Suspended prison sentences in Spain: requirements and types

A prison sentence does not always mean going to prison. Where the sentence is short, the Spanish Criminal Code (Código Penal, CP) allows the court to suspend its enforcement for a period, provided certain requirements are met and the convicted person complies with the conditions imposed.

What is a suspended sentence?

It is a mechanism by which a prison sentence is not enforced immediately but is held in suspense for a period. At the end of the period, the judge will order the sentence to be remitted, so that it no longer has to be served, if the statutory requirements are met (article 87 CP). Not every incident during the suspension requires it to be revoked (article 86 CP).

It is not automatic. The court grants it by a reasoned decision where it is reasonable to expect that enforcing the sentence is not necessary to prevent the convicted person from committing further offences. In deciding, it weighs, among other things, the circumstances of the offence and of the offender, their record, their conduct after the event and, in particular, their efforts to make good the harm caused (article 80.1 CP).

Wherever possible it is decided in the judgment itself. Otherwise, once the judgment is final, the judge rules as a matter of urgency and after hearing the parties (article 82.1 CP).

What types of suspension exist?

1. Ordinary suspension. This is the general form. Article 80.2 CP requires:

• That the convicted person is a first offender. Previous convictions for negligent offences or for minor offences are not counted (unless they form part of an aggravated offence for repeated minor offences), nor are records that have been cleared, or that ought to have been, nor those irrelevant to assessing the likelihood of further offending.
• That the sentence, or the sum of the sentences imposed, does not exceed two years.
• That civil liability has been satisfied and, where applicable, confiscation given effect. This requirement is treated as met if the convicted person undertakes to pay in line with their financial means and it is reasonable to expect that they will.

2. Exceptional suspension. Even where the first two requirements are not met, the judge may suspend prison sentences that individually do not exceed two years, provided the convicted person is not a habitual offender and their personal circumstances, the nature of the offence, their conduct and, in particular, their efforts to make good the harm so warrant. The suspension is subject to whichever conditions of reparation or compliance with the agreement apply, and to the imposition of a fine or community service on the terms set out in article 80.3 CP.

3. Suspension on grounds of very serious illness. Any sentence may be suspended, subject to no requirement at all, where the convicted person suffers from a very serious illness with incurable symptoms, unless at the time of committing the offence they already had another sentence suspended on the same ground (article 80.4 CP).

4. Suspension on grounds of drug dependence. This allows custodial sentences of up to five years to be suspended where the offence was committed because of dependence on the substances referred to in article 20.2 CP. An accredited centre or service must certify that the convicted person has overcome the dependence or is undergoing treatment. If they are in treatment, the suspension is conditional on not abandoning it before it ends; relapses do not count as abandonment unless they show that treatment has been given up for good (article 80.5 CP).

How long does the suspension last?

The judge sets the period within the following limits (article 81 CP):

• Two to five years, for custodial sentences of no more than two years.
• Three months to one year, for minor offences.
• Three to five years, in suspensions on grounds of drug dependence.

The period runs from the decision granting the suspension or, if it was granted in the judgment, from the moment the judgment becomes final. Time during which the convicted person was absconding does not count (article 82.2 CP).

What conditions can the judge impose?

During the suspension period the judge may impose prohibitions and duties where necessary to prevent further offending, provided they are neither excessive nor disproportionate. For example, a prohibition on approaching or contacting the victim, a duty to report periodically, or participation in educational or rehabilitation programmes (article 83.1 CP). In offences committed against a woman by her partner or former partner, and in other cases laid down by law, some of these prohibitions and duties are always imposed (article 83.2 CP).

The judge may also make the suspension conditional on complying with a mediation agreement, paying a fine or performing community service (article 84.1 CP).

What happens if the conditions are breached?

The judge will revoke the suspension and order the sentence to be served where, among other cases, the convicted person (article 86.1 CP):

• Is convicted of an offence committed during the suspension period and this shows that the expectation on which the suspension was based can no longer be maintained.
• Seriously or repeatedly breaches the prohibitions, duties or conditions imposed, or evades supervision by the alternative penalties service.
• Fails to honour the undertaking to pay civil liability despite having the means to do so, or provides inaccurate or insufficient information about their assets.

If the breach is neither serious nor repeated, the judge may impose new conditions or extend the period by up to half its original length (article 86.2 CP). Before ruling, the judge must hear the Public Prosecutor and the other parties, although immediate imprisonment may be ordered where it is essential to prevent a risk of further offending or of flight, or to protect the victim (article 86.4 CP).

What to bear in mind

• Suspension does not erase the conviction: the judgment remains a conviction and creates a criminal record.
• Many of the circumstances the judge weighs arise before judgment, such as making good the harm or paying compensation.
• It is advisable to take legal advice from the outset of the proceedings, to assess whether suspension is possible and how to apply for it.