Third Degree and Open Prison Regime Lawyers

What is Third Degree

Third degree is the most flexible sentence serving regime, oriented to social reinsertion through external labor, training or therapeutic activities, returning to Social Insertion Center (CIS) for nightly stay.

Modalities

• Full third degree (Art. 83 RP): Daily exits for as long as the activity requires, with a general minimum of 8 hours a day at the centre (Art. 86 RP); CIS nightly stay; weekend leave, as a general rule from Friday 16:00 to Monday 08:00 (Art. 87 RP).
• Restricted third degree (Art. 82 RP): Where there is a peculiar criminal history, abnormal personality or diverse personal conditions, or work outside is impossible or treatment so advises: the Treatment Board restricts exits.
• Third degree 100.2 RP: Combination of elements from various degrees.
• Telematic (Art. 86.4 RP): Serving with electronic bracelet outside CIS.

Requirements

Time served: no general minimum fraction; if one quarter has not been served, Art. 104.3 RP requires sufficient study time and favourable classification factors, and for sentences over five years the Art. 36.2 CP security period (half) may apply. Good prison conduct; absence of recidivism probability; accredited external life plan; satisfaction of civil liability (Art. 72.5 LOGP), assessing reparation efforts, real capacity to pay and guarantees of future payment.

Telematic Third Degree

Electronic bracelet allows inmate to serve third degree outside CIS, at own home, with telematic control. Requires the inmate's voluntary acceptance of monitoring (Art. 86.4 RP) and, in practice, an adequate home and a structured activity plan; the inmate attends the centre only for the treatment activities, interviews and checks set in the programme.

Appeals

Each denial may be challenged by appealing to the PSJ (Arts. 103.5 and 105.2 Prison Regulations; Art. 76.2.f LOGP), with no prior reform or administrative appeal before the Central Authority. Against the PSJ order, a reform appeal lies before the same judge and an appeal before the sentencing court (5th additional provision, paras. 1 and 2, LOPJ).

How the legal requirements are proven: Treatment Board reports, prognosis and conduct

Third-degree status is not granted automatically upon serving a given percentage of the sentence; it follows an individualised assessment of the prisoner's capacity to live under a semi-liberty regime. The classification proposal is drawn up by the prison's Treatment Board (Junta de Tratamiento) and rests on a set of reports and classification variables set out in the Prison Regulations (Royal Decree 190/1996): personality, individual, family and criminal history, length of the sentence, the social environment to which the prisoner will return, available resources and reintegration prospects, and an individualised, favourable prognosis of social reintegration. Prison conduct, engagement with activities and the degree of acknowledgement of the offence weigh heavily in that assessment.

Alongside those elements, Article 72.5 of the General Prison Act (LOGP) requires evidence that civil liability arising from the offence has been satisfied, assessing the conduct actually shown towards repairing the harm and the offender's personal and financial circumstances to meet it. This is not a purely formal requirement: a genuine payment commitment, calibrated to the prisoner's economic capacity, may suffice. The defence's role at this stage is to organise and document the proof of each requirement (reparation efforts, social ties, an offer of work or of a place, addiction treatment where relevant) so that the proposal reaches the deciding body with a complete and coherent file.

Procedure, competent body (JVP) and the system of appeals: reform before the JVP, then appeal under the 5th additional provision LOPJ

Initial classification is decided by the central authority of the prison administration on a proposal from the Treatment Board; where the sentence exceeds five years and the discretionary security period of Article 36.2 CP was imposed, only the Prison Surveillance Judge (Juez de Vigilancia Penitenciaria, JVP) can restore the general regime (Art. 36.3 CP). The JVP is the judicial body responsible for overseeing execution and safeguarding prisoners' rights. If the convicted person disagrees with the administrative decision, the matter can be taken to the JVP; and against the JVP's own rulings the system of appeals is specific to sentence execution, not the ordinary system of the trial process.

Under the fifth additional provision of the Organic Law of the Judiciary, the scheme is as follows: against the JVP's orders a reform appeal (recurso de reforma) lies before the same Judge and, in addition, an appeal (recurso de apelación), which in matters of enforcement of the sentence —classification among them— is decided by the sentencing court and, in matters of prison regime, by the Provincial Court (Audiencia Provincial) of the place where the prison is located. A complaint (recurso de queja) lies only against rulings that refuse to admit an appeal. Standing belongs to the Public Prosecutor and to the convicted person. Because this is sentence-execution law — governed by the LOGP (Organic Law 1/1979) and its Regulations — there is no penalty or limitation period for an offence here: what is at stake is the execution regime, with its own deadlines and instances of review.

Interplay between the figures: accumulation (Art. 76), merger (Art. 193.2 RP), the security period (Art. 36.2) and the Art. 78 computation

Two operations that are often confused should be distinguished. Legal accumulation of sentences (acumulación) is a judicial decision which, under Article 76 of the Criminal Code and Article 988 of the Criminal Procedure Act (LECrim), sets the maximum effective term to be served — generally triple the most serious penalty, subject to the absolute statutory caps applicable in each case — and declares extinguished the penalties exceeding that limit; it falls to the last sentencing court. Merger of sentences (refundición) under Article 193.2 of the Prison Regulations is, by contrast, an administrative linking of penalties for the purpose of computation and of calculating benefits and conditional release, and does not extinguish penalties.

Two further rules bear on that calculation. The security period of Article 36.2 of the Criminal Code allows the court, for sentences exceeding five years, to order that third-degree classification not take place until half the sentence imposed has been served; in its discretionary form, the JVP may later restore the general regime in light of the circumstances and the progress of treatment; in the mandatory cases it may not (Art. 36.3 CP). And Article 78 allows the court, where accumulation makes the term to be served less than half the total sum imposed, to order that the computation of benefits, leave, third grade and conditional release refer to the totality of the penalties. Against an accumulation ruling, a cassation appeal lies before the Supreme Court — the key route for contesting the applicable limit.

Review under a more favourable law (Art. 2.2 CP) and practical defence timelines

Prison law is living law, subject to legislative reform. Article 2.2 of the Criminal Code enshrines the retroactivity of criminal laws that favour the offender, even where a final judgment already exists and the convicted person is serving the sentence; the transitional provisions of each reform set the precise scope of any review of sentences. Not every reform is necessarily more beneficial: when a new law is passed — such as the recent 2026 reform of the Criminal Code on repeat offending and certain aggravated forms — the situation must be examined case by case to determine whether the new framework, compared as a whole against the previous one, is more favourable to the convicted person, without mixing provisions from one regime and the other. The defence should review each client's position against each reform to trigger review where appropriate.

On practical timelines, the classification file should be prepared well ahead of the periodic reviews, which the Prison Regulations contemplate ordinarily every six months. Appeals within the prison-law track are subject to short deadlines — typically running in days from notification — so the response must be swift. Each case differs, and timeframes depend on the sentence, on any accumulations and on personal circumstances; an early assessment makes it possible to organise the proof of the requirements, plan the satisfaction of civil liability and lodge the reform appeal and the appeal before the sentencing court in good time.