STC 3308-2020: Presumption of Innocence and the Limits of Cassation in Criminal Proceedings

Content of the Right to the Presumption of Innocence in Criminal Proceedings

In a criminal case, the defendant’s right to the presumption of innocence has two core implications.

First, the defendant cannot be required to prove their own innocence. Second, the burden rests on the prosecution to prove the defendant’s guilt. Throughout the investigation and the trial, the defendant enjoys this presumption, and only the evidence produced at trial can rebut it. For a conviction, the judge or court must reach a level of certainty beyond reasonable doubt. This is tied to the in dubio pro reo principle, which requires an acquittal if there are unresolved reasonable doubts about the occurrence of the crime or the defendant’s involvement.

This is a rebuttable presumption (iuris tantum), which means it can be displaced by conclusive evidence of guilt. Not every kind of evidence is sufficient for that purpose.

Constitutional Court Doctrine on the Presumption of Innocence

The Constitutional Court has set clear criteria on how the presumption of innocence can be rebutted. To have incriminating effect, evidence must:

1. Be true prosecution evidence, showing both that the criminal act occurred and that the defendant took part in it.
2. Be validly introduced at trial, passing legal scrutiny as to its collection, chain of custody, and presentation, and respecting trial guarantees such as orality, publicity, immediacy, and adversarial testing. Illegally obtained evidence is inadmissible, as is evidence whose authenticity cannot be verified due to a broken chain of custody, or evidence gathered without judicial oversight or without adversarial participation.

Preconstituted evidence (for example, breathalyzer reports, identification records, intercepted call recordings) and anticipated evidence (statements taken before trial due to risk of death or inability of the witness to attend) are not reproduced live at trial but can rebut the presumption of innocence if certain conditions are met:

• Material: The facts are of such a nature that they cannot be reproduced at trial.
• Subjective: Collection is supervised by a judicial authority, although the judicial police may intervene in urgent cases, ensuring the items are brought before a judge.
• Objective: Adversarial testing is guaranteed and, where possible, carried out in the presence of the accused and defense.
• Formal: The evidence is introduced at trial by reading or exhibiting the record.

The Court has clarified the validity of different evidentiary items and their capacity to incriminate. Key points include:

• A police report, by itself, has no probative value, although its details can be accepted if duly confirmed by the officers who drafted it.
• Statements by witnesses or the accused given to the police without a lawyer and not later confirmed have the same value as the police report.
• Statements taken during the investigative phase can serve as evidence if adversarial safeguards were ensured at trial.
• A single witness can rebut the presumption of innocence if their testimony meets credibility and reliability standards.
• Circumstantial evidence is valid if the indicia are multiple, unambiguous, and based on proven facts, and if the court explains the reasoning that leads to a finding of guilt.
• Hearsay can be considered prosecution evidence if the direct witness is unable to appear.

Duty to Give Reasons in Judgments and the Presumption of Innocence

Beyond requiring valid evidence, the presumption of innocence demands that any conviction be properly reasoned. The judgment must clearly explain the path from proven facts to the court’s conviction. A lack of reasoning violates the right to the presumption of innocence. Defects of reasoning that do not concern evidentiary assessment must be raised under the right to effective judicial protection.

In jury trials, there must be reasoning not only in the judgment but also in the verdict, which must briefly explain why the facts and the defendant’s guilt are considered proven. This explanation is also necessary in a not guilty verdict to protect the accusers’ right to effective judicial protection. In guilty verdicts, the duty to give reasons is stricter because the presumption of innocence is at stake.

Applicable Law on the Presumption of Innocence

• Spanish Constitution: Article 24.2 on the right to the presumption of innocence.
• Article 120.3: Duty to give reasons in judgments.
• Judicial Power Organic Act (LOPJ): Article 11.1 on the exclusion of unlawfully obtained evidence.
• Jury Court Organic Act (LOTJ): Article 61.1 d) on the duty to give reasons in the jury’s verdict.
• Criminal Procedure Act (LECrim): Article 297 on the value of the police report as a mere complaint.
• Article 448: Requirements for anticipated evidence.
• Article 714: Handling of statements not maintained at trial.
• Article 730: Introduction at trial of preconstituted or anticipated documentary evidence.

Court’s Analysis

Facts

On 3 September 2016, at around 14:00, the accused, Antonio José Moreno Nieves, of legal age and with no criminal record, together with M. F. H., decided to hire sexual services from the complainant, V. G. L. M. F. H. contacted V. G. L. using details from a website, agreeing on a service for 100 euros in a hotel room in Mérida, without informing her of the presence of the accused.

