We intend with this material to make some reflections on the means of challenging judicial decisions (appeals), mainly the Appeal of Cassation, question its current formulation, encourage research on the subject and learn about current trends in the national and international scope on the scope and content of this resource. Therefore, we will ignore explanations referring to legal terms, concepts and other issues already known, to focus the analysis on the appeal against judgments issued by the People's Provincial Court.
The means of contesting judicial decisions are procedural acts executed by the parties as a way to re-examine a judicial decision. Terms are established to file the appeal, they produce suspensive effects and when the resolution is not contested within the term, it is understood as consented and in fact acquires firmness and with the exception of the appeal when the death penalty is applied, the parties can withdraw in everything moment.
Particularly against the sentences, the appeal and the cassation appeal, depending on the case. In these cases, the effects of the appeal can be extended to other non-recurring defendants if they are favored.
The right to appeal and receive an answer is an important principle of criminal procedure. The Military Criminal Procedure Law even establishes that the acquitted defendant can appeal the sentence in cassation to show his disagreement with the reasons and grounds for the acquittal. Another important principle regarding the challenge of judgments is the prohibition of reformatio in pejus to which, due to its importance, I will dedicate a few lines later.
The Appeal of Cassation
The origin of this means of challenge is so remote that some authors argue that in Imperial Rome it manifested itself through the exercise of the provocatio at populum. There are also antecedents in 12th century Italy and in the French Court of Cassation, created as a result of the 1789 revolution.
The Spanish Constitution of 1812, which eliminated a representative institution of the inquisitorial system of prosecution, such as the Tribunal of the Holy Office, also extended to colonial Cuba. On the other hand, the Spanish Criminal Procedure Law of 1868 with important contributions in renovating and humanistic ideas about the law, mainly with regard to oral trial and cassation, was transferred by the Crown to Cuba as of September 14, 1882 and to Puerto Rico e as of January 1, 1889, since they continued to be a colony at that time, but the former Spanish colonies of America did not benefit from this Law, so they continued to apply the old, eminently inquisitive and retrograde laws that they had inherited from the Crown.
The appeal in Cuban legislation has practically maintained the same formulation to this day, especially regarding the grounds. Cassation for breach of law or material cassation is aimed at combating the application and interpretation of substantive law and cassation for breach of form or formal cassation is used to combat procedural violations that conspire against the objective of achieving a fair trial.
Premises to take into account for the appeal
It is important in this type of resource to take into account the general premises already mentioned and other specific ones, which we can summarize as follows:
1. Thoroughly review the sentence as soon as possible, being the most advisable to do it within 24 hours since some formal or content defects can be resolved by requesting clarification by means of a simple letter and the court of instance itself resolve what corresponds by auto since once the cassation appeal is presented, no clarifying pronouncement is possible by the court ad quo.
2. It is optional for the parties and after it has been submitted, it can be withdrawn, except for the appeal in case of death penalty. However, if the prosecutor withdrew the accusation and the court accepted it, he will not be able to appeal the acquittal.
3. It has suspensive effect and its effects can be extended to the other non-recurring defendants in order to benefit from the decision in favor of the appellant.
4. The fact proven in the sentence cannot be denied but it can be fought due to obscurity, omissions or transcendent contradictions to the ruling.
5. The assessment of the test cannot be questioned. It is necessary to clarify that in other procedural laws such as Spain and to a certain extent in Cuban military criminal procedure it is possible.
6. The appeal must be protected by specific reasons according to the law. The higher court cannot go beyond what is requested except for the power granted by article 79 of the Criminal Procedure Law, nor can it enter into questioning the proven facts but the contradictions in the evaluation of the evidence.
7. The cassation appeal is only inadmissible when it is presented after the deadline or is completely unfounded. Inappropriate citation of the broken precept or the infringed law is not grounds for inadmissibility. We must clarify that the military criminal procedure offers more guarantees in this regard since Article 383 establishes that in exceptional cases of force majeure not attributable to promoting you, the Court may, at its discretion, admit the challenge or the appeal presented outside the legal term.
