A Sentence That Was Not Yet Final Cannot Be Breached

The offence of breach of sentence looks straightforward: a person who fails to comply with a penalty they are serving answers for it. Yet that apparent simplicity hides a prerequisite that is sometimes taken for granted and not checked: that an enforceable penalty actually exists, which requires a final sentence. When that fact is missing, a conviction for breach is built on nothing. The Supreme Court has made this clear in its judgment 302/2026 of 23 April (appeal 22254/2024), quashing two convictions and removing a recidivism aggravating factor. As a firm dedicated exclusively to criminal law, we analyse the doctrine this decision sets out and why it matters.

What the offence of breach of sentence is

Article 468 of the Criminal Code punishes those who breach their sentence, security measure, imprisonment, precautionary measure, escort or custody. In its most frequent form, Article 468.1 CP sanctions non-compliance with a penalty the person is serving: abandoning a serving regime, evading enforcement or, in general, disobeying what a criminal decision requires of them.

The key to understanding the offence is to identify the interest it protects. Breach does not punish the original offence — that has already been tried — but disobedience to a decision that is enforceable: it safeguards the effectiveness of criminal decisions and respect for their compliance. From this follows a logical and unavoidable consequence: in order to disobey a penalty, that penalty must exist as such, that is, it must be enforceable. And a penalty is enforceable only when the sentence imposing it has become final.

A final sentence and one that is not yet final

A sentence is final when no appeal lies against it any longer: whether because the law provides for none, because the time limits to appeal have passed without an appeal being lodged, or because all the available appeals have been exhausted. Only at that moment does the decision acquire full effect and the penalty it contains becomes enforceable: the title that enables its execution comes into being.

By contrast, a sentence that is not yet final may still be appealed or be pending the resolution of an appeal. Its content is not definitive and, in the meantime, it does not produce the enforceable effect that allows compliance to be imposed. The exact date on which a decision becomes final is therefore not a minor filing matter: it is the fact on which it depends whether the penalty can be enforced and, as we shall see, whether its non-compliance can amount to an offence.

Pinpointing that moment can be more complex than it seems, especially where appeals, notifications to several parties or procedural incidents accumulate. A mistake about the date of finality drags consequences in a chain, because on it the time limits are calculated, enforcement is ordered and later facts are assessed.

Why finality is a prerequisite of the offence

This is the core of the doctrine set out by the Supreme Court in its judgment 302/2026 of 23 April. The breach offence under Article 468.1 CP requires, as an indispensable prerequisite, the finality of the sentence that imposed the penalty. The reasoning is direct: without a final sentence there is no enforceable penalty and, therefore, the offence cannot be committed.

The conclusion follows from sheer coherence. If what is punished is disobeying compliance with a penalty, there can be no breach when no penalty yet exists that must be served in a legal sense. Whatever the person may do while the sentence is not final — departing from what will later be their sentence — does not make up the offence under Article 468.1 CP, because it lacks the element on which the whole offence depends: an enforceable decision whose compliance can be demanded.

Hence the practical importance of always checking, before charging a breach, that the underlying sentence had become final on the date of the facts. This is not red tape: it is the examination of the very prerequisite of the offence. If the sentence was not final, there is no basis for a conviction for breach, however much the person's conduct may look like non-compliance.

The review remedy as a corrective channel

The matter reached the Supreme Court through a singular route: the review remedy, governed by Article 954 of the Criminal Procedure Act. Review is an exceptional remedy that allows final sentences to be challenged when certain listed circumstances are established. Among them, Article 954.1.d) contemplates the emergence of new facts or items of evidence which, had they been known, would have led to a different decision.

In the case resolved, that new fact was the later establishment of the real date on which the decision became final. Once that date was brought to light, it became clear that the convictions for breach had been handed down on a mistaken basis: the prerequisite of finality was absent at the relevant moment. The Supreme Court accordingly quashed two convictions for breach and, in a third case, removed the recidivism aggravating factor that had been applied on the basis of those records.

The review remedy thus performs its most genuine function: not to reopen the debate on the assessment of the evidence, but to correct final convictions that rest on an objective starting error. Finality — the prerequisite of the offence — proved to be absent at the moment that mattered, and with it the conviction collapsed.

Practical conclusions

The doctrine of judgment 302/2026 of 23 April offers several practical lessons. The first is that finality is not an incidental fact: it is the prerequisite of the breach offence under Article 468.1 CP, and it must be verified precisely before any charge. The second is that the exact date on which a decision becomes final should be fixed and proved rigorously, because on that fact pivot the enforcement of the penalty and the possible criminal relevance of later facts.

The third lesson concerns the control of criminal records: a conviction handed down on a miscalculated finality is not only open to challenge in itself, but may contaminate other cases, for example through the recidivism aggravating factor. Reviewing that chain may have effects beyond the specific proceedings.

Finally, the case is a reminder that the review remedy under Article 954 of the Criminal Procedure Act remains a living instrument for correcting starting errors in already final convictions. This commentary is informative in nature and does not constitute advice on a specific case: each situation calls for the individual study of the decisions, the dates and the remedies available.