Criminal Procedure: Judgments, Appeals, and Cassation

Posted on Dec 10, 2024 in Law & Jurisprudence

Lesson 18: Sentence and its Finality

1. Concept of Judicial Sentencing

A decision terminating the process, condemning or acquitting the accused. It determines that the facts of the accusation are definitively decided, without prejudice to the resources that fit over the judgment, which can invalidate the proceedings or even roll back to an earlier time if there is an invalidity of activities, but without ever fitting with an acquittal merely having formal effects on the body, allowing a retrial or trial on the facts: “decide the matter once criminal” (Art. 141 CPP, “The Court cannot, in this state, use the formula of dismissal for defendants who they believe should not condemn” (Art. 742). This formula also applies to cases where the adversarial principle (lack of indictments) or appreciation for the trial of causes of extinction of criminal responsibility (prescription, for example) determine a decision of acquittal regardless of the assessment of evidence or legal classification by the judge or court.

They are written, although they may be oral where authorized by law (Art. 245.2 LOPJ).

2. Essentials of Logic Training

A. Historical Trial

Evaluation of whether the facts have been proven in the accusation. It requires, as a logical budget, a review of the lawfulness of the evidence provided from the perspective of the invalidity of the test infringing fundamental rights, directly or indirectly (Art. 11 LOPJ), that may affect the right of defense, primarily as a law of contradiction, and its formal legality. Only a valid test, conducted in the trial with due process, and from the stage of police investigation, or whether it has been articulated with sufficient respect to security and defense of contradiction, can serve as a basis for developing a critical appraisal of the test.

In addition, the test must be valid and minimally sufficient to invalidate the presumption of innocence so that, in an objective and rational assessment of its content, it has the capacity to prove the facts discussed. The jurisprudential criteria studied on the fitness of certain evidence to undermine such a presumption are particularly relevant here (injured declaration of co-defendant, witness of reference, circumstantial evidence).

Finally, minimally valid proof sufficient to invalidate the presumption of innocence has to suffice to form a conviction of the judge, a conviction or rational assurance of the reality of what is intended to be demonstrated because if the persistence of reasonable doubt exists, they have to absolve.

B. Trial Basis

It mainly consists of the subsumption operation of the events that are deemed to be proven in the criminal defendant and the precise categories to assess criminal involvement, perfection, modifying circumstances, the absence of grounds for extinction of criminal liability that might have been alleged, or liability that is not civil.

It is only necessary to describe the results of this operation, but also to explain why such consideration, responding to legal arguments the parties have exposed or building work that may arise during subsumption, indicating positive standards or where jurisprudence applicable resolutions. Besides the work, fixing the eventual punishment is also needed, for which it is not only necessary to inform decisions for the realization of the framework applicable finally (assessment of the significance of the degree of perfection, of the competitions, the modifying circumstances, etc.) but also to give reasons for the decision to individuate within the scope that the rule provides, in respect of the death of the required ancillary measures.

The foundation is also especially important when it comes to a sentence or a permissive and not mandatory measure (such as disqualifications for reckless driving offenses committed with a motor vehicle).

The adversarial principle applies here with particular significance:

a) One cannot be convicted of different offenses, or assess a degree of perfection or participation more seriously, and appreciate a circumstance of aggravation not requested, which is subject to prosecution, including cases in which the approaches proposed by the Tribune have not been given by the charges (Art. 733 and 788.3). One can only vary between a crime when the defendant appreciated and there is homogeneity: Let there be diversity of legal interests protected or made substantial mutation prosecuted (Art. 789.3), implying that “all elements of the offense which are contained in the type of criminal prosecution, so that the qualified by the Court there is a specific component of the condemned had been unable to defend themselves” (STS 4-5-2006) and that the crime is not punished more seriously than the accused. As a result (STS 4/7/01) are required mitigating or exonerating assessment requested by the only charge.

b) There can be no specific penalty imposed higher than requested, provided that the penalty requested corresponds to the legal provisions to respect so that when the sentence is omitted or cannot reach the minimum required under the law, the sentence must be imposed in any case, the minimum penalty (the House Accords of 20.12.2006 and 27.11 TS — 2007).

3. Formal Structure

Regulated in the Arts. 142 and 248.3 LOPJ LECr. It is articulated in several key parts, and within each, at various points or numbered paragraphs.

