“Of the substitutive ways of the execution of the freedom´s privative punishments and the conditional release”, is how is entitled the Chapter III, of the Title III, of the Book I of the Spanish Criminal Code (CP). In this chapter we find how are regulated three different scenarios: 1) The suspension of the execution of the freedom´s privative punishments; 2) The substitution of freedom´s privative punishment, and 3) The access to the conditional release.
Scenarios that coincide with the way in which has been divided this chapter through sections, although, in order to exist an absolute coincidence we should mention one more section entitled “Common dispositions”, that owing to its lack of relevance we have not included in the above division. Nevertheless, we are going to follow the sections proposed by the CP for commenting the each of different articles of which is made up this chapter.
The current wording of the articles which we are going to see, was given by the Organic Law 1/2015 of 30 March (LO 1/2015).
– Section 1ª. Of the suspension of the execution of the freedom´s privative punishments:
Art. 80:
In the article 80 is established what has been called a judgment of regulated discretion, in other words, in it are gathered the cases in which can be granted the suspension of the execution of the punishment, but the fulfillment of the requisites established in each of these cases does not guarantee that it should be granted, since this decision wholly belongs to the Judge or Court which dictates sentence.
These cases are five, although the first can be considered the general and the rest the exceptions applicable to specific scenarios. The first is stated in the first point of the article 80, and says: “Either the judges or courts, through motivated resolution, may leave suspended the execution of freedom´s privative punishments which do not exceed the two years when it is reasonable to expect that the execution of the punishments is not necessary for avoiding the future commission by the punished of new crimes.
In order to adopt this resolution the judge or tribuna will assess the circumstances of the crime committed, the personal circumstances of the punished, his criminal records, its behavior after the crime, in particular the efforts to repair the damages caused, his family and social circumstances, and the effects which should derive from the own suspension of the execution and the fulfillment of the measures which would be imposed.”
It is a precept aimed to the suspension of the execution of any freedom´s privative punishment, with the exception of the permanent reviewable imprisonment. In other words, according to the first point of the article 80, can be agreed the suspension of, the imprisonment, the permanent localization, and the subsidiary personal liability for non-payment of fine.
In the first paragraph of this first scenario we see that are already established two requisites, that the freedom´s privative punishments cannot exceed the two years, and that it should be reasonable to expect that the execution of the punishment is not necessary for avoiding the future commission by the punished of new crimes. The first requisite will comprehends both, the possibility of suspending the execution of freedom´s privative punishments which do not exceed the two years and imposed in an isolated way, and those cases in which the crimes for which is punished a person are more than one, like in the case of a real, ideal or medial concurrence of crimes, or even a continued crime. But we have always to take into account that, the two years mentioned in the first point of the article 80, are referring to the punishment imposed by the judge or court for a determined crime or to the sum of the punishments imposed, as consequence of the limit established by the second of the requisites of the second point of the art. 80, which we will see later.
The real concurrence of crimes is regulated in the article 73 of the CP, for the case in which a subject commits various crimes and is punished with each of the punishments that correspond to each of the infringement committed. In this scenario, the sum of the punishments imposed corresponding to the different infringements cannot exceed the two years.
The ideal concurrence of crimes, is defined by the article 77.1 as the case in which “one fact constitutes two or more crimes”. In other words, it is required the unity of action, that the same fact infringes two or more precepts of the CP. In these cases, will be applied in its superior half the punishment envisaged for the gravest infringement, except when this exceeds the sume of the punishments which would correspond to apply if the infringements were punished independently, in which case these will be punished separately.
On the other hand, there is a medial concurrence of crimes “when one crime is the means to commit another” (art. 77.1 CP). In other words, there has to be a means-crime and a goal-crime. In these cases, it is imposed the punishments superior in degree to that envisaged in the CP for the gravest infringement for the author of a consummate crime, except when this, as in the above case, exceeds the sum of the punishments which correspond to impose if the crimes were punished separately, in which case, each infringement will be punished independently (art. 77.3 CP).
The continued crime, is regulated as such by the article 74 of the CP, as “who, either in the execution of a preconceived plan or taking advantage of the same occasion, makes a plurality of actions or omissions which offend one or varios subjects and infringe the same criminal precepts or precepts of the same or similar nature, will be punished punished as the author of a continued crime or misdemeanor with the punishment envisaged for the gravest infringement, which will be imposed in its superior half, being able to reach the inferior half of the punishment superior in degree.” Although later, in the second point of the article 74, is allowed that the punishment reaches the superior in one or two degrees to the envisaged in the CP, when they are crimes agains the patrimony. Like before, the punishment imposed by the judge or court will be for the gravest infringement, and either in its superior half, or in its superior degree but in its inferior half, or in its superior degree or two degrees, it must respect the threshold of two years of the article 80.1 of the CP.
Let us pass to talk about the second requisite imposed by the art. 80.1: “when it is reasonable to expect that the execution of the punishment is not necessary for avoiding the future commission by the punished of new crimes.” A requisite, which does not clarify so much if it is read alone, but for this reason the legislator adds a second paragraph to this art. 80.1: “In order to adopt this resolution either the judge or court will asses the circumstances of the crime committed, the personal circumstances of the punished, his criminal records, his behavior after the crime, in particular the efforts to repair the damages caused, his family and social circumstances, and the effects which should derive from the own suspension of the execution and the fulfillment of the measures which would be imposed.”
Therefore, the fulfillment of the punishment will not be necessary for avoiding the future commission by the punished of new crime when from the circumstances of the crime committed, the personal circumstances of the punished, his criminal records, his behavior after the crime and the rest of the motives enumerated in the second paragraph of the art. 80.1, is inferred that, the punished can live in liberty without being a risk for the rest of the society. It is here, in this second paragraph, where truly we can appreciate the regulated discretion which we mentioned at the beginning, since from the assessment that either the judge or court makes of the circumstances in it contained will depend whether the suspension of the execution of the punishment is granted, even when the rest of the requisites of the article 80 for granting it are met.
Let us continue, because to the two requisites already mentioned, that the punishment cannot exceed the two years and that the execution of the punishment is not necessary for avoiding the commission of new crimes by the punished, the article 80 adds other three in its second point, although we have already talked about one of them:
“1º That the convicted has committed an offense for the first time. To that effect will not be taken into account the previous convictions for negligences or minor crimes, nor the criminal records which has been cancelled, nor those which should be according to the article 136. Neither will be taken into account the criminal records corresponding to crimes that, for its nature or circumstances, lack the relevance to assess the probability of commission of future crimes.”
We have to be careful to not confound this requisite, with the aggravating factor of the article 22, according to which there will be recidivism when the punished has been executorily convicted for a crime comprehended in the same title of this Code, always that it is of the same nature. What is established in this first requisite has a broader scope, the convicted has to have committed an offense for the first time, being indifferent any other circumstance, with the exception of those expressly mentioned in such article, therefore being expressly excepted to assess the existence of recidivims: the convictions for negligences or minor crimes, the criminal records which has been cancelled or should be according to the article 136 and the criminal records corresponding to crimes that, for their nature or circumstances, lack the relevance to assess the probability of committing new crimes. The last of the requisites is perhaps the one which more interpretative problems arises, although for the wording seems to be understood, that they must be crimes of a different nature or at least with scarce gravity, to make irrelevant their conviction.
“2ª That the punishment or the sum of the imposed cannot exceed the two years, without including in such sum the derived from the non-payment of a fine.”
It is missed that, this requisite is not mentioned at the beginning of the article 80.1 when is established the threshold of two years, but at least the doubts about the scope of this two years end once this point has been reached. As we have said before, the two years are referred to both convictions for only one crime, and convictions for more than one which should be fulfilled according to some of the rules of the real concurrence of crimes (art. 73 CP), ideal or medial concurrence of crimes (art. 77 CP), or continued crimes (art. 74 CP).
Yet, it is interesting to clarify what is said at the end of this requisite: “without including in such sum the derived from the non-payment of a fine.” It is referring to the subsidiary personal liability for non-payment of a fine, which although regarded as a freedom´s privative punishment (art. 35 CP), it derives precisely from this, from the non-payment of a punishment of fine, being established the equivalence between both in the article 53.1 CP, a day of privation of liberty for each two installments not satisfied.
“3ª That the civil liabilities originated have been satisfied and has been made effective the seizure agreed in sentence according to the article 127.
This requisite will be understood fulfilled when the punished assumes the compromise of satisfying the civil liabilities according to his economic capacity and of facilitating the seizure agreed, and it is reasonable to expect that it will be complied in the prudential term which either the judge or court determines. Either the judge or court, attending to the scope of the civil liability and the social impact of the crime, may solicit the guarantees which considers convenient for guaranteeing its fulfillment.”
On one hand, the third requisite of the article 80.2 is only referring to the civil liability, which arises from the execution of a fact described in the law as crime, as consequence of the damages caused by it (art. 109 CP). Nevertheless, the civil liabilities originated for a crime, are part of the rest of the pecuniary liabilities which may derive from the criminal procedure enumerated in the article 126 CP. For guaranteeing that the suspect of a crime responds of them, the normal is that during the procedure, once is agreed the committal for trial in the Ordinary Procedure (art. 384 LECrim) or is imputed a concrete crime to the alleged liable in the Abbreviated Procedure (art. 775 LECrim), is adopted a preventive real measure, the bail or failing this the seizure, both regulated in the art. 589 and following of the LECrim. Besides, this bail can be used as an attenuating factor by application of the art. 20.5 CP (for repairing the damage caused to the victim) or the art. 20.7 CP (for analogy), when at the same time that it is provided is declared that it is to repair the damages which the commission of the crime may has occasioned. In order to solicit such attenuating factor, a chronological element set by the legislator has to be complied, the repair of the damages can be in any moment of the procedure, but, in any case, before the beginning of the oral trial.
