Article 95 Spanish Criminal Code: Requirements for the imposition of security measures

Article 95 conditions the imposition of a security measure upon the commission of an act provided for as an offence and upon a prognosis of future conduct revealing the probability of the commission of further offences. Where the penalty which might have been imposed was not custodial, only the measures of Article 96.3 are available.

Wording of Article 95 of the Spanish Criminal Code

Elements of the offence

1. The commission of an act provided for as an offence, which excludes the imposition of a measure in the absence of a typical act.
2. A prognosis of future conduct, deduced from the act and from the personal circumstances of the subject, revealing the probability of the commission of further offences.
3. The prior reports which the court considers appropriate, habitually forensic psychiatric reports.
4. That the measure fall within the catalogue of the following Chapter and, where the penalty which might have been imposed was not custodial, within Article 96.3.

Defence strategy

Insufficiency of the prognosis of dangerousness. The measure cannot rest upon the diagnosis alone. What must be established is a probability of further offences deduced from the act and from the personal circumstances, and the absence of a reasoned assessment on that point is a defect of motivation capable of being raised on appeal.

The ceiling of proportionality. Article 6.2 prevents the measure from being more burdensome than the penalty applicable in the abstract to the act committed, and from exceeding the point at which the dangerousness ceases. That ceiling is the principal instrument for limiting the duration of any confinement.

Choice of the least restrictive measure. Where the penalty which might have been imposed was not custodial, paragraph 2 restricts the court to the non custodial measures of Article 96.3. Even outside that case, outpatient treatment and supervised release are habitually sufficient to address the prognosis relied upon.

Review of the measure during enforcement. The measure is not immutable. Articles 97 and 98 permit its cessation, substitution or suspension in the light of the evolution of the subject, and periodic reports and applications for review are the means by which that outcome is obtained.

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This entry is provided for information only and does not constitute legal advice. The application of any provision depends on the circumstances of the individual case and requires examination of the case file by a qualified lawyer.