Enforcing a Criminal Judgment in Spain: Finality, Sentence Computation and Incidents

Judgment is not the end of a criminal case. It is the start of the enforcement file, a stage with its own rules — Arts. 983 to 998 LECrim and Arts. 3, 38, 58 and 80 to 89 CP — where what matters most is still to be decided: whether the person goes to prison, when the sentence starts to run, and what can be paid, suspended or set off.

You have been convicted and the judgment is final: what happens next

The first requirement is constitutional before it is procedural. Art. 3.1 CP is categorical: no penalty or security measure may be enforced other than by virtue of a final judgment given by the competent court. Paragraph 2 adds that enforcement takes place under judicial control, in the manner prescribed by law and regulations.

A judgment is final, under Art. 141 LECrim, when no ordinary or extraordinary appeal lies against it, apart from review and rehabilitation. The formal public document recording that final judgment is the enforcement file.

Art. 988 LECrim completes the picture: once a judgment is final under Art. 141, the court that gave it declares it so, and after that declaration enforcement proceeds even if the convicted person is subject to other proceedings. At the other end, Art. 983 requires the immediate release of anyone acquitted, unless an appeal with suspensive effect or other legal grounds make it necessary to postpone release by a reasoned order.

Which court enforces the judgment

The general rule in Art. 985 LECrim is that enforcement falls to the court that gave the final judgment. Two qualifications avoid common mistakes:

• Art. 986. A judgment given following a cassation ruling of the Second Division of the Supreme Court is enforced by the court that delivered the quashed judgment, on the basis of the certificate sent to it by that Division.
• Art. 987. Where the court in charge cannot itself carry out every step, it applies to the court of the place where they must take effect; that court then reports back on their completion (Art. 997).

Art. 990 adds the internal division of roles: the court clerk drives the enforcement process forward, without prejudice to the court's own power to enforce the sentence. It also requires notice to be given to injured parties and, where appropriate, witnesses of any decision concerning the convicted person that may affect their safety.

Computing the sentence

Sentence computation is the arithmetic that fixes when service starts and ends. It rests on three provisions of the Criminal Code:

• Art. 38 CP. If the convicted person is in custody, the sentence runs from the day the judgment became final. If not, from the day they enter the establishment where it is to be served.
• Art. 58 CP. Time spent in pre-trial detention is credited in full, unless it coincided with another deprivation of liberty already credited or creditable in other proceedings. The same period may never be credited twice. Credit in different proceedings is granted by the Prison Supervision Section for the district of the prison, after hearing the public prosecutor, and only where the interim measure came after the facts of the case against which it is to be set off.
• Art. 59 CP. Where the interim measures endured and the penalty imposed are of a different nature, the penalty is treated as served in the part the court considers set off.

Reviewing the computation is not a minor step: a miscalculated credit moves every later date, including classification and prison leave. Those milestones can be located with the sentence milestones calculator.

Suspension of enforcement (Arts. 80-87 CP)

This is the decision that weighs most. Art. 80.1 CP allows the enforcement of custodial sentences of no more than two years to be suspended where it is reasonable to expect that enforcement is not necessary to prevent the commission of further offences, weighing the circumstances of the offence and of the person, their record, their conduct afterwards and in particular their effort to repair the harm caused.

The conditions in Art. 80.2 are three: that the person is a first offender — disregarding convictions for negligent or minor offences and records that have been or should have been expunged under Art. 136 —; that the sentence or the sum of those imposed does not exceed two years, excluding any sentence arising from non-payment of a fine; and that civil liability has been satisfied and any confiscation given effect, a requirement treated as met where a payment undertaking matching the person's means is given.

There are three further routes: the exceptional one in Art. 80.3 for sentences that individually do not exceed two years even where conditions 1 and 2 are missing; that of Art. 80.4 for a person suffering from a very serious illness with incurable symptoms, subject to no requirement at all; and that of Art. 80.5 for sentences of up to five years where the offence was committed because of dependence on the substances listed in Art. 20.2 and rehabilitation or ongoing treatment is certified.