On the other hand, the current regulation of the seizure was introduced by the LO 1/2015, which incorporated to the Spanish legal system the Directive 2014/42/UE, where is defined the seizure in its article 2.4) as, “the definitive privation of a good by a jurisdictional organ in relation with a criminal infringement.” In other words, the goods seized have to come from the crime, for being either goods, means, or tools used to prepare or execute the crime, or for being revenues derived from the crime, whatever the transformations they have suffered (art. 127 CP). In this case, another preventive real measure can be agreed during the procedure, as soon as there exists rational evidences against determined subject. The goods can be provisionally seized by virtue of the article 127.1 octies CP: “In order to guarantee the effectiveness of the seizure, the goods, meas, tools and revenues may be apprehended or seized and put in deposit by the judicial authority from the first investigations.” Therefore, the seizure up to firm sentence, or similar resolution, or it is initiated a procedure of autonomous seizure (of a civil nature) which also has to conclude by means of a sentence, is regarded as a preventive real measure, which we cannot confound with the bail and seizure of the art. 589 and following of the LECrim, for the goals of both preventive real measures are different. The preventive seizure of the art. 127 octies CP, has the goal of complying with the article 127 CP (the seizure of the goods used to commit the crime or derived from it). While, the bail and seizure of the article 589 and following LECrim, have the goal of fulfilling the pecuniary liabilities which may derive from the criminal procedure, which are the gathered in the art. 126 CP.
Once we have distinguished between the civil liability derived from the crime and the seizure, and how can be guaranteed in each case their fulfillment, we have to explain the two possibilities which offers the article 80.2.3ª. Either the civil liability has been satisfied and the seizure accomplished, or a serious compromise of carrying out both of them can have been reached. The legislator has been flexible, allowing that it is not necessary to wholly fulfill with both pecuniary liabilities in order to have access to the benefit of the suspension of the execution of the punishment.
The second of the scenarios stated by the art. 80 for being able to agree the suspension of the execution of a punishment, is in its third point which says: “Exceptionally, although the first and second conditions of the above point do not concur, and always that they are not usual convicts, may be agreed the suspension of the punishments of imprisonment which individually does not exceed of two years when the personal circumstances of the convicted, the nature of the fact, his behavior and, in particular, the effort for repairing the damage caused, advise it.
In these cases, the suspension will be always conditioned to the effective repair of the damage or its compensation, according to his economic and physical possibilities, or the fulfillment of the agreement to which refers the first measure of the article 84. Likewise, will be always imposed one of the measures of the second or third sections of the same precept, with an extension which cannot be inferior to the result of applying the criteria of conversion set in this article upon one fifth of the punishment imposed.”
This is a scenario only applicable to the punishments of imprisonment, which leave out of its scope of application the rest of the freedom´s privative measures which may be of application, the permanent localization and the subsidiary personal liability for non-payment of fine.
As we can observe, the regimen previously imposed by the first and second points of the article 80 for accessing to the suspension of the punishment is greatly relaxed, this is why this third point of the article 80 begins with the word “Exceptionally”, something which limits the application of this scenario to really exceptional cases. It is demanded neither that the convicted has committed an offense for the first time, nor that the punishment or the sum of the imposed is equal of inferior to two years. In their place what is demanded are another two requisites, the convicted cannot be an usual convicts and the punishments of imprisonment individually considered cannot exceed the two years. Though to the effects of the second section of this chapter and not of the first, the article 94 defines the usual convicts as “those who have committed three or more crimes of the comprehended in the same chapter, in no more than five years, and have been convicted for it.” On the other hand, that the punishment of imprisonment individually considered does not exceed of two years, makes us to talk again of the real, ideal or medial concurrence of crimes, and of the continued crime.
We have said that the real concurrence of crimes, was established in the article 73, which takes place when a subject is liable of two or more crimes and must comply with the punishments corresponding to each of the infringements. In this case, each of the punishments imposed for each of the infringements, cannot exceed the two years of imprisonment in order to allow the convicted to avoid going to prison. If we follow the wording of the article 80.3, there will be cases in which in a real concurrence of crimes, some of the executions of the punishments may be suspended, while others, those which surpass the threshold of two years, no. Hence, the convicted would have to go to prison too, although there he would be able to benefit from the ordinary exit permits, the classification in the third degree of penitentiary treatment with the open regimen which may accompany it and the conditional release, which are the tools given by the legislator for allowing a progressive return of the convicted to the life in liberty. What makes us to reconsider, if in reality it will be applied to cases as the exposed, since what is trying to avoid the article 80 is that convicted with a favorable forecast of social rehabilitation enter into prison.
We have already seen that, when there exists an ideal concurrence of crimes there will be two possibilities, that the punishment is applied in its superior half of the envisaged in the CP for the gravest of the infringements committed, or that the punishments are fulfilled according to the way proposed by the article 75 of the CP, in other words, one after the other with accordance to their respective gravity, when this way is more favorable to the convicted. In the first case, when the more favorable to the convicted is the punishment in its superior half of the punishment imposed to the gravest of the crimes, it cannot exceed the two years of imprisonment. In the second case, like in the scenario of the real concurrence of crimes, each of the punishments imposed cannot exceed the two years of imprisonment. This makes us to reconsider, in which cases will be more favorable for the convicted, the imposition of the punishment in its superior half of the gravest of the crimes committed or the imposition of each of the punishments separately and successively, for in the first case the threshold of two years will be easily surpassed, while in the second a long list of infringements equal of inferior to two years will not be an obstacle to the suspension of each of them.
Exactly the same will happen in a medial concurrence of crimes, which was punished with the punishment superior in degree to the punishment established in the CP for the gravest of the infringements, or with the sum of the punishments imposed when this is the more favorable method for the convicted.
Although the art. 77 is clear as crystal in both cases, the infringements can only be imposed separately, when the the gravest of the crimes committed either in its superior half or superior degree surpasses their sum.
Conversely, for the continued crime there is not two possibilities, it will be always punished with punishment envisaged for the gravest of the infringements, in its superior half or in the inferior half of the punishment superior in degree, or even being able to reach the punishment superior in one or two degrees when are infringements against the patrimony. Something which effaces any doubt regarding which method could benefit more the convicted.
After analyzing each of the above scenarios, we see how the great difference between the limit marked by the second requisite of the article 80.2 and supposedly of general application, and the established in the article 80.3 and supposedly of exceptional application, where really affects is to the cases of real, ideal or medial concurrence of crimes.
But let us continue with this third point of the article 80, because after these two requisites, that they cannot be usual convicts and that the punishments of imprisonment individually do not exceed the two years, says “when the personal circumstances of the convicted, the nature of the fact, his behavior and, in particular, the efforts to repair the damage caused advise it.” What places us again within the framework of the regulated discretion, regardless of the fulfillment of the requisites established in the art. 80.3, we have to attend to the concrete circumstances of the case for agreeing the suspension of the execution of the punishment.
Although this second scenario does not end here, the second paragraph of the article 80.3 adds other conditions, to the three already mentioned in order to agree the suspension of the execution of the punishment. This second paragraph conditions the suspension to the effective repair of the damage or the compensation of the damage caused according to the physical or economic possibilities of the convicted, or to the fulfillment of the agreement reached between the parties by virtue of mediation. Furthermore, it has always to be imposed some of the measures established in the second or third point of the article 84, in other words, either the payment of a fine or community service, with an extension which cannot be inferior to the result of applying the criteria of conversion set in it upon a fifth of the punishment imposed.
Let us now see the third of the scenarios envisaged in the art. 80, for agreeing the suspension of the execution of the punishment. It is regulated in its fourth point, and it is even more permissive than the scenario we have just studied. This fourth point says: “Either the judges or the courts may agree the suspension of any punishment imposed without being subjected to any requisite in the case that the punished suffers a really grave incurable illness, except when at the moment of committing the crime he has another punishment suspended for the same motive.”
In this third scenario, the suspension of the execution of the punishment can be of any of its types, freedom´s privative punishments, included the permanent reviewable imprisonment, right´s privative punishments and the punishment of fine.
As we can see there exist no additional requisites, only that the punished has to suffer an incurable illness, there is no temporally limits for the punishments, there is no demand of repairing the damages, although, there must not exist another punishment suspended for the same motive. Nevertheless, as in the above two cases, it is only a possibility, the judges and courts are not obliged to agree the suspension of the execution of a punishment when this scenario is applicable to a punished.
The fourth scenario envisaged in the article 80 for allowing to a judge or court to agree the suspension of the execution of a punishment has characteristic feature, that the convicted has committed the crime as consequence of his addiction to the alcohol, toxic drugs, narcotics, psychotropic drugs, or other which produce the same effects. But it is better if we see what is said exactly by this fifth point of the article 80: “Even when the first and the second conditions of the second point of this article do not concur, either the judge or the court may agree the suspension of the execution of the freedom´s privative punishments which do not exceed of five years of the punished who have committed a crime on account of their dependence to the substances pointed out in the number two of the article 20, always that is enough certified, that the convicted either has got out of the habit or is subjected to treatment for accomplishing that goal at the moment of deciding about his suspension.
Either the judge or court may agree the necessary verifications to check the fulfillment of the above requisites.
In the case that the punished is subjected to a detoxification treatment, the suspension of the execution of the punishment will be conditioned also to not leave the treatment until its conclusion. The relapses in the treatment will not be understood as leavings of the treatment if them do not show a definitive leaving of the detoxification treatment.”
A scenario envisaged for any kind of freedom´s privative punishment, with the exception of the permanent reviewable imprisonment, in other words, the punishment of imprisonment, the permanent localization and the subsidiary personal liability for non-payment of fine.
In this scenario, the first and second requisites of the second point of the article 80 are not applicable again, in other words, that the convicted has committed an offense for the first time and that the punishment or the sum of the punishments is not superior to two years.
Now the limit of the freedom´s privative punishments for being able to agree the suspension of the execution of the punishment is of five years, either when the punished is convicted for one infringement or when the punished is convicted for a real, ideal or medial concurrence of crimes punished according to the rules of the article 75. Here is wholly applicable, what we have already seen when we have talked about the second of the scenarios of the article 80 CP for agreeing the suspension of the execution fo the punishment regarding the real, ideal or medial concurrence or crimes.
The lengthening of the limit of the punishment imposed for being able to agree the suspension, is motivated, as we have seen, for the dependence of the punished to the drugs when he committed the crime, this is the reason why it is also demanded that the convicted is either recovered from its addiction or subjected to a treatment for achieving this goal, in the moment of deciding about the suspension of the execution, and in the case of being in the latter case he cannot leave the treatment until its end.
