—
First grade,
closed regime, for those considered highly dangerous or manifestly unadapted.
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Prison Law and Sentence Enforcement · Alicante · Madrid · All Spain
Prison Law and Sentence Enforcement Lawyer in Spain
A sentence is not the end of the case.
Classification, permits, open regime and conditional release are decided afterwards, and each of them can be argued.
In brief. Prison grade, leave permits, open regime, conditional release and transfer of sentences for foreign prisoners in Spain. English-speaking lawyers.
At a glance
24/7
Response to a detention
6
Working languages
10+
Years defending international clients
How the Spanish prison system grades a sentence
Sentence enforcement is governed by Organic Act 1/1979 and its regulation. Every sentenced person is classified into one of three grades, and the grade determines the conditions of life in custody:
- First grade, closed regime, for those considered highly dangerous or manifestly unadapted.
- Second grade, ordinary regime, which is where most sentenced persons are placed.
- Third grade, open regime, allowing the person to leave the centre to work and to return to sleep, or in some cases to serve the sentence under electronic monitoring.
Classification is reviewed at least every six months, and it can be challenged before the supervising judge for prison matters and, on appeal, before the provincial court. Article 100.2 of the regulation also allows a flexible model combining features of two grades, which is frequently the realistic route for a person who does not yet meet the requirements for open regime.
Article 36.2 of the Criminal Code establishes a security period for sentences of more than five years in certain offences, requiring half the sentence to be served before third grade classification, although the court can lift it.
Offences and penalties
What the Criminal Code actually punishes
—
Second grade,
ordinary regime, which is where most sentenced persons are placed.
—
Third grade,
open regime, allowing the person to leave the centre to work and to return to sleep, or in some cases to serve the sentence under electronic monitorin
Defence
Permits, open regime and conditional release
Ordinary leave permits of up to seven days are available to those in second and third grade who have served a quarter of the sentence and show good conduct, subject to a report from the technical team and the authorisation of the supervising judge. Refusals are common and appealable, and the quality of the supporting file, meaning work, training, family support and a documented plan for the leave, is decisive.
Conditional release is regulated by articles 90 and following of the Criminal Code, generally after three quarters of the sentence, with an advanced form at two thirds where the person has taken part in work, training or treatment activities, and an exceptional form for the seriously ill and for those over seventy.
For each of these, the application is not a formality. It is an evidenced submission, and preparing the file months in advance, rather than applying and hoping, is what changes outcomes.
Defence
Transfers, foreign prisoners and serving the sentence at home
For foreign nationals two additional routes matter. Framework Decision 2008/909, implemented in Spain by Act 23/2014, allows the transfer of the enforcement of a custodial sentence to the member state of nationality or residence, so that the sentence is served closer to family. Outside the EU the Council of Europe Convention on the Transfer of Sentenced Persons provides an equivalent mechanism.
Article 89 of the Criminal Code allows the substitution of a prison sentence of more than one year by expulsion from Spanish territory. Whether to seek that or to resist it is a strategic decision with long-term consequences for residence and for family life, and it should be argued with evidence about ties to Spain rather than resolved by default.
Transfer requests, prison grade appeals and permit applications can all be pursued by a lawyer while the client is in custody, and family members can instruct us on their behalf.
Framework
Sentence enforcement and the prison system
Once a custodial sentence is final, its execution is supervised by a specialised judge, the Juez de Vigilancia Penitenciaria, under the General Prison Act (Organic Law 1/1979) and its regulations. This judge decides on the matters that most affect a prisoner’s daily life and prospects, from classification to release.
Prison law is a distinct field with its own procedures and deadlines. Decisions taken here often have a greater practical impact on the length actually served than the original sentence itself.
Regime
Prison grades and progression
Prisoners are classified into grades that determine their regime, from the most restrictive first grade to the third grade or open regime, which allows a substantial degree of liberty. Progression depends on the evolution of the individual and is reviewed periodically.
We work to secure the appropriate classification and to challenge decisions that keep a prisoner in a more restrictive regime than the law and the circumstances justify, since access to the open regime is frequently the decisive step.
Release
Parole and conditional release
Conditional release (libertad condicional), governed by article 90 of the Criminal Code, allows the final part of a sentence to be served in the community, subject to conditions. Access to it depends on the portion of the sentence served, on conduct and on a favourable prognosis.
We prepare and support applications for these benefits, addressing the reports of the prison authorities and presenting the elements that demonstrate the conditions for release are met.
How we help
Assisting inmates and their families
We assist prisoners and their families throughout the enforcement of the sentence, from classification and prison transfers to permits, benefits and release, and we bring the corresponding appeals before the supervising judge.
For foreign nationals we also address the interaction between the sentence and their immigration status, and the possibility, in appropriate cases, of serving the sentence in the country of origin.
Permits
Prison permits and family contact
Temporary release permits are an important part of the prison regime, allowing a prisoner to maintain family ties and to prepare for eventual reintegration. Access depends on the grade, the portion of the sentence served and a favourable assessment of the risk.
We prepare and support applications for these permits and challenge refusals before the supervising judge, since they are often a decisive step towards the open regime and release.
Discipline
Disciplinary proceedings inside prison
Life in prison is governed by a disciplinary regime, and sanctions imposed within it can affect a prisoner’s grade, permits and prospects of release. These proceedings have their own rules and rights of defence.
We act in disciplinary matters and bring the corresponding appeals, because a sanction that goes unchallenged can have consequences well beyond the incident that caused it.
Transfer
Transfers and serving a sentence abroad
For foreign prisoners, it may be possible to serve the sentence in the country of origin under the European framework for the transfer of sentenced persons and equivalent instruments. This can have significant practical and family implications.
We advise on the requirements and on the procedure, and we handle the applications for transfer where that is in the client’s interest.
Related
Related pages
FAQ
What clients ask us most
Can a sentence be served at home
In some cases yes. Third grade with electronic monitoring under article 86.4 of the prison regulation allows the sentence to be served largely at home, and it is a realistic objective for shorter sentences with stable family and work circumstances.
Does time in pre-trial detention count
Yes, it is deducted in full from the sentence under article 58 of the Criminal Code, and it also counts towards the fractions required for permits and conditional release.
My relative is in prison in Spain and I am abroad. What can be done
A great deal, without your presence. Grade review, permits, transfer requests and treatment programmes can all be pursued by a lawyer in Spain, and we report to family in English.
Can a fine be converted into prison
Unpaid fines are enforced through subsidiary personal liability under article 53, which can mean custody or community work. Requesting instalments before default is far better than reacting afterwards.
Speak to a criminal lawyer
The earlier we see the file, the more can be done with it.
Criminal defence in English before the courts of Alicante, Madrid and the whole of Spain. Tell us what has happened and we will tell you what the real exposure is.
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