Limitation of the Penalty (Arts. 133-134 CP): When a Final Sentence Can No Longer Be Enforced

A final sentence does not enforce itself. Months or even years can pass between the judgment and the moment the penalty is actually served: warrants that are never executed, enforcement files waiting their turn, convicted persons who cannot be located, civil liability proceedings that move ahead of the penalty itself. The Spanish Criminal Code sets a limit to that wait. Arts. 133 and 134 CP lay down the periods after which a penalty imposed by a final judgment becomes time-barred, and when that happens criminal liability is extinguished: the sentence can no longer be enforced.

You have been summoned to serve an old sentence: what limitation of the penalty means

Limitation of the penalty is the lapse of the period the law allows for enforcing a sentence that is already final. It does not reopen whether the acts happened or whether the court got it right: it takes the conviction as given and simply records that the time the State allowed itself to enforce it has run out.

The effect is absolute. Art. 130.1 CP lists the grounds extinguishing criminal liability and places limitation of the penalty or of the security measure in point 7, alongside service of the sentence (point 2) and limitation of the offence (point 6). Once liability is extinguished, the enforcement file is closed and the penalty is not served, in whole or in part.

The starting point matters: here there is already a final judgment. Everything before that point — complaint, investigation, trial, appeals — belongs to limitation of the offence, which is governed by different articles and different rules.

The periods under Art. 133.1 CP

Art. 133.1 CP ranks the periods by the seriousness of the penalty imposed:

• 30 years for prison sentences of more than 20 years.
• 25 years for prison sentences of 15 or more years not exceeding 20.
• 20 years for disqualification of more than 10 years and prison sentences of more than 10 and less than 15 years.
• 15 years for disqualification of more than six years not exceeding 10, and prison sentences of more than five years not exceeding 10.
• 10 years for the remaining serious penalties.
• 5 years for less serious penalties.
• 1 year for petty penalties.

Two details are routinely missed. First, the period is measured by the penalty actually imposed in the judgment, not by the penalty the offence carries in the abstract. A two-year sentence for an offence punishable by up to six years is time-barred as a less serious penalty, after five years, even though the offence itself would have been time-barred only after ten.

Second, the provision classifies penalties, not judgments. A single decision may impose imprisonment, a fine and disqualification, and each carries its own period depending on whether it is serious, less serious or petty under Art. 33 CP. The fact that the prison term is still enforceable does not mean the fine is. The classification is set out in the guide to types of penalties, and the calculation can be run in the limitation period calculator, which works in both modes: limitation of the offence and limitation of the penalty.

When the clock starts (Art. 134.1 CP)

Art. 134.1 CP sets two alternative starting points: the limitation period for the penalty runs from the date the judgment becomes final, or from the breach of the sentence, if it had begun to be served.

The first rule is the ordinary one and the most contested, because it requires pinning down a date that is not always clearly recorded in the enforcement file: the date of finality, not the date of the judgment. Between the two lie the time limit for appealing and, where applicable, the appeal or cassation proceedings themselves. A judgment handed down in March may not become final until the following year, and that gap is subtracted directly from the time elapsed.

The second rule only applies where the sentence had begun to be served and was interrupted by the convicted person. It is a new starting point, not an addition to the first one.

What happens when the sentence is breached

If the penalty had begun to be enforced and the convicted person abandons it — failing to return from leave, leaving the facility, no longer attending community service, breaching a permanent location order — the limitation clock restarts from the breach. What has already been served is not lost for the purposes of the final calculation, but the count under Art. 134.1 CP begins again.

Breach is also an offence in its own right. Art. 468.1 CP punishes those who breach their sentence, security measure, imprisonment, precautionary measure, transfer or custody with imprisonment of six months to one year where they were deprived of liberty, and with a fine of twelve to twenty-four months in all other cases. In other words, absconding can push back the limitation of the old penalty and open a new case at the same time. The detail is in the analysis of Art. 468 CP and on the page on defence against breach of sentence.

