Extract
Judgment 774/2025, rendered by the Second Chamber of the Supreme Court, addresses a matter of significant criminal-law and procedural relevance: the delimitation of the factual and legal requirements necessary for the valid continuation of the abbreviated procedure when participation in the offence of mismanagement is imputed.
The decision resolves the appeal in cassation filed by the Deposit Guarantee and Credit Institutions Fund (hereinafter “FGD”) against an order of the National Court that had decided not to proceed with the case against one of the suspects, in the context of investigations into the irregular management of the Caja de Ahorros del Mediterráneo (CAM) and its special-purpose company, Tenedora de Inversiones y Participaciones S.L. (TIP).
The factual background centres on alleged irregular credit and investment operations carried out in 2006, which apparently caused an asset loss exceeding one hundred and sixty million euros.
The procedural issue, however, transcends the individual case: the Supreme Court was confronted with the need to determine whether the order of the National Court, which revoked the continuation of the proceedings against the accused, constitutes a final dismissal, based on the non-existence of the offence or the lack of typicity of the facts, or a provisional dismissal, grounded on insufficient evidence, with the consequent implications regarding appealability in cassation under Article 848 of the Criminal Procedure Act.
Accordingly, the judgment offers an interpretation that bridges substantive criminal law — particularly the structure of the offence of mismanagement and the figure of participation in special offences — with a procedural reflection on the minimum content required of the order converting the abbreviated procedure, in light of the rights of defence and the jurisprudence of the European Court of Justice.
The Core Legal Issue: Participation in the Offence of Mismanagement
The FGD’s appeal contended that the National Court had wrongly applied Articles 252 and 28 of the Criminal Code (in the version prior to the 2015 reform).
According to the appellant, the liability of the accused did not rest on his role as the direct perpetrator of the special offence of mismanagement, but on his status as a participant — in his capacity as a board member of a company — who allegedly cooperated with the CAM’s management in executing a manifestly prejudicial credit operation.
From this standpoint, the FGD invoked the established jurisprudence of the Supreme Court, according to which mismanagement is consummated at the moment the administrator disposes of company assets to the detriment of the managed entity, irrespective of the operation’s later success or failure.
In this case, consummation would have occurred with the granting of the real-estate loan and the entry of TIP into the capital of the property developer, regardless of whether the project was ultimately carried out. The harm, argued the prosecution, was triggered by the act of disposal itself, not by its later consequences.
On that basis, the FGD argued that the accused should be held liable as a necessary accomplice under Article 28 CP, since his participation as director had contributed decisively to the structuring and approval of the disloyal transaction.
According to that thesis, the question of his intent and knowledge of the harm should be resolved at trial, applying the in dubio pro iudicio principle, in accordance with the Chamber’s case-law (e.g., STS 705/2022), which requires allowing trial proceedings whenever reasonable indications exist, leaving final evidentiary assessment for judgment.
The Supreme Court’s Position: Scrutiny of the Imputation and the Requirement of a Reasoned Order
The Supreme Court, however, adopts a different approach.
Before examining a potential breach of Article 252 CP, it first determines whether the appeal requirements of the impugned order are met. Article 848 of the Criminal Procedure Act allows a cassation appeal only against rulings decreeing a final dismissal, meaning those declaring that the facts do not constitute an offence.
If, however, the impugned order constitutes a provisional dismissal, based solely on a lack of sufficient indications, cassation cannot prosper.
To determine the nature of the decision under review, the Court conducts a meticulous analysis of its content. It observes that the National Court’s order — stating that the proceedings “shall not continue with respect to the said person” — uses an unusual formula lacking legal precision, without clarifying whether the decision rests on the non-typicity of the facts or on insufficient evidence.
Nevertheless, the High Court concludes that the decision is a provisional dismissal, since it does not deny the existence of the offence of mismanagement, but merely affirms the absence of data linking the accused to its commission.
Based on this classification, the Chamber centres its analysis on the inadequate reasoning of the conversion order issued by the Central Investigating Court.
It notes that the order fails to provide a sufficient factual description identifying the conduct imputed to the suspect, nor does it specify his concrete involvement in the loan operations or corporate decisions.
