Supreme Court Judgment no. 136/2022, delivered by the Second Chamber on February 17, resolves a cassation appeal filed by the Public Prosecutor against the acquittal issued by the Civil and Criminal Chamber of the High Court of Justice of Castilla y León. That appellate decision had overturned a conviction for sexual abuse rendered by the Provincial Court of Ávila against a youth camp supervisor, substituting it with an acquittal. The Prosecution argued that the appellate court had exceeded its powers by reassessing personal evidence without the benefit of immediacy.
The Supreme Court, however, dismissed the appeal and issued a judgment of considerable doctrinal importance, reaffirming that a criminal appeal has full devolutive effect when brought against a conviction. The court ad quem not only may, but must, fully review the assessment of the evidence and the findings of fact when required by the fundamental right to the presumption of innocence of the convicted person.
Criminal Appeals after the 2015 Reform: Dual Configuration and Devolutive Effect
One of the main contributions of this judgment is the clarification and consolidation of an already established doctrine following the 2015 reform of the Criminal Procedure Act (Ley de Enjuiciamiento Criminal), recognizing the existence of two clearly distinct models of criminal appeal, with different scopes depending on the nature of the contested decision.
Indeed, when an acquittal is appealed, the appellate court may not alter the findings of fact based on a new assessment of personal evidence without immediacy. In such cases, its function is limited to reviewing the legality, rationality, and reasoning of the acquittal. By contrast, if the appeal is lodged against a conviction, as in the present case, the appellate court may—and must—exercise full review powers, reassessing the evidence, modifying the findings of fact, and, if appropriate, overturning the conviction.
This dual configuration stems from a constitutional interpretation of the right to effective judicial protection and the right to appeal (Article 24 of the Spanish Constitution), in connection with the presumption of innocence. The Supreme Court, aligning with the Constitutional Court—particularly as expressed in Judgment STC 184/2013—asserts that an appeal against a conviction constitutes a genuine second instance, and not merely a formal review. The judgment emphasizes that criminal appeals operate as a novum iudicium, meaning a new trial in which the higher court must assume full jurisdiction over the case, both factually and legally.
Rejecting the Limitations Derived from the Lack of Immediacy
A recurring objection in judicial practice is that the appellate court cannot reassess personal evidence due to not having witnessed it directly. In the cassation appeal brought by the Public Prosecutor, this was precisely one of the arguments: that the High Court had directly evaluated the minor’s testimony and the initial admission of the facts by the accused without having witnessed their declarations.
The Supreme Court firmly rejects this line of reasoning. It states that immediacy is a means of access to evidentiary information but not, in itself, a criterion that immunizes the trial court’s assessment from review. The absence of immediacy does not preclude the appellate court from exercising its reviewing powers. This position is especially forceful in the present case, given that the minor’s personal statement was introduced through an audiovisual recording of pre-constituted evidence, thus granting both the trial court and the appellate court identical access to its content.
Accordingly, the judgment warns against conceiving immediacy as a cognitive privilege of the trial judge. Immediacy does not confer absolute epistemic value to the initial assessment, nor does it render the judge a quo the sole legitimate interpreter of the evidence. In criminal matters—where fundamental rights such as personal liberty are at stake—any review of a conviction must be real and effective, not merely formal. This necessitates recognizing the appellate court’s ability to form its own judgment regarding the evidence and the credibility of witnesses, even in the absence of direct contact, provided it has access to the same evidentiary means as the lower court.
The Validity of the Acquittal Issued on Appeal: Rationality and Reasonable Doubt
In addition to confirming the legitimacy of the appellate court’s reassessment of the evidence, the judgment addresses the rationality of the acquittal. The Public Prosecutor argued that the acquittal was irrational, that it directly contradicted established facts, and that it was based on an illogical and arbitrary interpretation. However, the Supreme Court upholds the decision of the appellate court, holding that it is grounded in a legally substantiated reasonable doubt regarding the sexual intent of the contact between the accused and the minor.
Here, the Court elaborates a substantive doctrine on the role of the presumption of innocence as a rule of judgment. It recalls that, in order to convict, the prosecution’s hypothesis must be proven beyond a reasonable doubt; conversely, an acquittal does not require proof of innocence, but merely the absence of sufficient proof of guilt. The appellate court’s reasoning for the acquittal was based on various circumstances undermining the prosecution’s case: the context of the act, the absence of clear intent, the accused’s spontaneous apology, contradictions in the minor’s account, and the plausible explanation offered by the defendant.
The Supreme Court finds that this assessment is not only legitimate from a formal standpoint but also more thorough than that of the trial court, as it considers evidentiary elements the latter had unjustifiably ignored. Thus, the reasonable doubt cited by the appellate court is not an arbitrary construct, but a rational inference based on a comprehensive analysis of the evidence—an approach which, in accordance with the constitutional standard, mandates acquittal.
Conclusion
Judgment STS 136/2022 represents a robust and technically well-founded reaffirmation of the fully devolutive nature of criminal appeals against convictions. Through a meticulous doctrinal exposition, the Criminal Chamber reiterates that the right to appeal is a fundamental right of the convicted person and entails the possibility for a higher court to review not only the legality but also the facts and the assessment of the evidence. When directed against a conviction, the appeal enables the appellate court to exercise full review functions, unrestricted by the absence of immediacy.
In opposition to restrictive views that seek to confine appellate review to purely legal matters, the Supreme Court reaffirms that criminal proceedings require comprehensive and effective review, including the possibility of issuing a new judgment—even an acquittal—where the appellate court finds that the conviction fails to meet the certainty standards imposed by the presumption of innocence.
Moreover, the judgment underscores that the basis for an acquittal is not certainty of innocence but the insufficiency of evidence to prove guilt. Therefore, where plausible alternative hypotheses exist that have not been decisively refuted, the only outcome compatible with the rule of law is the acquittal of the accused.
In short, this judgment not only clarifies the scope of criminal appeals following procedural reform but also strengthens the guarantees of the defense and the judicial oversight of convictions, in accordance with constitutional and European standards regarding the right to an effective remedy. In the words of the Supreme Court itself, the appellate court did not overstep its mandate, but rather fulfilled its duty of review with rigor—and therefore, the acquittal must stand.