The fifth and last scenario of the article 80 says: “In the crimes which can only be subjected to a criminal procedure if there exists a previous report or lawsuit of the offended, the judges and courts will hear to this and, in its case, to whom represents, before granting the benefits of the suspension of the execution of the punishment.”
In this scenario of the sixth point of the article 80, is not mentioned the king of punishment whose execution can be suspended, so we have to understand that it can be any sort of punishment, like the scenario envisaged in the fourth point of the same article, in other words, it will be of application to the freedom´s privative punishments, the right´s privative punishments and the fine.
The crimes which can only be subjected to a criminal proceeding previous report or lawsuit of the offended are the semi-public and the private crimes. On the one hand, the semi-public crimes are those which are expressly defined as such by the CP, and need the previous report or lawsuit of the offended, but once the criminal proceeding has been initiated through one of these means the presence of the offended during the criminal proceeding is not necessary, since his position can be defended by the public prosecution. On the other hand, the private crimes are two, the slanders (art. 208 CP) and the calumnies (art. 205 CP), which need the previous lawsuit of the offended in oder to initiate the criminal proceeding, it cannot begin by means of a report. Another important feature of the private crimes is that, the public prosecution cannot assume the place of the private prosecution during the proceeding, therefore, the offended always has to be a party, this is the reason why it can be initiated only through a lawsuit. Nevertheless, the above has an exception, when the slander or calumny affects a public servant, the criminal proceeding can be initiated ex officio, as any other public crime.
In both cases it is understandable that, the legislator has conditioned the suspension of the execution of the punishment to the previous hearing of the offended, since the subjection to a criminal proceeding of the facts requires a previous decision of the offended, to put into the knowledge of the judicial authority facts that may be regarded as a crime and of which he has been part as a victim. Something which does not happen with the public crime, they can be the object of a criminal proceeding without such previous decision. The difference between both cases, is in the nature of the legal good affected by the crime, whereas those which require the previous report or lawsuit of the offended protect legal goods of an eminent personal character, the public crimes protect legal goods which affect to the society collectively.
Art. 81:
The article 81 says: “The term of suspension will be from two to five years for the freedom´s privative punishments which do not exceed the two years, and from three months to one year to the minor punishments, and will be set by the judge or court, taking into account the criteria expressed in the second paragraph of the first point of the article 80.
In the case that the suspension have been agreed according to the fifth point of the above article, the term of suspension will be from three to five years.”
In the article 81 we can distinguish three different scenarios: 1) The term of suspension will be from two to five years for the fredoom´s privative punishments which do no exceed the two years; 2) The term of suspension will be from three months to one year for the minor punishments, and; 3) In the case that the suspension has been agreed according to the point five of the article 80, the term of suspension will be from three to five years.
The first scenario will comprehend the suspension of the execution of the punishment according the art. 80.1 and the art. 80.2, and the art. 80.3.
The second scenario, is aimed to the suspension of the execution of the punishments to which is referred the art. 80.6, in other words, of semi-public crimes and private crimes, since in their case, as we have seen, the suspension of the execution is not limited to the freedom´s privative punishments o even of imprisonment. We have also to remember that, the minor offences are gathered in the art. 33.4 of the CP.
In relation to the third scenario, we cannot add more than the said by the own article 81, evidently it is aimed to the suspension of the freedom´s privative punishments regulated in the fifth point of the article 80.
As you can see, in the three terms of suspension of the article 81 we have not classified one of the scenarios of suspension of the execution of the punishment of the article 80. When the convicted obtains the suspension of the execution of the punishment, on account of suffering an incurable illness, it is understood that the life of the convicted is in imminent danger, thereby it does not need a determined term of suspension. The convicted will always be in the scenario envisaged in the fourth point of the article 80 until his life ends as consequence of this illness.
For the first two scenarios we have seen, for the freedom´s privative punishments which do not exceed the two years and for the minor offences, the extent of the term of suspension of the execution of the punishment will depend on the circumstances envisaged in the second paragraph of the art. 80.1, as for example, the circumstances of the crime committed, the personal circumstances of the convicted or his criminal records. On the contrary, for the third scenario, when the suspension has been agreed in accordance with the fifth point of the art. 80, the article 81 does not establish any criteria, although presumably this should be the gravity of the crime and the intensity of the dependence of the convicted to the substances which made him to commit the crime.
The greater the term of suspension agreed, the lesser will be the confidence of the judge or court who agrees the suspension of the execution upon the convicted. Since, once the term of suspension has passed without the commission of new crimes by the convicted and having this respected the rules of behavior imposed in the same resolution which agreed the suspension of the execution, the remission of the punishment must be agreed (art. 87 CP).
Art. 82:
According to the article 82: “1. Either the judge or court will rule in sentence the suspension of the execution of the punishment always that it is possible. In the rest of the cases, once the firmness of the sentence has been declared, it will pronounce with the greatest urgency, previous hearing the parties about whether granting the suspension of the execution of the punishment.
2. The term of the suspension will be counted from the date of the resolution which agrees it. If the suspension was agreed in the sentence, the term of suspension would be counted from the date this has acquired firmness.
The term of suspension in which the convicted has maintained himself as a defaulter, will not be taken into account.”
The suspension of the execution of the punishment, must be decided in the conviction, except when this is not possible. In this cases, either the judge or court which dictates the conviction, must decide upon the suspension of the execution, as soon as this becomes firm.
The suspension will be counted from the date of the resolution which agrees it, or in the case of having been established in sentence, from the moment it is firm.
A sentence will be firm, once either the appeals which can be lodged against it has been exhausted, or the terms to lodge them have elapsed, or the parties and the public prosecution have manifested their intention of not appealing it in the Abbreviated Procedure (art. 789.2 CP).
The other question we have to solve is, what is the meaning of the second paragraph of the article 82.2, when it says: “The term of suspension in which the convicted has maintained himself as a defaulter, will not be taken into account.” We find the answer in one of the special proceedings envisaged in the Spanish Criminal Procedure Act (LECrim), in the procedure against an absent accused or convicted offender (art. 834 – art. 846 LECrim). Such procedure will start, with the failure to comply with any of the obligations which must to be fulfilled by any person subjected to a criminal proceeding. They are enumerated in the art. 835 LECrim:
1º The committed for trial who is absent from his domicile at the moment of being notified any judicial resolution; and who does not have a know domicile.
2º Who has escaped from the place where he was arrested or prisoner.
3º Who, being on provisional release, does not concur at judicial presence the determined date or when he is required.
In any of these cases, the judge or court must solicit through a request his call and arrest (art. 836 LECrim). In the request have to be expressed the circumstances of the art. 513 LECrim, name and surname, job, profession or trade, how he can be identified, crime for what he is been committed for trial, the territory where presumably he is and the prison where he has to be brought, (the last circumstance will be omitted in the cases in which the arrest or imprisonment of the committed for trial has not been requested), and besides, the cause which according with the article 835 has given rise to the request and the term in which the absent committed for trial have to appear, under the warning that otherwise he will be declared defaulter (art. 837 LECrim). The request will be sent to the judges, published in newspapers and will be exhibit in the public places mentioned in the art. 512 LECrim.
Having been exhausted the term given in the request without either having appeared or having been detained the absent, he will be declared a defaulter (art. 839 LECrim). This is going to suppose the application of the scenarios envisaged in the article 840 and following, mainly the continuation of the summary until its termination for later being suspended (art. 840 LECrim), if he was declared defaulter pending the oral trial, the suspension of such trial (art. 841 LECrim), or if the convicted has hidden himself after being notified the sentence and pending the cassation appeal, the sentence derived from this appeal will be firm (art. 845 LECrim).
But let us return to the matter, because we have not found out yet the correct meaning of the phrase: “The term of suspension in which the convicted has maintained himself as a defaulter, will not be taken into account.”
It is referring to a convicted who has seen his conviction suspended, being in a situation of defaulting. The question is then, when a convicted can be also a defaulter?
Being a convicted supposed that there exist a conviction, from which follows that the logical is the existence of a previous criminal proceeding where the convicted was present. Depending on the procedure there will exist various possibilities. In the Abbreviated Procedure (art. 757 LECrim), the phase of investigation cannot conclude without having testified the investigated before the Examining Magistrate (art. 779.1.4º LECrim). But in the case of the Ordinary Procedure the thing is not as clear as before, along the investigation the Examining Magistrate must have dictated the committal for trial against a determined person (art. 384 LECrim), and from then onwards taken to him testimony as committed for trial (art. 385 LECrim). This is important, because from the moment in which is dictated the committal for trial the investigated is assisted with certain guarantees which would not assist to him as a witness, whereas the committed for trial has the right to remain silent, the right not to confess guilt, and even to lie without deriving damaging consequences against him (at least in theory, for if the evidences are contrary to the lies, these lies can serve to corroborate his guilt), the witness is obliged to testify and to say the truth if he does not want to be accused of a crime of obstruction to the justice (art. 420 LECrim). But, in the Ordinary Procedure the LECrim is not opposed to the opening of an intermediate phase without the testimony of the committed for trial, moreover the art. 840 LECrim seems to corrobore this theory saying that the judge or court with competence, it is understood to try the case and therefore once the intermediate phase is overcome, will suspend the proceeding when the investigation is concluded. But we should understand that, is indifferent that the LECrim remains silent with regard to this matter, the phase of investigation cannot conclude without the testimony of the committed for trial.
But, what happens if after being notified and after having testified the investigated leaves the procedure? In the case of the Ordinary Procedure, the oral trial will have to be suspended (art. 841 LECrim). But in the Abbreviated Procedure there exists an exception to this general rule, because the art. 786.1 LECrim establishes that the oral trial will not be suspended for an unjustified absence of the accused, if the judge or court, considers that exist enough elements for the trying and the punishment solicited does not exceed the two years of privation of liberty or, if it is of a different nature, when its duration does not exceed of 6 years.