When V. G. L. arrived, she noticed a second person, Antonio, on the terrace. She refused to provide the service since she had agreed to meet only one man. Antonio tried to persuade her, saying he only wanted to observe, and when she refused, he threatened her and held her by the arms, striking her in the back to prevent her from leaving.

Trying to buy time, V. G. L. asked for a coffee. When it arrived, she saw Antonio put something in it, which he denied. Under pressure and stress, she agreed to have sexual relations with M. F. H. During the act, she noticed Antonio filming from the bathroom and begged him to stop. He ignored her, touched her aggressively, and made lascivious threats. She also noticed he was ingesting a white powder.

During an argument when she tried to leave, Antonio threw her mobile phone to the floor, damaging it. She picked it up and called a friend for help. Her car keys were later found under a pillow. She sought help at the hotel reception and called 112. The National Police intervened.

The coffee consumed by the complainant tested at 1.6 grams of alcohol per liter. Antonio’s phone could not be unlocked to check for recordings. V. G. L. was treated in the emergency room for a bruise and pain that required ten days to heal. She later received psychological and psychiatric treatment for a mixed anxiety–depressive disorder starting in October 2017. The phone damage was not appraised.

Procedural History

At first instance, the defendant was convicted. He appealed, alleging a violation of his right to the presumption of innocence under Article 24.2 of the Constitution and error in the assessment of the evidence, invoking in dubio pro reo. He argued that:

(i) exculpatory evidence, especially the statement of M. F. H., a direct witness, had not been properly weighed, and

(ii) there was no sufficient prosecution evidence to support the conviction, challenging the credibility of the complainant.

The Civil and Criminal Chamber of the High Court of Justice of Extremadura allowed the appeal on 3 May 2018 and acquitted the appellant. The Public Prosecutor and the private prosecution announced cassation appeals. The private prosecution’s appeal was declared abandoned on 5 September 2018 by the First Section of the Criminal Chamber of the Supreme Court due to unremedied representation defects.

The Public Prosecutor filed a cassation appeal on two grounds:

(i) violation of constitutional provisions [Articles 5.4 LOPJ and 852 LECrim] for breach of the right to effective judicial protection (Article 24.1 CE) and to a trial with guarantees (Article 24.2 CE), alleging that the appellate court exceeded its powers by revisiting evidentiary assessment contrary to Article 741 LECrim on free judicial assessment of evidence, and

(ii) violation of law (Article 849.1 LECrim) for failure to apply Articles 178, 147.2, and 263.1 paragraph two of the Criminal Code, because the appellate judgment did not maintain the facts declared proven at first instance.

By Judgment 555/2019 of 13 November (cassation 1631-2018), the Supreme Court set aside the appellate judgment and reinstated the first instance conviction.

The Constitutional Court, in STC 3308-2020, laid down a key rule. It is not permissible to convict on cassation a person who was acquitted on appeal if doing so requires a new assessment of evidence, especially personal evidence such as testimony.

Analysis of the Cassation Remedy

Cassation allows the Supreme Court to review a lower court’s judgment, but not to reexamine the facts or the evidence. Its aim is to check correct application of the law, not to retry the case.

STC 3308-2020 states that a conviction on cassation cannot be entered against someone acquitted on appeal if the conviction is based on a fresh assessment of personal evidence such as witness testimony, because the cassation court did not directly observe that evidence. Doing so would undermine fundamental rights, in particular:

1. The right to the presumption of innocence.
2. The right to a trial with full guarantees in its aspect of criminal double instance, which ensures that anyone convicted can appeal to a higher court with review of both facts and law.

European Court of Human Rights Doctrine

The European Court of Human Rights has likewise held that it is not proper to convict at a higher instance, such as cassation, a person acquitted on appeal if the conviction rests on reassessing evidence that the higher court did not directly evaluate.

Conclusion

The presumption of innocence is a core principle in criminal proceedings. It ensures that the accused is considered innocent until valid, conclusive evidence presented at trial proves otherwise, to a standard that excludes reasonable doubt. The Constitutional Court has set strict requirements for rebutting this presumption and stressed the need for properly reasoned convictions.

Case law at national and international levels also makes clear that a person acquitted on appeal cannot be convicted on cassation by revaluating personal evidence, since the cassation court did not witness that evidence. This protects the rights to presumption of innocence, to a trial with guarantees, and to a genuine two-tier review, while maintaining balance between the rights of the accused and the pursuit of justice.