Failing to Return from Prison Leave: the Supreme Court Applies the Custodial Penalty of Article 468.1 CP

Supreme Court Judgment 463/2026 of 2 July (appeal 7636/2023) closes a debate that was still alive in some Provincial Courts: what penalty applies to an inmate who does not go back to prison when leave ends. The answer is the more severe of the two options in Article 468.1 CP: six months to one year in prison, not a fine of twelve to twenty-four months. The Criminal Chamber restates the doctrine it had already laid down in an earlier 2020 judgment and applies it to a delay of only three days followed by a voluntary return.

If you failed to return on time from leave: what it means and what happens next

Breach of sentence is an offence against the administration of justice: it protects the effectiveness of court decisions. Article 468.1 CP punishes those who breach their sentence, security measure, imprisonment, precautionary measure, transfer or custody, and sets two penalty ranges: six months to one year in prison «if they were deprived of liberty» and a fine of twelve to twenty-four months «in all other cases».

Someone who goes out on leave and does not return on the set date is, physically, outside the prison. That fact had led some Provincial Courts to apply the fine, arguing that the inmate was not «deprived of liberty» when the breach occurred. The 2026 judgment confirms that this reading is wrong: what is breached is a prison sentence, and the consequence is the custodial penalty of the first limb. For anyone in this situation, the criminal proceedings will come on top of whatever consequences the prison administration may consider, and the defence strategy cannot rely on the old argument for a fine.

The case: a three-day delay and two readings of Article 468.1

The findings of fact are brief. An inmate serving several prison sentences went out on leave with an obligation to return three days later. He did not return on the set date and came back voluntarily three days afterwards. The criminal court convicted him of breach of sentence under the first limb of Article 468.1 CP and imposed six months in prison, the statutory minimum.

On appeal, the Provincial Court partly upheld the appeal and, raising the point of its own motion, replaced the prison term with a twelve-month fine, with the corresponding subsidiary personal liability for non-payment. In other words, it applied the second limb («in all other cases»). The Public Prosecutor appealed in cassation.

The doctrine: «deprived of liberty» is a legal concept

The Supreme Court upholds the appeal and reproduces the reasoning of that 2020 judgment. Its starting point is that both readings are possible in the abstract: an inmate who fails to return from leave is physically at liberty, yet he is also still serving a custodial sentence, because leave forms part of the regime under which that sentence is served.

To choose between them, the Chamber relies on three ideas:

• Leave is part of the enforcement of the sentence. Prison leave under Article 47 of the General Prisons Act and the Prison Regulations forms part of the enforcement regime and of its rehabilitative purpose. The judgment recalls that the Constitutional Court links leave directly to re-education and social reintegration. An inmate on leave therefore does not stop serving the sentence.
• The penalty for breach follows the type of penalty breached. Custodial penalties and measures correspond to more serious conduct; it is consistent that breaching them is punished with prison, leaving the fine for breaches of less intense penalties or measures.
• The legislature itself has chosen the type of penalty as the criterion. Article 468.2 CP always imposes six months to one year in prison on those who breach the penalties of Article 48, or measures of the same nature, in proceedings for offences against the persons listed in Article 173.2, and on those who breach supervised release. The Chamber sees that rule as confirming that what matters is what is breached, not where the offender physically is.

The conclusion is stated in general terms: to apply Article 468.1 CP, regard must be had to the legal meaning of the expression «if they were deprived of liberty», not to its merely factual or situational aspect. Where what is breached is a custodial sentence, and most obviously a prison sentence, the first limb applies; the second is reserved for «all other cases».

Why the Supreme Court rejects the literal reading

The argument for the fine relied on the wording of the provision and on a notion of greater wrongdoing: escaping the physical confinement of a prison would be more serious than failing to return to it from outside. The favourability principle was also invoked. The Chamber rejects this for two reasons.

The first is consistency: if accepted, what would be breached is not a sentence but the rules of the leave, and the reproach would become almost administrative, which the judgment regards as incoherent. The second is a reductio ad absurdum: on a purely situational reading, an inmate who, while in prison, breached a ban on contacting someone would have to be punished under the first limb merely because he was physically confined. The Chamber adds that, in criminal law, deprivation of liberty is a legal concept: custodial penalties are those defined as such in Article 35 CP.

The procedural route: the prosecutor’s cassation appeal

The case reached the Supreme Court through the cassation appeal against appeal judgments of Provincial Courts under Article 847.1.b) of the Criminal Procedure Act. This route only allows the ground of error of law in Article 849.1, requires the findings of fact to be respected and depends on cassational interest, as defined by the Chamber’s non-jurisdictional plenary agreement of 9 June 2016: the ruling contradicts Supreme Court doctrine, it decides issues on which Provincial Courts disagree, or it applies rules in force for less than five years without settled case law.

Here the first two grounds were met: the Provincial Court had departed from the 2020 doctrine and the prosecutor showed that Provincial Courts were still deciding the point inconsistently. The ruling quashes the appeal judgment and restores the trial court’s six-month prison sentence.

Practical consequences for the inmate and the defence

The judgment has several practical implications:

• A short delay does not turn the conduct into a minor matter. Three days late with a voluntary return was enough for a prison sentence. The penalty range is the same as for a lengthy absconding; the difference can only be reflected within the six-month to one-year range.
• The argument for a fine is no longer a realistic strategy. With two Supreme Court judgments to the same effect, and a prosecutor’s appeal upheld precisely because a court departed from them, seeking the second limb has very little prospect.
• The new conviction affects life in prison. An additional prison sentence is added to those already being served and may weigh on future decisions about leave and classification; this is worth bearing in mind before applying for the next leave, a subject covered in our guide to prison leave permits in Spain.

What room is left for the defence

A clear legal classification does not mean there is nothing to argue. Breach of sentence is an intentional offence, and Article 12 CP only punishes negligence where the law expressly provides for it, which Article 468 does not. It is therefore important to reconstruct precisely why the return did not happen: if a cause beyond the inmate’s control prevented a timely return, or if there was a mistake about the return date or time arising from the leave documents themselves, those facts must be supported with documents and witnesses from the outset.

The underlying title also deserves scrutiny: the offence requires a sentence or measure that is actually enforceable. Convictions for breaching sentences that were not yet final have been quashed, as discussed in our commentary on breach of a non-final sentence. And when the sentence is determined, the voluntary return, the brevity of the delay and personal circumstances are legitimate arguments for the statutory minimum, which is the penalty ultimately upheld in this case.

This commentary is for information only and does not replace an individual study of the case: the leave documents, communications with the prison and the timing of the return are what determine which arguments can be made in each situation.