Therefore, in the Ordinary Procedure, a convicted can only be in a situation of defaulting if he has hidden or fled after being notified the sentence to him. On the contrary, in the Abbreviated Procedure, he can be convicted without being present during the trial, if the rest of the rules of the Abbreviated Procedure have been fulfilled and it is the case described in the article 786.1 LECrim.
Another possibility is that the procedure followed is the procedure for the trying of minor crimes (art. 962 – art. 982 LECrim). According to the article 971 LECrim: “The absence unjustified of the accused will not suspend the oral trial nor the ruling, always that the formalities prescribed by the law for the notifications have been followed, unless the Judge, ex officio or at the request of any party, considers necessary his testimony.” Therefore, it is another of the possibilities in which a convicted can be also a defaulter.
Art. 83:
If in the art. 80 are gathered the requisites which previously has to be fulfilled by the punished, in order that the judge or court may be able to agree the suspension of the punishment. In the art. 83, are gathered the conditions which should be complied by the punished whose punishment has been suspended, when these conditions have been imposed by the judge or court who has suspended the punishment, for being necessaries to avoid the commission of new crimes. To these conditions we can add those established in the art. 84 which we will see later.
We have also to take into account with regard to these conditions what is said by the article 85, in other words, they can be modified, substituted, or lifted during the term of the suspension of the execution of the punishment (art. 81 CP), if the conditions which motivated them change.
Another important point which we cannot forget is what is said by the art. 86, a grave and reiterated failure to comply of the conditions mentioned in the art. 83 and art. 84 will suppose the revocation of the suspension of the execution, and the punished should comply with the punishments suspended. Although if the failure to comply does not have this grave and reiterated character, the judge or court can impose new prohibitions, duties or conditions or modify the already imposed or extend the term of suspension, without exceeding the half of the duration which was initially agreed.
The conditions established in the article 83 are nine:
“1ª The prohibition of approaching to the victim or to those of his family or other persons determined by the judge or court, their domicile, their places of work or other places usually frequented by them, or of communicating with them by any means. The imposition of this prohibition will be communicated to the persons affected by this measure.”
“2ª The prohibition of establishing contact with determined persons or with members of a determined group, when there exist evidences which allow to suppose that such subjects may facilitate to him the occasion for committing new crimes or incite to him to make it.”
“3ª To maintain his place of residence in a determined place with the prohibition of leaving it or be temporally absent without an authorization of the judge or court.”
“4ª Prohibition of residing in determined place or to go to it, when there he can find the occasion or motive to commit new crimes.”
“5ª Personally appearing with the periodicity determined before the judge or court, police stations or services of administration determined, in order to inform of his activities and justify them.”
“6ª To participate in formative, work-related, cultural programs, of road safety, sexual, of defense of the environment, of protection of the animals, of equal treatment and not discrimination, and other similar.”
“7ª To participate in programs of dishabituation to the alcohol, toxic drugs, or narcotics, or of treatment of addictive behaviors.”
“8ª Prohibition of driving motor vehicles which do not posses technological devices that conditions their ignition or working to the previous checking of the physical conditions of the driver, when the subject has been convicted for a crime against the road safety and the measure is necessary for avoiding the commission of new crimes.”
“9ª To comply with the rest of the duties that the judge or court considers convenient for the social rehabilitation of the punished, previous conformity of this, always that they do not attempt against his dignity as a person.”
As we can see, some of these conditions are similar to the right´s privative punishments enumerated in the article 39 CP, as the prohibition of getting close to the victim or to those of his family or other persons determined by the judge or court, or the prohibition of residing at determine place or of going to it. On the contrary, the fifth is more similar to a preventive personal measure, the provisional release regulated from the article 528 to the article 544 quinquies of the LECrim, since it is like the obligation apud acta of appearing the days previously determined in a judicial resolution (art. 530 LECrim).
In any case, all the conditions have a common motivation, to assure that the punished whose execution of punishment has been suspended does not commit more crimes.
After stating these nine obligations in its first point, the article 83 has another three points. The second establishes that, “When they are crimes committed against a woman by whom has been his couple, or by whom is or has been bound to her by a similar relation of affectivity, even without living together, the prohibitions and duties included in the rules 1ª, 4ª and 6ª of the last point will be always imposed.”
The third is aimed to the State security forces and bodies: “The imposition of any of the prohibitions or duties of the rules 1ª, 2ª, 3ª or 4ª of the first point of this article will be communicated to the State security forces and bodies, which will ensure their fulfillment. Any possible breaking or relevant circumstance for assessing the danger of the punished and the possible future commission of new crimes, will be immediately communicated to the Attorney General´s Office and the judge or court of execution.”
And the fourth, which is aimed to the services of management of punishments and alternative measures of the penitentiary administration: “The control of the fulfillment of the duties mentioned in the rules 6ª, 7ª and 8ª of the first point of this article will correspond to the services of management of punishments and alternative measures of the penitentiary administration. This services will inform to the judge or court of execution about the fulfillment with a periodicity of at least each three months, in the case of the rues 6ª and 8ª, and of each six months, in the case of the 7ª and, in any case, at its conclusion. Likewise, they will inform immediately of any relevant circumstance for assessing the danger of the punished and the possibility of the future commission of new crimes, as well as of the failure to comply with the obligations imposed or its effective fulfillment.”
Art. 84:
As we have already seen in the article 83, in the article 84 are established other conditions which can be imposed upon the punished in the same resolution which agrees the suspension of the execution of the punishment for any of the motives of the art. 80. Therefore, to these conditions will be also of application the envisaged in the article 85 about the modification, substitution and lifting of the measures which condition the suspension of the execution, and the stated by the article 86, for the grave and reiterated failure to comply with these conditions may suppose the revocation of the suspension of the execution of the punishment.
In the article 84 are established three conditions:
“1ª The fulfillment of the agreement reached by the parties by virtue of mediation.”
“2ª The payment of a fine, whose extension will be determined by the judge or court in accordance with the circumstances of the case, which cannot be superior to the result of applying two installments of fine for each day of imprisonment upon a maximum limit of two thirds of its duration.”
“3ª The carrying out of community services, specially when it is adequate as a symbolic way of reparation on account of the circumstances of the crime and the author. The duration of these community services will be determined by the judge or court in accordance with the circumstances of the case, without being able to exceed the result of changing one day of community services for each day of imprisonment upon a maximum limit of two thirds of its duration.”
The second and third conditions are similar to the stated in the article 53, that envisages the case in which the convicted does not willingly satisfy or by enforced recovery, the fine imposed, which is another kind of punishment according to the CP (art. 32 CP). In such article 53 are substituted each two installments of unpaid fine for one day of privation of liberty, as subsidiary persona liability for the non-payment of fine, although it can be substituted for the punishment of permanent localization or even for community services.
But in the case of the article 84, the transformation of punishment is carried out the other way around, the freedom´s privative punishment is substituted by the punishment of fine, with the same equivalence of the article 53, one day of privation of liberty is equivalent to two installments of fine, with a maximum limit of two thirds of the duration of the freedom´s privative punishment. Or the freedom´s privative punishment, may be transformed into community services, being equal a day of imprisonment to a day of community services, without being able to exceed these community services two thirds of the duration of the freedom´s privative punishment.
Something important which we have to remember with regard the article 84 is that, the imposition of one of its last two conditions, the punishment of fine or the community services, it is an essential requisite, and not optional, for being able a judge or court to agree the suspension of the execution of the punishment according to the third point of the article 80.
Lastly in the second point of the article 84, is limited the establishment of the condition of fine, to cases where have been proven that between who has committed the crime and the victim, there exist no economic relations derived from a marital relation, as consequence of living together or filiation, or of the existence of common descendants. The crime has to be committed upon the wife by who has been her couple, or by who has been or is bound to her by a similar relation of affectivity, even without having lived together, or upon the descendants, ascendants or brothers for nature, adoption, or affinity belonging to the criminal or of the couple or person with whom he lives, or upon minors or handicapped persons needed of special protection who live with him or who are subjected to the legal authority, tutelage, custody of the couple or person who lives with him.
Art. 85:
We have already talked about the article 85 during the commentary of the article 83 and the article 84. In the article 85 is envisaged that, any of the conditions of the art. 83 and the art. 84 can be modified, substituted or lifted, if the motives which justified them, have changed.
Art. 86:
In the first point of the article 86 are established the different scenarios in which a judge or court may agree the revocation of the suspension of the execution of the punishment previously agreed and its execution, which are four:
“a) When he is convicted for a crime committed during the term of suspension and this manifests that the expectation upon which was founded the decision of suspension adopted cannot be maintained any more.”
“b) The grave and reiterated failure to comply of the prohibitions and duties which have been imposed according to the article 83, or the failure to attend to the controls of the punishment management services and alternative measures of the penitentiary administration.”
“c) The grave and reiterated failure to comply with the conditions that, for the suspension, have been imposed according to the article 84.”
“d) To facilitate inaccurate of insufficient information about where are placed the goods or objects whose seizure have been agreed; the failure to comply with the payment of the civil liabilities to which was convicted, except when he lacks economic capacity for this; or to facilitate inaccurate or insufficient information about his patrimony, failing to comply the obligation imposed in the art. 589 of the Spanish Civil Procedure Law (LEC).”
When the failure to comply with the obligations imposed by virtue of the articles 83 and 84, is not grave and reiterated, the second point of the article 86 envisages two scenarios, either the judge or court may:
“a) To impose to the punished new prohibitions, duties or conditions, or to modify the already imposed.”
“b) To extend the term of suspension, without in any case exceeding the half of the duration of the term initially agreed.”
According to the third point of the article 84, the revocation of the suspension will not suppose the restitution of the outlays which the punished have made by virtue of the mediation agreement mentioned in the article 84, but either the judge or court should compensate the punishment with the payments and community services made in accordance with the article 84. It is understood that, for each two installments of fine which have been satisfied the punishments suspended should be reduced one day, and each day of community services, the punishment should be reduced in one day.
Let us now see the fourth and last point of the article 86, which says: “In all the above cases, the judge or court will rule after hearing the public prosecution and the rest of the parties. However, either the judge or court may revoke the suspension of the execution of the punishment and agreeing the immediate imprisonment of the punished when it is indispensable for avoiding the risk of criminal reiteration, the risk of flight of the punished or to assure the protection of the victim.
