Suspended Sentence Lawyers

The suspension of the execution of the sentence is the benefit that allows a convicted person to avoid imprisonment despite a final judgment, the custodial sentence being held in suspense during a probationary term. It is governed by Articles 80 to 87 of the Spanish Criminal Code and is one of the most significant institutions of the sentence-enforcement stage. As criminal defence lawyers, with over fifteen years of experience, we handle the application, the opposition of the Public Prosecutor and the appeals, and we coordinate its interaction with any plea agreement reached at trial. You can obtain a preliminary assessment of your case with our suspended-sentence checker.

What the Suspension of the Execution of the Sentence Is

Under Article 80.1 CP, courts may, by reasoned decision, suspend the execution of custodial sentences of no more than two years where it is reasonable to expect that the execution of the sentence is not necessary to prevent the future commission of new offences by the convicted person. It is not an automatic right: the decision is a regulated power that requires weighing the circumstances of the offence, the personal circumstances of the offender, their previous record, their conduct after the act —in particular the effort to repair the harm caused— and their family and social circumstances.

The suspension affects only the custodial sentence and does not extinguish the civil liability, which remains enforceable. Nor does it prevent the enforcement of the accessory penalties or of other consequences of the offence. Its purpose is one of special prevention: to avoid the de-socialising effect of imprisonment for short sentences where the prognosis of non-reoffending allows it. The Code regulates three main routes of access —ordinary, exceptional and drug-dependence— in addition to the case of a very serious illness with incurable suffering under Article 80.4 CP, which is assessed case by case.

Ordinary Route (Arts. 80.1 and 80.2 CP)

This is the general route. Article 80.2 CP sets three necessary conditions:

• First-time offending (80.2.1.ª): that the convicted person has offended for the first time. The law introduces important nuances as to which previous records do not count: prior convictions for negligent offences or for minor offences are not taken into account —unless they form part of an aggravated type for repeated minor offending— nor are records that have been or should be cancelled under Article 136 CP, nor records for offences that, by their nature or circumstances, are irrelevant to assessing the likelihood of future offending.
• Sentence cap (80.2.2.ª): that the sentence or the sum of those imposed is no greater than two years, without including in that count the subsidiary personal liability arising from non-payment of a fine.
• Civil liability (80.2.3.ª): that the civil liabilities arising have been satisfied and any confiscation ordered in the judgment under Article 127 CP has been made effective. The requirement is deemed met where the convicted person undertakes to satisfy the civil liability according to their financial capacity and to facilitate the confiscation, and it is reasonable to expect compliance within the prudent term set by the court. The court may require guarantees to secure it.

The defence focuses on establishing relevant first-time offending, on quantifying and negotiating a realistic payment plan for the civil liability, and on documenting the reparatory effort and the offender's ties, all of which reinforce the prognosis of non-reoffending required by Article 80.1 CP.

Exceptional Route (Art. 80.3 CP)

Article 80.3 CP opens a second door for those who do not meet the first-time-offending condition or exceed the overall two-year cap. Exceptionally, even where conditions 1.ª and 2.ª of Article 80.2 are not met, and provided they are not habitual offenders, the suspension of prison sentences that individually do not exceed two years may be ordered where the personal circumstances of the offender, the nature of the act, their conduct and, in particular, the effort to repair the harm so advise.

This route is more demanding in its counterparts: the suspension is always conditioned on the effective reparation of the harm or on the indemnification of the damage according to the offender's physical and financial means, or on compliance with the mediation agreement of measure 1.ª of Article 84 CP. In addition, one of the measures of numerals 2.ª or 3.ª of Article 84 —a fine or community service— is always imposed, with an extent that may not be less than the result of applying the conversion criteria of that provision to one fifth of the sentence imposed. The concept of a habitual offender is filled in by reference to Article 94 CP.

