When Can a Criminal Decision Be Appealed?

When can a criminal decision be appealed?

Receiving an unfavourable judicial decision in criminal proceedings —whether it is an order imposing precautionary measures, a conviction, or any other decision of the court that harms the interests of any of the parties— does not necessarily have to be the end of the process. The Spanish legal system recognises the right to appeal as a fundamental guarantee of criminal proceedings: no one should be definitively harmed by a judicial decision without having the possibility for it to be reviewed by a higher court.

Appeals in criminal proceedings are the procedural mechanisms through which the parties can challenge judicial decisions that they consider incorrect, unjust or harmful to their rights. Their correct use can change the outcome of a case: a conviction can become an acquittal, pre-trial detention can be lifted, an order dismissing the case can be annulled so that the investigation continues.

However, appeals in criminal proceedings are not unlimited and cannot be filed at any time or before any body. They have strict deadlines, precise formal requirements and well-defined scopes of application that must be known in order to use them effectively. An appeal filed out of time, before the wrong body or without proper reasoning is not only ineffective: it may definitively close a path that, if properly used, could have changed the outcome of the case.

In this article we explain what types of appeals exist in Spanish criminal proceedings, when each one can be filed, before which body it must be submitted, what their deadlines are and what grounds may be invoked to support them. A clear understanding of the system of criminal appeals is essential to effectively defend one’s rights throughout the entire process.

What is a criminal appeal and what is it for?

A criminal appeal is the procedural act by which one of the parties to the proceedings —the defence, the prosecution or the victim acting as a party— requests a judicial body to review a decision issued by a lower body, with the aim of having it annulled, modified or replaced with another more favourable to its interests.

The basis of the right to appeal is none other than human fallibility. Judges and courts can make mistakes: they may assess evidence incorrectly, improperly apply a legal rule, omit essential procedural guarantees or simply reach conclusions that do not correspond to the proven facts. The system of appeals is the mechanism established by the legal system to correct those errors before the decision becomes final and produces irreversible effects.

Not all judicial decisions are equally appealable. The law establishes for each type of decision —judgments, orders, procedural rulings— and for each type of procedure —ordinary, abbreviated, minor offences— a specific system of appeals with its own deadlines, requirements and competent bodies. Knowing this system precisely is a technical task that requires the assistance of a specialised criminal lawyer.

The reconsideration appeal: the first avenue of challenge

The reconsideration appeal is the most basic and most immediate appeal in criminal proceedings. It is filed before the same body that issued the decision —generally the investigating court or the criminal court— and aims for that same body to reconsider and modify or annul its own decision.

This appeal mainly applies to orders issued during the investigation: the order imposing pre-trial detention, the one denying an investigative measure requested by the defence, the one authorising a search, the one declaring secrecy of proceedings or any other interlocutory decision affecting the rights of the parties during the investigation.

The time limit for filing a reconsideration appeal is usually three working days from notification of the challenged decision. It is a very short deadline that requires a rapid response from the defence lawyer. The decision on the reconsideration appeal is taken by the same judge who issued the challenged order, which in practice means that the chances of success are limited: judges rarely reconsider their own decisions. However, filing a reconsideration appeal is generally a necessary step before being able to lodge an appeal, since in many cases the law requires that it has been attempted beforehand.

The appeal: review by a higher court

The appeal is the most commonly used and, in many cases, the most effective appeal within Spanish criminal proceedings. Unlike the reconsideration appeal, the appeal is filed before the same court that issued the decision but so that it may be resolved by a higher judicial body, which will review the decision independently and may confirm, modify or revoke it.

The appeal may be directed against two clearly different types of decisions:

Appeal against orders during the investigation

During the investigation phase, the most relevant orders —such as the order for pre-trial detention, dismissal of the case or opening of trial— may be appealed before the Provincial Court once the prior reconsideration appeal has been dismissed, where applicable. The time limit for filing the appeal varies depending on the type of order: for pre-trial detention orders, the time limit is five working days, while for other orders it is usually twenty days.

The appeal against a pre-trial detention order is one of the most urgent and practically significant remedies, because each day that the accused remains in pre-trial detention has a direct impact on their life. A lawyer who detects that the requirements for pre-trial detention are not met —because the risk of absconding is not sufficiently proven, because the expected penalty does not justify the measure or because less restrictive alternatives exist that are equally effective— must appeal as quickly as possible.

