Conditional release is the final phase of serving a prison sentence and, for many convicted people, the moment of greatest hope and significance throughout the entire process. It means that the State considers that the convicted person has sufficiently served the sentence, that their reintegration process is sufficiently advanced, and that they may complete the remaining sentence time in freedom, subject to conditions, rather than continuing in prison.
However, conditional release is neither automatic nor guaranteed simply by having served a certain amount of time in prison. It requires the fulfilment of specific conditions, the following of a particular procedure, and the approval of the Penitentiary Surveillance Judge. A convicted person who is unaware of those requirements or who does not act at the right moment may lose the opportunity to obtain conditional release and find themselves obliged to serve the sentence in full when they could have been released earlier.
In this article we explain exactly what conditional release is, what its basic requirements are, how its regulation changed following the 2015 reform of the Criminal Code, what special forms exist, and how a lawyer should act to maximise the chances of obtaining it.
The Legal Nature of Conditional Release Following the 2015 Reform
One of the most significant changes introduced by Organic Law 1/2015, reforming the Criminal Code, was the modification of the legal nature of conditional release. Before the reform, conditional release was the fourth and final degree of the penitentiary treatment system: a form of serving the sentence in freedom. Following the reform, conditional release was reconfigured as a suspension of the execution of the remainder of the sentence, with important consequences for how it operates.
This distinction is not merely theoretical. Under the previous regime, time spent on conditional release always counted as time of the sentence served, even if the conditional release was revoked. Under the current regime, if conditional release is revoked because the convicted person fails to comply with the conditions imposed, the time spent on conditional release does not count as time of the sentence served, and the convicted person returns to prison to serve the time that was outstanding at the moment conditional release was granted. This consequence makes compliance with the conditions of conditional release extraordinarily important.
General Requirements for Conditional Release
Article 90 of the Criminal Code sets out the requirements that must be met for the Penitentiary Surveillance Judge to be able to agree to the suspension of the execution of the remainder of the sentence — conditional release. These requirements are:
Classification at the Third Degree
The first requirement is that the convicted person be classified at the third degree of penitentiary treatment at the time conditional release is requested. This requirement connects conditional release with the open regime: only someone who has demonstrated that they can manage themselves in the open regime — leaving the facility during the day and voluntarily returning — is in a position to be released into full freedom subject to conditions.
Classification at the third degree is not a preliminary step completed just before applying for conditional release: it is the result of a treatment process that may take months or years. A convicted person seeking conditional release must have worked throughout the entire sentence to reach the third degree with sufficient advance notice.
Having Served Three Quarters of the Sentence
The general time requirement is that the convicted person must have served three quarters of the sentence. This calculation includes the period of pre-trial detention credited to the sentence, the time actually served in prison, and, for sentences imposed under the Criminal Code prior to 1995, any remission of sentence for work that may have accrued.
For sentences of permanent reviewable imprisonment, the time threshold is different and higher, as we have explained in other articles: the convicted person must have served a minimum of twenty-five years — or more, in cases of terrorism — before a review that may lead to release can be requested.
Having Demonstrated Good Conduct
The convicted person must have demonstrated good conduct throughout the entire sentence, and particularly during the most recent period. The absence of uncancelled serious disciplinary sanctions, positive participation in the facility's activities, and appropriate relations with officers and fellow inmates are the main indicators of this requirement.
An Individualised and Favourable Prognosis of Social Reintegration
This is the most significant requirement from a practical standpoint and, at the same time, the most difficult to assess objectively. The Penitentiary Surveillance Judge must evaluate an individualised and favourable prognosis of social reintegration that takes into account the convicted person's personality, background, the circumstances of the offence, conduct in prison, and, in particular, the circumstances of the environment to which they will be returning: family ties, employment prospects, support network, and the absence of risk factors.
This prognosis is prepared on the basis of reports from the facility's technical team — psychologists, social workers, educators — and may be supplemented by external expert reports provided by the defence. When the internal and external reports are contradictory, the PSJ has full discretion to assess which it finds more convincing, although it must give reasons for its decision.
The Two-Thirds Variant
In addition to the general three-quarters requirement, the Criminal Code provides for a special form of early conditional release: the convicted person may access it having served only two thirds of the sentence if, in addition to meeting the general requirements, they have engaged in work, cultural, or occupational activities.
This form has a clear rationale: to reward the convicted person's effort to use their time in prison constructively, training and working rather than simply waiting for time to pass. To access it, the convicted person must demonstrate that they have participated in a continuous and active manner in vocational training programmes, educational activities, or paid employment inside or outside the facility, and that such participation has been meaningful to their reintegration process.
Conditional Release for Elderly Convicted Persons or Those with Serious Illness
The Criminal Code establishes special forms of conditional release for certain convicted persons who present personal circumstances that make the ordinary serving of the sentence particularly burdensome.
Convicted Persons Who Have Turned Seventy
A convicted person who has turned seventy years of age during the sentence may access conditional release — regardless of the time served — if they meet the other requirements. The reason for this exception is humanitarian: serving a custodial sentence as an elderly person involves a particularly intense physical and psychological burden, and the probability of reoffending by a convicted person who is seventy years old and has served a significant part of their sentence is generally very low.
