Substitutive Expulsion (Art. 89 CP)
Specialized foreigner defense against substitutive expulsion of Art. 89 CP. Total or partial sentence substitution by expulsion from Spanish territory.
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Nature
Substitutive expulsion of Art. 89 CP is criminal system response to presence of irregular foreigners sentenced to custodial sentence. Instead of serving sentence, foreigner is expelled from Spanish territory with return prohibition. Complex figure: may be advantage (avoids prison) or disadvantage (prevents return to family and environment) depending on client profile.
Legal Framework
- Art. 89.1 CP (up to 5-year sentences): Judge or court, after Prosecutor and parties hearing, will order substitution by expulsion unless exceptionally general prevention reasons justify serving in Spain.
- Art. 89.2 CP (sentences over 5 years): Expulsion ordered when part of sentence established by sentencing body served, or upon third degree access, or when conditional release periods completed.
- Return prohibition (Art. 89.5 CP): 5 to 10 years to entire Schengen territory, counted from expulsion date.
Family Roots Exceptions
Art. 89.4 CP excludes expulsion when, given facts and personal circumstances, particularly roots in Spain, expulsion is disproportionate. ECHR doctrine (Boultif and Üner cases) and Constitutional Court protect family life (Art. 8 ECHR and Art. 39 SC) and minor's superior interest.
Procedure
Expulsion requires prior Prosecutor and all parties hearing, including the convict. Defense must articulate: client position, family and social roots with documentation, humanitarian circumstances, offense profile and proportionality.
Defense Strategy
Strategic client decision informed by defense: Accept — avoids prison entry or reduces time. Entails territory exit and 5-10 year return prohibition. Adequate when no roots or weak. Challenge — allows serving in Spain and maintaining ties. Adequate when solid roots.
Penalty Chart
| Type / Scenario | Criminal Penalty |
|---|---|
| Immediate or post-partial-serving expulsion | Spanish territory exit to country of origin or family reunification. |
| 5-10 year return prohibition | Entry prohibition to entire Schengen space counted from expulsion. |
| Illegal return: offense | If expelled returns before period, commits offense (Art. 89.7 CP) with 6 months to 1 year imprisonment. |
* Penalties shown are indicative. The actual penalty depends on case circumstances, applicable mitigating and aggravating factors.
Our Defense Strategy
Hearing prepared with dossier
Complete documentary preparation for prior hearing: roots, certificates, contracts, family books.
Art. 89.4 CP articulation
When roots exist, solid articulation of exception with ECHR and CC jurisprudence.
Partial serving negotiation
When expulsion inevitable, negotiation of optimal moment to soften exit.
Appeal if disproportionate
Cassation appeal when expulsion violates proportionality or fundamental rights.
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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