High Court. This is the cassation of serious cases, which arrive through the appeal of Art. 846 ter.
• Art. 847.1.b). Only for infringement of law under Art. 849.1, against judgments given on appeal by the Provincial Courts and by the Criminal Division of the National High Court.

Art. 847.2 adds an exclusion that closes many appeals before they start: judgments that merely quash the first-instance decision are excluded. If the appeal annulled the trial and sent the case back, there is no cassation.

Which decisions open the route

The cassation of Art. 847.1.b) is directed against the appeal judgment, not against the first-instance one. Its typical antecedent is a conviction or acquittal by the Criminal Section of the Court of First Instance upheld or reversed by the Provincial Court in the appeal of Art. 790 LECrim.

Alongside judgments, Art. 848 LECrim opens cassation for infringement of law against orders where the law expressly allows it and against final orders given at first instance and on appeal by the Provincial Courts or by the Criminal Division of the National High Court where they end the case for lack of jurisdiction or by full dismissal, provided the case was directed against the accused through a judicial decision amounting to a well-founded charge. That is the route analysed in the article on cassation against a full dismissal; on decisions declining objective jurisdiction, see this one.

The single ground: infringement of law under Art. 849.1

Art. 849.1 LECrim defines the ground with a formula that shapes the whole appeal: the law is deemed infringed where, given the facts declared proven, a substantive criminal provision or another rule of the same nature to be observed in applying criminal law has been infringed.

Three consequences follow, and they decide the fate of the submission:

• The proven facts are untouchable. Art. 884.3 makes the appeal inadmissible where they are not respected or where legal arguments are made in obvious contradiction with them.
• Procedural grounds are excluded. Neither procedural defects (Arts. 850 and 851) nor error in the assessment of evidence based on documents under Art. 849.2.
• The rule relied on must be substantive. A provision of the Criminal Code or a rule of the same nature to be observed in applying it, not a procedural rule.

How cassation interest is shown

The statute does not define cassation interest: Art. 889 LECrim mentions it as a ground of refusal and leaves its assessment to the Second Division. What the statute does impose is a specific argumentative burden in the preparatory submission.

The wider framework for this appeal — admissible grounds, deadlines and the appeal process — is set out on our criminal appeal page.

The second paragraph of Art. 855 requires a party preparing a cassation appeal against an appeal judgment of a Provincial Court to file a submission stating, in separate paragraphs and with the greatest clarity and concision, that the requirements are met, identifying the substantive provision or provisions said to be infringed and briefly explaining the reasons for the infringement.

In practice, that submission only works if it explains why the question goes beyond the case: because the substantive provision has no Supreme Court interpretation, because the Provincial Courts have been applying it with divergent criteria, or because the judgment under appeal departs from the interpretation already settled. A submission that simply disagrees with the outcome, without identifying the provision or reasoning its general scope, is exactly what Art. 889 allows to be refused by ruling.

There is also a question of sequence that is often overlooked: cassation interest must be argued at the preparation stage, not held back for the later submission. Art. 858 allows the appeal to be stopped at that first moment, so a generic preparatory submission wastes all the work that follows. And because there is a single ground, the choice of substantive provision shapes the entire argument: picking the wrong article is the same as having no appeal.

Preparation and lodging

• Deadline. Five days from the last service of the judgment or order, by a submission signed by a lawyer and a court representative (Art. 856 LECrim).
• Control at the preparation stage. The second paragraph of Art. 858 requires the court to refuse preparation by reasoned order where grounds other than Art. 849.1 are relied on, where the substantive provision allegedly infringed is not identified, where the required brief summary is missing, or where its content falls outside the scope of Art. 849.1. It is a real, prior filter.
• Summons. Once preparation is accepted, a certified copy of the judgment is issued and the parties are summoned before the Second Division of the Supreme Court within fifteen days where the court sits on the mainland, twenty in the Balearic Islands and thirty in the Canary Islands, Ceuta or Melilla (Art. 859).
• Lodging. Art. 874 requires numbered paragraphs with the basis of each ground headed by a brief summary of its content and a citation of the article that allows it. A cross-appeal follows the same form (Art. 861).

Admission and refusal

Three provisions govern the filter:

• Art. 884. Mandatory grounds of refusal: relying on grounds other than those of Arts. 849 to 851; targeting decisions other than those of Arts. 847 and 848; not respecting the proven facts; failing the requirements for preparation or lodging; and the two specific grounds relating to Arts. 850 and 849.2.
• Art. 885. Discretionary grounds: the appeal is manifestly without foundation, or the Supreme Court has already dismissed on the merits other substantially identical appeals. Refusal may affect all the grounds or only some of them.
• Art. 889. Refusal of admission requires unanimity. And, in the case of Art. 847.1.b), refusal may be made by a briefly reasoned ruling for lack of cassation interest. For the route of Art. 847.1.a) the provision contemplates a parallel possibility for lack of cassation relevance, conditional on the custodial sentence imposed, or the sum of those imposed, not exceeding five years.

And one point worth bearing in mind before appealing: no further appeal lies against the Division's decision admitting or refusing admission of the appeal or the cross-appeal (Art. 892 LECrim).

What this route does not allow

• Reviewing the assessment of the evidence or asking for a fresh reading of the proven facts.
• Alleging procedural defects or breaches of procedural guarantees: those grounds belong to the cassation of Art. 847.1.a).
• Appealing an appeal judgment that merely quashes the first-instance decision (Art. 847.2).
• Challenging on the merits a freely entered guilty plea, whose appeal regime is confined by Art. 785.10 LECrim.

The grounds that actually work in each route are analysed in the article on viable cassation grounds, and the mechanics of the cross-appeal in the one on cassation by adhesion.

What the defence looks at

• That the decision falls within Art. 847. If the appeal quashed the trial, there is no cassation: the case returns to first instance.
• The substantive provision. Identifying it precisely from the preparatory submission onwards; Art. 858 allows preparation to be refused if it is missing.
• Respect for the proven facts. The whole argument must be built on them, not against them.
• The general reach of the question. Explaining why the point matters beyond the case is what separates an admitted appeal from a refusal by ruling.

If you have been served with an appeal judgment and want to assess whether a real cassation route exists, the preparation deadline is five days. You can contact us at +34 91 078 65 74.