The right to appeal in criminal cases is embodied in Article 2 of Protocol No. 7 to the European Convention on Human Rights (ECHR) to which Spain is a party. This right is broader in scope than its counterpart in the International Covenant on Civil and Political Rights (article 14.5), as it extends to “all criminal offences” rather than just “crimes”, subject only to limited exceptions set out in its paragraph 2.

Legally and technically speaking, the right to appeal defines a procedural system according to which a claim is examined twice, by two separate courts, the second court’s decision prevailing over the first. As a consequence, the first instance decision must be subject to appeal although the grounds and modalities of the appeal are generally left to the States’ discretion. Some legal systems only allow an extraordinary appeal (subject to certain requirements), such as the appeal to the Spanish Supreme Court (known as cassation appeal).

The rules governing the Spanish cassation appeal have, over time, been subject to various amendments and, more than once, the question has arisen whether the cassation appeal (in its then applicable form) would be sufficient to meet the requirements of the right to appeal under Article 2 of Protocol No. 7.

Saquetti Iglesias v Spain

The cassation appeal (in the form following certain amendments in 2011) and its fit under Spanish procedural rules became a relevant legal issue in Saquetti Iglesias v Spain in which the European Court of Human Rights (ECtHR) discussed the scope of right to appeal in criminal matters recognized by Article 2 of Protocol No. 7.

Spanish customs had imposed a fine (€153,800) on the taxpayer. Using the Engel criteria (as to which, see below), the ECtHR determined that this tax penalty was really of a “criminal nature”, despite being nominally framed as an administrative penalty and unanimously concluded that Spain had breached the Protocol. A cassation appeal had been unavailable because the minimum threshold had not been met (the 2011 amendments had increased the minimum amount from €150,000 to €600,000) meaning that the domestic legal system at the time did not provide for the possibility of appealing serious administrative sanctions to a higher tribunal, therefore denying, in the case at hand, the right of the taxpayer to an appeal against the first judicial decision as required under Article 2 of Protocol No. 7.

Engel criteria

By way of background, the ECtHR has ruled on an ever increasing number of cases concerning tax issues, the most common issue being the possible application (and violation) of Art. 6 of the ECHR, laying down rules on “the right to a fair trial” applicable to all kinds of trials, provided that they concern the determination of a civil right and/or criminal charges.

To establish whether a tax penalty involves a criminal charge, the ECtHR traditionally resorts to the “Engel criteria” based on Engel and Others v. Netherlands. These three criteria are: (i) the classification of the proceedings in domestic law; (ii) the nature of the offence; and (iii) the severity of the penalty to be imposed. Since then, two important judgments stand as good examples of the willingness of the ECtHR to extend the right to a fair trial to tax cases by classifying as criminal the charges against which taxpayers are required to defend themselves (Bendenoun v. France and Jussila vs Finland, Application).

Recent Spanish Supreme Court decision

In an unexpected turn of events, the Spanish Supreme Court recently handed down a very important decision (cassation appeal no. 8158/2020, judgement of 25 November 2021) confirming that the current rules regulating the access to an appeal before the Supreme Court —as amended by Basic Law 7/2015 of 21 July— under which evidence and facts cannot be reviewed by the Supreme Court, comply with the essence of Article 2 of Protocol No. 7 to the ECHR, even if the right to file a cassation appeal (as an appeal against a first judicial decision) is ultimately dismissed by the court (which happens more often than not under the current appeals admission procedural rules). This validation is surprisingly inconsistent with the Supreme Court’s parallel request directed at Spanish lawmakers, included in the body of the decision, demanding the approval of a minimum standard to a right of appeal in criminal matters.

The Supreme Court’s decision also included a dissenting opinion. It stated that, in practice, the new procedural rules mean that cassation appeals are no longer the most appropriate channel to carry out a second instance review of an administrative sanctioning procedure (as required by Article 2 of Protocol No. 7) since, as per the new rules, the Supreme Court must now focus, amongst others, on matters that are especially important to developing case law, which gives the Court ample discretion to accept or reject appeals.

In addition to this point —with which I agree—, this tax practitioner believes that, after debating the matter at length before the Tax Authorities and the Economic-Administrative Courts, once the taxpayer has access to the ordinary courts —where the tax claim will be solved— the rules governing the cassation appeal mean that it is evident that the tax claim will only be comprehensively examined by the first instance court (High Court of Justice or National High Court), even in those cases where the Supreme Court admits the cassation appeal.

Therefore, in my view, the current procedural system is contrary to Article 2 of Protocol No. 7 and needs to be amended, either through the introduction of new rules determining when administrative sanctioning proceedings of a “criminal nature” under the Engel criteria can be appealed to the Spanish Supreme Court, or through the implementation of a second instance jurisdiction as a minimum standard.