Drug-Dependence Route (Art. 80.5 CP)

Article 80.5 CP provides a specific regime for offenders whose offence was committed on account of their dependence on the substances of numeral 2.º of Article 20 CP. Even where the first-time-offending condition and the cap of Article 80.2 are absent, the court may order the suspension of custodial sentences not exceeding five years, provided it is sufficiently certified, by a duly accredited or approved public or private centre or service, that the convicted person is rehabilitated or undergoing treatment to that end at the time of deciding on the suspension.

The court may order the checks necessary to verify these requirements. Where the convicted person is undergoing treatment, the suspension is conditioned on them not abandoning it until its conclusion; the law specifies that relapses are not deemed abandonment unless they evidence a definitive abandonment. The defence must establish the causal link between the addiction and the offence and provide the certificates of rehabilitation or of therapeutic follow-up, decisive elements for the success of this route.

Term of Suspension (Arts. 81 and 82 CP)

Article 81 CP sets the term of suspension at two to five years for custodial sentences of no more than two years, and at three months to one year for minor penalties; the court sets it by reference to the criteria of the second paragraph of Article 80.1. Where the suspension is ordered under the drug-dependence route of Article 80.5, the term will be three to five years.

Article 82 CP requires the court to rule on the suspension, wherever possible, in the judgment itself; in other cases, once the judgment is final, the court rules with the utmost urgency after hearing the parties. The term runs from the decision ordering it —or from finality if ordered in the judgment— and the provision excludes from the count the periods in which the convicted person evaded the action of Justice.

Conditions, Prohibitions and Duties (Arts. 83 and 84 CP)

Article 83 CP allows the suspension to be conditioned on compliance with prohibitions and duties where necessary to prevent the risk of new offences, without imposing obligations that are excessive or disproportionate. These include: a prohibition on approaching or communicating with the victim and their circle, a prohibition on residing in or attending certain places, periodic appearances before the court or designated services, participation in training or treatment programmes, and a prohibition on driving vehicles without a monitoring device.

Article 84 CP adds the possibility of conditioning the suspension on services or measures: compliance with a mediation agreement between the parties; the payment of a fine, which may not exceed the result of applying two fine-days for each day of imprisonment up to a maximum of two thirds of the duration; or the performance of community service. Article 85 CP authorises the court to modify the prohibitions, duties or services during the term, lifting them or replacing them with less onerous ones if the circumstances change.

Revocation of the Suspension (Art. 86 CP)

Article 86 CP governs revocation. The court will revoke the suspension and order the execution of the sentence where the convicted person: is convicted of an offence committed during the period of suspension and this shows that the expectation on which the suspension was based can no longer be maintained; breaches in a serious or repeated manner the prohibitions and duties of Article 83, or evades the control of the sentence-management services; breaches in a serious or repeated manner the conditions of Article 84; or provides inaccurate information about their assets or fails to comply with the commitment to pay the civil liability.

Where the breach is not serious or repeated, the court may impose new prohibitions or services, or extend the term —without exceeding half of its duration— instead of revoking. Once the suspension is revoked, the time elapsed under the conditions imposed is not credited, save for what the provision itself contemplates for services already performed. The defence resists revocation by challenging the seriousness or repetition of the breach and proposing the least onerous alternative.

Remission of the Sentence (Art. 87 CP)

Article 87 CP closes the cycle. Once the term of suspension has elapsed without the person committing an offence that reveals that the expectation can no longer be maintained, and the rules of conduct set having been sufficiently complied with, the court will order the remission of the sentence. In the drug-dependence suspension of Article 80.5, remission additionally requires certified rehabilitation or the continuity of treatment; failing that, the court will order enforcement, unless an extension is appropriate.

Definitive remission extinguishes the criminal liability of the suspended sentence. The integral strategy —from the plea agreement at trial to final remission— determines the outcome: those who negotiate the plea agreement well and establish payment and good conduct maximise their chances of avoiding imprisonment. We analyse each requirement, prepare the application and defend against the opposition of the Public Prosecutor and against attempts at revocation.