Permanent Location (Art. 37 CP): What It Is, How Long It Lasts and Where It Is Served

When someone reads in an indictment that the prosecution is asking for «permanent location» (localización permanente), they usually picture an informal, almost symbolic house arrest. It is not. Art. 35 CP lists it among the custodial penalties, alongside reviewable permanent imprisonment, imprisonment and subsidiary personal liability for non-payment of a fine. Breaching it leads to the offence of Art. 468 CP. And its specific regime — duration, place, days of service and monitoring — is set out in Art. 37 CP, which in four paragraphs decides almost everything that matters.

You are accused of a petty offence and permanent location is sought: what this penalty is

Permanent location requires the convicted person to remain at home or at a specific place determined by the judge in the judgment or subsequently in a reasoned order (Art. 37.1 CP). There is no admission to a facility except in the exceptional situation of the second paragraph of that same provision, and no continuous surveillance unless the means of Art. 37.4 CP are ordered.

It is therefore a penalty served behind one's own front door, but it remains a deprivation of liberty for all purposes: the time served is credited, breach is a criminal offence, and its imposition is recorded like any other conviction. The idea that it amounts to a mere warning should be discarded from the outset.

It can be placed within the general catalogue in the guide to types of penalties.

How long it lasts and how it is classified

Art. 37.1 CP sets the ceiling: up to six months. The classification, however, comes from Art. 33: permanent location of one day to three months is a petty penalty (Art. 33.4.h CP). The Criminal Code does not list permanent location among the less serious penalties of Art. 33.3, so the range beyond three months only arises through Art. 53.1 CP, explained below.

That classification is not a technicality. It determines whether the infringement is petty or less serious (Art. 13 CP), the procedural route, the limitation period for the penalty — one year for petty penalties under Art. 133.1 CP — and the expungement period, which Art. 136.1(a) CP sets at six months for petty penalties. To place a specific penalty in its category you can use the offence classification test.

Where it is served: home or another place set by the judge

The general rule is the convicted person's home. But Art. 37.1 CP allows the judge to designate a specific place, and in some petty offences that alternative stops being optional: Arts. 171.7, 172.3 and 173.4 CP require permanent location to be served always at a different home, away from the victim's. It is the sentencing translation of the fact that in those cases the person's own home is precisely where the conflict lies.

The place may be designated in the judgment or later, in a reasoned order. That second route matters in practice: it allows enforcement to be adapted to a change of address or to a supervening situation without revisiting the conviction, provided the decision gives reasons for the change.

Weekends and non-continuous service

Art. 37.2 CP opens the door to fractioned service: if the convicted person applies for it and the circumstances so advise, after hearing the public prosecutor, the sentencing court may order that the sentence be served on Saturdays and Sundays or on a non-continuous basis. Three points about that paragraph:

• An application is required. It is not ordered of the court's own motion; the request and its justification fall on the defence.
• It is discretionary. The provision says «may order», so the decision weighs the specific circumstances, notably employment and family care duties.
• The prosecutor is heard. That report is mandatory before the court rules.

A different matter is the second paragraph of Art. 37.1 CP, which is often confused with the above. That paragraph contemplates permanent location being served on Saturdays, Sundays and public holidays at the prison closest to the convicted person's home, but subjects that possibility to three cumulative conditions: that permanent location is provided for as a principal penalty, that account is taken of repeat commission of the infringement, and that the specific applicable provision expressly so provides. Without that express wording in the offence itself, the prison route is not available.

Electronic monitoring (Art. 37.4 CP)

To secure effective compliance, Art. 37.4 CP allows the court to order the use of mechanical or electronic means enabling the convicted person to be located. It is a power, not an automatic step, and its scope is what the provision says: locating, not monitoring the content of domestic life.

Its practical relevance is twofold. On the one hand, it makes breach objectively verifiable. On the other, Art. 468.3 CP punishes with a fine of six to twelve months those who disable or disturb the normal functioning of such devices, do not carry them, or fail to take the steps required to keep them in working order. Removing the tag or letting its battery run flat is not an administrative incident.

