Article 80 Spanish Criminal Code: Suspension of the execution of custodial sentences

1. Judges and courts may, by a reasoned decision, suspend the execution of custodial sentences not exceeding two years where it is reasonable to expect that the execution of the penalty is not necessary in order to prevent the future commission of further offences by the convicted person.

In order to adopt that decision the judge or court shall assess the circumstances of the offence committed, the personal circumstances of the convicted person, the criminal record, the conduct subsequent to the act and in particular the effort made to repair the harm caused, the family and social circumstances, and the effects which may be expected from the suspension itself and from compliance with the measures which may be imposed.

2. The following shall be necessary conditions for the suspension of the execution of the penalty:

1. That the convicted person has offended for the first time. To that end no account shall be taken of previous convictions for negligent offences or for minor offences, unless the latter form part of a type aggravated by repeated recidivism in minor offences, nor of criminal records which have been cancelled or which ought to be cancelled in accordance with Article 136. Nor shall account be taken of criminal records corresponding to offences which, by their nature or circumstances, lack relevance for the assessment of the probability of the commission of future offences.

2. That the penalty, or the sum of those imposed, does not exceed two years, excluding from that computation the penalty arising from the non payment of the fine.

3. That the civil liabilities which have arisen have been satisfied and that the confiscation ordered in the judgment in accordance with Article 127 has been given effect.

This requirement shall be deemed satisfied where the convicted person undertakes to satisfy the civil liabilities in accordance with economic capacity and to facilitate the confiscation ordered, and it is reasonable to expect that the undertaking will be complied with within the prudential period determined by the judge or court. The judge or court may, having regard to the extent of the civil liability and to the social impact of the offence, request such guarantees as it considers appropriate in order to secure compliance.

3. Exceptionally, even where conditions 1 and 2 of the preceding paragraph are not met, and provided that the persons concerned are not habitual offenders, the suspension of terms of imprisonment which individually do not exceed two years may be ordered where the personal circumstances of the convicted person, the nature of the act, the conduct and, in particular, the effort made to repair the harm caused, so advise.

In these cases, the suspension shall always be conditional upon the effective reparation of the harm or the indemnification of the loss caused in accordance with the physical and economic possibilities of the convicted person, or upon compliance with the agreement referred to in measure 1 of Article 84. Likewise, one of the measures referred to in numbers 2 or 3 of that same provision shall always be imposed, for a duration which may not be less than that resulting from the application of the conversion criteria laid down therein to one fifth of the penalty imposed.

4. Judges and courts may grant the suspension of any penalty imposed, without being subject to any requirement, where the convicted person suffers from a very serious illness with incurable suffering, unless at the time of the commission of the offence that person already had another penalty suspended on the same ground.

5. Even where conditions 1 and 2 provided for in paragraph 2 of this article are not met, the judge or court may order the suspension of the execution of custodial sentences not exceeding five years in respect of convicted persons who committed the criminal act by reason of their dependence upon the substances indicated in number 2 of Article 20, provided that it is sufficiently certified, by a duly accredited or approved public or private centre or service, that the convicted person has overcome the dependence or is undergoing treatment to that end at the time of the decision on the suspension.

The judge or court may order such verifications as are necessary in order to confirm compliance with the foregoing requirements.

Where the convicted person is undergoing treatment for the overcoming of the dependence, the suspension of the execution of the penalty shall also be conditional upon that person not abandoning the treatment until its conclusion. Relapses during treatment shall not be regarded as abandonment where they do not evidence a definitive abandonment of the treatment.

6. In offences which may be prosecuted only upon a complaint or private prosecution of the person offended, judges and courts shall hear that person and, where applicable, the representative of that person, before granting the benefits of the suspension of the execution of the penalty.

Working translation prepared by Société Juridique from the consolidated Spanish text published by the Official State Gazette. It has no official status: the only authoritative version is the Spanish original, available at the Official State Gazette and reproduced verbatim in our Spanish-language entry for this provision. Source: Organic Law 10/1995 of 23 November, the Spanish Criminal Code.