Sentence Review under a More Favourable Criminal Law: Lawyers in Spain

Retroactivity of the more favourable criminal law (Art. 2.2 CP)

Article 2.2 of the Spanish Criminal Code (CP) provides that criminal laws favouring the accused have retroactive effect "even where a final judgment has been handed down" before they enter into force. It is the most significant exception to res judicata in criminal matters: if a later reform is more lenient, it reaches a sentence that is already final and even one being served. The guarantee is anchored in Article 9.3 of the Spanish Constitution, which prohibits the retroactivity of unfavourable or rights-restricting penal provisions.

Why LO 1/2026 opens no review of final sentences

Organic Law 1/2026, of 8 April, on multiple recidivism (published in the Official State Gazette on 9 April 2026, in force from 10 April) amends nine Criminal Code provisions: Articles 22, 66, 80, 234, 235, 248, 250, 255 and 568. None of them lowers a sentencing range: the reform widens the situations that count as multiple recidivism and adds new aggravated offences. Its single transitional provision, headed "Applicable legislation", creates no review mechanism either: it simply restates the general rule that earlier conduct is judged under the law in force when it was committed, unless the new law is more favourable. LO 1/2026 is therefore not, in itself, a ground for reviewing a final sentence.

This needs saying plainly, because the opposite idea circulates. What the reform does is tighten: Article 234.2 removes the requirement that the accumulated value of the offences exceed 400 euros before a prison sentence can be imposed on a repeat offender for theft; Article 248 carries the same recidivism clause into fraud; Article 235.1 adds a tenth paragraph covering the theft of mobile phones and other communication or data-storage devices; Article 255 adds a third paragraph on the diversion of electricity to supply cultivation facilities; and Article 568 adds a second paragraph with a three-to-five-year prison sentence where the flammable substance is a liquid fuel. All of these widen criminal liability; none narrows it.

Which reforms do allow a final sentence to be reviewed

The route under Article 2.2 CP remains fully open, but it requires a later rule that is objectively more favourable as applied to the specific case. The recognised situations are:

• A lower sentencing range for the offence of conviction, so that the sentence imposed would no longer fit under the new law.
• Decriminalisation of the conduct, or its reclassification into an offence carrying a lower penalty.
• Removal or narrowing of an aggravating circumstance or a qualified offence applied in the judgment.
• Changes favourable to the accused in the rules on sentence determination or enforcement.

The comparison is made as a whole, never provision by provision, and never by combining the best parts of each text into a hybrid regime. Review also fails where the sentence imposed still fits within the new framework, because the court could have imposed it under the reform as well. The analysis must therefore be individual: the mere entry into force of a law reduces no sentence by itself.

LO 1/2026 does not apply to conduct before 10 April 2026

The useful side of the same rule is defensive. Because LO 1/2026 is a harsher reform, it cannot look backwards: conduct committed before 10 April 2026 is judged under the earlier wording of the Criminal Code, even if the trial takes place now. This matters in pending theft and fraud proceedings involving previous convictions: if the prosecution calculates multiple recidivism using the new criteria on older conduct, the defence must object expressly and seek the application of the text in force at the time of the facts. It is currently the most common practical scenario around this reform.

Effects of a successful review on enforcement

Where review succeeds, its effects go beyond the headline figure of the sentence and run through enforcement. As the total sentence falls, the periods measured against it are recalculated - prison furloughs, progression to open regime and parole - the maximum term of enforcement may change where sentences have been accumulated, and if the time already served equals or exceeds the revised sentence, the sentence can be declared extinguished immediately. The application should therefore not stop at the new penalty: it must set out each favourable knock-on consequence so that the enforcing body reflects it in the file without delay.

What review for a more favourable law is, and what it is not

Reviewing a final conviction following a criminal-law reform is neither an ordinary appeal nor a fresh trial on the facts: it is an enforcement incident grounded in the principle of retroactivity of the more favourable criminal law set out in Article 2.2 of the Criminal Code. That provision requires applying the later, more favourable rule even where a final sentence already exists and even while the person is serving it. Guilt is not reopened; the question is whether the new legal framework allows a lower penalty, a more lenient classification or the extinction of the part of the sentence that exceeds the new limit.

Ley Orgánica 1/2026, of 8 April, on multiple recidivism, must be placed in context: it amends Criminal Code provisions on property and socioeconomic offences (among others, Articles 22, 66, 80, 234, 235, 248 and 250) and, broadly, toughens the response to repeat offending. For that reason, review in the convicted person's favour will only succeed in the specific situations where, compared as a whole, the new regulation is genuinely more beneficial for that particular case; the mere entry into force of a reform does not automatically open a reduction of every sentence.

