The third penitentiary degree — the open regime — is one of the most important objectives during the serving of a prison sentence. It marks the transition from a fully institutionalised life to a situation in which the inmate may leave during the day, work, be with their family, and prepare in a real and concrete way for life in freedom. It is not definitive freedom, but it resembles it more than any other stage of the sentence.
However, accessing the third degree is neither automatic nor guaranteed simply by the passage of time. It requires the fulfilment of a series of requirements that the General Organic Prison Law, the Prison Regulations, and the case law of the Penitentiary Surveillance Judge have progressively defined in detail. Knowing exactly what is required — and what can be done to meet those requirements — is essential for anyone serving a sentence or with a family member in that situation.
In this article we explain in detail each of the requirements for accessing the third degree, how they are assessed in practice, what documentation and actions can strengthen an application, and what to do when progression is refused.
The System of Scientific Individualisation: The General Framework
Before addressing the specific requirements, it is worth recalling the framework within which penitentiary classification operates. Spanish law follows the system of scientific individualisation, which — unlike the classic progressive system, in which the inmate must pass through all degrees successively from the first — allows initial classification and subsequent reclassifications to be made at the degree that corresponds to the inmate's circumstances, regardless of which is the immediately preceding degree.
This means, in theory, that an inmate may be classified directly at the third degree from the outset of their sentence if their situation justifies it. In practice, this is exceptional for long sentences and serious offences, but it reflects the philosophy of the system: what matters is not the time elapsed but the appropriateness of the degree to the individual's circumstances.
The assessment of those circumstances is the responsibility of the Treatment Board of the penitentiary facility, which makes proposals that are subsequently forwarded to the Directorate — the Secretary General for Penitentiary Institutions or the corresponding regional body — and, in some cases, require the approval of the Penitentiary Surveillance Judge.
Requirement 1: The Minimum Period of Sentence Served
Although the system is theoretically flexible, the Prison Regulations establish as a guiding criterion that, for progression to the third degree, the inmate must have served at least half of the sentence. This criterion is not an absolute requirement — it may give way in exceptional circumstances — but it is the starting point that the Treatment Board uses as a reference when assessing whether progression is appropriate.
For terrorism offences and offences committed within criminal organisations, the Criminal Code establishes specific minimum timeframes that are more demanding: the third degree may not be granted until the convicted person has served 80% of the sentence or until a minimum of twenty years in some cases, regardless of the total length of the sentence. For those convicted of these offences, access to the third degree is a significantly longer and more complex process.
Time spent in pre-trial detention prior to the sentence counts towards the serving of the sentence and therefore reduces the time remaining before the temporal threshold for accessing the third degree is reached. An inmate who spent one year in pre-trial detention before the judgment became final has that year already counted in their favour.
Requirement 2: Conduct and Behaviour Within the Facility
The inmate's behaviour during their time in prison is one of the factors the Treatment Board weighs most heavily. It is not merely a matter of not having committed disciplinary infractions — though that is important — but of maintaining an active and positive attitude within the facility:
- Regular and committed participation in module activities — training programmes, cultural activities, workshops, and occupational tasks.
- Appropriate relations with officers and fellow inmates, without significant conflicts.
- Absence of unsatisfied disciplinary sanctions for serious or very serious infractions, or whose cancellation has not yet taken place.
- A positive attitude towards the individualised treatment programme and fulfilment of commitments made to the technical team.
- Regular attendance at specific treatment programmes assigned to them: drug rehabilitation, violence management, road safety education, cognitive programmes.
A negative disciplinary history — with recent serious sanctions or a systematically confrontational attitude within the facility — is one of the main obstacles to progression to the third degree. For this reason, the strategy of an inmate seeking to access the open regime must include, from the very first day, active and conscious management of their behaviour within the facility.
Requirement 3: Participation in the Treatment Programme
The third degree cannot be obtained simply by "enduring" the passage of time. The Spanish penitentiary system requires the inmate to actively participate in the individualised treatment programme that the Treatment Board has designed for their case. This programme may include:
- Educational training programmes — literacy, secondary education, vocational training — for those lacking basic qualifications.
- Employment insertion programmes preparing the inmate for the labour market.
- Specific therapeutic programmes to address particular criminogenic factors: alcohol or drug addiction, anger management, psychological disorders associated with criminal behaviour.
- Programmes for education in social coexistence and respect for social norms.
- Participation in restorative justice programmes or victim contact initiatives, where these exist at the facility.
Participation in the treatment programme must be active, regular, and demonstrably productive. It is not sufficient merely to enrol in programmes: regular attendance is required, genuine engagement is expected, and progress must be shown that the specialists can document in their reports. The treatment team's reports are the primary input the Treatment Board will use when assessing the third-degree proposal.
Requirement 4: A Favourable Reintegration Prognosis
This is probably the most subjective and most difficult requirement to influence from outside the system, but also one of the most important. The Treatment Board must prepare an individualised social reintegration prognosis assessing whether the inmate is in a position to reintegrate into society without reoffending.
This prognosis is based on the reports of the technical team's professionals — psychologists, social workers, educators — who have worked with the inmate during the sentence. They assess factors such as:
- The estimated level of risk of reoffending, measured using scientifically validated risk assessment instruments.
- The capacity for self-control and for managing conflictual situations without resorting to criminal conduct.
- Acknowledgement of responsibility for the offences committed and attitude towards the victims.
- The capacity for life planning and for setting realistic objectives for life in freedom.
- The presence or absence of vulnerability factors that could hinder reintegration: active addictions, untreated mental health disorders, absence of a support network.