The judge or court may agree the carrying out the necessary investigations and to agree a hearing when it considers it necessary to rule.”
It is an important previous requisite, the judge or court is obliged to hear the public prosecution and the rest of the parties of the criminal proceeding before being able to decide about the revocation of the suspension of the execution of the punishment, except when the immediate imprisonment of the punished is indispensable for avoiding the risk of criminal reiteration, the risk of flight of the punished or assuring the protection of the victim. Let us see what is said by the Spanish Nation high Court´s resolution number 6999/2022 regarding this requisite: “According to the above doctrine, the prohibition of defenselessness claimed in the lawsuit put in relation with the due judicial control of the privation of liberty implies that the due procedure in the incident of execution (art. 24.1 and art. 24.2 CE) demands giving to the punished the opportunity of alleging in a contradictory procedure and in equality of arms about the concurrence of the requisites that CP demands for the granting of the benefit of suspension and the persona circumstances that the judicial organ may ponder in relation with the ends of the institution (STC 248/2004, FJ 3).
But also, if necessary, to discuss the presence of the circumstances to which the criminal norm links the revocation of the suspension, since in both cases is decided about the effective fulfillment of a punishment of imprisonment, in fact, about a privation of liberty which is linked to elements that, as the economic capacity [ art. 86.1 d) CP ] may vary in the time and must be verified in the case according to the current personal circumstances. In accordance with the above guarantees, in 2015 (Organic Law 1/2015, of 30 March) the legislator disposed in the article 86.4 CP a contradictory procedure where the judge or court must “having heard the public prosecution and the rest of the parties” before ruling about the revocation, except when is indispensable the immediate imprisonment of the punished “in order to avoid the risk or criminal reiteration, the risk of flight of the punished or to assure the protection of the victim”. In the incident the judicial organ “may agree the carrying out the investigations of verification necessaries and agree a hearing when it considers it necessary to rule.”
Art. 87:
The article 87 is linked with the artículo 81 and the above article 86. Having elapsed the term of suspension of the execution of the punishment agreed according the article 81, without incurring in any of the infringements of the article 86, the punished will recover his whole liberty through the remission of the punishment imposed, in other words, the punishment previously imposed will be definitely cancelled.
This is what is said by the first point of the article 87: “Having elapsed the term of suspension set without having committed the subject a crime which manifests that the expectation in which was founded the decision of suspension adopted cannot be maintained, and enough fulfilled the rules of behavior set by the judge or court, this will agree the remission of the punishment.”
Notwithstanding the above, in the second point of the same article are established additional requisites when the suspension of the execution of the punishment has been reached by virtue of the point five of the article 80, in other words, when the crime was committed as consequence of the addiction of the punished to some of the substances mentioned in the second point of the art. 20 CP.
In these cases, the dishabituation of the subject or the continuity of the treatment must be proven in order to be allowed the judge or court to agree the remission of the punishment. Otherwise, the judge or court must agree the fulfillment, except when, heard the corresponding reports is considered necessary the continuity of the treatment, being possible to grant an extend of the term of the suspension in such case, of up to two years.
– Section 2ª. Of the substitution of the freedom´s privative punishment:
Art. 88. (Deleted)
Art. 89:
In the article 89 is regulated the only motive of substitution of the punishments which currently appears in the CP, for as the Exposition of Motives of the LO 1/2015 says: “the traditional regimen of substitution of the punishment is regulated as a modality of suspension where the judge or court may agree the imposition (as substitutive) of a punishment of fine or community services.” This is what we saw, when we talk about the art. 84, like another conditions which may be imposed by the judge or court, besides the gathered in the art. 83, in order to agree the suspension of the execution fo the punishment.
The substitution of the freedom´s privative punishments has been relegated in the current regulation of the CP, to the cases where a foreigner is expelled from the Spanish territory for having been punished with a punishment of imprisonment greater than a year. However, we have to qualify that, it is not an automatic measure, in the forth point of the article 89 is established an exception: “The substitution cannot be agreed, according to the circumstances of the fact and the personal of the author, in particular his roots in Spain, when the expelling is disproportionate.” According to the STS 3006/2022 to asses the roots in Spain, there are a few factor to be taken into account: “in order to assess the roots in our country, the factor to be taken into account are the family and work situation, and even the risks which may have the foreigner of being subjected to torture or degrading treatments in his country of origin ( SSTS 791/2010, of 28 September, 853/2010, of 15 de October). In other words, it is demanded to ponder the degree of integration in the Spanish society of the foreigner affected for being able to decided about the imposition of the substitutive expelling.” But besides, this sentence adds also that it has to be taken into account when is being assessed the possibility of substitution the punishment of imprisonment by the expelling of the Spanish territory, the part of the punishment which has been complied by the punished as a preventive personal measure, in other words, the days which he has spent in provisional imprisonment. The already quoted sentence says: “In the STS 277/2022 of 23 March, we reiterated the above doctrine pointing out that the nature close to the punitive of the measure of expulsion demands to neutralize risks of excess which may derive of the effective level of fulfillment reached by the freedom´s privative measure whose substitution is agreed. As we affirmed in the STS 617/2010, of 22 April, “it is evident that when the punishment is almost fulfilled in Spain with the application of the term of preventive imprisonment suffered, art. 58 of the CP, cannot be pertinent the expelling as substitution of this, for in this case the substitution will be transformed in an increase of the sanction joining a measure of security with a punishment already fulfilled, in the same sense the STS 601/2006, of 31 May-.””
In the article 89 are distinguished three different cases. The first in its first point, which says: “The punishments of imprisonment of more than a year imposed to a foreigner will be substituted by his expulsion from the Spanish territory.
Exceptionally, when it is necessary for assuring the defense of the legal system and restoring the confidence in the validity of the norm infringed by the crime, the judge or court may agree the execution of part of the punishment which cannot be superior to two thirds of its exception, and the substitution of the rest by the expelling of the punished of the Spanish territory. In any case, the rest of the punishment will be substituted by the expelling of the punished of the Spanish territory when he accesses to the third degree or is granted to him the conditional release.”
From this first point we extract that, always that is imposed by a judge or court a punishment of imprisonment of more than a year to a foreigner, its expelling from the Spanish territory must be agreed, except in the cases in which is necessary for assuring the defense of the legal system and restoring the confidence in the validity of the norm infringed by the crime the fulfillment of the punishment, in such cases the judge or court may agree the execution of a part of the punishment which cannot be superior to two thirds of its exception, substituting the rest of the fulfillment for the expelling of the punished from Spanish territory. When this exception is applied, the expelling of the punished from the Spanish territory must be agreed always that the punished accesses to the third degree or is granted to him the conditional release. Without forgetting that, in this case, is also applicable the exception of the point four of the art. 89 which we saw at the beginning.
The second scenario envisaged in the art. 89 for agreeing the substitution of the punishment for the expelling of the Spanish territory, is regulated in the second point of the article 89, which says: “When a punishment of imprisonment of more than five years is imposed, or various punishments which exceed this duration, the judge or court will agree the execution of all or part of the punishment, in the measure which results necessary for assuring the defense fo the legal system and restoring the confidence in the validity of the norm infringed. In these cases, the execution of the punishment will be substituted by the expelling of the punished from the Spanish territory, when the punished complies with the part of the punishment which was determined, accesses to the third degree or is granted to him the conditional release.”
This second scenario is reserved to the gravest criminal infringements, in it the execution of the punishment, or at least of part of it, is not considered as an exception, but as a compulsory norm. Always that a foreigner commits one or varios crimes which suppose more than five years of imprisonment, they must fulfill the this punishment in a Spanish prison, although the partial fulfillment may be agreed, and the rest of the punishment to be substituted by the expelling of the Spanish territory. In both cases, when the crime or crimes committed are punished with a punishment of imprisonment of more than a year and exceptionally is agreed the execution of part of the punishment, and when one or more than one crimes have been committed which result in a punishment of more than five years of imprisonment, will be agreed the expelling from Spanish territory when the punished either accesses to the third degree, is granted to him the conditional release or has complied with the part of the punishment previously agreed in a Spanish prison. Without forgetting that, in this case too, is applicable the exception of the point four of the art. 89 which we saw at the beginning.
The third scenario is established in the fourth point, expressly aimed to foreigners who are from a country integrated in the European Union. It says: “The expelling of a citizen from the European Union only can be agreed when he represents a grave danger for the public order or the public security according to the nature, circumstances or gravity of the crime committed, his criminal records and his personal circumstances. When he have resided in Spain during the last ten years could be agreed his expulsion if besides:
a) He has been convicted for one or more crimes against the life, liberty, physical integrity and sexual liberty or indemnity punished with a maximum punishment of imprisonment of more than five years and it is appreciated a grave risk that he could commit more crimes of the same nature.
b) He has been convicted for one or more crimes of terrorism or other crimes committed within a criminal group or organization. In these cases will be always of application the second point of this article.”
In other words, to the case envisaged at beginning of this fourth point and which we have seen at the outset as an exception (the substitution will not proceed when, according to the circumstances of the fact and the author, in particular his roots in Spain, the expelling is disproportionate), has to be added in the cases of citizens from the European Union, what we have just seen. He can only be expelled when represents a grave danger for the public order or the public security according to the nature, circumstances and gravity of the crime, and his criminal records and personal circumstances advise it. But if besides, this European citizen has resided during the last then years, the possibilities for his expelling are even more limited, since we have to add the requisites envisaged in the letter a) and b) of the fourth point of the article 89.
Once the expelling from Spanish territory has been agreed, by virtue either of the first point, second point or fourth point of the article 89, the expelling will have a term, whose conclusion will allow the expelled foreigner to return to Spain. This term is established in the fifth point, which says: “The foreigner cannot return to Spain in a term from five to ten years, counted from the date of his expelling, attending the duration of the punishment substituted and the personal circumstances of the punished.”
The term of expelling must be agreed in the same sentence or resolution, after being declared the firmness of the sentence, which agreed the substitution of the punishment, or its partial or whole fulfillment, in accordance with the third point of the article 89. As we have seen, the term of suspension will be conditioned by the duration of the substituted or executed punishment, and the personal circumstances of the punished.
