Full Sentence Serving
Legal defense against application of full sentence serving of Art. 78 CP. Penitentiary benefits on effective sentence or on sum of imposed.
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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 distinguishes two regimes: potestative full serving (Art. 78.1 and 78.2 CP), where sentencing court may order benefits refer to totality; mandatory full serving (Art. 78.3 CP) in terrorism, serious criminal organization and other enumerated offenses.
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).
Defense Strategies
Legal defense acts in two moments: oral trial — challenge full serving application impulsing restrictive interpretation; execution phase — challenge computation when applied improperly or without specific motivation.
CC Doctrine
Constitutional jurisprudence (STCs 28/1988, 89/2008, 19/2019) has insisted on: necessity of reinforced motivation; consideration of personal and treatment circumstances; proportionality of measure.
Penalty Chart
| Type / Scenario | Criminal Penalty |
|---|---|
| Real serving prolongation | Access to third degree and conditional release delayed several years in long sentences. |
| Furlough access | Also prolongs ordinary furlough access when computed on total. |
| Difference with benefits | Art. 78 CP affects penitentiary benefits, not formal sentence duration. |
* Penalties shown are indicative. The actual penalty depends on case circumstances, applicable mitigating and aggravating factors.
Our Defense Strategy
Preventive defense in sentence
Challenge application from defense brief to condition ruling.
Settlement challenge
Appeal against sentence settlement when improperly applying full serving.
Personal circumstances articulation
Contribution of inmate evolution and post-sentence circumstances to open restrictive interpretation.
Constitutional amparo
When CC doctrine on motivation and proportionality violated, appeal to CC.
Criminal Procedure in Spain: Fast Trials, Extraditions & Prison Law — Defence Guide
Beyond substantive criminal offences, Spanish law contains a complex procedural framework that directly affects defence strategy. Fast-track trials (juicios rápidos), extradition procedures (European Arrest Warrants and bilateral treaties), penitentiary law (classification grades, parole, sentence review) and juvenile justice (LO 5/2000) each demand specialised knowledge. Understanding procedural rights and deadlines is often decisive for the outcome of a case.
Key Procedural Frameworks
| Framework | Legal Basis | Scope | Key Feature |
|---|---|---|---|
| Fast-track trials | Arts. 795-803 LECrim | Offences punishable by up to 5 years prison | Trial within 15 days of arrest |
| European Arrest Warrant | LO 23/2014 | Cross-EU extradition | 60-day maximum execution |
| Prison classification | LO 1/1979 (LOGP) | Classification into grades 1, 2 or 3 | Open regime (grade 3) = semi-liberty |
| Conditional release | Arts. 90-93 CP | Release from prison on licence | ¾ of sentence served + good conduct |
| Juvenile justice | LO 5/2000 | Offenders aged 14-17 | Educative measures, not punishment |
| Criminal record expungement | Art. 136 CP | Deletion of criminal record | Timeframe varies by offence severity |
Key Defence Strategies
Fast-Trial Conformity Advantage
In fast-track proceedings, agreeing to a plea (conformidad) with the prosecution can yield a sentence reduction of up to one-third. This can make the difference between prison and a suspended sentence.
EAW Refusal Grounds
European Arrest Warrants may be refused on grounds of: ne bis in idem (double jeopardy), time-barred offence, minor's age, or if the person will serve the sentence in Spain. Each ground requires specific procedural challenges.
Prison Grade Review
Inmates may contest their classification grade before the Supervisory Judge (Juez de Vigilancia Penitenciaria). Progression to grade 3 (semi-liberty) requires demonstrating good conduct, personal development and reduced recidivism risk.
Juvenile Diversion
For juvenile offenders, the defence can request diversion (sobreseimiento) if the minor completes a mediation or reparation programme. This avoids formal proceedings and prevents a juvenile record entirely.
Key Case Law
The Court confirmed that defendants who reach a plea agreement in fast-track proceedings have an absolute right to the one-third sentence reduction. The judge cannot refuse the agreed sentence if it falls within the statutory range.
The CJEU established that execution of a European Arrest Warrant may be suspended if there is a real risk of inhumane treatment in the issuing state. The executing authority must request specific assurances before surrender.
The Constitutional Court holds that prison classification decisions must be reasoned and subject to periodic review, in line with the fundamental rights of sentenced persons under Art. 25.2 CE.
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