Article 80 of the Criminal Code: Suspended Prison Sentences

When a court hands down a short prison sentence, the first question is usually whether the person will actually go to prison. The answer starts with Article 80 of the Spanish Criminal Code (CP), which governs the suspension of the execution of the sentence (suspensión de la ejecución de la pena): the judge puts the sentence on hold for a set period and, if the convicted person does not reoffend and complies with whatever is imposed, the sentence is never served. This guide goes through the current wording paragraph by paragraph, with particular attention to which prior convictions count and which do not. For a practical step-by-step on how to apply, see our guide to the requirements for a suspended sentence.

What Article 80 of the Criminal Code says

Art. 80 CP opens the chapter on the alternatives to serving custodial sentences. Its wording comes from Organic Law 1/2015, in force since 1 July 2015, with a single later amendment: Organic Law 1/2026 rewrote condition 1 of paragraph 2 with effect from 10 April 2026. Its six paragraphs open different routes:

In none of these cases is suspension automatic: the courts “may” grant it (podrán), and they must do so by a “reasoned decision” (resolución motivada).

If you have been sentenced to prison: what it means and what happens next

A prison sentence of two years or less does not, by itself, mean going to prison. Under Art. 82 CP, the judge or court rules on suspension in the judgment itself whenever possible; otherwise, once the judgment has become final, it must rule “with the utmost urgency”, after hearing the parties. Until then, the sentence has not started to be served.

This has a practical consequence: the request for suspension is prepared before the trial, not afterwards, because what the judge will weigh (prior record, repair of the harm, family and employment situation) has to be proved with documents. If a plea agreement (conformidad) is being negotiated, it is advisable for the agreement to cover both the sentence and its suspension. On the stage after the judgment, see our explanation of the enforcement of a criminal judgment.

Art. 80.1: the prognosis that the person will not reoffend

Paragraph 1 sets the criterion that governs the whole article: suspension is possible “when it is reasonable to expect that serving the sentence is not necessary to prevent the convicted person from committing new offences in the future”. It is a forward-looking assessment, for which the judge weighs:

• the circumstances of the offence committed;
• the personal circumstances of the convicted person and their prior record;
• their conduct after the offence, “in particular their effort to repair the harm caused”;
• their family and social circumstances;
• the effects that can be expected from the suspension itself and from the measures imposed.

The paragraph refers to “custodial” sentences (penas privativas de libertad), and under Art. 35 CP these are prison, permanent location (localización permanente) and the personal liability that replaces an unpaid fine, as well as reviewable permanent imprisonment, which has its own suspension regime in Art. 92.1 CP. The factors in the second subparagraph of Art. 80.1 are also used, by cross-reference from Art. 81 CP, to set the length of the suspension period.

Art. 80.2: the three conditions for ordinary suspension

Paragraph 2 lists the “necessary conditions” for ordinary suspension. There are three, and all of them must be met at the same time:

1. Condition 1: that the convicted person “has offended for the first time”, with the exceptions explained in the next section.
2. Condition 2: that the sentence, or the total of the sentences imposed, does not exceed two years, “not including in that calculation the sentence arising from failure to pay a fine”.
3. Condition 3: that the civil liability arising from the offence has been met and any confiscation ordered in the judgment under Art. 127 CP has been carried out.

Condition 2 adds up every sentence imposed: two sentences of fourteen months each total twenty-eight months and fall outside the ordinary route, even though neither reaches two years on its own. What is not added is the personal liability for failure to pay a fine.

Which prior convictions do not count for suspension (Art. 80.2, condition 1)

“Offending for the first time” does not mean having no criminal record at all. Condition 1 itself leaves several earlier convictions out of the count:

Records that should already be cancelled. The law treats cancelled records in the same way as those that “should have been cancelled in accordance with Article 136”. The periods in Art. 136.1 CP are six months for minor penalties, two years for penalties not exceeding twelve months and for those imposed for negligent offences, three years for the other less serious penalties under three years, five years for less serious penalties of three years or more, and ten years for serious penalties, counted from the day after the sentence was extinguished. If the period has passed without reoffending and the entry is still on the register, Art. 136.5 CP requires the judge to disregard it. Check this against the criminal record certificate; see our guide to clearing a criminal record.

