One of the most distressing questions after a conviction is whether you will actually go to prison. The answer, in many cases involving less serious sentences, is that it can be avoided through the suspension of the execution of the sentence. This guide explains in detail when it applies and how to obtain it.
What suspension of the sentence is
Regulated in arts. 80 et seq. of the Criminal Code, suspension leaves the prison sentence in abeyance for a period (between two and five years). If during that time the convicted person does not reoffend and complies with the conditions imposed, the sentence is deemed served and no imprisonment takes place.
General requirements (art. 80.2 CP)
As a general rule, the following is required: (1) that the convicted person is a first-time offender (expunged or irrelevant records do not count); (2) that the sentence, or the sum of the sentences imposed, does not exceed two years of imprisonment; and (3) that civil liabilities have been satisfied (or a payment commitment consistent with financial capacity has been undertaken).
Special cases
The Code provides for exceptional suspensions even where not all requirements are met: on humanitarian grounds for seriously ill persons with incurable conditions (art. 80.4), and for drug-dependent persons who undergo rehabilitation treatment (art. 80.5), where the period may extend to five years.
Conditions and rules of conduct (art. 83)
The judge may make suspension conditional on prohibitions and duties: not going to certain places, not approaching the victim, taking part in training or rehabilitation programmes, etc. Compliance is essential to keep the benefit.
Revocation: when it is lost (art. 86)
Suspension may be revoked if, during the period, the convicted person commits a new offence showing that the expectation of non-reoffending was unfounded, or seriously and repeatedly breaches the conditions. Revocation means imprisonment.
How and when to apply
Suspension may be granted in the judgment itself or by a later order, once the conviction is final and before its execution. It is key to act quickly and with a well-founded written application: proving first-offender status, payment of or commitment to civil liability, and favourable personal circumstances.
Frequently asked questions
What if I have a criminal record? If the records are expunged or relate to offences of a different nature and minor significance, they may not prevent suspension. Does it cover the fine? Suspension applies to imprisonment; the fine is enforced separately. Is it automatic? No: it must be applied for and justified; the court assesses each case.
Are you in this situation? Do not make any statement or take decisions without legal advice. At Société Juridique we are available for emergencies 24 hours a day: 669 30 21 13.
Informative guide; it does not constitute legal advice.
Francisco Javier Martín Porras
Abogado penalista, socio de Société de Conseil Juridique et Expert y creador de la metodología LIWARD®. Dirige la defensa en procedimientos penales de alta complejidad, combinando estrategia procesal con análisis pericial y forense. Conozca al equipo →