The comparison between the earlier and the later law must be made in full, without combining the most favourable parts of each text to build a third, non-existent rule. The reviewing body considers the penalty that would have been imposed under the new framework, the applicable aggravating and mitigating circumstances and the limits of enforcement, and amends the sentence only if the overall result is more beneficial. Where the reform is harsher, the convicted person keeps the penalty imposed under the law in force at the time of the facts, and the new rule cannot operate to their detriment.

Competent body, procedure and timelines of the review

Competence to review a final sentence on the basis of a later, more favourable law rests, as a rule, with the sentencing court, that is, the body that handed down the conviction being enforced. This is not a matter for the Prison Supervision Judge, because it does not concern the regime of enforcement or classification, but the penalty itself fixed in the judgment. The review is processed as an enforcement incident and concludes by way of a reasoned order, after hearing the Public Prosecutor and the convicted person, who must in any event be heard where there is doubt as to which law is more favourable.

The process may be triggered by the court of its own motion, at the request of the Public Prosecutor or, very particularly, on the application of the convicted person's defence. The defence's initiative is decisive where the reform contains no mass-review procedure or where the favourable effect depends on a careful analysis of the specific case. The submission must identify the amended provision, compare the former and resulting penalty, and explain why the package is more beneficial, attaching the current sentence calculation.

As for timelines, there is no limitation period for seeking review while the penalty is being served or remains to be served, since Article 2.2 of the Criminal Code extends its effects to a convicted person who is serving the sentence. Speed, however, matters in practice: every month of excess served is irreparable. The order deciding the review may be challenged under the general rules of criminal enforcement, which is why it is advisable to prepare a possible challenge from the outset should the comparison of laws be rejected.

Aggregation, consolidation and other figures the defence must coordinate

Review for a more favourable law does not operate in isolation: it coexists with other enforcement institutions that can substantially improve the convicted person's position and that should be raised in a coordinated way. The legal aggregation of sentences under Article 76 of the Criminal Code, processed under Article 988 of the Criminal Procedure Act before the sentencing court, fixes a maximum effective term to be served and declares extinguished the part of the penalty that exceeds that ceiling; the aggregation order may be challenged by way of cassation before the Supreme Court. It is a judicial decision with a genuine reduction in punishment.

Different is the consolidation of sentences under Article 193.2 of the Prison Regulation, which is an operation within the prison-enforcement phase: it unifies the penalties into a single file for the purpose of calculating conditional release, but it does not reduce the total to be served. Its control rests with the Prison Supervision Judge. The defence must draw a precise distinction between the two, because confusing the Article 76 maximum with the mere consolidated sum of Article 193.2 of the Regulation may lead to forgoing a penalty limit that did in fact apply.

That calculation is also affected by the security period of Article 36.2 of the Criminal Code, which for sentences exceeding five years may bar third-grade classification until half the term is served, and by the rules of Article 78 which, in especially serious offences, refer benefits, leave permits, third grade and the calculation for conditional release to the totality of the penalties imposed. An orderly strategy weighs how review, aggregation, the security period and Article 78 interact, so as to anticipate the real date of access to each benefit.

Requirements for prison benefits and proving the prognosis

Beyond reviewing the penalty, the convicted person's real improvement is usually played out in prison benefits, whose requirements should be prepared in advance. Conditional release under Article 90 of the Criminal Code requires, in its ordinary form, being classified in third grade, having served three quarters of the sentence, observing good conduct and holding a favourable, individualised prognosis of social reintegration, alongside satisfaction of civil liability under the terms of Article 72, paragraphs 5 and 6, of the General Prison Act. There is also an early form, available at two thirds of the term, for those meeting qualified requirements.

The prognosis is not presumed: it is proven. The reports of the centre's Treatment Board, the final prognosis under Article 67 of the General Prison Act and the conduct and programme-participation record are the basis on which the Prison Supervision Judge decides. The defence contributes by documenting community ties, housing and job offers, family bonds and follow-up of therapeutic or training programmes, so that the reintegration prognosis rests on concrete, verifiable elements rather than mere statements of intent.

Control of these decisions rests with the Prison Supervision Judge, and challenging them follows a path of its own: an application for reconsideration may be made before the Prison Supervision Judge itself and, thereafter, an appeal before the Provincial Court within whose district the prison establishment is located in matters of prison regime, and before the sentencing court in matters of enforcement of the sentence, classification included. Each unfavourable ruling, on leave permits, third grade or conditional release, thus opens a route of review that should be exhausted with technical rigour and within time.