Convicted Persons with Very Serious and Incurable Illnesses
Similarly, convicted persons suffering from a very serious illness with incurable conditions may access conditional release — or the medical third degree that precedes it — without needing to fulfil the ordinary timeframes. The purpose of this exception is to prevent the final months or years of a person's life from being spent entirely in prison when the gravity of their illness makes the continued serving of the sentence cruel and the risk of reoffending virtually nil.
The Procedure for Requesting Conditional Release
Conditional release is not granted automatically: it must be requested, and the procedure for its processing has specific rules that the lawyer must be familiar with.
The application may be submitted by the convicted person themselves or by their lawyer before the Penitentiary Surveillance Judge with jurisdiction over the facility where they are serving their sentence. It may also be proposed by the Treatment Board of the facility when it considers that the convicted person meets the requirements.
The application must be accompanied by documentation evidencing compliance with the requirements: a certificate of the time served, a conduct report from the facility, a report from the treatment team on the reintegration prognosis, and any other document supporting the application — a concrete life plan, employment contracts, evidence of the return address, external expert reports.
The PSJ may grant conditional release directly if it considers the documents sufficient, or may request additional information from the facility or convene the convicted person for a hearing before ruling. If it grants conditional release, it will set the conditions under which the suspension period must be observed.
The Conditions of Conditional Release
Conditional release is not absolute freedom. The PSJ may set specific conditions that the convicted person must comply with during the suspension period, whose duration equals the remaining sentence time at the moment conditional release is granted.
The most common conditions include:
- The obligation to appear periodically before the court or the sentence management service.
- The prohibition on approaching the victim or communicating with them.
- The obligation to participate in specific treatment programmes that the PSJ considers necessary.
- The prohibition on consuming alcohol or drugs, verifiable through periodic checks.
- The prohibition on leaving the national territory without prior authorisation.
- The obligation to maintain employment or training activity during the conditional release period.
Failure to comply with these conditions may result in the revocation of conditional release and return to prison to serve the outstanding time. Under the current regime, that outstanding time is calculated from the moment conditional release was granted — not from the beginning of the sentence — which may represent a significant additional period of imprisonment.
The Fundamental Role of the Lawyer
Conditional release is one of the moments in the criminal process in which the work of the criminal lawyer can have the greatest immediate and most concrete impact on the client's life: the difference between leaving prison or not at a given moment. A lawyer who prepares the application properly — with all the necessary documentation, with a solid life plan, and with the expert reports that reinforce the reintegration prognosis — has significantly greater chances of success than one who simply submits a written request for conditional release with nothing more.
Equally important is the work carried out during the period prior to the application. The lawyer who closely monitors the client's progress within the penitentiary facility, who identifies the aspects that need to be improved before the application is submitted, and who guides the client on how to strengthen their position is performing a preventive function that can be decisive for the outcome.
Frequently Asked Questions
Does conditional release definitively extinguish the sentence?
Yes, but only if the suspension period is completed without incident. If, at the end of the conditional release period — which equals the outstanding sentence time at the moment of granting — the convicted person has not breached the conditions imposed and has not committed any new intentional offence, the sentence is considered definitively extinguished. If, on the other hand, conditional release was revoked during that period, the convicted person returns to prison and the time spent on conditional release does not count as time of the sentence served.
Can conditional release be requested even if the PSJ has denied the third degree?
No. Classification at the third degree is a prior and indispensable requirement for conditional release. If the PSJ has denied the third degree, conditional release cannot be granted while that situation persists. The third degree must first be obtained — by challenging the denial before the Provincial Court if necessary — and only then, once in the third degree and with the time requirements met, may conditional release be requested.
Can conditional release be refused even when all the formal requirements are met?
Yes. The PSJ has discretionary powers to assess the social reintegration prognosis and may deny conditional release if it considers that, despite the formal requirements being met, the prognosis is not sufficiently favourable. However, that denial must be sufficiently reasoned and may be appealed before the Provincial Court if the convicted person considers that the PSJ's assessment is not justified.
How do prior criminal convictions for other offences affect access to conditional release?
Prior criminal convictions for earlier offences are a factor that the PSJ may take into account when preparing the reintegration prognosis: past reoffending is an indicator — though not a determinative one — of the risk of future reoffending. However, prior criminal convictions are not in themselves a ground for the automatic denial of conditional release: they must be assessed in the context of the overall circumstances of the case, and particularly in light of the convicted person's progress during the serving of the current sentence.
Can the convicted person choose the conditions of conditional release?
No. The conditions are set by the Penitentiary Surveillance Judge having regard to the circumstances of the case, the nature of the offence, the risk of reoffending, and the objectives of the reintegration programme. The convicted person may propose a life plan that includes certain activities or commitments, and the PSJ may take those proposals into account when setting the conditions. However, the final decision on what conditions are imposed lies exclusively with the judge. If the convicted person disagrees with a condition, they may challenge it before the Provincial Court.
