Disqualification Penalties (Arts. 39 to 47 CP): Content, Duration and Real Effects

In many convictions the heaviest penalty is not the prison term. A civil servant who keeps their liberty but loses their post, a doctor who cannot practise for six years, or a haulier whose driving licence is withdrawn for three, face consequences that last longer than a few months of suspended imprisonment. The Spanish Criminal Code groups those consequences under the heading of penalties depriving of rights and regulates them in Arts. 39 to 47 CP.

You are accused of an offence carrying disqualification: what that means

Art. 39 CP lists the penalties depriving of rights: absolute disqualification; special disqualification from public employment or office, from a profession, trade, industry or commerce or other activities, or from the rights of parental authority, guardianship, custody or curatorship, keeping of animals, the right to stand for election or any other right; suspension from public employment or office; withdrawal of the right to drive and of the right to possess and carry weapons; withdrawal of the right to reside in or visit certain places; restraining and no-contact orders; community service; and deprivation of parental authority.

They all share one logic: they do not deprive of liberty, they deprive of the ability to do something. And they are all governed by one principle: what the judgment does not specify cannot be enforced. Arts. 42 and 45 CP require the subject-matter of the disqualification to be specified, and that requirement is the first battleground.

The general placement of these penalties within the catalogue is in the guide to types of penalties.

Absolute disqualification (Arts. 40.1 and 41 CP)

This is the most severe of the group. Art. 40.1 CP sets its duration at six to twenty years, and Art. 33.2(c) CP always classifies it as a serious penalty, whatever its length.

Art. 41 CP describes its content on two levels. The first is permanent: it produces the definitive loss of all honours, public employment and offices held by the convicted person, even elective ones. The second is temporary: it produces the incapacity to obtain the same or any other honours, offices or public employment, and to be elected to public office, for the duration of the sentence.

The distinction matters. What was already held is not recovered when the penalty ends: the post or office is lost for good, and what expires with the period is only the incapacity to obtain new ones.

Special disqualification from public employment or office, and suspension (Arts. 42 and 43 CP)

Art. 42 CP transfers that same structure to a narrower field: it produces the definitive loss of the employment or office on which it falls, even if elective, and of the honours attached to it, plus the incapacity to obtain the same or analogous ones for the duration of the sentence. And it closes with an express requirement: the judgment must specify the employment, offices and honours on which the disqualification falls.

The word «analogous» generates litigation at the enforcement stage, because it determines whether the incapacity reaches only the specific post or a whole family of posts. A judgment that does not delimit the scope leaves that decision to the enforcing court.

Different, and far less severe, is suspension from public employment or office under Art. 43 CP, which merely bars its exercise for the duration of the sentence: the link is not broken, it is frozen. Its duration is three months to six years (Art. 40.1 CP), and it is a serious penalty above five years and a less serious one up to that limit (Arts. 33.2(e) and 33.3(c) CP). These penalties are the usual outcome of the offences of Title XIX of Book II, covered in the guide to offences against the public administration.

Special disqualification from a profession, trade, industry or commerce (Art. 45 CP)

Art. 45 CP is the one that most affects private practice. It deprives the convicted person of the power to exercise the profession, trade, industry or commerce or other activities, whether paid or not, or any other right, for the duration of the sentence. Here there is no definitive loss: once the penalty ends, the power returns.

The provision imposes two safeguards the defence should use:

• Express and reasoned specification. The subject-matter of the disqualification must be specified expressly and with reasons in the judgment. A generic formula — «disqualification from practising their profession» — without identifying the activity or explaining its link to the offence is open to challenge.
• Partial restriction. The court may restrict the disqualification to certain activities or functions of the profession or trade, whether paid or not, allowing, where possible, the exercise of those functions not directly related to the offence committed. That is a genuine alternative to a blanket ban and must be requested with a concrete proposal.

Its duration is the general one for special disqualifications: three months to twenty years (Art. 40.1 CP). It is a serious penalty above five years and less serious up to five (Arts. 33.2(d) and 33.3(b) CP).

Special disqualification from the right to stand for election (Art. 44 CP)

Art. 44 CP defines it in a single line: it deprives the convicted person, for the duration of the sentence, of the right to be elected to public office. What it does not say is worth underlining. It affects the passive right — being elected — not the active one: the right to vote is untouched.

It is the disqualification that most often appears as an accessory penalty: Art. 56.1.2 CP expressly includes it among those the court may impose alongside prison sentences of less than ten years.