8. When the appeal is mixed, the breach of form is first exposed and in that same order it will be resolved.
9. There must be a congruence between the grounds for cassation, the law violated or the precept broken, and the argumentation contained in the concept of the offense or violation. The infringed law is not limited solely to the Penal Code as there are blank criminal laws and consequently it is necessary to resort to precepts contained in other Codes or administrative regulations. The same occurs with the broken precept that may not only be contained in the Criminal Procedure Law but also in other laws, for example the Law of the Courts.
The principle of prohibition of reformatio in pejus
This well-known principle governs with notoriety in the appeal; several countries, for example Spain and Germany contemplate it in their respective procedural laws. In Cuba, it is not expressly stated in the Law of Criminal Procedure but it is applied in legal practice and in other normative documents such as Instruction 63/77 of the Governing Council of the Supreme People's Court; however, this principle is provided, albeit partially, in articles 408 and 415 of the Law on Military Criminal Procedure.
How does current legal practice in Cuba conceive this principle?
In essence, it consists in that the ad quem court must respond to the points proposed in the appeal and only in the case of benefiting the accused can it be extended to examine other questions not proposed by the party that challenged the sentence, except for the ex officio cassation provided in article 79 of the Criminal Procedure Law when procedural formalities are not complied with or principles inherent to the accused are violated, such as the presumption of innocence, accusatory principle, etc. in which case, decisions regarding the improper application of the substantive law may be pending.
This principle is also applied so as not to aggravate the sanction to the accused as the sole appellant even in the case of illegal benignity, for example, when the sanction imposed is below the minimum limit. In this case, there is no ex officio cassation if the prosecutor did not appeal, but neither will there be if he appealed but did not contest the adequacy.
The Prosecutor can only appeal for some reason but the higher court detected an offense that harms the accused and in this case it may happen that the reasons alleged by the prosecutor are rejected but at the same time it is resolved favoring the non-recurring defendant and against the prosecutor since the principle is not applicable with respect to the latter.
Let's look at an example taken from practice. The prosecutor in his provisional conclusions narrated facts constituting the crimes of Violation of Residence and Lascivious Abuses, however, he only qualified the first of the crimes and maintained that classification in the oral trial without making the Court use the formula of Article 350. The qualification in the sentence was Violation of Domicile. In that case, if the prosecutor establishes an appeal, he cannot allege a qualification error in the sentence because he did not qualify the crime of lascivious abuse since in the oral trial he only maintained the violation of domicile as final and it was on this last crime that the counterpart is the defense structured its report. To do otherwise would mean a frank defenselessness of the accused,violating the principle of equality and the correlation between imputation and sentence, although this does not prevent the higher court from pointing out the defect and the dubious correctness of the court of first instance as a criticism and teaching.
On the other hand, in the event of a referral by the court ad quem for a new sentence, the court will not be able to modify the judgment against the accused if the prosecutor did not also appeal in that sense. Until recently, it was a criterion that the court of first instance could modify the ruling against the accused but lately the criterion of applying the principle in an absolute way in this case has gained strength, that is, never to issue a new sentence unfavorable to the accused as the sole appellant or even in the case of the referral motivated by procedural defects alleged by the defendant himself, since he would in no case appeal to his own detriment.
We can summarize that among the assumptions to take into account to make the stated principle valid, there are the following:
• In the cassation appeal, the prosecutor cannot allege facts constituting a crime that are not included in his provisional conclusions as it would create defenselessness and violate the accusatory principle. Without accusation there should be no sanction.
• The prosecutor in the appeal cannot claim a more serious qualification than that sustained in the final conclusions and accepted in the first instance judgment. In summary, the Prosecutor in the appeal cannot go beyond the conclusions raised to final in the oral trial.
• There may be an ex officio cassation for violation of the principle of the state of innocence or of the instructive correlation of the charge-imputation, for denial of important evidence, substantial alteration of the imputed fact, need for a summary supplementary instruction or that having been practiced was not charged a new fact, but as a premise, one of the parties must have appealed to promote the re-examination. If only the defendant appealed, the higher court can vary the classification of the crime or the sanction in favor of it even if it has not requested it and, on the contrary, it can never in this case aggravate the sanction. The principle of non reformatio in pejus does not apply to the prosecutor;it means that the interest of the prosecutor as the sole appellant may be affected by a ruling contrary to his claim in favor of the accused even without the latter having appealed the sentence.
