Full Sentence Serving and the Security Period: Article 78 of the Criminal Code

One of the most serious decisions in the entire enforcement phase of a sentence concerns which amount of penalty prison benefits are calculated on for a person convicted of several offences. It is not the same to compute furloughs, the open (third) regime and conditional release on the maximum time actually to be served as it is to compute them on the total sum of all the sentences imposed. That difference, which can amount to many additional years of actual imprisonment, is precisely what the full and effective serving of the sentence under Article 78 of the Criminal Code (CP) governs. As prison-law lawyers who act against the application of Art. 78 CP, we explain when it can be ordered, how it affects progression through the prison regime, and what room there is for a defence.

The Starting Point: The Cap Under Article 76 CP

To understand Article 78 you must start with Article 76 CP, which sets the maximum term of effective enforcement of a sentence where someone has been convicted of several offences. The general rule is that enforcement cannot exceed three times the most serious penalty and, in any event, may not exceed 20 years, with higher exceptional limits: 25 years where one of the offences carries a prison term of up to 20 years; 30 years where one carries a prison term of more than 20 years; and 40 years in the most serious cases (for example, several offences with penalties of more than 20 years, or certain terrorism offences).

The effect of Article 76 is that the penalty actually served can be much lower than the arithmetical sum of all the penalties imposed across the various judgments. A person whose sentences add up to, say, sixty years may have a maximum term of enforcement of twenty-five. And this is where the question that Article 78 answers arises: where the effective term is far lower than the total sum, on what figure are the prison benefits calculated?

What Full Sentence Serving Under Article 78 CP Is

Article 78.1 CP provides a power of the sentencing court: where, as a result of the limits in Article 76.1 CP, the penalty to be served turns out to be lower than half the total sum of those imposed, the sentencing court may order that the prison benefits, the furloughs, the classification in the open (third) regime and the computation of time for conditional release refer to the totality of the sentences imposed in the judgments, rather than to the maximum term of enforcement.

Several features define the institution:

• It is discretionary, not automatic: the law says the court may order it. It does not apply by the mere fact that there is an accumulation of sentences; it requires an express, reasoned decision.
• It has an objective threshold: it only comes into play where the effective penalty (the Article 76 one) is lower than half the total sum of the sentences imposed. If that threshold is not crossed, Article 78 cannot be invoked.
• It does not lengthen the formal sentence: the maximum term of enforcement remains the one under Article 76. What changes is the basis for calculating the benefits, which shifts from the effective cap to the total sum.

The name by which this institution is commonly known, the security period in a broad sense, reflects its purpose well: to ensure that, in very serious sentences for a plurality of offences, access to benefits and to a semi-open regime is not brought forward too far ahead of the overall criminal reproach.

How It Affects Progression and Benefits

The impact of Article 78 is chronological: it delays every milestone of prison treatment because it moves the calculation basis to a much larger figure. Suppose a sentence whose individual penalties add up to sixty years, with a maximum term of enforcement of twenty-five under Article 76 CP:

• Without Art. 78 CP: the periods for accessing benefits are calculated on the twenty-five years of effective enforcement. The first furlough (which requires part of the sentence to have been served), classification in the open regime and the computation of conditional release are brought forward accordingly.
• With Art. 78 CP: those same periods are calculated on the totality of the sentences imposed (the sixty years). The result is that each milestone shifts considerably in time, subject to the unbreachable limit of the Article 76 maximum term.

In practice, applying Article 78 may mean that the prisoner remains in the second regime for far longer, that their first furlough is delayed, and that access to the open (third) regime and to conditional release approaches the maximum term of enforcement. That is why it is a decision worth contesting from the very first moment, in the judgment and during enforcement.

Reinforced Rules: Terrorism and Organised Crime

Article 78.2 CP provides a way back. Once full serving has been ordered, the Prison Supervision Court (Juez de Vigilancia Penitenciaria, JVP), on a favourable individualised prognosis of social reintegration and weighing the prisoner's personal circumstances and the progress of treatment, may order, with reasons given and after hearing the public prosecutor, the prison authorities and the other parties, the application of the general enforcement regime. In other words, the system allows a return to the ordinary computation where the prisoner's progress justifies it.

However, in offences relating to terrorist organisations and groups and terrorism offences, or committed within criminal organisations, that return to the general regime is reinforced and restricted. Having regard to the total sum of the penalties, the possibility of returning to the general regime will only be available:

• To the open (third) regime, where one fifth of the maximum term of enforcement of the sentence remains to be served.
• To conditional release, where one eighth of the maximum term of enforcement of the sentence remains to be served.

In these cases, then, a favourable prognosis is not enough: those time thresholds must also have been reached before the general regime can be recovered. Whether or not the facts are classified as committed within an organisation entirely conditions the enforcement timetable, so it must be analysed case by case.

Distinguishing It from Accumulation and Consolidation

Three institutions that operate on different planes are often confused:

• Legal accumulation (Art. 76 CP): sets the maximum term of effective enforcement where several penalties concur. It reduces the total time served.
• Full serving (Art. 78 CP): it does not touch the Article 76 cap, but the basis for calculating benefits, which shifts from the effective limit to the total sum. It delays access to furloughs, the open regime and conditional release.
• Consolidation of sentences (refundición): the administrative operation of combining several sentences into a single enforcement unit, for the purpose of computing benefits. It does not reduce the penalty and is not the same as accumulation.

Telling these figures apart is essential: the same prisoner may be affected at once by the accumulation of Article 76 and by the full serving of Article 78, and the defence must address each separately.

The Defence Against the Application of Article 78 CP

Article 78 does not apply on its own: it requires an express, reasoned and proportionate decision. The settled case law of the Constitutional Court has insisted that decisions of this kind, which prolong the effective time of deprivation of liberty, call for reinforced reasoning, must assess the prisoner's personal and treatment circumstances, and must respect the principle of proportionality and the orientation of the sentence towards reintegration. On that basis, our work is structured across different stages:

• Opposition at the judgment: since the power under Article 78.1 is discretionary, the existence of the objective threshold (that the effective penalty is lower than half the sum) is contested at trial and, above all, so is whether applying full serving is justified and sufficiently reasoned. An exceptional power cannot be applied automatically or by generic reference to the seriousness of the facts.
• Individualisation and proportionality: we work to ensure that the decision addresses the convicted person's specific circumstances and does not become a uniform, disguised aggravation. Proportionality and the rehabilitative orientation of the sentence are substantive limits that the reasoning must respect.
• Return to the general regime (Art. 78.2 CP): at the enforcement stage, before the JVP, we seek the return to the general enforcement regime by establishing the favourable individualised prognosis of reintegration and the positive progress of treatment, with the prison documentation that supports each point.
• Appeals: enforcement decisions can be appealed through the ordinary route and, once that is exhausted, through a constitutional appeal (amparo) before the Constitutional Court where a fundamental right is at stake, such as liberty or effective judicial protection with sufficient reasoning.

The key point is that full serving is not a fixed, immovable label: it is a decision that must be justified in each case, and one that the prisoner's progress can reverse towards the general regime. That is why the work does not end with the judgment but continues throughout enforcement, monitoring the progression milestones and the time limits for recovering the ordinary computation.