Requirements for the third grade: what must be met to access the open regime
The third penitentiary grade, the open regime, is one of the most important objectives during the service of a sentence: it represents the transition from completely institutionalised life to a situation in which the inmate can leave during the day, work and prepare in a real way for freedom. But accessing it is neither automatic nor guaranteed by the mere passage of time: it requires meeting a series of conditions.
It is worth starting from the general framework. Spanish law follows the system of scientific individualisation, which, unlike the classic progressive system, allows the inmate to be classified in the grade that corresponds to their circumstances without having to pass successively through all the grades. In theory, initial classification in the third grade is possible; in practice, for long sentences and serious offences it is exceptional. The assessment falls to the Treatment Board, whose proposals are submitted to the Central Directorate and, in some cases, to the prison supervision judge.
The first requirement is the minimum time of service: the Penitentiary Regulations set as a guiding criterion having served at least half the sentence, a criterion that may yield to exceptional circumstances. In offences of terrorism and organised crime, 80% of the sentence is required. The time of pre-trial detention counts and reduces the pending period.
The second requirement is conduct within the centre: it is not enough not to have committed disciplinary infractions, but to maintain an active and positive attitude, with participation in the unit's activities, correct relationships and the absence of recent serious sanctions. A negative disciplinary record is one of the main obstacles. The third requirement is active participation in the individualised treatment programme, which may include educational training, labour-insertion programmes, therapeutic programmes to address addictions or anger management and education programmes for coexistence. It is not enough to enrol: one must attend regularly and show documentable progress.
The fourth requirement is the favourable prognosis of reintegration, the most subjective, which assesses the risk of reoffending, the capacity for self-control, the acknowledgment of responsibility and the presence of vulnerability factors. The inmate may provide external expert reports that reinforce it. The fifth requirement is ties and the life plan: a specific home to return to, a daytime occupation that justifies the hours of leave, a family or social support network and a minimum financial capacity. Collaborating entities can cover these needs when the inmate does not have them.
Some offences generate more demanding conditions: in terrorism and organised crime, the abandonment of criminal activity is required; in gender-based violence, participation in specific programmes and the assessment of the risk to the victim; and the attitude towards the civil liability arising from the offence is also assessed.
When the Treatment Board refuses the third grade, the decision must be reasoned and the inmate can challenge it before the prison supervision judge by means of a technically solid appeal that identifies which requirements are met and provides reports and documentation on the inmate's ties. If the judge dismisses it, an appeal lies before the Provincial Court. Perseverance, with solid and updated arguments, is the correct attitude in the face of an unjustified refusal.