• If the breach of form and the correction of the defect ordered by the court ad quem is related to the acquitted defendants, the sentence regarding them may not be declared final. It is not clear if this exception applies to those acquitted by withdrawal of the accusation, I think not. Otherwise, the acquitted defendants who are not affected by the breach are not harmed by the appeal.
It is worth noting that in other procedures such as the Anglo-Saxon, the acquittal of the accused always acquires firmness in the first instance and this is a guarantee that several authors hold.
• The ad quem court cannot impose a main sanction in substitution of the subsidiary imposed in the first instance unless it has been contested by the Prosecutor. It has been declared in repeated judgments of the Supreme Court that to apply the main sanction instead of the subsidiary one requested by the prosecutor, the trial court does not need to apply the formula of article 350 of the Criminal Procedure Law, but the situation is different when the accused, still dissatisfied with the subsidiary sanction requested by the prosecutor and imposed by the court, filed a cassation appeal since the application of the stated principle avoids an unfavorable result greater than expected. I say this because the defendant when appealing,he hopes that the appeal will be accepted in his favor or that it will simply be declared irrelevant but not aggravate his situation, which can only happen when the prosecutor has also appealed and he does not contradict the position assumed in the oral trial.
It is not clear in the Criminal Procedure Law how to proceed in the event that the accused dies within the term to file a cassation appeal.
The grounds for cassation
I will briefly refer to the grounds for cassation. Regarding the grounds for breach of form, I will mention the broken precept and in the case of grounds for cassation for breach of law, I will indicate the law breached in parentheses. We will explain them in the same order without verbatim copying the procedural rule.
Breaking of Form:
70-1 Denial of due diligence of evidence proposed in due time, in due form and that is pertinent, mediating a protest in the oral trial according to article 356 of the Criminal Procedure Law (articles 280, 287, 288, 340, 341, 342, 351, 356 LPP).
70-2 Omit summons from the accused, attorney or prosecuting party. In the case of the lawyer, it refers to the designated or substitute after acceptance by the accused (288 and 289 LPP).
70-3 Question considered by the court as trick (aimed at obtaining a favorable answer), suggestive (dominates the will of the questioned person) impertinent (inappropriate question). The protest is required in the oral trial and that the rejected question is recorded in the minutes (322).
70-4 Darkness, omission or contradiction in the sentence. It is one of the two most used grounds for cassation and I made a more detailed analysis on this in another work; I will only address some essential aspects here. For the law, only the judgment issued by the court is true. The proven fact must contain elements of time, place, mode of execution, strict language, that is, without ambiguities, or generalizing expressions, or use expressions of the criminal type. The sentence should not include more facts than those proven in the oral trial and that preserve their essential identity with those accused by the prosecutor (homogeneous facts), which does not prevent including facts that favor the accused even without being charged by the prosecutor.In this ground of appeal, it is not correct to state that the proven fact does not correspond to reality, but it is possible to point out that it was not well exposed. This ground of cassation can also be used when there is a total incongruity between the fact narrated in the sentence and the fact imputed in the provisional conclusions of the prosecutor. Faults must have an impact on the qualification, participation or concurrence of mitigating, aggravating or adequate circumstances and consequently the ruling. Examples of omissions could be not describing the injury in an act of Serious Injuries, not indicating the age of the victim in an act constituting an Aggravated Rape, not specifying whether the condition of agent was known to the accused in an act of Attack, etc. (44.l.2.a).This ground of cassation can also be used when there is a total incongruity between the fact narrated in the sentence and the fact imputed in the provisional conclusions of the prosecutor. Faults must have an impact on the qualification, participation or concurrence of mitigating, aggravating or adequate circumstances and consequently the ruling. Examples of omissions could be not describing the injury in an act of Serious Injuries, not indicating the age of the victim in an act constituting an aggravated rape, not specifying whether the condition of agent was known to the accused in an act of Attack, etc. (44.l.2.a).This ground of cassation can also be used when there is a total incongruity between the fact narrated in the sentence and the fact imputed in the provisional conclusions of the prosecutor. Faults must have an impact on the qualification, participation or concurrence of mitigating, aggravating or adequate circumstances and consequently the ruling. Examples of omissions could be not describing the injury in an act of Serious Injuries, not indicating the age of the victim in an act constituting an Aggravated Rape, not specifying whether the condition of agent was known to the accused in an act of Attack, etc. (44.l.2.a).participation or concurrence of mitigating, aggravating or adequate circumstances and consequently the ruling. Examples of omissions could be not describing the injury in an act of Serious Injuries, not indicating the age of the victim in an act constituting an Aggravated Rape, not specifying whether the condition of agent was known to the accused in an act of Attack, etc. (44.l.2.a).participation or concurrence of mitigating, aggravating or adequate circumstances and consequently the ruling. Examples of omissions could be not describing the injury in an act of Serious Injuries, not indicating the age of the victim in an act constituting an Aggravated Rape, not specifying whether the condition of agent was known to the accused in an act of Attack, etc. (44.l.2.a).
