Suspended prison sentences and suspended sentences

The imprisonment of certain types of offenders can be counterproductive. This is the case, for example, in cases where minor offences have been committed and there is no foreseeable prognosis of repetition.

In such cases, the judge may agree to a suspended sentence for the convicted person. This happens relatively often, but is subject to a wide variety of conditions. Here we will discuss them in depth.

Suspended sentences in the new Penal Code

Suspended sentences are typified in articles 80-87 of the Criminal Code. The last modification they underwent was with Organic Law 1/2015, which is the one currently in force.

Specifically, these articles establish a series of requirements for the suspension of the prison sentence. They are divided into three categories: objective, subjective and temporary.

Objective requirements for the suspension of the custodial sentence

We start by talking about the 'sine qua non' conditions for suspension to occur. According to the Penal Code, they are as follows:

• It must be the first time that the convicted person has committed an offence. However, in this regard, no account is taken of expunged criminal records or convictions for minor or reckless offences. Nor are those which, by their nature, do not serve to assess the likelihood of repetition in the future.
• The prison sentence imposed must be less than 2 years. The term of imprisonment does not include that derived from the non-payment of the fine, if any.
• Satisfaction of the civil liabilities incurred. They are considered to be satisfied when, taking into account his economic capacity, it is expected that the convicted person will comply with them within a period determined by the judge or court.

Subjective requirements for suspended sentences

Article 80 of the Criminal Code gives the judge the power to assess the circumstances in which the offence in question was committed. We are talking, for example, about the criminal record in force, the conduct maintained after the criminal act for which he/she has been sentenced and the effort made to repair the damage caused, as well as his/her social and family circumstances and the consequences that serving the sentence may have on his/her personal and professional life.

Time requirements for the suspension of the enforcement of the sentence

When the objective requirements are met and the judge considers that the convicted person has the right to enjoy this punitive benefit, he or she will proceed to set a time limit for the suspension. But what does this mean? Specifically, it means a period of time during which the convicted person may not commit another crime.

Should the convicted person reoffend during the period of suspension of the sentence, he or she will not only have to serve the sentence established for the crime just committed, but also the sentence established for the previous conviction.

But what is the period of suspension of the suspended sentence? It will depend mainly on the seriousness of the offence. This is set out in Article 81 of the Criminal Code:

• Prison sentences not exceeding 2 years. 2 to 5 years of suspension.
• Sentences for minor offences. From 3 to 12 months of suspension.

The time limit for applying for a suspended sentence

Normally, the judge's or court's sentence itself will directly state that the sentence should be suspended, if appropriate. However, there are several moments during the judicial process in which the sentenced person's lawyer can request it.

The first of these is at the beginning of the court hearing. However, for this to happen, it is necessary to reach a plea agreement with the Public Prosecutor's Office and the private prosecution (if there is one). The accused will have to acknowledge his guilt for it to take effect.

The second occurs after the final judgment issued by the judge or court and before the enforceable judgment is initiated. During this period of time, the convicted person's lawyer can submit a report with all the evidence necessary to prove that his client meets the requirements of the Criminal Code. If the Public Prosecutor's Office denies the suspended sentence, the convicted person has the right to appeal.

In short, suspended sentences are a particularly common measure since the last reform of the Criminal Code, which gave greater flexibility and freedom to judges. We hope we have cleared up all your doubts in this article. If you need more detailed information, we recommend that you contact a criminal lawyer to resolve any doubts you may have.