Irrelevant records. Nor do records count for offences which, “by their nature or circumstances, have no relevance for assessing the likelihood of future offences”. The law gives no list: the judge decides case by case whether an earlier conviction says anything about the risk of reoffending. The defence must therefore argue expressly why that record has no bearing on the offence being tried or on the prognosis.

The change made by Organic Law 1/2026. Until 9 April 2026, convictions for minor offences never counted. Since 10 April, Art. 2.3 of Organic Law 1/2026 has added that they do not count “unless they form part of an aggravated offence for repeated minor offending” (salvo que estos integren un tipo agravado por multirreincidencia de delitos leves). Examples of these aggravated offences are theft under Art. 234.2 CP and fraud under Art. 248 CP which, instead of the fine for a minor offence, carry the prison sentence of the basic offence where the offender already has final convictions for at least three offences of the same nature, at least one of them a minor offence. The clause does not say whether it refers to the earlier minor-offence convictions used to apply the aggravated offence or only to the conviction for that offence, so it has to be examined case by case. The reform as a whole is covered in our article on the repeat-offending reform.

Civil liability and confiscation: paying or undertaking to pay (Art. 80.2, condition 3)

Condition 3 requires the civil liability (the compensation owed for the harm) to have been paid and the confiscation carried out, but the next subparagraph softens it: the requirement “shall be deemed met” if the convicted person undertakes to pay in line with their financial means and to facilitate the confiscation, and it is reasonable to expect compliance within the period the judge sets. The judge may ask for guarantees “in view of the extent of the civil liability and the social impact of the offence”.

So full payment beforehand is not essential. The risk lies in promising what is not then done: Art. 86.1.d) CP provides for revocation if the convicted person fails to honour the undertaking to pay, “unless they lacked the financial means to do so”, or gives inaccurate or insufficient information about their assets. A realistic payment plan, backed by payslips or proof of income, is usually more useful than promising an amount that cannot be reached.

Exceptional suspension when it is not the first offence (Art. 80.3)

Paragraph 3 allows the sentence to be suspended “even if conditions 1 and 2 are not met”; in other words, even where there are prior convictions that count or the sentences add up to more than two years. It has three limits:

• The person must not be a habitual offender. Art. 94 CP treats as habitual offenders those who have committed three or more offences within the same chapter of the Code, within a period of no more than five years, and have been convicted of them.
• Only prison sentences that do not individually exceed two years. Here the law speaks of “prison”, not of any custodial sentence, and it looks at each sentence separately.
• There must be a reason: the personal circumstances of the offender, the nature of the offence, their conduct and, in particular, their effort to repair the harm caused must “so advise”.

In return, this route always carries two burdens. It is made conditional on actual repair of the harm or compensation for the loss, in line with the convicted person's physical and financial means, or on compliance with an agreement reached through mediation (measure 1 of Art. 84 CP). And a fine or community service (measures 2 or 3 of Art. 84) is always imposed, with a minimum extent: the one that results from applying the conversion criteria of Art. 84 to one fifth of the sentence imposed, namely two daily fine units or one day of community service for each day of prison. On how it is served, see our article on community service as a penalty.

Very serious illness with incurable suffering (Art. 80.4)

Paragraph 4 is the broadest in the article: the courts “may grant the suspension of any sentence imposed without being subject to any requirement” where the convicted person suffers from a very serious illness with incurable suffering. There is no limit on the length of the sentence, and no requirement of a first conviction or of civil liability.

The only exception is where, when committing the offence, the person already had another sentence suspended on the same ground. The law does not define a “very serious” illness, so the application rests on the medical reports: diagnosis, prognosis and incompatibility with serving the sentence.