70-5 Incongruence between the fact narrated in the sentence and the technical aspects regarding qualification, participation and concurrence of circumstances, some of which were omitted in the sentence. It can also contemplate the omission in the ruling on civil liability. The objective or material consistency is in terms of the facts and was briefly explained in the previous reason, this being the most important since it has been a repeated criterion that the accused defends himself from the facts and not from the qualification. This means that the Court can vary the classification of the crime based on the same fact either in favor or against the accused,in the latter case, if the formula of article 350 of the LPP was applied and the higher court can also do it depending on who has appealed but what is not correct is that the substance of the imputed fact varies to support a new classification. This ground for cassation refers to points of law since the first result of the court responds to the facts raised by the prosecution. The Military Criminal Procedure Law does expressly include the incongruity between the content of the sentence and the actual circumstances of the alleged act as grounds.The Military Criminal Procedure Law does expressly include the incongruity between the content of the sentence and the actual circumstances of the alleged act as grounds.The Military Criminal Procedure Law does expressly include the incongruity between the content of the sentence and the actual circumstances of the alleged act as grounds.
70-6 Omit formalities of articles 350 and 357 of the LPP This ground of appeal responds to the principle of correlation between imputation and sentence (350 and 357 LPP).
70-7 Sentence handed down by a smaller number of judges. Violation also occurs when the sentence is signed by a judge who did not participate in all of its sessions or when there is a lack of capacity to exercise the function of judge or the necessary votes do not exist. In this case, the principle of physical identity of the judge applies. The case in which an ordinary court heard a case that corresponds to the military jurisdiction is not clearly resolved. (Articles 35 and 42 of the Law of the Popular Courts, Law 82/97 and 45 and following of the LPP).
70-8 Challenge against a judge, rejected by the court. The challenge against a judge must be well founded, although not precisely demonstrated, and can be expressed in demonstrations towards a witness, criteria on unproven facts, frequent conversations with the accused or his relatives or with the victim, etc. (Article 23 LPP).
70-9 It is applicable to complaints where the opposition formulated by one of the parties was rejected. It is not a widely used motif. (Article 432 of the LPP).
Before moving on to the causes for violation of the law, we must emphasize that article 79 of the LPP recognizes ex officio cassation. In this case, the case is referred and it is currently the dominant criterion that this referral in no case can affect the accused if only he appealed. It is not expressly a motive for cassation but it refers to an infringement of the essential norms and guarantees of the process, such as infringement of the state of innocence, no imputation-sentence correlation, substantial alteration of the fact originally imputed, denial of important evidence and other infractions that must have relevance to the ruling although some authors do not consider that this last requirement should exist (relevance to the ruling). The limitation presented by this article is that if no one appeals the sentence,the ad quem court cannot rule on these offenses. The precepts that are considered violated are articles 351 and 263. Article 351 has aroused controversy and some maintain that it should be applied only at the request of the prosecution and with respect to article 263 that its application by a court of the phase intermediate.
