Revocation of a Suspended Sentence in Spain: When the Benefit Is Lost (Art. 86 CP)

Obtaining a suspended prison sentence does not close the case: it puts the sentence on hold, under conditions, for a probation period. Article 86 of the Spanish Criminal Code (CP) governs the other side of the benefit: when it is revoked and the offender must serve the prison term that had been suspended. As criminal defence lawyers, we explain which breaches lead to revocation, how much room there is before that point, and what safeguards the offender has in the procedure. If you are looking for how to obtain the benefit in the first place, see our guide to the requirements for a suspended sentence; here we deal with what happens after it has been granted.

How revocation works: Article 86 CP

The suspension is granted for a probation period which, under Article 81 CP, runs from two to five years for custodial sentences not exceeding two years (three months to one year for minor penalties, and three to five years where the suspension was granted on drug-dependence grounds under Article 80.5 CP). The period runs from the decision granting the suspension or, where it was granted in the judgment itself, from the date it became final; any time the offender spent in absconder status does not count (Article 82.2 CP).

During that period, Article 86.1 CP lists four exhaustive grounds for revocation: a new offence that disproves the prognosis, a serious or repeated breach of the prohibitions and duties of Article 83 CP (or evading the supervision of the penalty-management services), the same kind of breach of the conditions of Article 84 CP, and conduct relating to assets and civil compensation. We examine each in turn. Revocation means enforcing the suspended sentence: the prison term that was on hold must be served.

Offending during the period: revocation is not automatic

This is the best-known ground and the most widely misunderstood. Article 86.1(a) CP does not say that any new offence revokes the suspension: it requires that the offender be convicted of an offence committed during the suspension period and that this shows that the expectation on which the suspension was based can no longer be maintained. There are therefore two cumulative requirements:

• A conviction for acts committed within the period. What matters is the date of the offence, not the date of the judgment: the act must fall within the suspension period, even if the conviction arrives after it has expired.
• A prognosis test. The new conviction must show that the expectation of non-reoffending which justified the suspension has been disproved. A negligent offence, a minor offence or conduct entirely unrelated to the original crime does not necessarily lead to that conclusion, and this should be argued before the enforcement judge.

This second filter, introduced by the 2015 reform, turns revocation for a new offence into an individualised, reasoned decision rather than an automatic one. It is precisely where the defence does its work at the enforcement stage.

Breaching prohibitions, duties and conditions: only if serious or repeated

Subparagraphs (b) and (c) of Article 86.1 CP concern the content of the suspension: the prohibitions and duties of Article 83 CP (staying away from and not contacting the victim, periodic court appearances, residence requirements, training or addiction-treatment programmes, among others) and the measures of Article 84 CP (complying with a mediation agreement, paying a fine or performing community service). In both cases the law requires the breach to be serious or repeated; evading the supervision of the penalty-management and alternative-measures services also revokes the suspension.

The practical consequence is clear: a one-off, justified absence from a training programme or an isolated delay in a court appearance does not amount to the serious or repeated breach the provision demands. This route should also not be confused with the criminal offence of breach of sentence, which is a separate prosecution: here we are talking about losing a benefit within the enforcement proceedings, not about a new crime.

Unpaid fines and unpaid civil compensation

Money is the most frequent source of revocation incidents, and the Criminal Code deals with it on two distinct levels:

• The fine under Article 84.1.2.ª CP. This is a condition of the suspension, not the principal penalty. Non-payment is channelled through Article 86.1(c) CP and therefore only justifies revocation if it is serious or repeated; below that threshold, the judge has the alternatives of Article 86.2 CP discussed below.
• Civil liability and confiscation. Article 86.1(d) CP mandates revocation where the offender fails to honour the commitment to pay the civil compensation, unless they lack the financial capacity to do so; where they provide inaccurate or insufficient information about the whereabouts of property subject to a confiscation order; or where they breach the asset-disclosure obligation of Article 589 of the Civil Procedure Act (LEC).

The safeguard clause is decisive: the suspension is not revoked for being insolvent, but for not paying when you can — or for hiding what you have. Hence two practical rules we apply in every enforcement case: document the real financial situation (income, family burdens, debts) and comply scrupulously with the instalment plan undertaken when the suspension was granted, notifying the court of any relevant change before the breach materialises.

How much room there is before revocation: Article 86.2 CP

Revocation is the last stop, not the first. If the breach of the prohibitions, duties or conditions is neither serious nor repeated, Article 86.2 CP gives the judge two intermediate options:

• Imposing new prohibitions, duties or conditions, or modifying those already in place, adjusting them to the offender's actual situation.
• Extending the suspension period, although the extension may never exceed half of the period originally set.

Added to this is Article 85 CP, which allows the court, throughout the probation period, to lift, modify or replace the prohibitions, duties or measures with less burdensome ones if the circumstances change. The system thus draws a graduated scale — adjust, extend and, only as a last resort, revoke — and the defence's task is to fit the incident into the lowest possible step.

The prior hearing: the safeguards of Article 86.4 CP

Revocation cannot be ordered out of hand. Article 86.4 CP provides that, in all cases, the judge or court shall decide after hearing the prosecutor and the other parties, and empowers them to carry out verification measures and to hold an oral hearing where they consider it necessary. That hearing is a genuine opportunity for the defence: it is where you argue about the seriousness of the breach, produce evidence of financial capacity or of the justification for absences, and propose the alternatives of Article 86.2 CP.

The provision itself contains a narrow exception: the judge may revoke the suspension and order immediate imprisonment where this is essential to avert the risk of reoffending, the risk of the offender absconding, or to ensure the protection of the victim. Outside those cases, skipping the prior hearing is a procedural defect that should be raised on appeal against the revocation order.

Effects of revocation (and what happens if it is not revoked)

Once the suspension is revoked, enforcement of the suspended prison sentence is ordered. Article 86.3 CP settles what happens to what has already been done: sums the offender spent on repairing the harm (Article 84.1.1.ª CP) are not refunded, but fine payments and community service performed under measures 2.ª and 3.ª of Article 84 CP are credited against the sentence. The effort made towards compliance is therefore not entirely lost.

The positive flip side is Article 87 CP: once the period has elapsed without an offence that disproves the expectation underlying the suspension, and with the conduct rules sufficiently complied with, the judge orders the remission of the sentence: the suspended prison term is definitively extinguished.

How we handle revocation incidents

When a client is summoned to the hearing under Article 86.4 CP, we review the entire enforcement file: which ground for revocation is invoked, whether the breach genuinely reaches the threshold of seriousness or repetition, whether the new offence really disproves the original prognosis, and whether the documented financial situation rules out revocation for non-payment. On that basis we prepare the submissions and propose the alternatives of Article 86.2 CP: we work to prevent a recoverable incident from ending in imprisonment. Where the suspension has already been revoked, we assess an appeal against the order.