Cassation on a Point of Law: Proven Facts Are Untouchable

STS 202/2026, of 5 March, is one of those rulings the Supreme Court issues regularly — yet one that never loses its value — to recall the structural limits of criminal cassation on a point of law. The case arises from a conviction for abuse and threats in a gender-based violence context; the convicted person appeals in cassation under Art. 849.1 of the Criminal Procedure Act (LECrim), but the Chamber observes that, beneath that formal label, what is really sought is a review of the facts and the assessment of the evidence. The appeal is dismissed.

Art. 849.1 LECrim and its role in the appeals system

Art. 849.1 LECrim is the traditional avenue for criminal cassation on a point of law. It allows the Supreme Court to correct a legal error made by the court below when it wrongly applies — or fails to apply — a substantive criminal provision. The premise of this ground is clear: the Supreme Court takes the facts declared proven exactly as they appear in the challenged decision and examines only whether the legal subsumption is correct. It is not for the Court to determine what happened: that has already been decided by the tribunal that witnessed the trial.

This architecture is not arbitrary. It reflects the principle of immediacy: the court that has heard the witnesses, observed their behaviour and assessed the evidence as a whole is better placed to establish the factual account. Cassation is a review of legality, not a second instance at which the facts can be re-debated.

The proven facts: an immovable starting point

The practical consequence is emphatic: a party appealing under Art. 849.1 LECrim is bound by the proven facts of the lower court's judgment. They cannot ask the Supreme Court to substitute that account for a more favourable one, argue that the evidence should have been assessed differently, or question the credibility the court attributed to witnesses or to the victim.

If the party introduces in the development of the ground statements that contradict or supplement the proven facts, the Supreme Court identifies this and rejects that part of the argument. The reproach is always the same: a factual ground is being presented as a legal one. STS 202/2026 states this with the clarity characteristic of its established case law: the proven facts are untouchable when the appeal is brought on a point of law.

The victim's credibility and cassation

In gender-based violence proceedings, the victim's statement frequently occupies a central place in the proven account. The trial court, with immediacy, assesses whether the parameters of subjective credibility, objective plausibility and persistence in the accusation are present. Once that assessment is incorporated into the proven facts of the judgment, a cassation appeal on a point of law cannot reopen it.

Attempting, at the cassation stage, to have the Supreme Court reconsider the reliability of the victim's testimony — its coherence, possible motivations or the absence of other corroborating elements — is a tactic that directly clashes with the limits of Art. 849.1 LECrim. The Chamber dismisses such an approach without needing to address the credibility question on its merits, because the chosen avenue does not permit it.

This does not mean that credibility is immune to any cassation review: Art. 849.2 LECrim — error in the assessment of documentary evidence — and the autonomous invocation of the presumption of innocence offer specific avenues, though with their own demanding requirements. But those grounds must be formulated and argued separately and correctly; they cannot be smuggled in under the guise of Art. 849.1 LECrim.

The provisions applied: Arts. 153.1 and 171.4 CP

The conviction underpinning STS 202/2026 rests on Arts. 153.1 and 171.4 of the Criminal Code (CP). Art. 153.1 CP criminalises abuse within a partner or former-partner relationship where the victim is a woman and the perpetrator acts in a context of domination or gender-based violence; it covers minor injuries and blows causing no injury. Art. 171.4 CP covers minor threats where the victim is the woman with whom the perpetrator has or has had an affective relationship analogous to marriage.

A gender perspective is structural to both offences: the law proceeds on the basis that this type of violence reflects an exercise of power and domination by a man over a woman. That premise is compatible with a criminal defence, which may contest the presence of the elements of the offence — including the gender dimension of the conduct — but, once the facts have been declared proven by the trial court, that discussion cannot be reopened via Art. 849.1 LECrim.

Practical implications for defence and prosecution

The doctrine recalled in STS 202/2026 has direct consequences for procedural strategy. For the defence, it means that the oral trial is the decisive moment: it is there that the evidence is taken with immediacy and the factual account is shaped. Once that account is fixed, the scope of cassation on a point of law is strictly confined to the legal argument.

If the defence considers that the assessment of the evidence was unreasonable or that the conviction lacks sufficient evidentiary support, those complaints must be articulated through the appropriate procedural channels — appeal, Art. 849.2 LECrim or the presumption of innocence — each with its own requirements. Mixing factual and legal arguments under Art. 849.1 LECrim is not only technically incorrect; it weakens the force of any legal ground that might be legitimately well-founded.

For the private prosecution and victim representation, the ruling is also a useful reference: the robustness of the proven account established at first instance is the best guarantee that the conviction will survive cassation. A victim's statement that is well documented, coherent and corroborated — assessed with immediacy by the trial court — forms a factual anchor that the Supreme Court is not called upon to revisit when the appeal is brought on a point of law.

A systemic rule of lasting validity

STS 202/2026 does not innovate: it applies and reiterates settled doctrine on the scope of Art. 849.1 LECrim. Its instructive value lies in having stated this clearly in a gender-based violence context, where the pressure to revisit the credibility of the victim's testimony tends to be intense.

Spanish criminal cassation has a precise design: the control of the facts belongs to first instance; the control of the norm, to the Supreme Court. When both levels are conflated in a single ground of appeal, the challenge is bound to fail. The ruling is, in that sense, a direct reminder that the effectiveness of a cassation challenge depends, above all, on choosing the correct avenue and tailoring the argument to the limits that avenue imposes.