Violation of Law
Cassation for infringement of the law is the so-called material cassation and its object is to search for a correct application and interpretation of the substantive law. Generally, the infringed laws are precepts of the Penal Code, but other dispositions can also be infringed, especially when alleged infringement of blank criminal laws; Typical cases are crimes committed while driving vehicles on public roads. It must be based on the acceptance of the proven fact as stated in the sentence.
69-1 Conduct is sanctioned as a crime if it is not so or there are defenses or subsequent circumstances that prevent sanctioning them. Among those subsequent circumstances is not the decline of jurisdiction. As for the res judicata previously alleged and rejected, it can be raised in number 7 and also appears as a cause for review in article 456 cause 19 of the LPP).
69-2 Behaviors that are not punished as a crime, being it. This motive, of course, will hardly be used by the defense attorney.
69-3 Error in qualification. Law violated due to lack of application is the precept of the Penal Code that should have been applied and due to improper application it will be the precept applied by the Chamber and which in the opinion of the appellant is not correct.
69-4 Error regarding the concept of participation either as perpetrator or accomplice (Article 18 of the Penal Code adding the corresponding subsection due to lack of application and improper application).
69-5 Error in the assessment of mitigating, aggravating or defending circumstances. The application of an erroneous defense may or may not entail the application of a security measure and other legal consequences, hence the importance of a correct qualification (articles 52 and 53 in terms of mitigating or aggravating circumstances and article 20 and following on the defenses and also includes specific defense or acquittal excuses). If the mitigating or aggravating circumstance is at the same time qualifying for an aggravated type of crime, then it would be a qualification error and the third reason would apply. It does not clarify the precept if it also contemplates the adequate ones such as article 17.1, 54 and 55 of the Penal Code or the incomplete mitigating measures such as articles 20-2, 21-5, 22-2, 25-3, 26-2.,but they can be alleged in cassation for the reason that is exposed next.
69-6 Inadequate suitability of the sanction. For this reason, it is intended to combat illegal sanctions, which are those that are not contemplated by the criminal precept or that are outside the criminal framework either in excess or in default and by exception the discretionary power of the Chamber can be combated when it has been exercised with notorious injustice. Under this ground of appeal, an excessively benign sentence or, on the contrary, disproportionately excessive, can be combated. As for alternative penalties for deprivation of liberty, they can only be challenged in the event of a flagrant violation of the norm that provides it for failure to comply with the requirements for their imposition. In this sense, it is also necessary to take into account that if the prosecutor requested a fine in the oral trial,You cannot request deprivation of liberty in the appeal, nor would it be logical to ask in the appeal for a sanction that is quantitatively higher than the one in question in the oral trial. There are opinions that hold as correct the application by the court to quo of a sanction greater quantitatively than that requested by the prosecutor and others pronounce for an opposite position, that is, for a correlation imputation - sentence of an absolute nature as occurs for example in the resource of appeal of the abbreviated procedure where the taking of evidence was dispensed with (articles 47, 48, 49, 50, 183, 272.3 etc. can be cited as violated law, depending on the specific case).There are opinions that hold as correct the application by the court to quo of a sanction that is quantitatively greater than that requested by the prosecutor and others are pronounced for an opposite position, that is, for an imputation-sentence correlation of an absolute nature as occurs for example in the appeal of the abbreviated procedure where the taking of evidence was dispensed with (articles 47, 48, 49, 50, 183, 272.3 etc. can be cited as a law violated, depending on the specific case).There are opinions that hold as correct the application by the court to quo of a sanction that is quantitatively greater than that requested by the prosecutor and others are pronounced for an opposite position, that is, for an imputation-sentence correlation of an absolute nature as occurs for example in the appeal of the abbreviated procedure where the taking of evidence was dispensed with (articles 47, 48, 49, 50, 183, 272.3 etc. can be cited as a law violated, depending on the specific case).by an imputation correlation - absolute judgment, as occurs, for example, in the appeal of the abbreviated procedure where the taking of evidence was dispensed with (Articles 47, 48, 49, 50, 183, 272.3 etc. may be cited as violated law depending on the specific case).by an imputation correlation - absolute judgment, as occurs, for example, in the appeal of the abbreviated procedure where the taking of evidence was dispensed with (Articles 47, 48, 49, 50, 183, 272.3 etc. may be cited as violated law depending on the specific case).