The inmate may provide external expert reports prepared by independent psychologists or social workers that reinforce or add nuance to the prognosis prepared by the facility's specialists. These external reports are not binding on the Treatment Board, but may carry weight if they are well-founded and if they offer perspectives that the internal reports have not considered.
Requirement 5: Community Ties and Life Plan
For the third degree to be viable in practice, the inmate must demonstrate that they have a sufficiently structured personal and social environment to function under the open regime without the need for continuous institutional support. This is expressed in what is known as the third-degree "life plan."
Accommodation
The inmate must have a specific and verifiable address to return to at the end of each day in the open regime. This may be the family home, a rented flat, or a place offered by a collaborating organisation providing supervised accommodation. An inmate with nowhere to live cannot benefit from the ordinary third degree, although they may be referred to collaborating organisations that offer accommodation and support.
Daytime Occupation
The inmate must have an activity that fills and justifies their hours outside the facility: a job — ideally formalised with a contract —, vocational training, voluntary work, or any other occupation that structures their time and contributes to their social integration. The absence of any activity makes it difficult to justify the open regime.
Family or Social Support Network
The existence of solid family or social ties that can act as a support network during the open regime is a very positive factor for progression to the third degree. Family members who actively engage in the reintegration process — accompanying the inmate during the first permits, offering a stable home, committing to reporting any irregularity to the facility — send a very positive signal to the Treatment Board about the prospects for success of the open regime.
Minimum Financial Capacity
An inmate accessing the third degree needs financial resources to cover their expenses during the hours outside the facility. It is not necessary to be wealthy, but the minimum means for transport, food, and the everyday expenses of the open regime are required. If the inmate has no personal resources, family support or collaborating organisations may cover that need.
Offences That Generate More Demanding Conditions
For certain offences, access to the third degree is subject to additional conditions that go beyond the general requirements.
In terrorism and organised crime offences, in addition to the minimum threshold of 80% of the sentence served, the convicted person must have abandoned criminal activity, actively collaborated with the authorities, or shown signs of disengagement from the organisation.
In domestic and gender-based violence offences, access to the third degree requires that the convicted person has participated in specific violence treatment programmes and that the risk to the victim has been adequately assessed and managed.
For inmates with debts arising from the civil liability imposed in the judgment — compensation to the victim — the Treatment Board and the PSJ will assess whether there is an attitude of compliance with that obligation or whether the debt has been deliberately evaded, which may weigh negatively in the third-degree assessment.
What to Do if the Third Degree Is Refused
When the Treatment Board refuses the third-degree proposal, the decision must be reasoned with an indication of the criteria assessed and those found to be insufficient. The inmate who disagrees with that assessment may challenge it before the Penitentiary Surveillance Judge.
The appeal before the PSJ must be technically robust: it must identify with precision which requirements are in fact met, set out the arguments that justify a favourable reintegration prognosis, and explain why the refusal is not sufficiently justified. The lawyer may provide expert reports, documentation on community ties, and any other material that strengthens the inmate's position.
If the PSJ dismisses the appeal, it may be challenged on appeal before the Provincial Court. And in exceptional cases of legal significance, a cassation appeal before the Supreme Court may be raised if the issue is of interest for the unification of penitentiary doctrine. Persistence in asserting the inmate's rights, with solid and up-to-date arguments, is the correct approach when faced with a refusal that is considered unjustified.
Frequently Asked Questions
Is there any way to access the third degree without having served half the sentence?
Yes. Article 104.4 of the Prison Regulations allows classification at the third degree — without waiting for the ordinary timeframes — for inmates suffering from very serious and incurable illnesses or who find themselves in conditions that make the ordinary serving of the sentence incompatible with their state of health. Outside that exception, for long sentences in serious offences, early access to the third degree is exceptional and requires a very robust technical justification. For sentences of less than five years, earlier access is also possible.
Does time spent on release permits count towards the minimum period of sentence served?
Yes. Time spent on ordinary and extraordinary release permits counts as time served under the sentence. It is not deducted from the time served: an inmate who benefits from release permits of several days continues to accumulate sentence time during those days. Permits are a part of the serving of the sentence — at the corresponding degree — and their calculation is fully applicable for the purposes of the temporal requirements for the third degree.
Can the victim of the offence oppose the third degree?
The victim, subject to exceptions, has the right to be informed of classification decisions when they have requested this, and may submit their observations in that regard. However, the victim's opposition is not binding on the Treatment Board or the PSJ: the classification decision is made on the basis of the legal and technical criteria for reintegration, not on the wishes of the victim. What may happen is that the assessment of the risk to the victim — particularly in domestic violence or harassment cases — is a factor that influences the assessment of the risk of reoffending and therefore the reintegration prognosis.
Can the third degree be maintained if the inmate does not find employment?
Employment is an important element of the third-degree life plan, but it is not the only way to justify the open regime. If the inmate cannot find work, they may propose other activities that structure their time: vocational training, voluntary work, caring for dependent family members, or other occupations demonstrating that time outside the facility is used constructively. The Treatment Board will assess whether those alternatives are sufficient to maintain the third-degree classification.
Can the PSJ impose additional conditions on the third degree that the Treatment Board had not established?
Yes. The Penitentiary Surveillance Judge has jurisdiction to approve the third degree subject to additional conditions beyond those set by the Treatment Board, if they consider that those conditions are necessary to ensure the inmate's reintegration and the protection of society or the victims. These additional conditions may include, for example, a prohibition on approaching certain persons or places, the obligation to submit to additional periodic checks, or the imposition of electronic monitoring even if the Board's proposal had not included it.
