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Cookies Policy

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Tuesday, 27 March 2018 11:39

News on the suspension of custodial sentences

Since the entry into force of the L.O. 1/2015, important developments in the suspension of custodial sentences have been announced. The reform carried out in the Criminal Code provides for specific changes in the approval and revocation processes of said benefit.


With the reform, we see the consolidation of the constitutional doctrine that defended the limitation of the penitentiary route for sentences of short duration. Prison overcrowding is not just an economic issue for the State. It has been proven that prison life has a negative impact on the rehabilitation and re-socialization of primary offenders.

The novelties in the suspension of custodial sentences try to attend to the foundations of social reinsertion and reeducation foreseen in art. 25.2 of the Constitution.

The fact of making the fulfillment of sentences of short duration flexible makes it possible to avoid the negative effect of incarceration and prepare the individual to return to society. To do this, "alternative sentences" to the jail route will be used, such as community work, fines or conditional freedom.


According to the criminal experts, said reform would have two crucial objectives, considering the possible impacts of the conditional suspension of the sentence. Next, we summarize the possible objectives in the novelties in the suspension of custodial sentences.


From the procedural aspect, we can affirm that the reform intends to concentrate in a single resolution the decisions regarding the execution of the sentences of short duration. The intention would be to combat the "traditional" dispersion in this area, originated by virtue of the multiple existing regulations.

Previously, the numerous regulations could and often were resorted to successively, generating incidents, misunderstandings and an endless bureaucracy. The approval of a single regulation would allow these legal processes to be processed more quickly, without reducing rights.


From the doctrinal and constitutional point of view, the new regulatory regime aims to provide flexibility and discretion to the processes of suspension of penalties. In this sense, the criminal record would no longer be the sole determining factor for the granting or revocation of the benefit.

Consider an individual who is serving a sentence for infringing family relationships and has a history of positive alcohol. According to the previous legislation, regardless of the danger or not of recidivism, it would be impossible to access a suspension. With the reform, access to benefits would be weighted fundamentally based on behavioral analysis and the risk of recidivism.

In practice, it should be clear that suspensions can not be taken as an automatic mechanism. But the existence of a criminal record should not prohibit the access of the authors to the suspension of sentence, provided there are no additional reasons not to grant it. Obviously, if the behavior of the author indicates a risk of recidivism, the penalty must be fulfilled.

Although the new text does not speak of "dangerousness", the concept is expressed through criteria more in line with modern criminal law. In fact, it was replaced by the detailed enumeration of circumstances that can guide the granting or revocation of the penalty suspension. Therefore, the reform allows analyzing and assessing the granting and suspension of benefits in a more objective and less bureaucratic manner.

Writings SF Lawyers