The consequences of the lack of fulfillment of the term of expelling, are in the seventh point of the article 89, which says: “If the foreigner expelled returns to Spain before elapsing the term established by the court, he will comply with the punishments which were substituted, save that, exceptionally, the judge or court, reduces its duration when its fulfillment is not necessary for assuring the defense of the legal system and restoring the confidence in the legal norm infringed by the crime, attending to the time elapsed since the expelling and the circumstances in which has been produced the failure to comply.
Notwithstanding, if he was surprised in the border, will be directly expelled by the government authority, beginning to be counted again the term of prohibition of entrance in its integrity.”
In these seventh point, we can see how the substitution of the punishment of imprisonment for the expelling of the Spanish territory, has been conceived by the legislator as something positive, the punishment of imprisonment is not fulfilled in exchange for leaving the Spanish territory. On the contrary, if he returns to the Spanish territory before elapsing the term established by virtue of the point five of the article 89, the punishment has to be wholly complied. Although, the foreigner has also the possibility of avoiding the imprisonment when, the judge or court reduces the duration fo the punishment imposed for being unnecessary for assuring the defense of the legal system or restoring the confidence in the judicial norm infringed by the crime.
The second paragraph of this seventh point, has to make us remember a fact which has arisen a lot of polemic, we are referring to the so-called “devoluciones en caliente” (hot expelling), with the parliamentary approval of the Organic Law 4/2015 of protection of the citizen security (LO 4/2015). Since it is established that, if the punished is surprised in the border, he will be directly expelled.
In the Spanish territory this kind of expelling usually occurs in the border of Ceuta and Melilla, this is the reason why the mentioned law in its first final disposition included a tenth additional disposition in the Organic Law 4/2000 of 11 January, about rights and liberties of the foreigners in Spain and its social integration, with following wording:
“1. The foreigners which are detected in the border line of the territorial demarcation of Ceuta or Melilla while trying to overcome the border elements of contention in order to irregularly cross the border can be expelled with the goal of impeding their illegal entrance into Spain.
2. In any case, the expelling will be carried out respecting the international laws of human rights and international protection of which Spain is part.
3. The requests of international protection will be formalized in the habilitated places of the borders and will be dealt with according to the normative of international protection.”
The LO 1/2015 which gave the current wording to the article 89, and the LO 4/2015 were approved with the support of the more conservative sectors of the Spanish political parties, likewise both were the object of constitutional challenge before the Spanish Constitutional Court by the more progressive Spanish Political Parties. Both reforms were approved by such court, although with some nuances. In this case, the Sentence 172/2020 of 19 November 2020 of such court, considered that the above precept respects the constitutional legality and the jurisprudence coming from the European Court of Human Rights. Notwithstanding, in neither of the constitutional challenges is talked about the wording of this article 89.
The next point we have to talk about, is the eighth of the article 89, which says: “When, after being agreed the expelling in any of the scenarios envisaged in the article, the foreigner is neither suffering a privation of liberty, nor being detained, the judge or court may agree, with the goal of assuring the expelling, his imprisonment in a migration detention centre, in the terms and with the limits and guarantees envisaged in the law for the government expelling.
In any case, if agreed the substitution of the freedom´s privative punishment by the expelling, and this cannot be carried out, the punishment originally imposed or the term of conviction which has not been fulfilled yet, will be executed, or will be applied the suspension of its execution.”
According to the wikipedia, “a migration detention centre is a public place non-penitentiary where are preventive retained foreigners subjected to a report of expelling from the Spanish territory.”
But the really relevant if this eighth point of the article 89, is in its second paragraph. Once having been agreed the substitution of the punishment of imprisonment for the expelling of the Spanish territory, when the expelling cannot be carried out, the punishment will be either executed or suspended.
The last point we have to comment of the article 89 is the ninth. In it are excepted the crimes of the art. 177 bis, 312, 313 and 318 bis CP, of the regimen envisaged in the article 89, since it says: “The punishments which have been imposed for the commission of the crimes of the articles 177 bis, 312, 313 and 318 bis, will not be substituted.”
The article 177 bis is referring to the crime of human trafficking, the article 312 and 313 are crimes against the rights of the workers and the art. 318 bis, a crime against the rights fo the foreigners.
– Section 3ª. Of the Conditional release:
Art. 90:
In the article 90 is established the general regimen for allowing to the punished the access to the conditional release. This consists in the access to the liberty by the punished, before the fulfillment of the whole punishment of imprisonment imposed by firm sentence, always that certain requisites are met. We have to be careful for not confounding the conditional release with the provisional release. The former, along the ordinary permits to leave and the classification in the third degree of penitentiary treatment, is one of the tools facilitated by the legislator for favoring a return to the society of the punished, while the latter, it is a preventive personal measure taken during the stage of investigation of the criminal procedure, with the aim of assuring the subjection of the committed for trial or imputed to such criminal procedure, and which can be with or without a bail (art. 528 – art. 544 quinquies LECrim).
The regulation of the conditional release is not wholly contained in the CP, we have to complete the envisaged in the art. 90 and following of this Code, with the Penitentiary General Organic Law (LOGP) and with the said by the Penitentiary Regulation (RP).
To agree the conditional release is a competence which belongs to the Prison Oversight Judge, by virtue of the article 76 of the LOGP. As we can see this is an essential difference with respect to the suspension of the punishment or its substitution, which always has to be agreed by the judge or court which imposed the freedom´s privative punishment that motivated it (art. 82 y art. 89.3 CP). This distinction, is due to the fact that the conditional release always comes after the fulfillment of part of the punishment, this is why the competence is attributed to the Prison Oversight Judge as the judge in charge of enforcing the punishment imposed, whereas the suspension and substitution of the punishment, perhaps more the suspension since there exist cases of substitution where the punished will have to comply with part of the punishment imposed, what avoid is the fulfillment, from the moment of their imposition, of a freedom´s privative punishment, this is why who is in charge of agreeing them is the judge or court that imposed the punishment which motivates them.
In the article 90 are established five different scenarios for allowing to the punished the access to the benefit of the conditional release, but the fulfillment of requisites contained in each of them does not suppose its automatic granting, because previously the Prison Oversight Judge has to assess all the factors included in the art. 90 and which are reflected in the report of conditional release (art. 195 RP), a competence of the Prison Treatment Board (art. 194 RP).
Let us see the first of these scenarios. It is established in the first point of the article 90, which says: “The Prison Oversight Judge will agree the suspension of the execution of the rest of the punishment of imprisonment and grant the conditional release to the punished who fulfill the following requisites:
a) He has to be classified in the third degree.
b) He has to have fulfilled the three fourths of the punishment imposed.
c) He has to have observed good behavior.
In order to rule about the suspension of the execution of the rest of the punishment and the granting of the conditional release, the Prison Oversight Judge will assess the personality of the punished, his criminal records, the circumstances of the crime committed, the relevance of the crime committed, the relevance of the legal good which may be affected by a reiteration in the crime, his behavior during the fulfillment of the punishment, his family and social circumstances and the effects expected from the suspension of the execution and the fulfillment of the measure which could be imposed.
The suspension will not be granted if the punished have not satisfied the civil liability derived from the crime in the cases and according the criteria established in the points five and six of the article 72 of the Organic Law 1/1979, of 26 September Penitentiary General.”
The first we have to take into account is that, according to the seventh point of this article 90, the punished is who have to solicit the suspension of the execution of the punishment and the granting of the conditional release to the Prison Oversight Judge, who will rule ex officio.
Turning our attention completely to the content of this first point of the article 90, the access to the conditional release of the punished is only another suspension of the punishment, in other words, it is not definitive, as its own name hints, it is just conditional and as such will be subjected to the fulfillment of certain conditions during its enjoyment. This conditions are the established in the article 86 for the suspension of the punishment. On the other hand, the term of suspension and consequently of the conditional release is from two to five years, which can never be inferior to the part of the punishment not fulfilled yet, therefore, once the term of conditional release has elapsed without being incurred the punished in any of the infringements of the article 86, this will wholly recover the liberty for having expired at the same time the punishment imposed.
The first of the requisites as such, mentioned in the first point of the article 90 is that, the punished “…has to be classified in the third degree.” This the consequence of being regarded the conditional release by the LOGP in its article 72.1, as the last of the degrees in which can be classified a punished, being the previous degree the third degree, which is applied to those prisoners who can live in a semi-freedom regime. According to the article 74 of the RP, there exists three kinds of regimes: 1) The ordinary regimen which will be applied to the punished classified in second degree, to the punished without classified and to the arrested and prisoners; 2) The open regime which will be applied to the punished classified in third degree who can continue their treatment in a semi-freedom regime, and; 3) The closed regime which will be applied to the punished classified in first degree on account of their extreme danger and manifested lack of adaptation to the above common regimes and the preventives in who concur the same circumstances.
A punished starts from an initial penitentiary classification proposed by the Prison Treatment Board (art. 103 RP), and being approved such proposal by the Directing Centre he can progress in degree depending on the positive modification of those factors directly related with the criminal activity (art. 106 RP). In order to be able to be classified in the third degree a punished, we have to take also into account the article 36 CP: 1) When the punishment of imprisonment is greater than five years, the judge or court may agree that the classification of the punished in the third degree of penitentiary treatment cannot be carried out until the fulfillment of the half of the punishment imposed, and; 2) In any case, when the duration of the punishment of imprisonment imposed exceeds five years and are crimes referring to terrorist groups or organizations and crimes of terrorism of the Chapter VII of the Title XXII of the Book II of this Code, crimes committed within a criminal organization, crimes of the article 183 or crimes of the Chapter V of the Title VIII of the Book II of this Code, when the victim is a minor under thirteen years old, the classification of the punished in the third degree of penitentiary treatment cannot be carried out until the fulfillment of half of the punishment. Although the same article, in its third point, allows the progression to the third degree for humanitarian motives and of personal dignity of the punished with a grave incurable illness and of those who have reached the seventy years old, assessing specially their lack of danger.
