Breaching the suspension of a sentence: what consequences it has
The suspension of a prison sentence is one of the most relevant benefits of the Spanish criminal system: it allows someone who has been sentenced to a custodial penalty not to have to enter prison, provided they comply with a series of conditions during a given period. It is, in a way, a second chance. But that chance has conditions, and breaching them can cause the suspended sentence to end up being enforced.
Suspension is regulated in Articles 80 to 87 of the Criminal Code and allows the judge to suspend entry into prison when certain requirements are met: that the sentence does not exceed two years, or five in special cases, that the convicted person has no record that prevents it and that the circumstances justify the prognosis that they will not reoffend. During the suspension period, which ranges from two to five years, the convicted person remains free subject to conditions; if they do not commit new offences or breach those conditions, the sentence is extinguished. It is not a right, but a discretionary power of the judge.
When granting suspension, the judge may impose rules of conduct: the prohibition on approaching or communicating with the victim, the obligation to participate in training programmes, to appear periodically, to undergo a rehabilitation treatment or to pay the civil liability arising from the offence.
Not all breaches are equally serious. The commission of a new intentional offence during the suspension period is the most serious cause: it obliges the judge to revoke the suspension and order entry into prison. If the new offence is negligent, revocation is not automatic. The breach of the imposed conditions may also lead to revocation, but not automatically: the judge may revoke the suspension, substitute the breached condition for another or extend the suspension period by up to half the initial term. The decision depends on the seriousness of the breach, on whether it was voluntary or involuntary and on whether it was isolated or repeated.
The distinction between voluntary and involuntary breach is key: someone who cannot comply with a condition for reasons beyond their control must report it to the court immediately and justify it with documentation. Before revoking, the judge must hold a hearing in which they hear the prosecutor, the parties and the convicted person. It is a crucial moment: the lawyer can explain the circumstances of the breach, provide documentation of effective compliance, propose alternatives to revocation and argue that it would be disproportionate.
If the judge revokes the suspension, the convicted person must enter prison to serve the suspended sentence in full; the time spent at liberty during the suspension is not deducted, because it was conditioned freedom, not service of the sentence.
The best strategy is preventive action: document compliance with all the conditions, immediately report any difficulty, maintain regular contact with the lawyer and, above all, avoid any situation that entails a risk of committing a new offence, which is the cause that most certainly leads to revocation.
