Reclassifying stalking as minor coercion without notice breaches the right to defence

The reclassification of the facts is one of the most delicate decisions a court can make during the oral trial. The Criminal Code and the LECrim allow the court to convict for an offence different from the one requested by the prosecution, provided certain limits are respected. The Supreme Court judgment of 4 March 2026, issued in appeal 3401/2025, defines one of those limits clearly: even where the offences are homogeneous, a surprise reclassification that leaves the defence no room to react breaches the right of defence and renders the conviction void.

The doctrine on homogeneous reclassifications

The Supreme Court has spent years building the doctrine on when a court may convict for an offence not appearing in the prosecution's final conclusions. The general principle is that homogeneity between the charged offence and the convicted offence permits such a variation without breaking the accusatorial principle, because the subject matter of the proceedings covers the factual reality being tried, not only the legal label with which the prosecution presented it.

However, homogeneity is a necessary condition, not a sufficient one. Added to it must be the requirement that the accused have been able to know and contest that alternative classification within the same proceedings. If the court introduces the reclassification only in deliberation or in the judgment, without having announced it during the trial, the defence will not have had any opportunity to make submissions, propose evidence, or cross-examine witnesses with that legal framework in mind. The result is defencelessness.

The facts of the judgment and the classification applied

In the case resolved by the Supreme Court, the prosecution maintained throughout the proceedings that the facts constituted a stalking offence under Article 172 ter of the Criminal Code. The trial court, in its judgment, rejected that classification and instead convicted for minor coercion under Article 172.2 of the Criminal Code, a less serious infraction but equally recognised in the Criminal Code as a minor offence.

Both provisions belong to the same chapter of the Criminal Code and protect a closely related legal interest: a person's freedom to act, faced with coercive or harassing conduct. The trial court therefore reasoned that the offences were homogeneous and the reclassification was correct. The problem, as the Supreme Court notes, lay not in the homogeneity but in the procedure: the defence received no warning at all that the conviction might rest on that alternative classification.

Directive 2012/13/EU and the right to information

Directive 2012/13/EU of the European Parliament and of the Council on the right to information in criminal proceedings requires that suspects and accused persons be informed of the criminal offence of which they are suspected or accused, in sufficient detail to safeguard the fairness of the proceedings and allow effective exercise of the right of defence. That duty of information is not exhausted by the initial charge: it also covers material changes in the classification that may affect the defence strategy.

The Supreme Court applies this directive to the specific case and concludes that convicting for a different classification without first warning the defence fails the European standard. It does not matter that the offence for which the person is convicted is less serious than the one charged: what matters is that the defence had no opportunity to mount a specific response to that alternative classification, to propose relevant evidence, or to develop at trial the strategy it would have deployed had it known the real risk of conviction under that provision.

Practical consequences for the defence

The decision has two immediate practical implications. The first arises in cassation or on appeal: where the conviction applies a classification not announced during the trial, a complaint of defencelessness through surprise reclassification is a strong ground for challenge, provided it is shown that the defence had no opportunity to address that provision. The second arises at first instance: the defence must be alert to any indication, however indirect, that the court is considering a different classification, and if it perceives one, it can expressly request that it be given an opportunity to make submissions.

The procedural mechanism that allows a classification different from the prosecution's to be introduced during the trial is known as the Article 733 LECrim thesis: the court may, of its own motion, put to the parties the possibility of classifying the facts differently, giving them the floor to respond. When the court does not use that channel and reclassifies directly in the judgment, defencelessness is virtually inevitable if the classification was not in the defence's contemplation.

Scope of the doctrine and the safeguard against surprises

The Supreme Court does not prohibit reclassifications. What it prohibits is the surprise reclassification: one that occurs without the defence having been able to foresee it, without its having been given an opportunity to argue against it, and without its having been able to propose the evidence it would have submitted had it known the alternative scenario. This doctrine is consistent with the principle of adversarial proceedings and with the guarantee of a trial with all the safeguards under Article 24.2 of the Spanish Constitution.

The judgment of 4 March 2026 adds an important nuance: homogeneity between the offences does not reduce or eliminate that duty of information. Even though minor coercion is, in some sense, a lesser form of stalking, the defence against one and the other can differ substantially as regards which facts are highlighted, which evidence is proposed, and which arguments are developed. Homogeneity can therefore not serve as a justification for dispensing with the advance notice that Directive 2012/13/EU requires.