Security Measures (Arts. 95 to 108 CP): Preconditions, Types and Enforcement

When a judgment acquits because a full defence applies, the intuitive conclusion is that the proceedings end there. That is not always so: for those situations the Spanish Criminal Code reserves an instrument distinct from a penalty, with its own rationale and its own rules, the security measures of Articles 95 to 108. Raising a defence without anticipating the measure that may follow is doing only half the work.

You are under investigation and a full defence is in play: what security measures are

The essential difference from a penalty lies in the rationale. Art. 6.1 CP puts it plainly: security measures are founded on the criminal dangerousness of the person on whom they are imposed, as demonstrated by the commission of an act defined as an offence. They do not look to blame for what was done, but to a prognosis about what may be done.

That is why they can be imposed on someone declared exempt from criminal liability. Art. 20 CP, after listing the grounds for exemption, closes by warning that in the situations covered by its first three paragraphs the security measures set out in the Code will be applied where appropriate: mental anomaly or disorder, full intoxication or withdrawal, and disorders of perception. The words "where appropriate" are not rhetoric: the measure does not automatically accompany an acquittal, but depends on the preconditions in Art. 95 CP.

The two preconditions in Art. 95 CP

Art. 95.1 CP requires two cumulative circumstances, and makes them subject to whatever reports the court considers appropriate.

First: that the person has committed an act defined as an offence. Dangerousness as a state is not enough; it must have shown itself in specific conduct. Spanish law does not allow measures imposed before any offence.

Second: that from the act and the person's individual circumstances a prognosis of future behaviour can be drawn showing the likelihood of further offences. It has to rest on evidence, not on the seriousness of the act being tried.

Art. 95.2 CP adds a significant limit: where the penalty that could have been imposed for the offence would not have been custodial, the sentencing court may only order one of the non-custodial measures set out in Art. 96.3 CP.

The limits in Art. 6.2 CP

Art. 6.2 CP imposes three simultaneous barriers: security measures may be neither more onerous nor longer than the penalty abstractly applicable to the act committed, and may not go beyond what is necessary to address the offender's dangerousness.

These are three separate controls and all three can be argued. The one on severity prevents a minor penalty from being swapped for detention in an institution. The one on duration sets an objective ceiling taken from the offence committed. And the one on necessity operates throughout enforcement: even if the time ceiling has not been reached, the measure must end once it is no longer necessary.

The catalogue in Art. 96 CP

Art. 96.1 CP divides the measures into custodial and non-custodial.

Custodial measures (Art. 96.2 CP): detention in a psychiatric facility, detention in a facility for treating dependency, and detention in a special educational facility.

Non-custodial measures (Art. 96.3 CP): professional disqualification; expulsion from Spain of foreign nationals not lawfully resident; supervised release; family custody, under which the person is placed in the care and supervision of a designated relative who accepts that role; withdrawal of the right to drive motor vehicles and mopeds; and withdrawal of the right to possess and carry weapons.

Art. 105 CP also allows supervised release or family custody to be imposed alongside a custodial measure or during its enforcement, for no more than five years, and for up to ten years supervised release where the Code expressly so provides, withdrawal of the right to possess and carry weapons, or withdrawal of the right to drive.

Detention in an institution: Arts. 101 to 103 CP

Each ground of exemption has its corresponding measure, and all three share the same structure.

Art. 101 CP applies to a person declared exempt under Art. 20.1 CP: detention for medical treatment or special education in a facility appropriate to the type of mental anomaly or disorder found, or any of the measures in Art. 96.3 CP.

Art. 102 CP corresponds to those exempt under Art. 20.2 CP: detention in a public facility for treating dependency, or a duly accredited or approved private one, or any other measure in Art. 96.3 CP. And Art. 103 CP governs those exempt under Art. 20.3 CP: detention in a special educational facility or another measure in Art. 96.3 CP, with the particular feature that the review proposal under Art. 98 CP must be made at the end of each academic year or stage.

All three repeat the same safeguard on duration, namely that detention may not exceed the time the custodial sentence would have lasted had the person been found liable, and that the court must state that maximum in the judgment, and the same control rule: the person may not leave the facility without authorisation from the sentencing court.

Incomplete defence: Art. 104 CP

Where the defence applies only partially in relation to Arts. 20.1, 20.2 and 20.3 CP, Art. 104.1 CP allows the measures set out in Arts. 101, 102 and 103 CP to be imposed in addition to the corresponding penalty. With two restrictions: a custodial measure is only available where the penalty imposed is custodial, and its duration may not exceed that of the penalty laid down by the Code for the offence. Art. 99 CP applies to how it is put into effect.

