Appeal

Surely, on many occasions, you have heard about the cassation appeal but you have not understood exactly what it is. If so, as a law firm in Madrid, this article will be of great interest to you. We are going to go into it in depth so that you can better understand what it is.

What is an appeal in cassation?

An appeal in cassation is basically an extraordinary appeal against a judgement that must always be presented before the Supreme Court and whose objective is to make it final or to annul it. The decision taken by this body is final, as it is the highest court in the Spanish judiciary.

You should know that an appeal in cassation can be requested against judgments handed down by the Provincial Courts, the High Courts of Justice and the National High Court, regardless of the jurisdictional area they cover, i.e. whether they refer to a criminal, labour, civil, commercial, military or contentious-administrative matter.

How do I file an appeal in cassation?

The first thing to do is to draw up the cassation appeal and then file it with the court or tribunal that handed down the judgement you wish to challenge. To do so, the law establishes a maximum period of 20 days, which will begin to run from the day after it is notified to the interested party.

In the event that the judgement could be subject to this appeal and be challenged, provided that the appeal has been lodged within the aforementioned period, the Judicial Secretary of the court or tribunal will make it official. If all of these requirements have not been met, it will have to be brought to the attention of the body that issued the judgement so that it can decide whether it is admissible.

At this point, the court or tribunal may consider that the requirements have not been met, after which it will proceed to officially declare it inadmissible. However, if it admits it, it must issue an order, which will validate the lodging of the appeal. This will take the form of an order, which can only be challenged by means of an appeal.

However, the decision dismissing the appeal may not be the subject of any other type of appeal, although the opposing party may refuse to appear before the court of cassation.

What elements must the appeal contain?

The first thing that must appear, in a clear and detailed manner, is the information relating to the case by means of which the appeal against the judgement handed down by the court or tribunal is sought. Then, using the necessary length, the grounds of law on which the appeal is based should be set out and a request for a hearing in cassation should be made. Information concerning this section can be found in Law 37/2011, on procedural streamlining measures.

For its part, the party filing the cassation appeal must also accompany the previous document with a certification of the contested judgment, as well as other judgments that could serve as a basis for alleging cassation interest. The latter is optional and only necessary when appropriate.

Finally, the last thing that the appeal must include is a reasoned statement of the need to bring the appeal due to the lack of jurisprudential doctrine of the rule that has been infringed by the judgement being appealed.

Does the Supreme Court have the power to dismiss the appeal?

The answer is yes. Despite having passed the previous procedure, the Supreme Court, the highest judicial body in Spain, may reject the appeal if it considers that it does not meet the requirements. In fact, this happens in an extremely high percentage of cases.

To give you an idea, last year the Supreme Court dismissed 51% of the cassation appeals filed in criminal cases and 57% of those in social cases. In the case of civil and contentious-administrative proceedings, the percentage is reduced to 11% and 18% respectively.

What reasons can the Supreme Court give for not admitting an appeal in cassation?

There are many and varied reasons that the Supreme Court can give for not accepting an appeal for cassation. These are the most common ones:

1. Lack of standing of the party bringing the action as he is not disadvantaged by the judgment.

2. Duplicity of the lodging of the appeal as it was also lodged before a High Court of Justice.

3. That the appeal was lodged by means of procedural fraud or abuse of rights.

4. Use of the incorrect appeal technique. This involves the accumulation of several offences in order to include them in the same appeal. In addition, the lack of clarity in the statement of facts and the lack of justification of the infringement appealed against in the heading section are also alleged in this point.

5. Formal defects. Any detail such as, for example, the failure to indicate the form of the action or the simultaneous mention of more than one of them also results in the action being dismissed as inadmissible. The same happens when there is no representation of the lawyer and the procurator, when it is lodged after the deadline or when it is lodged without creating the deposit required by law.

What is the interest of the court of appeal?

Earlier we referred to a concept that, to conclude this article, we should explain in depth. We are talking about the term 'interés casacional', which was developed on 12 December 2000 by the First Chamber of the Supreme Court.

The interest of the appeal must be stated as a reason for lodging the appeal in the heading of the pleading. Specifically, it refers to the need to establish a single doctrine via a Supreme Court ruling when there are rulings by Provincial Courts that follow different criteria or when there is no case law on the matter when dealing with a law that has been in force for less than 5 years.

However, in order for the appeal to be admitted for processing by the Supreme Court, a series of additional requirements must be met. Firstly, in the case of a plea of procedural contradiction, it must be clearly specified in the formulation of the plea on which it is specifically based.

Reference may also be made to the interest of appeal when a Provincial Court or equivalent body of the judiciary formulates a judgement that ignores, due to opposition or ignorance, another firm judgement corresponding to the doctrine of the Supreme Court. Obviously, this must be argued by referring to at least two judgments issued by the First Chamber of the Supreme Court.

In short, as you will have been able to see, the appeal in cassation is one of the most complex figures contemplated by the Spanish judiciary and, for this reason, it is vitally important to know it in depth before proceeding to file it before the body that issued the judgement that you wish to challenge and before the Supreme Court. We hope that this article has helped you to understand it a little better and to know when it is appropriate to use it and when it is not.

We hope to have been of help and to have resolved all your doubts about the appeal in cassation. If you have any doubts or need to file an appeal in cassation, please do not hesitate to contact us, we will be happy to solve your doubts or problems.