Criminal lawPractical guidesSuspension of the Prison Sentence in Spain: Requirements, Periods and Conditions

A prison sentence does not always mean actually entering a penitentiary. The Criminal Code allows, under certain conditions, the execution of short custodial penalties to be suspended. This is the so-called suspension of the execution of the sentence, regulated in articles 80 to 87 of the Criminal Code, and one of the most relevant institutions of daily criminal practice: for many first-time convicted persons it marks the difference between rebuilding their life at liberty or going to prison.

What the suspension is and what purpose it serves

The suspension is a judicial decision by which the sentencing court agrees not to execute the prison sentence imposed, on condition that the convicted person does not reoffend within a set period and complies with the conditions imposed. Its purpose is re-socialising: avoiding the harmful effects of short imprisonments for people with a favourable prognosis of future behaviour and with family, work and social roots.

Ordinary requirements

The general regime demands three conditions. First, that the person is a first-time offender; for these purposes, prior convictions for negligent or minor offences are not taken into account, nor cancelled criminal records (or records that should have been cancelled), nor those irrelevant to assessing the probability of future offences. Second, that the penalty imposed, or the sum of those imposed in the same judgment, does not exceed two years, without counting the one derived from non-payment of a fine. Third, that the civil liabilities have been satisfied and the ordered confiscation carried out; this requirement is deemed fulfilled when the convicted person assumes a payment commitment consistent with their economic capacity and it is reasonable to expect they will comply with it.

Practical key: the payment of the civil liability, or a serious and documented payment plan, is frequently the decisive factor. Arriving at the hearing or the enforcement stage with the reparation proven notably reinforces the chances of obtaining the suspension.

Special modalities

Alongside the ordinary regime there are exceptional cases. Article 80.3 allows suspending the penalty of those who are not first-time offenders, provided they are not habitual offenders, when their personal circumstances, the nature of the act and the effort to repair advise it; in this case the suspension is always conditional on the effective reparation of the damage and on a fine or community work. Article 80.4 authorises suspension without any requirement for convicted persons suffering from a very serious illness with incurable ailments. And article 80.5 provides the suspension of penalties of up to five years for persons who committed the offence because of their dependence on drugs or alcohol, conditional on being detoxified or under treatment and not abandoning it.

Periods and conditions during the suspension

The suspension period is two to five years for prison sentences not exceeding two years, and three months to one year for minor penalties. In drug-dependence cases the period is three to five years. During that period the judge may impose the prohibitions and duties of article 83: prohibition on approaching or communicating with the victim, prohibition on residing in or visiting certain places, the obligation to appear before the court, participation in training or treatment programmes, among others. In offences of violence against women some of these conditions are mandatory. Article 84 also allows conditioning the suspension on compliance with a mediation agreement, payment of a fine or performance of community work.

Revocation and definitive remission

The suspension is not an acquired and untouchable right. Under article 86, the judge will revoke it when the convicted person is convicted of an offence committed during the suspension period that shows the expectation on which the decision was based can no longer be maintained, when they seriously or repeatedly breach the prohibitions and duties imposed, or when they provide inaccurate information about their assets to evade payment of the civil liability. Revocation entails the execution of the initially suspended penalty. If, on the contrary, the period elapses without reoffending and complying with the conditions, the judge will order the remission of the penalty, which is definitively extinguished.

When and how it is decided

Whenever possible, the judge or court decides on the suspension in the judgment itself; otherwise, it rules with the greatest urgency in a later order, after hearing the parties. The defence plays an essential role here: proving family and work roots, the reparation of the damage, ongoing treatment where an addiction exists and, in general, everything that sustains a favourable prognosis of future behaviour. A well-prepared suspension request, with complete documentation, avoids imprisonments that would serve no re-socialising purpose.