This is the situation with the widest practical reach, because incomplete defences are far more common than complete ones and because here a penalty and a measure coexist. How diminished criminal capacity is framed is dealt with in mental health and criminal capacity, and the defences close to full exemption in necessity and insurmountable fear.

Supervised release under Art. 106 CP

Supervised release means placing the convicted person under judicial control through compliance with one or more of the obligations and prohibitions listed in Art. 106.1 CP: permanent location monitoring by electronic device, periodic reporting, notifying changes of residence or work, a ban on leaving without authorisation, a ban on approaching or contacting the victim or other specified people, a ban on going to or living in certain places, a ban on carrying out activities that would offer the opportunity to commit similar acts, participation in training or employment programmes, and following medical treatment or check-ups.

Art. 106.2 CP governs its imposition for service after a prison sentence where the Code expressly so provides: at least two months before the sentence expires, the prison supervision judge puts the proposal to the sentencing court, which then settles the content of the measure. Art. 106.3 CP allows the obligations to be varied, their duration shortened or the measure lifted where the prognosis for reintegration is positive, and Art. 106.4 CP provides that, faced with repeated or serious non-compliance, the judge is to refer the matter for a possible offence under Art. 468 CP. The situations in which the Code imposes it as a matter of obligation are set out in supervised release and its duration.

The vicarial system in Art. 99 CP

Where a custodial penalty and a custodial security measure both apply, Art. 99 CP settles the order: the court orders the measure to be served, and the time served counts towards the penalty. Treatment comes first, and the time spent in treatment is deducted from the sentence.

The provision adds a second rule, the one that gives the system its point: once the security measure is lifted, if enforcing the penalty would jeopardise the results achieved through the measure, the court may suspend service of the remainder of the penalty for a period no longer than its own duration, or apply one of the non-custodial measures in Art. 96.3 CP.

This is a provision with real use: if detention has stabilised a clinical picture, going into prison afterwards may undo the result. Applying for it at the enforcement stage, with reports evidencing that progress, is a step the defence has to take, because it does not happen on its own.

Enforcement, review and breach

Art. 97 CP requires the sentencing court, during enforcement of the judgment, to take one of four decisions: maintain the measure; bring it to an end as soon as the criminal dangerousness has disappeared; replace it with a more suitable one, with the option of reversing the replacement if progress is poor; or suspend its enforcement in view of the results achieved, for a period no longer than the time remaining up to the maximum set in the judgment and conditional on the person not offending.

The procedure is in Art. 98 CP. For custodial measures and for supervised release following a prison sentence, the prison supervision judge submits at least annually a proposal to maintain, end, replace or suspend the measure, assessing the reports of the clinicians and professionals attending the person. For the other measures, the sentencing court obtains those reports directly and decides with reasons, having heard the person subject to the measure, the public prosecutor and the other parties.

Art. 100 CP governs breach: breach of a detention measure leads to readmission to the same facility or to another one suited to the person's condition; breach of other measures allows them to be replaced by detention where that is provided for and the breach shows it to be necessary. Its paragraph 3 expressly excludes from the concept of breach a refusal to undergo medical treatment or to continue treatment initially consented to, although it allows the treatment to be replaced by another measure.

The system is completed by Art. 107 CP, which allows disqualification from exercising a right, profession, occupation or post for one to five years where the act was committed by abusing that role and there is a danger of repetition; and by Art. 108 CP, which requires the judgment, after hearing the person concerned, to order expulsion from Spain as a substitute for the measures applicable to a foreign national not lawfully resident, with a ban on returning for 10 years.

The role of the defence

A security measure is argued at two separate points, and both call for specific work. This is the order we follow in our criminal defence work:

• At trial, the prognosis. The second precondition of Art. 95.1 CP is not satisfied by the seriousness of the act: it calls for an assessment of likelihood grounded in the person's individual circumstances, which is met with the defence's own expert evidence and with data on adherence to treatment and on the support network.
• Proportionality under Art. 6.2 CP. Check the severity and duration of the proposed measure against the penalty abstractly applicable to the act.
• The maximum limit in the judgment. Arts. 101 to 103 CP require it to be stated; leaving it out leaves enforcement open-ended.
• The least onerous alternative. Propose a measure under Art. 96.3 CP, such as supervised release, family custody or outpatient treatment, where detention is not necessary to address the dangerousness.
• At the enforcement stage, the review. Take part in the annual proposals under Art. 98 CP, apply under Art. 97 b) CP for the measure to end as soon as the dangerousness disappears, and seek the suspension in Art. 99 CP where the penalty would put the results of treatment at risk.

If you are under investigation in proceedings where a defence based on a mental disorder or on dependency has been raised, the argument about the measure matters as much as the one about liability. You can speak to us on 91 078 65 74.