  • Heading: Mention of data identifying the proceedings, the parties, and the court.
  • Facts: Description of the essential steps of the procedure, among them the final conclusions of the proven facts-parties. Your speech has to be strict (Art. 142.2); that is, it cannot be conjectural, conditional, or uncertain, neither can exist without contradiction (may lead to its annulment 851.1 LECr). You cannot use expressions or legal concepts that might imply that the failure is predetermined, what happens when expressions are merely accessible to lawyers and are not shared in the common language, having causal value to leave the ruling and suppressed historical fact without any basis, which is likely to lead to the annulment of the sentence (Art. 851.1 LECr).
  • Fundamentals of Law: This is the developmental expression of the historical and legal trial outlined above. Formally usually translated according to the scheme of Art. 142.4 in foundations or grounds relating to the classification of events, participation in them would have had each of the accused, mitigating circumstances or aggravating grounds for excluding criminal responsibility in case of crowded, liability, and however costs. It is not a rigid channel or inexcusable, and who fulfill the obligation to state reasons and is common initiation by one or several bases on the valuation and admissibility of evidence, although it should be introduced in some of the other sections.
  • Operative: It declares, in each of the defendants, who were convicted or acquitted by the degree of participation and circumstances that may be assessed in respect of criminal offenses which were the subject of accusation and impose specific penalties, security measures, or ancillary measures coming. It governs the determination criteria so that sentences must fix exactly the kind of punishment and its extension, without prejudice to the possibilities that fit in execution to replace or suspend the prison sentence and that in itself it should provide a replacement sentence (Art. 88.1 CP).

4. Adjudged

Concept

a) Res judicata is formal or unchangeable firmness of a resolution within that particular procedure for failing to properly challenge or appeal have prospered. In the pretrial phase, future invariance may not involve the content of the decision; it is the result of research by definition variable, which underlies the many decisions that are taken at that stage, which is why it is changed on (complaint, personal situation, competition, etc.). As for the sentences, it is usually linked to the enforceability, as in criminal matters one can only execute the final judgments (985 LECr) without prejudice to possible run against the defendants who have not used on appeal (Art. 861.bis.b) and is provisionally enforceable liability (Art. 989.1).

b) Res judicata is the binding effect which can cause an irrevocable penal sentence (endowed with something formal trial) in a separate criminal proceeding.

Lessons 19 and 20: Devolutive Resources

1. Appeals of a Summary Procedure, Speedy Trials, and Faults

A. Appeals from Decisions

  • Competition for Resolution:
    • Provincial Court (Case speedy trial abbreviated or issued by the Criminal Court).
    • District Court constituted by a single judge (trial sentence handed down by foul Magistrate or Justice of Violence).
    • Trial Judge (ruling in trial misconduct by Justice of the Peace).
  • Suspension Effect: (cannot run if appealed) necessarily, subject to possible civil provisional execution of statements.
  • Range:
    • Short: 10 days from notification of speedy trials and trial errors, 5.
  • Reasons (790.2) to be exposed as the resource base:
    • Allegations about breaches of standards and safeguards that have impaired the defense and cannot be remedied in the second instance. Show that they have requested requires the rectification of such defect if it had been possible. The proper channel for this application is preliminary relief, the first challenge in summary proceedings.
    • Error in the assessment of the evidence. In principle, it is sufficient that the appellant advocates for an evidence assessment that should be other than that held in the sentence. This new evidence assessment by the Court of Appeal is necessarily mediated by their lack of immediacy regarding evidence available to it by the judge issuing the sentence, what is found in a worse position than for assessing the credibility to what is stated in court.
    • Therefore, there is a current interpretation that assimilates the field of appeal to the review of appeals, only acknowledging that the error in the assessment of the evidence may modify decisions to be taken in an illogical valuation, contrary to the criteria of reasonableness, a maximum of proven scientific knowledge or experience. However, the right of all convicted to request a review of their conviction by a superior court (Art. 14.5 International Covenant on Civil and Political Rights) and the nature of the appeal are a regular view, as the majority opinion jurisdictional practice that makes the appeal high court make, if requested in the appeal, the condemned, a reassessment of the evidence which the judge took into account in the first instance.
    • Infringement of constitutional or statutory provision. Affecting the application of substantive criminal law in the sentence appeal, and claims you may also find the invalidation of evidence, and the consequences thereof is values, is alleged breaches of fundamental rights than defense (for example, secrecy of communications or intimacy).
    • As an exception, the judgments of conformity in a summary procedure or judgments rapid only be appealed on appeal if they are not respected in the sentence requirements or terms of the agreement (Art. 787.6 LECr).
  • Proposed Tests: It may be proposed in the written test, which is limited to:
    1. Means that we could not propose at first instance (refers to evidence-documentaries, which normally did or met them after the trial).
    2. That were improperly denied the request.
    3. Means acceptable in the first instance could not be performed through no fault of the appellant (usually unappeared witnesses). Jurisprudence that is required in cases 2 and 3: The appellant was not quiet with the judge’s decision not to practice the test, so to be formulated to protest the refusal of the test (if 2) or have tried the suspension of the trial that could take out the test is not practiced (if 3). It has taken into account that in cases involving allegations as grounds for undue hardship, the test generator helplessness principle relief of procedural acts imposed route to repair the defect is to propose such as a test on appeal.