The period is suspended, not interrupted (Art. 134.2 CP)

This is the technical difference with the greatest practical consequences and the one most often explained badly. Art. 134.2 CP provides that the limitation period for the penalty shall be suspended in two cases:

• During the period of suspension of enforcement of the penalty (letter a). While a suspension granted under Arts. 80 et seq. is in force, the clock stops. See suspension of the enforcement of a sentence.
• During the service of other penalties, where Art. 75 CP applies (letter b), that is, where the penalties cannot be served simultaneously and must follow one another in order of seriousness. A penalty waiting its turn does not become time-barred while the previous one is being served.

Suspending is not interrupting. For limitation of the offence, Art. 132.2 CP provides that interruption renders the time elapsed void and the count starts again. For limitation of the penalty there is no equivalent rule: Art. 134.2 freezes the period and, once the cause of suspension ends, it resumes where it stopped. The time already gained is not erased.

Outside those two situations, Art. 134 contemplates no further stops. Court office steps to locate the convicted person, warrants or successive listings do not appear in the provision, which is why the defence should insist that any halt in the count rests on one of the two letters of paragraph 2 and not merely on court activity.

Limitation of the penalty and limitation of the offence are not the same

They share a name and little else. Arts. 131 and 132 CP govern limitation of the offence; Arts. 133 and 134, limitation of the penalty. Four operational differences stand out:

• What is measured. For the offence, the maximum penalty laid down by law in the abstract (Art. 131.1). For the penalty, the one actually imposed in the operative part (Art. 133.1).
• The starting point. The offence runs from the day it was committed, with the special rules of Art. 132.1 for continuing offences, permanent offences, offences requiring habitual conduct and victims who are minors. The penalty runs from finality or from breach.
• What stops the clock. The offence is interrupted when proceedings are directed against the person indicated as responsible, and the time elapsed is lost (Art. 132.2). The penalty is merely suspended, with no loss of time (Art. 134.2).
• The periods. They do not match. Art. 131.1 closes with five years for all other offences and one year for petty offences and for insult and slander; Art. 133.1 goes up to thirty years for the longest prison sentences.

The full table of periods for offences is in the guide to limitation periods for offences, and the statute of limitations service page covers both blocks.

Penalties that never become time-barred (Art. 133.2 CP)

Art. 133.2 CP excludes from limitation the penalties imposed for crimes against humanity and genocide and for crimes against persons and property protected in the event of armed conflict, save for those punished under Art. 614 CP, together with the remaining situations exhaustively listed in that same paragraph. The list is closed: outside it, every penalty becomes time-barred.

The symmetry with Art. 131.3 CP is deliberate. Where the offence never becomes time-barred, neither does the penalty imposed for it.

What the defence looks at

• The exact date of finality. Not the date of the judgment or of the trial: the declaration of finality recorded in the enforcement file. An error of a few months changes the outcome.
• The classification of each penalty. Serious, less serious or petty under Art. 33 CP, penalty by penalty. Accessory penalties last as long as the principal one (Art. 33.6), which conditions their own period.
• Whether there was a suspension and how long it lasted. Every day of suspended enforcement is a day that does not count, and the orders granting and revoking it delimit that period.
• Whether successive service under Art. 75 CP applied. It is worth checking whether the penalty in question was waiting behind another one, and since when.
• Whether there was a genuine breach. Not every incident during enforcement amounts to one. Restarting the count from the wrong date harms the convicted person as much as overlooking limitation altogether.
• That the application is made within the enforcement file. Limitation of the penalty is raised before the enforcing court, and if upheld it leads to closure with extinction of criminal liability.

If you have an old unenforced sentence, an outstanding warrant or an enforcement file reopened after years, the first task is to rebuild the full calendar: finality, suspensions, penalties served and the date of each decision. You can call us on 91 078 65 74.