We have also to take into account, what is said by the article 78: “If as consequence of the limitations established in the first point of the article 76 the punishment to be fulfilled is inferior to the half of the sum of the punishments imposed, the judge or court who dictates sentence may agree that the penitentiary benefits, the exit permits, the classification in third degree and the counting of the term for the conditional release are referred to the totality of the punishments imposed in the sentences.” And later it adds: “If they are crimes referring to terrorist groups or organizations and crimes of terrorism of the Chapter VII of the Title XXII of the Book II of this Code, or committed within criminal organizations, and attending to the sum of the punishments imposed, the before possibility only will be applicable:
a) To the penitentiary third degree, when one fifth of the maximum limit of fulfillment of the punishment lacks to be fulfilled.
b) To the conditional release, when one eighth of the maximum limit of fulfillment of the punishment lacks to be fulfilled.”
And the established in the points 5 and 6 of the LOGP. Such point fifth says that: “Either classification or progression to the third degree of treatment will requiere, besides the requisites envisaged in the Criminal Code, that the punished has satisfied the civil liability derived from the crime, considering as such the behavior effectively observed in order to restitute the subtracted, repair and compensate the material and moral damages; the personal or patrimonial conditions of the guilty, in order to assess the real present and future capacity, for satisfying the civil liability which may correspond; the guarantees which allow to assure the future satisfaction; the assessment of the enrichment which the guilty would have obtained for the commission of the crime and, the damage or obstruction produced to the public services, as well as the nature of the damages caused by the crime, the number of affected and their condition.
Singularly, this norm will be applied when the inmate has been convicted for any of the following crimes:
a) Crimes against the patrimony and against the socioeconomic order which have had well-known gravity and have damaged to a generality of persons.
b) Crimes against the rights fo the workers.
c) Crimes against the public administration comprehended from the chapter V to IX of the title XIX of the Book II of the Criminal Code.”
Therefore, we have to understand that, it is not necessary that the punished has wholly satisfied the civil liabilities to which was convicted, being enough with having satisfied them according to his economic capacity.
And the point sixth of such article says: “Likewise, the classification or progression to the third degree of penitentiary treatment of persons convicted for crimes of terrorism of the second section of the chapter V of the title XXII of the book II of the Criminal Code or committed within criminal organizations, will require, besides the requisites envisaged in the Criminal Code and the satisfaction of the civil liability with his revenues and future and present patrimony in the terms of the above point, that they show unequivocal signs of having forsaken the terrorists goals and means, and besides their active collaboration with the authorities, either for impeding the production of another crimes by the terrorist group or organization, or for mitigating the effects of their crime, or for the identification, capture and committal for trial of the liable of the terrorist crimes, for obtaining proofs or for impeding the actuation or the development of the organizations or associations in which they have been a party or with which they have collaborated, something which can be proven through the express statement of repudiation of the criminal activities and the forsaking of the violence and a express petition of forgiveness to the victims of the crime, as well as by technic reports which prove that the prisoners are dissociated from the terrorist organization and the environment and activities of the illegal associations and collectives which surround it and their collaboration with the authorities.”
The second of the requisites established in the first point of the article 90, is: “That three fourths of the conviction imposed have to have been fulfilled.” To this requisite we have to add, the envisaged in the fifth point of this article and which we mentioned before, the suspension of the execution of the punishment will be from two to five years, and in any case, the term of suspension of the execution and the conditional release cannot be inferior than the duration of the part of the punishment pending to fulfill.
Let us see some example. A subject is convicted to five punishments of imprisonment for five different crimes, a case within the framework of a real concurrence of crimes. For the first he is convicted to fifteen years of imprisonment, for the second to ten, for the third to five, for the fourth to four and for the fifth to one year of imprisonment. According to the articles 75 and 76 of the CP, our convicted will fulfill twenty years of imprisonment. In this case, the subject of our example should have previously accessed to the third degree, but once he have accessed he will have access to the conditional release from the fifteen years of fulfillment of the punishment.
Let us see another example. A subject is convicted for three crimes, for the first to fifteen years of imprisonment, for the second to another fifteen years of imprisonment, and for the third to another fifteen years of imprisonment. Besides, in this case two of these crimes are punished by the law with a punishment of imprisonment which exceeds the twenty years. This last detail, puts our subject within the ambit of application of one of the special cases regulated in the article 76, which allows up to 40 years of imprisonment. Therefore, although the sum of the punishments is equal to 45 years, this subject will comply 40 years of imprisonment. In this case, the three fourths fo the punishment will be 30 years, but as consequence of the limitation established in the fifth point of the article 90, once he have had access to the third degree, he cannot access to the conditional release until the last five years of the imprisonment, supposing that in the best of the cases the Prison Oversight Judge approves the request for conditional release when only lacks this part of the conviction to fulfill.
And the third requisite which is established in the first scenario of the art. 90 to access to the conditional release is “That he has observed good behavior.” It is understood that such good behavior has to be observed during his time in prison. Therefore, where have to be reflected such circumstance is in the report of conditional release (art. 195 RP) a competence of the Prison Treatment Board (art. 194 RP), concretely in the report of prediction of social integration, where are manifested the results achieved by the treatment and a judgment of probability upon the future behavior of the subject in liberty (art. 67 LOGP).
After enunciating the above three requisites, which should be always fulfilled for agreeing the suspension of the execution of the punishment and the conditional release according to the case envisaged in the first point of the article 90, the same point establishes the rest of the circumstances which the Prison Oversight Judge should assess for agreeing the conditional release, for as we have seen at the beginning, the fulfillment of the requisites of the art. 90.1 does not suppose that automatically it has to be granted. Once have been confirmed that the above requisites are met, the Prison Oversight Judge must attend: 1) To the personality of the punished; 2) His criminal records; 3) The circumstances of the crime committed; 4) The relevance of the legal goods which may be affected by a reiteration in the crime; 5) His behavior during the fulfillment of the punishment; 6) His family and social circumstances, and; 7) The effects expected from the suspension of the execution and the fulfillment of the measure which could be imposed.
And there is even more, because at the end of this first point of the article 90 is added that, for granting the suspension to the punished, he must have satisfied the civil liabilities derived from the crime in the scenarios and according to the criteria established by the points five and six of the article 72 of the LOGP, which we have already seen when we talk about the requisite of having obtained the third degree.
The second and third of the scenarios, for accessing to the conditional release, are established in the second point of the article 90: “The suspension of the execution of the rest of the punishment and the granting of the conditional release can be also agreed when the punished fulfills the following requisites:
a) That he has to have fulfilled two thirds of his conviction.
b) That during the fulfillment of the punishment he has to have developed work, cultural or occupational activities, either continually or with an use from which have derived a relevant and favorable modification of those personal circumstances related with his criminal activity.
c) That he proves the fulfillment of the requisites included in the above point, save the requisite of having fulfilled three fourth parts of the conviction.
At the request of the Penitentiary Institutions and previous report of the Public Prosecution and the rest of the parties, fulfilled the circumstances of the letters a) and c) of the above point, the Prison Oversight Judge may advance, once having been fulfilled the half of the conviction, the granting of the conditional release in relation with the term envisaged in the above point, until a maximum of ninety days for each year elapsed since the effective fulfillment of the conviction. This measure will require that the punished has continuously developed the activities indicated in the letter b) of this point and the accreditation, besides, of his effective and favorable participation in programs of reparation of the victim or programs of treatment or disintoxication, when applicable.”
Therefore, in it, as we have already seen, are established two scenarios. The former, with three new requisites, and different from the established in the first point of the article 90, in order to have access to the conditional release. And the latter, which allows to advance the granting of such conditional release.
In reality, what is making the former scenario is to reduce the term of fulfillment of the conviction for being able to have access to the conditional release, in its case will be enough with fulfilling two thirds of the conviction and not three fourths as in the first point, and to compensate this reduction with a new requisite, the carrying out of work, cultural or occupational activities. Because, the rest of the requisites mentioned in the first point of the article 90 are maintained. In this scenario we have to understand that, although it is not expressly mentioned, the Prison Oversight Judge must take into account too the rest of the circumstances mentioned in the first point, as the personality of the punished or his criminal records, or even the satisfaction of the civil liabilities, for agreeing or not the conditional release.
According to the second scenario of this second point of the article 90, having been fulfilled the half of the punishment, the Prison Oversight Judge may advance the granting of the conditional release a maximum of ninety days for each year elapsed of effective fulfillment of the punishment. In order that the Prison Oversight Judge can take such decision, there must exist a previous proposal of the Prison Treatment Board through the report of conditional release, and the previous report from the Public Prosecution and the rest of the parties. And besides, the rest of the requisites mentioned in the first scenario of the second point of the art. 90 have to be fulfilled. We see how in this case, the advance of the conditional release, like in the above scenario with the requisite of the letter b), is conditioned for the effective and favorable participation in programs of reparation of the victims o programs of treatment of disintoxication, besides the fulfillment of the rest of the requisites established in the above scenario.
The fourth of the scenarios envisaged in the article 90 for being able a punished to have access to the conditional release, is the established in its third point, which says: “Exceptionally, the Prison Oversight Judge may agree the suspension of the execution of the rest of the punishment and grant the conditional release to the punished in which concur the following requisites:
a) That he is complying with his first punishment of imprisonment and that this is not superior to three years of duration.
b) That he has fulfilled the half of the punishment.
c) That he proves the fulfillment of the requisites included in the point 1, save having fulfilled three fourths of his conviction, as well as the regulated in the letter b) of the above point. This regimen is not applicable to the punished for a crimen against the sexual liberty or indemnity.”
From the wording of the precept we see, how it is an exceptional case, its application must be restricted and not general. Again is reduced the fulfillment of the punishment for allowing the access to the conditional release, for it is only demanded the fulfillment of half of the punishment. But as in the above cases, this reduction in the fulfillment of the punishment is compensated by other requisites, it has to be the first punishment of imprisonment and it cannot exceed the three years, and the conviction cannot be for a crime against the sexual liberty and indemnity, crimes which always awaken the alarm and social repudiation. The rest of the requisites which must be complied, are the same mentioned in the first scenario of the second point of the art. 90.