B. Transfer

Of the parties in writing that within ten days (five speedy trial) may make a written statement (Art. 790.5) in the tests also be proposed. After the reform of 2002, the standard does not allow initially appealing that in turn may request for withdrawal of sentence (accession to appeal or challenge to the sentence) than in the previous wording was expected.

C. Referral

By the court in the proceedings to the judge or court decider.

D. Hearing

The Court will convene a mandatory hearing if it supports the practice of evidence or, optionally, if deemed appropriate.

E. Ruling

Resolves definitively that those pronouncements have been challenged, confirming or revoking all or part of the decision under appeal, and in the event of other violations of procedural rules that have impaired the defense, agree on the annulment proceedings and reset the procedure corresponding procedural stage for further processing. Faced with the appeal decision, there is no appeal.

B. Appeal Against Orders Made by the Investigating Judge

  • General Approach: No suspensive effect.
  • It is against all orders made by the examining magistrate (Art. 766). Therefore, it refers to resolutions adopted during the processing, but also with regard to decisions that put an end to the investigation of the process of the crime: Art. 779: (adjudicate, statement of fact as necessary).
  • It is brought within five days in writing which sets out the arguments underlying the resource; transfer to other parties in the same period for written submissions and referral to the appropriate body to resolve (Hearing) testimony that the procedure parties have indicated, the court may seek the performances intact for consideration for three days when their testimony is insufficient.

Cassation Resource

1. Concept and Nature

  • Middle extraordinary challenge to have limited grounds.
  • Competition: Prepare before the Court which issued the decision under appeal and the way and decided by the Criminal Chamber of the Supreme Court.
  • Suspensive Effect: When the appeal is lodged by the accused. It is produced in relation to offenders who have not used, whatever that may extend to them the purpose of invoking the grounds that melt when the estimate may be applicable. (Art. 861 bis b).
  • It has a purpose of protecting the interests of the parties, which react against a decision that harms, but allows them to fulfill the function of creating law unifying the interpretation and application of legal rules for the Supreme Court.

2. Resolution Against Which the Appeal Must be Made

  • Judgments delivered on-track procedures never delivered to resolve the appeal or coarse by the provincial courts or by the Criminal Chamber of the Audiencia Nacional, or by the Board of Civil and Criminal Superior Courts of Justice in proceedings against flasks.
  • Cars: In short, that are issued by the provincial courts in ordinary proceedings in the intermediate phase (dismissal, items before the Committee), which prevent prosecution.

3. Grounds of Appeal and the Effect of their Estimate

A) Reasons for Violation of Law

  • 849.1. Violation of substantive criminal injunction or other legal authority of the same character that should be seen in law enforcement penal. It supposes respect to the facts. It allows attacking the legal assessment of them, the proper application of criminal law, or other penal standards to which the criminal standard refers.
  • 849.2. Error of fact in the assessment of evidence obtained by documents entered in the procedure. Its origin is very restricted since the appeal should not allow an assessment of evidence of tried to alter the facts that made by the court. The document may not have been generated in the procedure (the statements are not documented or pre-constituted evidence). The document must demonstrate a relevant fact is undoubted, that cannot be put in doubt by other evidence, so the error of the sentence must be clear and visible.
  • If successful, the action for violation of law, the sentence is void, and the right to proceed according to (902) will be given.

B) Reasons for a Breach of Article 850 (Violation of Procedural Formalities)

  • Relating to the Test:
    • 850.1 – Denial undue any evidence.
    • 850.3 and 4 – Denied improper questions to a witness, evidence is required to appear as a witness or transcendent so that hypothetically could be decisive in determining a relevant fact, that objection has been made, which had entered or tried to enter their time to make ends.
  • Relating to the Trial:
    • 850.2 – Lack of summons in any of the parties: It is an obvious cause of helplessness.
    • 850.5 – When a defendant has not appeared duly summoned and has decided to continue the trial for the other: It must have created a real risk of conflicting decisions.