The suspension period runs from two to five years, and from three months to one year for minor penalties (Art. 81 CP); in drug-dependence cases, from three to five years. Art. 82 requires the court to rule in the judgment itself whenever possible and, failing that, to do so as a matter of urgency after finality and after hearing the parties; the period runs from the decision granting it and does not run while the person is in default.

Suspension may be made conditional on the prohibitions and duties of Art. 83 and on the measures of Art. 84 (compliance with a mediation agreement, a fine or community service), and is revoked in the cases listed in Art. 86. Once the period has passed without further offending and the conduct rules have been met, the sentence is remitted (Art. 87). The fit can be checked with the suspended sentence checker and explored further on the suspended sentence page, in the article on its requirements and in the one on revocation.

Substitution: what is left of Art. 88 CP

This is worth stating plainly, because outdated information circulates: Art. 88 CP has been repealed. The old substitution of a prison sentence by a fine or community service no longer exists as a separate institution; its function was absorbed by the measures of Art. 84 within suspension.

The only substitution left in the chapter is that of Art. 89 CP: prison sentences of more than one year imposed on a foreign national are substituted by expulsion from Spanish territory, with partial enforcement possible where necessary to uphold the legal order. Where the sentence exceeds five years, Art. 89.2 requires all or part of it to be served before expulsion. Paragraph 3 repeats the scheme of Art. 82: rule in the judgment if possible and, failing that, after finality, having heard the prosecutor and the other parties. Paragraph 9 excludes expulsion for the offences of Arts. 177 bis, 312, 313 and 318 bis, and paragraph 4 sets special rules for EU citizens.

Committal to prison and formal requirements

Where suspension is ruled out, Art. 990 LECrim requires the enforcing court to take without delay the measures needed for the convicted person to enter the prison establishment, calling on administrative authorities for assistance. It also makes an important point: the court's power to enforce the judgment excludes that of any government authority until committal or transfer to the place of service takes place.

Alongside committal, the requirements flowing from the judgment are served: payment of the fine and of civil liability, delivery of items and, where a driving ban was imposed, immediate withdrawal of the licence and an order to the central traffic authority not to issue another until the sentence is spent (Art. 794.2 LECrim).

Incidents of the enforcement file

• Maximum term to be served. Where a person has been convicted in separate proceedings for facts that could have been tried together, the third paragraph of Art. 988 LECrim requires the court that gave the last judgment to fix the maximum term under Art. 76 CP, of its own motion or on application by the prosecutor or the convicted person, obtaining the criminal record sheet and copies of the judgments. Cassation for infringement of law lies against that order. It is developed in the article on accumulation of sentences.
• Civil liability. Art. 989 LECrim refers to the Civil Procedure Act for whatever criminal law does not regulate, and allows the tax administration to be tasked with the asset investigation needed until what the judgment awarded is paid. Where the judgment did not fix the amount, Art. 794.1 LECrim allows evidence to be taken at the enforcement stage to determine it; the order fixing it, given by the Criminal Section, may be appealed to the Provincial Court.
• Third-party claims. Claims of ownership or of better title are dealt with under the Civil Procedure Act (Art. 996 LECrim).

What the defence looks at

• The declaration of finality and its date. The start of the computation under Art. 38 CP and the enforcement deadlines depend on it.
• The computation and the credit. Checking every period of pre-trial detention, making sure none was already credited elsewhere, and weighing the set-off of Art. 59 CP.
• Suspension, before committal. Documenting payment or the undertaking to pay civil liability and the personal circumstances weighed under Art. 80.1.
• Accumulation. Where there are several enforcement files, applying for the order under Art. 988 LECrim: the limit of Art. 76 CP can substantially reduce the time to be served.

If you have a criminal judgment about to become final or already at the enforcement stage, it is worth reviewing the computation and the prospects of suspension before the formal requirements are served. You can contact us at +34 91 078 65 74.