69-7 Error in admitting or rejecting the previous questions reproduced in court. It refers to res judicata, prescription of the action and amnesty. It must have been proposed by the parties, rejected by the court and reproduced in the qualification brief for debate in the oral proceedings. In these cases, the provisions of article 302 of the LPP must be taken into account
69-8 Error of law in the order of non-admission of the complaint. (Article 430 of the LPP).
Doctrinal criteria currently supported on criminal cassation
The opinions that we will summarize below are aimed at considering the appeal as a means of guarantee for the accused rather than as a means of control of the sentences by the court ad quem.
By way of illustration, I will list some of the supporting criteria for possible reforms to the appeal and in several of them I will express my own comments.
I do not propose that they agree on everything but that they draw their own conclusions and argue about it.
1. In the event of redelivery, either at the request of the prosecutor or ex officio, the new qualification and / or a new oral trial should not aggravate the situation of the accused in relation to the first sentence. This is equivalent to not aggravating the qualification, participation, or appreciation of circumstances that aggravate their responsibility or sanction for other crimes in the event of improper application of Article 10 of the Penal Code in the first sentence or in the provisional conclusions of the prosecutor originally presented; in short, absolute application of the principle of nom reformatio in pejus only in favor of the accused. It is also proposed that the same judges do not act in the new trial.
2. Expand the grounds. It means extending it to the accessory sanctions, the amount of civil liability, the non-observance of essential guarantees in favor of the accused, when the sentence is not sufficiently motivated or lacks motivation, adding all the grounds for review and allowing the accused to repeat in review the same grounds that alleged at the time as cassation.
3. Provide the possibility of criticizing the proven result due to inconsistency with the assessed evidence or include as a cause the one provided for in the Military Criminal Procedure Law regarding the inconsistency between the content of the sentences and the actual circumstances of the fact.
4. Not admit the possibility for the prosecutor to appeal the acquittal. For reasons of social defense and as long as the injured parties do not have the right to directly file an appeal, I do not share this proposal. Against our criteria it is alleged that there should not be double prosecution by the prosecutor but a double opportunity for the accused.
5. Allow the parties to submit documentary evidence together with the appeal.
6. That the ad quem Tribunal have the possibility to warn the appellant in the event that it observes formal defects in the appeal before deciding whether or not to proceed. In this case I am referring primarily to the lack of substantiation and considering the appeal as a means of guaranteeing compliance with procedural principles rather than a means of control exercised by the court ad quem over the first instance.
7. That in certain cases of breach of form and for reasons of procedural economy, the court ad quem may issue a second favorable judgment for the accused without remission.
8. Provide greater facilities for accused prisoners to file a cassation appeal, for example, that exceptionally they may be presented after the deadline. This possibility is offered to the accused in military criminal proceedings where they can exercise their own defense and even appeal for themselves.
Bibliography
Penal Code.
Julio B. Maier. The resource as a means of functional control. Cuban Journal of Law No. 10.
Criminal Procedure Law.
Military Penal Procedure Law.
Legal Review No. 12 The principles of Criminal Procedure Law.
Cuban Journal of Law numbers 10, 22, 33, 7/92, 11/96.
Rubén Lafourcade Footwear. Conferences. Provincial Attorney Library.
• Grounds for criminal cassation.
• The challenge of the sentence by reason 4 of article 70 of the LPP.
• The accusatory principle in Cuban jurisprudence.
• Accusatory and instructive principle of charges.
Topics on the Criminal Process. Cuban Society of Criminal Sciences year 1998..
Topics for the study of Criminal Procedural Law. Third part. Collective of authors. Editorial Félix Varela year 2003.
Proceedings of the II Congress of the Cuban Society of Criminal Sciences. Camaguey 2003.