Offences committed because of drug dependence (Art. 80.5)

Paragraph 5 allows custodial sentences not exceeding five years to be suspended, even if conditions 1 and 2 are not met, where the person committed the offence “because of their dependence” on the substances listed in Art. 20.2 CP: alcoholic drinks, toxic drugs, narcotics, psychotropic substances or others with similar effects. Within Art. 80, this is the only route, together with Art. 80.4, for suspending a single sentence of more than two years.

It requires a certificate from a public or private centre or service that is “duly accredited or approved” stating that the person has overcome the dependence or is undergoing treatment for it at the time the suspension is decided. If the person is in treatment, the suspension is conditional on not abandoning it, although relapses do not count as abandonment unless they show that the treatment has been definitively abandoned. In addition:

• Period: three to five years (Art. 81 CP, second subparagraph).
• Remission: at the end, the person must prove that the dependence has been overcome or that treatment is continuing; otherwise the court orders the sentence to be served, unless it considers it necessary to continue the treatment and extends the period by up to two more years (Art. 87.2 CP).

What is decisive is proving the causal link between the addiction and the offence, not merely that the addiction exists.

Offences that can only be prosecuted on the victim's complaint (Art. 80.6)

The last paragraph is a procedural rule: for offences that can only be prosecuted following a complaint (querella or denuncia) by the victim, the court “shall hear the victim and, where applicable, their representative” before granting suspension. One example is the discovery and disclosure of secrets which, except in the cases of Art. 201.2 CP, requires a complaint (denuncia) by the aggrieved person (Art. 201.1 CP) and whose basic offence in Art. 197.1 is punishable by prison.

The court must hear the victim, not obtain their consent: the victim's view does not bind the judge, who decides on the criteria of Art. 80.1.

After it is granted: periods, conditions and revocation (Arts. 81 to 87)

Art. 80 decides whether the sentence is suspended; the articles that follow set out how the suspension works:

• Period (Arts. 81 and 82.2): two to five years for custodial sentences not exceeding two years and three months to one year for minor penalties, counted from the decision granting it or, if it was granted in the judgment, from the date the judgment became final. Time during which the person has absconded (rebeldía) does not count.
• Prohibitions, duties and conditions (Arts. 83 to 85): the judge may impose prohibitions, duties and other measures, which under Art. 83 CP cannot be excessive or disproportionate, and may modify them if circumstances change.
• Revocation (Art. 86): for a new offence that defeats the expectation on which the suspension was based, for serious or repeated breaches, or for failure to honour the civil liability undertaking. We cover it in our article on the revocation of a suspended sentence.
• Remission (Art. 87): once the period ends without any of those events, the judge orders the remission of the sentence, which will then never be served. For the later cancellation of the criminal record, Art. 136.2 CP backdates the calculation as if the sentence had been served.

Foreign nationals should note a separate mechanism: under Art. 89.1 CP, prison sentences of more than one year imposed on a foreign national are replaced by expulsion from Spain, with the exceptions that article sets out. It is a substitution, not a suspension; see our article on expulsion instead of prison.

What to do (and what not to do) to apply for a suspended sentence

A suspension is won, above all, through preparation. Before the trial or the plea agreement, it is advisable to:

• Obtain the criminal record certificate and check whether any entry should already have been cancelled.
• Gather proof of ties (arraigo): employment contract, payslips, registration on the local population register, family responsibilities.
• Start repairing the harm or prepare a payment plan in line with your income.
• In cases of addiction, start treatment at an accredited centre and keep the reports.

Avoid undertaking to pay amounts that cannot be met, assuming that suspension is automatic, or concealing assets or income: any of these can cost the suspension or lead to its revocation.

For an initial orientation, our suspended sentence checker gives a first indication of which route under Art. 80 might fit your case, but it does not replace a study of the judgment and the record certificate.

With over 15 years of experience in criminal law, we can study your case: see our suspended sentence defence service, or call us on +34 91 078 65 74.