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REVOKING EARLY CONDITIONAL RELEASE MEASURES IN SPAIN
José Cid
Criminologia Aplicada a la Penologia
Department of Political Science and Public Law
Universitat Autònoma de Barcelona
e-mail: Josep.Cid@uab.es
Beatriz Tébar
Departament d’Interior
Generalitat de Catalunya
The final, definitive version of this paper has been published in European Journal of
Probation, 4 (1): 112-124, 2012, by SAGE Publishing.
Available at http://dx.doi.org/10.1177/206622031200400110
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Abstract
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In this article we examine how early conditional release measures for offenders are
revocated in Spain. For this purpose we analyse the legal framework of revocation,
paying special attention to the criteria and the procedures legally established. We also
take a look to the practice of revocation by showing the figures the case law on this
subject. Finally, the most critical issues on revocation are outlined according an
approach based on the philosophical that should rule revocation and the constitutional
principles that inform conditional early release mechanisms.
Keywords: early conditional release recalling, prison allocation, parole.
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This research has been funded by the Spanish Ministry of Science and Innovation (Políticas de
reinserción en el ámbito penal, DER 2008-0541) and the Catalan Government (AGAUR Grupo de
Investigación consolidado en Criminología aplicada a laPenología, SGR 2009-1117). The data presented
in this paper has been provided by Ramon Pares, Director of the Catalan Prison System and Virgilio
Valero, Director of Rehabilitation of the Spanish Prison). We would like to thank especially the prison
judge Benito Pérez, one of the six prison judges in Catalonia, for a long interview with him that improved
very much our understanding of the practice of revocation of conditional early release measure. We also
want to thank Mireia Balaguer, Manuel Cachón and Carme Navarro for the time they devote to answer
our questions. Nicky Padfield was not only the person who came out with this project on comparative
penology but also challenged us with stimulating questions that we have tried to answer. Beatriz Tébar
would also like to thank the Catalan Government for the Batista i Roca scholarship she was granted to
conduct comparative research on parole at the Institute of Criminology of the University of Cambridge
from March to December 2003.
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INTRODUCTION: AN OVERVIEW OF THE SPANISH EARLY RELEASE
SYSTEM (Cid and Tébar 2010a).
Spanish law provides two ways to be early conditional released while serving a prison
sentence: open-regime (with include home detention curfew) and conditional liberty or
parole.
Both mechanisms are categories or classifications from the Spanish prison system set by
the General Penitentiary Act 1979. This Act introduced a progressive system based on
individualisation of the prison regime, which provides the following four main levels of
classification or treatment categories as they are named by the General Penitentiary Act
1979, where the higher the level is the more open is the prison regime implemented:
THE SPANISH PRISON SYSTEM
Prison Treatment Categories Prison Regime
1st category Closed or max security regime.
2nd category Ordinary regime
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category Open regime or home detention curfew
4th category Parole
Open Regime and Home detention curfew
Third degree prison regime or category is a kind of semi-detention whereby prisoners
spend the day outside prison, usually working, and return to prison only at nights, from
Monday to Thursday. While from Friday to Sunday third degree prisoners normally
benefit from a weekend leave.
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Third degree classification is a prison measure regulated mainly by the 1979 General
Penitentiary Act and the 1996 Prison rules, although some provisions about this regime
where introduce by the 7/2003 Fundamental Law, which reformed the Spanish Criminal
Code.
As for the legal criteria to be categorised as a third degree prisoner, two ways are
foreseen. First, prisoners may be first classified in an open regime if they have a good
risk prognosis. However the Prison Administration only decides an initial third degree
classification in the case of first-time prisoners with short sentences and a very good
risk prognosis (Capdevila et. al. 2006). Secondly, the third level may be reached as a
progression from the second prison category. The 1996 Prison Rules provide this
classification in the third category once a quarter of the sentence has been served and
provided the prisoner is considered to be ready for resettlement. Despite these legal
criteria, the Prison Administration practice requires the following additional criteria to
receive a third degree allocation: having served half of the sentence; having previously
been granted temporary leave from prison; and having a remaining sentence that would
make them eligible for ordinary parole in no more than two or three years (Cid 2005;
López-Ferrer 2004). In both case, as a primary classification and as a progression from
the second level, Spanish Criminal Code section 36, requires prisoners to pay the civil
liability arouse form the offence committed decided in the sentence or at least to make
guarantees of payment according to their possibilities. Another legal requirement
established by the s.36 Criminal Code relating to classification into the third level refers
to the discretional power of the sentencing Judge to imposed a minimum mandatory
period of half of the sentence before classification in the third period, when a sentence
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longer than five years is being served. This minimum mandatory period can be lifted by
the prison judge, provided that a low risk of reoffending is predicted. For sentences
longer than five years imposed for offences related to terrorism, organised crime, sexual
offences against victims under thirteen the minimum mandatory period before reaching
the third treatment category is perceptive and cannot be judicially lifted afterwards.
As for release in home detention curfew, prisoners allocated to the third level who carry
out labour or treatment activities outside the establishment, are eligible to be released by
this means during the nights. The 1996 Prison Rules established this special regime that
allows third level prisoners to replace the nightly return to prison by a home detention
curfew, so they only have to visit prison for arranged interviews with their supervision
agent. Generally, the home detention period, which normally lasts from 11 pm to 7 am,
is monitored by electronic tagging or by police officers.
Parole
Parole allows sentenced prisoners to be released into the community with supervision
before the end of a prison sentence. Supervision implies observing certain rules or
conditions, among which it is always included a duty not to re-offend. Parole remains in
force until the sentence expiry date, unless it is revoked earlier and the offender is
recalled to prison. As explained below, different modalities of parole can be
distinguished according to the criteria required to be released. Mention also should be
made to some cases where the type of prisoner, the number of offences committed and