Appeal against judgments

Judgments issued by Criminal Courts may be appealed before the Provincial Court. Judgments issued by Provincial Courts may be appealed before the High Court of Justice of the corresponding autonomous community (unless, because the case predates the 2015 reform of the Criminal Procedure Act, a cassation appeal applies directly). The time limit for filing an appeal against a judgment is, as a general rule, ten working days from its notification.

In an appeal against a judgment, the appellant may allege errors in the assessment of evidence, infringement of criminal or procedural rules, violation of fundamental rights or any other ground that justifies that the judgment is incorrect. The appellate court may confirm the contested judgment, modify it —for example, by increasing or reducing the penalty— or revoke it and issue a new judgment in the opposite sense.

It is important to bear in mind that the principle of non reformatio in peius protects the accused who appeals: if only the defence has appealed the conviction, the appellate court cannot increase the penalty beyond what was already imposed. This principle ensures that appealing cannot worsen the situation of the convicted person who challenges the judgment.

The cassation appeal: the Supreme Court as the final filter

The cassation appeal is the highest-level appeal within the ordinary criminal system and is reserved for the most serious or complex cases. It is decided by the Supreme Court, which acts as the body that unifies criminal legal doctrine in Spain. It is not an ordinary appeal that any party may file against any judgment: it has strict admissibility requirements and its grounds are limited by law.

Cassation applies mainly to judgments issued by Provincial Courts and by High Courts of Justice in certain cases. The grounds that may be invoked in cassation are essentially two: infringement of law —when the judgment has improperly applied a criminal rule or failed to apply one that should have been applied— and procedural defects, when serious procedural flaws have occurred during the trial. Cassation is not a third instance in which proven facts are reviewed: the Supreme Court does not reassess evidence but controls the correct application of the law.

The time limit for filing a cassation appeal is five working days from notification of the contested judgment to announce the intention to appeal, and fifteen additional days to formally submit the appeal with all its grounds. The technical complexity of criminal cassation means that only lawyers with solid training and experience in criminal law can use it with real guarantees of success.

The complaint appeal: when the admission of another appeal is denied

The complaint appeal is an instrumental remedy whose function is to challenge decisions that deny the admission of another appeal. If the investigating court or the criminal court declares inadmissible an appeal that a party considered appropriate, that party may bring a complaint before the higher court so that it may decide whether the appeal should or should not have been admitted.

Although it is a lesser-known remedy than the others, the complaint appeal has considerable practical importance, because it ensures that the parties are not left unprotected against inadmissibility decisions that may be incorrect. The time limit for filing it is ten working days from notification of the decision denying admission of the main appeal.

The review appeal: when new facts appear after conviction

The review appeal occupies a special place in the system of criminal appeals because it operates on final judgments, that is, convictions that have exhausted all ordinary avenues of challenge. It is an exceptional mechanism that allows a final conviction to be reviewed when new circumstances arise that show that the conviction was incorrect.

The grounds that may give rise to a review appeal are exhaustive and are regulated in the Criminal Procedure Act. The most relevant are the emergence of new facts or evidence demonstrating the innocence of the convicted person, proof that the conviction was based on evidence later declared false —witnesses convicted of perjury, documents found to be forged— or the existence of a contradictory judgment incompatible with the conviction under review.

The review appeal is filed before the Supreme Court, which is the only body competent to review final criminal judgments. It is a remedy with very limited access and uncertain success, but it represents the last opportunity to obtain justice for someone who has been wrongly convicted and who has new elements that could not be assessed during the original proceedings.

The amparo appeal before the Constitutional Court

The amparo appeal is not technically an ordinary criminal appeal, but an extraordinary avenue for the protection of fundamental rights recognised in the Constitution. It may be filed before the Constitutional Court when it is alleged that a judicial decision has violated one of those rights —the right to effective judicial protection, the presumption of innocence, the right to a trial with all guarantees, the prohibition of defencelessness— and all ordinary judicial remedies have previously been exhausted.

The amparo appeal is the final step in the system of protection of fundamental rights at the domestic level, before resorting to the European Court of Human Rights in Strasbourg. Its admission is highly selective: the Constitutional Court only admits appeals that have special constitutional significance, that is, those that raise legal issues relevant to the interpretation of the Constitution beyond the specific case of the appellant. The time limit for filing it is thirty working days from notification of the last ordinary judicial decision.