This omission, in the Court’s view, undermines the institutional function of the conversion order, which must clearly delimit both the facts and the persons against whom prosecution may be directed.
The Supreme Court stresses that, although the conversion order need not offer an exhaustive narrative, it must ensure that the accused knows “of what and why” he is being charged.
This requirement stems not only from Article 779.1.4 of the Criminal Procedure Act but also from Directive 2012/13/EU on the right to information in criminal proceedings and recent case-law of the Court of Justice of the European Union (ECJ, 28 November 2024, Case C-398/23).
According to this doctrine, the accused has the right to receive detailed information about the charges at an early stage, allowing effective preparation of his defence.
The absence of such information renders the prosecution invalid, as it violates both the principle of adversarial proceedings and the right of defence.
Legal Reasoning and Doctrinal Significance
The judgment follows an argumentation line consistent with earlier rulings of the Second Chamber (STS 897/2023, 669/2021, 333/2022), emphasizing the dual — factual and normative — dimension every act of imputation must contain.
The conversion order is not a mere procedural formality but the act delimiting the scope of the criminal process, fixing the justiciable facts that may form the subject of accusation.
Its content defines the protective framework of the accused’s rights, preventing unforeseen or unannounced allegations.
From this perspective, the Supreme Court rejects the FGD’s attempt to cure the lack of factual basis in cassation through a hypothetical reconstruction of events. Cassation cannot reconfigure factual reality or introduce new evidence; it only assesses the legal correctness of the decision under review.
Accordingly, if the conversion order does not describe any conduct of the accused that could be deemed cooperative or intentionally connected to the disloyal conduct, the appeal lacks foundation.
Thus, the Supreme Court confirms that the National Court acted correctly in declaring the absence of sufficient indications and classifying the dismissal as provisional, leading to the inadmissibility of the cassation appeal.
Consequently, the High Court refrains from addressing the substantive issue — the existence or non-existence of punishable participation — limiting itself to confirming the inadmissibility of the appeal.
Critical Appraisal
Substantively, the judgment strengthens the restrictive doctrine on participation in special offences, particularly in corporate and mismanagement crimes.
The Court insists that holding a formal position or taking part in a company’s decision-making bodies is insufficient for criminal liability; rather, a concrete act of intentional cooperation is required, accompanied by awareness of the primary offence’s unlawfulness.
This avoids automatically extending criminal liability to persons merely occupying institutional roles without proof of shared intent.
Procedurally, the ruling is noteworthy for its guarantee-oriented stance. The Court reiterates that the conversion order in the abbreviated procedure cannot be a mere formula or generic continuation order; it must contain a detailed description of the imputed facts and the alleged participation of each accused person.
Only in this way are the rights of defence and adversarial principles respected. This approach aligns Spanish practice with European criminal-procedure standards.
Nevertheless, from a standpoint of procedural economy, the judgment may be criticized: by focusing solely on formal admissibility, the Supreme Court avoids pronouncing on substantive issues such as the moment of consummation of mismanagement or the scope of the participant’s intent.
Thus, while consolidating procedural doctrine, the Court leaves the substantive debate open.
Conclusions
Judgment 774/2025 of the Supreme Court is a reference ruling on procedural guarantees and precision in criminal imputation.
The Second Chamber establishes that the conversion order in the abbreviated procedure must clearly delimit the imputed facts — identifying both objective and, provisionally, subjective elements that allow an inferential assessment of intent or cooperation.
The absence of such delimitation prevents the valid continuation of proceedings and renders cassation appeals against provisional dismissals inadmissible.
From a criminal-law perspective, the ruling emphasizes the need to link the participant’s intent to a specific act of cooperation, avoiding generic imputations based solely on hierarchy or institutional status.
Procedurally, it consolidates a more rights-protective model, aligned with European jurisprudence, which demands transparency and accuracy in communicating charges.
Ultimately, the judgment underscores a central principle of modern criminal process: without concrete facts there is no legitimate imputation, and without legitimate imputation there can be no fair trial.