Parental authority, guardianship, curatorship, custody or fostering (Art. 46 CP)

Art. 46 CP governs two distinct penalties that are often confused:

• Special disqualification from exercising parental authority, guardianship, curatorship, custody or fostering deprives the convicted person of the rights inherent in the first and extinguishes the others, plus the incapacity to be appointed to those roles for the duration of the sentence.
• Deprivation of parental authority entails the loss of title to it, while those rights held by the child in respect of the convicted person that are judicially determined remain in force. Art. 33.2(k) CP classifies it as a serious penalty.

The court may order these penalties in respect of all or some of the minors or persons with disabilities in need of special protection in the convicted person's care, and in deciding their scope it must weigh the best interests of those persons in relation to the circumstances of the case.

Withdrawal of the right to drive and to possess and carry weapons (Arts. 40.2 and 47 CP)

Both last three months to ten years (Art. 40.2 CP) and their classification depends on the bracket: petty from three months to one year, less serious from one year and one day to eight years, and serious above eight (Art. 33 CP).

Art. 47 CP supplies the content and one decisive rule. Withdrawal of the right to drive disqualifies from driving motor vehicles and mopeds for the time set in the judgment; withdrawal of the right to possess and carry weapons disqualifies from that right for the time set. And the final paragraph provides that where the penalty imposed exceeds two years it entails the loss of validity of the licence or permit authorising driving or the possession and carrying of weapons respectively.

That two-year threshold changes the picture: below it the licence is suspended and recovered on completion; above it, it must be obtained anew. Driving while the withdrawal is in force is, moreover, the offence of Art. 384 CP, analysed in the article on judicial withdrawal of the driving licence and in the one on loss of validity of the licence. On weapons, the criminal framework is in the analysis of Art. 564 CP.

When disqualification is an accessory penalty (Arts. 54 to 56 CP)

So far, principal penalties. But disqualification appears more often as an accessory penalty: a consequence carried by another penalty. Art. 54 CP puts it this way: they are accessory where, without being specifically imposed, the law declares that other penalties carry them.

The two basic rules are:

• Art. 55 CP. A prison sentence of ten years or more carries absolute disqualification for the duration of the sentence, unless it was already provided for as a principal penalty. The court may add special disqualification from parental authority, guardianship, curatorship, custody or fostering, or deprivation of parental authority, where those rights were directly related to the offence; that link must be expressly determined in the judgment.
• Art. 56 CP. For prison sentences of less than ten years, the court shall impose, according to the seriousness of the offence, one or more of these accessory penalties: suspension from public employment or office; special disqualification from the right to stand for election; or special disqualification from public employment or office, a profession, trade, industry, commerce or the exercise of parental authority and the other rights it lists, and deprivation of parental authority, where those rights were directly related to the offence committed, that link having to be expressly determined in the judgment.

Accessory penalties last as long as the principal one, unless other provisions state otherwise (Art. 33.6 CP).

Employment and administrative effects, limitation and criminal records

Three practical consequences close the picture:

• Public employment. Absolute disqualification and special disqualification from public employment or office produce the definitive loss of the post affected (Arts. 41 and 42 CP) and the incapacity to obtain another while the sentence lasts; suspension under Art. 43 CP only bars its exercise.
• Private practice. The disqualification of Art. 45 CP bars the activity specified in the judgment while it lasts, and may be restricted to certain functions.
• Limitation and expungement. Disqualification penalties have their own brackets in Art. 133.1 CP: those of more than ten years are time-barred after twenty, and those of more than six not exceeding ten, after fifteen. And like any penalty, the expungement periods of Art. 136.1 CP — six months to ten years depending on seriousness — start running the day after it is extinguished. You can calculate them in the limitation period calculator and review the procedure in the guide to expunging a criminal record.

What the defence looks at

• Whether the judgment specifies the subject-matter. Arts. 42 and 45 CP require employment, offices, honours or activities to be specified. The generic formula is the most common defect and the most contestable.
• Whether the accessory penalty is reasoned. Arts. 55 and 56 CP require the direct link between the right and the offence to be expressly determined in the judgment. Without that reasoning, the accessory penalty is open to challenge.
• The duration sought against the statutory ranges. Six to twenty years for absolute disqualification, three months to twenty for special ones, three months to six for suspension, three months to ten for driving and weapons (Art. 40 CP).
• The two-year threshold of Art. 47 CP. A single day above it turns suspension of the licence into loss of validity, requiring a fresh application.
• The partial restriction of Art. 45 CP. Proposing in writing which functions may continue to be exercised without any link to the offence.

If your case involves a disqualification affecting your post, your profession or your licence, that is the penalty to work on first, and it is argued at trial. You can call us on 91 078 65 74.