Full Sentence Serving Lawyers

What is Full Serving

Full serving is Art. 78 CP rule that, in certain cases, modifies general regime of penitentiary benefit computation. Instead of computing periods for furloughs, third degree and conditional release on effective sentence served, computation is done on totality of imposed sentences.

Framework

Art. 78 CP, as worded since Organic Law 1/2015, contains two rules: computation on the total (Art. 78.1 CP), where the sentencing court may order benefits to refer to the total of the sentences imposed, always on a discretionary basis (the mandatory order introduced by Organic Law 7/2003 for the cases in Art. 76.1 a) to d) no longer exists); and the return to the general regime (Art. 78.2 CP), which the Prison Supervision Judge may order on a favourable prognosis, limited in terrorism and criminal organisation cases to the third grade when one fifth of the cap remains and to conditional release when one eighth remains.

Unfavorable Computation

Full computation implies benefit periods calculated on totality of imposed sentence, not on effective. Practical example: 60-year joint sentence with 25-year serving maximum. Without Art. 78, conditional release (3/4) calculated on 25 → 18.75 years. With Art. 78, on 60 → 45 years (limited to maximum).

Defence Strategies

Legal defence acts in two moments: trial — challenge full serving application impulsing restrictive interpretation; execution phase — challenge computation when applied improperly or without specific motivation.

CC Doctrine

As a discretionary decision, its reasoning must address: the specific grounds justifying computation on the total; personal and treatment circumstances; and the proportionality of the measure. The avenues of challenge are the ordinary appeals against the sentencing court's decision ordering it and, once those are exhausted, a constitutional appeal (amparo) if a fundamental right is infringed (for instance, effective judicial protection for lack of reasoning).

Requirements of Article 78 of the Criminal Code and how they are proven at the execution stage

The full-term computation under Article 78 of the Spanish Criminal Code does not apply automatically. It rests on an objective arithmetic premise: that, as a result of the accumulation limits in Article 76, the resulting term to be served is lower than half of the total sum of the sentences imposed. Only where that disproportion exists may the sentencing court order that penitentiary benefits, prison leave, classification in the third grade (open regime) and the computation for conditional release be referred to the total of the sentences imposed, rather than to the maximum term to be served. Since Organic Law 1/2015 the order is discretionary in every case and must be reasoned (Organic Law 7/2003 had made it mandatory in the cases in Article 76.1 a) to d)).

Because this is execution law, governed by the General Penitentiary Organic Law 1/1979 and the Penitentiary Regulation approved by Royal Decree 190/1996, the figure does not describe an offence: there is no penalty of its own and no limitation period tied to the infringement. What is at stake is how the time served is counted against an already final sentence. Accordingly, the relevant evidence is not that of the criminal act but that of the inmate's progress: reports of the Treatment Board, an individualised reintegration prognosis, the treatment programme, prison conduct and participation in activities.

The defence intervenes precisely by submitting and challenging that material. Faced with an unfavourable prognosis, it may request supplementary reports, question mechanically applied scales and highlight personal circumstances and the evolution of the rehabilitative treatment. The technical aim is not to dispute guilt, which has already been adjudicated, but to ensure that the individualisation of execution respects the reintegration purpose that the Constitution assigns to custodial sentences.

The return to the general regime: a favourable prognosis and the role of the defence

Article 78 does not close the door permanently. Once the computation is applied to the total of the sentences, the provision itself allows the Prison Supervision Judge to order, with reasons, the application of the general regime of execution, that is, to refer benefits, leave, third grade and conditional release back to the Article 76 limit. To do so, the law requires an individualised and favourable prognosis of social reintegration, an assessment of the convicted person's personal circumstances and of the evolution of treatment, and a prior hearing of the Public Prosecutor, the Prison Administration and the other parties.

For terrorism offences and those committed within criminal organisations the regime is stricter: that return to the general regime does not operate on the same conditions, and the rule itself sets reinforced time thresholds for access to the third grade and to conditional release, linked to a fraction of the maximum term to be served. The defence must identify precisely which of these regimes the case falls under, because the timelines and the very viability of the application depend on it.

Counsel's work here concentrates on building and documenting the favourable prognosis: coordinating with the centre's technical team, gathering reports, evidencing the record of compliance and filing a reasoned request before the Prison Supervision Judge. It is advisable to anticipate the exact computation of time served against each reference, the total versus the Article 76 limit, in order to fix the right procedural moment for the application and to avoid premature requests that are decided unfavourably.

Competent body and system of appeals: from the Prison Supervision Judge to the Provincial Court

Control of execution lies with the Prison Supervision Judge, a role created by the General Penitentiary Organic Law 1/1979. This judge decides appeals on grade classification, authorises the prison leave within the judge's remit and rules on conditional release (Art. 76.2 of the General Penitentiary Organic Law) and, once the sentencing court has ordered the Article 78 computation over the totality of the penalties, oversees its execution and may order the return to the general regime provided for in that same article. The decisions are taken by reasoned order, after hearing the Public Prosecutor and the defence.

Against the decisions of the Prison Supervision Judge, the system of appeals follows the scheme of the fifth additional provision of the Organic Law of the Judiciary. First, an appeal for reconsideration (recurso de reforma) lies before the Prison Supervision Judge, who reviews the decision. Once that route is exhausted, or directly depending on the case, an appeal (apelación) lies: in matters of enforcement of sentences (such as classification or conditional release) it is heard by the sentencing court, and in matters of prison regime by the Provincial Court within whose district the prison establishment is located; the complaint appeal (queja) lies only against a refusal to admit the appeal. This route should be distinguished from that of sentence accumulation, where the controlling body is the sentencing court and, where appropriate, an appeal in cassation lies before the Supreme Court.

Deadlines are short and compliance with formal requirements is decisive: reconsideration and appeal are subject to brief terms from notification of the order, and a procedural defect may close the route to review. For that reason the defence must monitor notifications, count deadlines from the first day and prepare the grounds of appeal in parallel with the decision being challenged, rather than waiting until the last moment.

Interplay of figures and review under the more favourable law

The Article 78 computation does not operate in isolation but is interwoven with other execution institutions that should not be confused. The legal accumulation of sentences under Article 76 of the Criminal Code, processed under Article 988 of the Criminal Procedure Act before the sentencing court, sets the maximum term to be served; the Article 78 computation is then projected onto that limit and the total sum of sentences. Distinct from this is the consolidation (refundición) under Article 193.2 of the Penitentiary Regulation, which falls to the Prison Supervision Judge and adds the sentences together for the purpose of calculating conditional release. Where applicable, the security period of Article 36.2 of the Criminal Code may also condition access to the third grade until half of the sentence has been served in certain cases.

An orderly sequence of these figures, first accumulating correctly, then fixing the computation reference, and only then calculating leave, grade and conditional release, prevents errors that seriously harm the convicted person. The defence checks that each operation has been carried out on the correct basis, because a wrongly anchored computation can unduly delay access to penitentiary benefits.

When a reform of the Criminal Code enters into force, the more-favourable-law review mechanism of Article 2.2 of the Criminal Code also operates, requiring the retroactive application of a later beneficial rule even to final sentences under execution. Any legislative change requires checking whether it alters the limits, the time thresholds or the access conditions applicable to the case; if a reform proves more favourable, the recalculation and computation should be sought before the competent body. It is advisable to examine the specific content of each reform, without assuming effects it does not expressly contemplate, and to seek review only where there is a real and verifiable benefit.