Which petty offences carry it

Permanent location appears as a principal penalty in a small group of petty offences, all of them concerning the persons listed in Art. 173.2 CP — spouse or person linked by an analogous emotional relationship, descendants, ascendants, siblings and other members of the household:

• Petty threats (Art. 171.7, second paragraph, CP).
• Petty coercion (Art. 172.3, second paragraph, CP). The full analysis is in the article on petty coercion.
• Petty insult or unjust humiliation (Art. 173.4, first paragraph, CP).
• Sexual expressions, conduct or propositions creating an objectively humiliating, hostile or intimidating situation for the victim, without amounting to a more serious offence (Art. 173.4, second paragraph, CP). See the analysis of that offence.

In all four cases the penalty is the same: permanent location of five to thirty days, always at a different home away from the victim's, or community service of five to thirty days, or a fine of one to four months. The fine is not a free alternative: it is available only where the circumstances of Art. 84.2 CP are present, that is, where it is established that there are no economic relations between the parties arising from marriage, cohabitation or parentage, and no common offspring. The purpose is to prevent the fine from being paid out of assets shared with the victim.

Permanent location for non-payment of a fine (Art. 53.1 CP)

There is a second route in, one that does not depend on the offence charged. Art. 53.1 CP provides that anyone who fails to pay the fine, voluntarily or through enforcement proceedings, becomes subject to subsidiary personal liability of one day of deprivation of liberty for every two unpaid daily units, which in the case of petty offences may be served by way of permanent location. And it adds a rule that often comes as a surprise: in that case the duration limit of Art. 37.1 CP does not apply.

Art. 53.1 CP also allows subsidiary liability to be served through community service, with the convicted person's consent, at the rate of one working day for each day of deprivation of liberty. And Art. 53.3 CP excludes this subsidiary liability for those sentenced to custodial penalties of more than five years. To calculate the amount and its equivalent in days you can use the day-fine calculator.

There is still a third situation: Art. 71.2 CP requires that, where the sentencing rules would lead to a prison term of less than three months, it must in all cases be replaced by a fine, community service or permanent location, even where the law does not provide those penalties for the offence in question, at the rate of one day of permanent location for each day of imprisonment.

What happens on breach (Arts. 37.3 and 468 CP)

Art. 37.3 CP leaves no margin: if the convicted person breaches the penalty, the sentencing court shall issue a certified record so as to proceed in accordance with Article 468. It is not a warning or a revocation: it is the opening of a new case.

As to the penalty in that new case, Art. 468.1 CP draws its line by reference to the person's situation, not to the origin of the measure: imprisonment of six months to one year where they were deprived of liberty, and a fine of twelve to twenty-four months in all other cases. Art. 468.2 CP imposes in every case imprisonment of six months to one year on anyone who breaches a penalty under Art. 48 CP — restraining order, ban on communication, ban on residing in certain places — or a precautionary or security measure of the same nature where the injured party is one of the persons listed in Art. 173.2 CP, as well as on anyone who breaches supervised release.

The detail of the offence is in the article on breach of sentence and on the breach of sentence defence page.

What the defence looks at

• The classification of the act. If the infringement does not fit the petty offences of Arts. 171.7, 172.3 or 173.4 CP, permanent location as a principal penalty is not available.
• The choice among the three alternative penalties. In those petty offences the court chooses between permanent location, community service and — only where Art. 84.2 CP is satisfied — a fine. That is a contestable decision at trial and on appeal, not an automatic one.
• The designation of the place. That the address designated exists, is habitable and meets the requirement of being away from the victim's home where the offence so demands.
• The application under Art. 37.2 CP. Service at weekends or on a non-continuous basis must be applied for and supported with evidence: shifts, employment contract, caring responsibilities.
• The proportionality of electronic monitoring. Art. 37.4 CP permits it, it does not require it, and any such order must give reasons.
• The counting of the days served. Especially under non-continuous service, where credit is given by sessions and calculation errors are frequent.

If you have been summoned to a petty offence hearing where permanent location is sought, or you already have one imposed and need to adjust how it is served, the route is the enforcement file and the deadlines are short. You can call us on 91 078 65 74.