Deadlines for criminal appeals: the importance of acting in time

One of the most critical aspects of the criminal appeals system is deadlines. Deadlines for appeals are limitation periods: if they expire without filing the appeal, the decision becomes final and can no longer be challenged. There is no possibility of requesting an extension or recovering a missed deadline due to oversight or lack of knowledge.

By way of indicative summary, the most relevant deadlines are as follows:
• Reconsideration appeal against orders: three working days.
• Appeal against orders during the investigation: five working days in the case of pre-trial detention; twenty days in other cases.
• Appeal against judgments: ten working days.
• Announcement of cassation appeal: five working days.
• Formalisation of cassation appeal: twenty additional days.
• Complaint appeal: ten working days.
• Amparo appeal before the Constitutional Court: thirty working days.

The shortness of these deadlines highlights the importance of having a criminal lawyer who monitors court notifications and acts with the necessary speed to avoid any appeal lapsing that may be relevant to the defence.

The role of the lawyer in the criminal appeals system

The effectiveness of a criminal appeal does not depend only on the existence of solid legal grounds: it also depends on filing it at the right time, before the correct body and with the necessary technical reasoning. A well-founded appeal filed one day late has no effect. An appeal filed on time but with weak legal arguments has little chance of success.

The criminal lawyer who accompanies their client throughout the process has the responsibility of identifying at each stage which decisions are appealable, within what time limit they must be challenged and which arguments are most likely to be accepted. This work requires solid technical knowledge of criminal procedural law, a careful and rigorous reading of each decision issued by the court and a capacity for rapid response that in some cases may be decisive for the outcome of the case.

In practice, many appeals are lost not because there were no grounds to file them, but because no one identified them in time or because the deadline expired without action being taken. That is why having a lawyer who maintains active and rigorous monitoring of the proceedings —not only at the most visible moments such as the trial— is one of the best investments that someone facing criminal proceedings can make.

Frequently asked questions

Can the prosecution appeal an acquittal?
Yes. The right to appeal in criminal proceedings is not reserved exclusively to the defence: the prosecution —both the public prosecutor and the private prosecutor— may appeal decisions that are unfavourable to them, including acquittals. However, appeals against acquittals have important limitations derived from the presumption of innocence and the principle of non bis in idem: higher courts are very cautious when overturning acquittals, especially when the judgment is based on the assessment of evidence directly examined by the trial court.

What happens if the Supreme Court admits a cassation appeal? Is a new trial held?
Not necessarily. If the Supreme Court upholds the cassation appeal due to infringement of law, it may issue a new judgment directly —without the need for a new trial— if it has sufficient elements to do so. If the ground upheld is a procedural defect —that is, serious procedural flaws affecting the validity of the trial— the Supreme Court annuls the judgment and orders a retrial before the lower court so that it can be held again with the proper guarantees.

Can an appeal be filed if no objection was raised during the trial?
In many cases, failure to object during the trial may close the possibility of appealing certain procedural irregularities. The law requires the parties to raise during the trial any violations that occur —such as the improper rejection of evidence or improper questioning— in order to preserve their right to invoke them later as grounds for appeal. If no objection is made at the appropriate time, the appellate or cassation court may consider that the party accepted the irregularity and may not admit that ground of challenge.

Can the decision not to investigate a complaint be appealed?
Yes. If the court dismisses a complaint —either by in admitting it or by closing the case— without carrying out the necessary investigative measures, the complainant may appeal that decision before the Provincial Court. For the appeal to succeed, the complainant must argue that the reported facts have sufficient indications of a criminal offence to justify opening an investigation and that the dismissal was premature or insufficiently reasoned. In these appeals, appearing as a private prosecutor significantly strengthens the appellant’s position and chances of success.

What happens to the execution of the judgment while the appeal is pending?
As a general rule, filing an appeal has a suspensive effect on the execution of the contested judgment. This means that while the appeal is pending, the conviction is not enforced and the convicted person does not have to enter prison or serve any sentence. However, this rule has exceptions: when the convicted person is in pre-trial detention at the time the judgment is issued, that situation may be maintained while the appeal is resolved, although the court must assess whether the requirements for pre-trial detention still apply in light of the new judgment.