And the fifth and last of the scenarios envisaged in the art. 90 is in its eighth point, which says: “In the case of persons convicted for crimes committed in within criminal organizations or for any of the crimes regulated in the Chapter VII of the Title XXII of the Book II of this Code, the suspension of the execution of the rest of the punishment imposed and the granting of the conditional release require that the punished shows clear signs of having forsaken the ends and the means of the terrorist activity and has actively collaborated with the authorities, either for impeding the production of other crimes by the terrorist group or organization, or for attenuating the effects of his crime, or for identifying, capturing and committing for trial the criminally liable of terrorist crimes, for obtaining proofs or for impeding the actuation or the development of the organizations or associations of which he was a member or with which he has collaborated, this can be proven through an express declaration of repudiation of their criminal activities and the forsaken of the violence and a express petition of forgiveness to the victims of his crime, as well as for the technical reports which prove that the prisoner is really dissociated from the terrorist organization and the environment and activities of associations and illegal collectives which surround them and his collaboration with the authorities.
The second and third point will not be applicable to the persons convicted for the commission of any of the crimes regulated in the Chapter VII and the Title XXII of the Book II of this Code or for the crimes committed within criminal organizations.”
The envisaged in the eight point of the article 90, is a new scenario because it establishes new requisites for a determined type of punished, those convicted for crimes committed within criminal organizations or for any of the crimes regulated in the Chapter VII of the Title XXII of the Book II of the CP. For them, is excluded the possibility of accessing to the conditional release according to the scenarios envisaged in the second and third point of the article 90, they have always to obtain the conditional release in accordance with the first, more restrictive than the others, and besides, they must show clear signs of remorse, dissociation with the terrorist group, and collaborate with the justice.
The last matter we have to treat is when can be denied the granting of the conditional release and when can be revoked. Evidently the conditional release should be denied when the requisites contained in each of the five scenarios we have seen are not met, but besides, the fourth point of the art. 90, establishes an additional requisite which is applicable to all of them: “The Prison Oversight Judge can refuse the suspension of the execution of the rest of the punishment when the punished has given inaccurate or insufficient information about the localization of goods or object whose seizure has been agreed; does not comply according to his capacity to the compromise of payment of the civil liabilities to which was convicted; or facilitates inaccurate or insufficient information about his patrimony, failing to comply with the obligation imposed in the article 589 of the Spanish Civil Procedure Law.
The Prison Oversight Judge can also denied the suspension of the execution of the rest of the punishment imposed for any of the crimes envisaged in the Title XIX of the Book II of this Code, when the punished has eluded the fulfillment of the pecuniary liabilities or the reparation of the economic damage caused to the Administration to which was convicted.”
On the other hand, according to the fifth point of the article 90 the conditional release may be revoked, when the punished is in some of the scenarios of the article 86 CP, for to the regimen of the conditional release are also applicable the articles 83, 86 and 87 of the CP, in other words, the conditional release may be conditioned to the fulfillment of the measures which may be imposed according to the article 83, and having elapsed the conditional release without being revoked, the punishment will be expired. According to the sixth point of the art. 90, the revoking of the conditional release will suppose the execution of the punishment which was not fulfilled, and besides, the time elapsed with the conditional release will not be counted as fulfilling of the punishment.
And though we have already said it at the beginning, according to the seventh point of this article, it is the punished who has to request the suspension of the execution of the punishment and the granting of the conditional release to the Prison Oversight Judge, who has to rule ex officio. When the request has not success, the judge or court can set a term of six months, which can be extended for one year, until the request can be again submitted.
Art. 91:
In the article 91, is established the general regimen for being able to have access to the conditional release by those prisoners who have seventy years or more, or those who suffer an incurable illness.
In both cases, are not applicable the requisites of minimum fulfillment of the punishment of the first, second and third point of the article 90, but the rest of requisites do apply to them, in other words, to be in the third degree and to have observed good behavior. Here we have to remember that, in order to access to the third degree this special kind of prisoners have also a special regimen, without restrictions, in the third point of the article 36.
Although in its third point, the article 91 allows to agree the conditional release without attending to any requisite and only taking into account the danger of the punished, when there exists an imminent risk to his life.
In spite of being a permissive regimen, are applicable the restrictions of the forth point of the article 92, and the consequences of its revocation of the sixth point of the art. 90.
Art. 92:
What we have seen so far regarding the conditional release, is for the ordinary punishments of imprisonment. The rules applicable to the permanent reviewable imprisonment are established in this article.
A court can only agree the suspension of the execution of the permanent reviewable imprisonment, and consequently the conditional release of the punished, when the three requisites mentioned in the first point of this article are met:
“a) That the punished has fulfilled twenty five years of its conviction, without prejudice to the envisaged in the article 78 bis for the cases regulated in it.
b) That he is classified in the third degree.
c) That the court, taking into account the personality of the punished, his criminal records, the circumstances of the crime committed, the relevance of the legal goods which can be affected by the reiteration of the crime, his behavior during the fulfillment of the punishment, his family and social circumstances, and the effects which can be expected of the own suspension of the execution and the fulfillment of the measures imposed, is able to determine, previous assessment of the reports of evolution sent by the penitentiary center and by the specialist which the own court determines, the existence of a favorable forecast of social reintegration.
In the case that the punished has been convicted for more than one crime, the checking of the requisites mentioned in the letter c) will be assessed taking into account all the crimes committed.
The court will rule about the suspension of the permanent reviewable imprisonment after an oral and contradictory procedure with the intervention of the Public Prosecution and the punished, assisted by his lawyer.”
Here we have to qualify two things. Firstly, that in order to know when a punished convicted with the permanent reviewable imprisonment is able to access to the third degree, we have to attend to the requisites of the article 36 if he was convicted for only one crime with the permanent reviewable imprisonment, and that in the case of having been convicted for more than a crime, and at least one of them has been punished with the permanent reviewable imprisonment, the rules of the art. 78 bis will be applicable for accessing to such third degree. And secondly, that in the art. 78 bis, are also established special rules for accessing to the conditional release, for the same cases of accessing to the third degree already mentioned.
When the conviction has been for crimes related with terrorist groups or organizations and crimes of terrorism of the Chapter VII fo the Title XXI of the Book II of this Code, besides the three above requisites, is also demanded the requisite of having given clear signs of remorse, the collaboration with the justice and the dissociation with the terrorist group or organization.
Let us now talk about the third point. The permanent reviewable imprisonment was the object of a constitutional challenge by the more progressive parties of Spain, a challenge which was ruled by the sentence number 169/2021 of 6 October 2021 of the Spanish Constitutional Court. In general the reform carried out through the LO 1/2015 was approved by this court, but there were two exceptions, one of them was regarding this third point of the article 92. The third point establishes that, the suspension of the execution (the conditional release) will have a duration between five and ten years. Likewise it adds that are applicable to it, the conditions of the article 83, the regimen of revocation of the suspension of the article 86, the effects of the elapsing of the term of suspension without having it been revoked of the article 87, and the way of accessing to the suspension of the punishment by those who have 70 years or more or are victims of an incurable illness of the article 90.
Therefore, in the case of the permanent reviewable imprisonment, the punished which has obtained the suspension of the punishment and consequently the conditional release, after elapsing the term of suspension without having incurred in any of the causes of revocation of the suspension of the article 86, will recover the liberty and the punishment will expired.
During this term of suspension, the conditions imposed according to the art. 83, can also be modified or lifted.
But, this third point adds something which for the Spanish Constitutional Court was not clear: “Likewise, the Prison Oversight Judge will revoke the suspension of the execution of the rest of the punishment and the conditional release granted when are manifested a change in the circumstances which have given to the suspension that does not allow to maintain the forecast of the lack of danger in which was based the adopted decision.” And in the above cited sentence said that, such paragraph should be interpreted according to the rules of the art. 86.1: “We consider that the art. 92.3, third paragraph, CP admits, the teleological reduction that we have already referred so that a change in the circumstances which have motivated the suspension that does not allow to maintain the forecast of lack of danger in which was based the decision adopted only has revocatory effects when it is accompanied by any of the failures to comply of the art. 86.1 CP.”
The other point which the Spanish Constitutional Court did not approve, is the fourth point of this article 92, which says: “Fulfilled the part of the conviction mentioned in the letter a) of the point 1 of this article or, when applicable, in the article 78 bis, the court should verify, at least each two years, the fulfillment of the rest of the requisites of the conditional release. The court will rule too the requests of granting the conditional release pertaining to the punished, but may set a term of up to one year within which, after being refused the request, will not be attended new requests.”
According to the already cited sentence: “the legal regimen of the revocation of the conditional release is unsatisfactory for being uncompleted, although from this cannot derive a declaration of unconstitutionality for omission, like in other cases (v. gr. ATC 200/2007, of 27 March, FJ 2), being enough with fixing one interpretation constitutionally adapted with the values and fundamental rights applicable. This interpretation is, after revoking the conditional release, have to be considered applicable the demands imposed to the ruling court in the art. 92.4 CP of verifying, each two years, the fulfillment of the requisites for accessing to the conditional release and of ruling the requests which the punished sends with the temporal conditions established in such norm.”
– Section 4ª. Common dispositions:
Art. 94:
The article 94 gives to us the concept of usual convicts: “To the effects envisaged in the second section of this chapter, are regarded as usual convicts who have committed three or more crimes comprehended in the same chapter, in a term which does not exceed five years, and have been convicted for it.
In order to count this term will be considered, on the one hand, the moment of the possible suspension or substitution of the punishment according to the article 88 and, on the other, the date of commission of those crimes which based the appreciation of the habituality.”
Although for the Second Section, we have used it, for defining the scope of the third point of the art. 80, where is established one of the scenarios for agreeing the suspension of the punishment.
Art. 94 bis:
According to the article 94 bis “To the effects of this Chapter, the firm convictions of judges and courts imposed in other States of the European Union will have the same value than the imposed by Spanish judges and courts save that its criminal records have been cancelled, or can be according to the Spanish law.”
The criminal records will be cancelled according to the article 136 of the CP.
Víctor López Camacho.
Twitter: @victorsuperlope.
Más en mi web: www.victorlopezcamacho.com