When a person is sentenced to a prison term and enters the penitentiary system, the law does not fade from the picture — it simply changes its leading role. Criminal law — which governed the entire process from investigation to sentencing — steps into the background, and another branch of law takes the stage, one that many people are unaware of yet which determines, in practice, the most important aspects of the convicted person's life from that moment on: Prison Law.
Prison Law is the legal discipline that regulates the execution of custodial sentences, the operation of penitentiary establishments, the rights and duties of inmates, and the treatment system aimed at social reintegration. It is, in essence, the law that governs life inside prison and determines how, under what conditions, and for how long a convicted person effectively serves the sentence imposed by the judge.
In this article we explain what Prison Law is, what its main regulatory sources are, how it differs from Criminal Law, which bodies are involved in its application, and what fundamental rights a prisoner retains even while deprived of liberty.
Prison Law: Definition and Scope
Prison Law is a branch of public law whose purpose is the legal regulation of the period during which a custodial sentence is served. Its scope encompasses three broad dimensions:
The first is the institutional dimension: the organisation of the prison system, the regime of penitentiary establishments, the categories of facilities — closed, ordinary, open, and forensic psychiatric hospitals —, the prison administration and its powers.
The second is the dimension of inmates' rights and duties: what rights are retained by a person deprived of liberty, which are suspended or restricted by reason of the sentence, what obligations they have within the facility, and what the consequences of non-compliance are.
The third is the treatment dimension: the system of penitentiary classification by degrees, the individualised treatment plan aimed at reintegration, intervention programmes, release permits, progression or regression in degree, and access to conditional release.
The cornerstone of all Prison Law is the constitutional mandate in Article 25.2 of the Spanish Constitution, which establishes that custodial sentences and security measures shall be oriented towards re-education and social reintegration. This provision is not a mere statement of intent: it is a binding legal norm that obliges the entire prison administration to design and implement the serving of sentences with that objective in mind.
The Regulatory Sources of Spanish Prison Law
Spanish Prison Law rests on a set of norms that form a hierarchical system:
The Constitution
At the apex of the normative system stands the Spanish Constitution of 1978, whose Articles 15 — prohibition of inhuman treatment — and 25.2 — orientation of sentences towards reintegration — are the constitutional pillars of Prison Law. Also relevant are Article 17 — the right to liberty — and the provisions recognising the fundamental rights that the inmate retains during the serving of the sentence.
The General Organic Prison Law
The most important norm in Spanish Prison Law is Organic Law 1/1979, of 26 September, the General Prison Law, which was the first organic law approved under the new democratic system. This law regulates the general principles of the prison system, the rights and duties of inmates, the regime of establishments, the treatment system, and the role of the penitentiary surveillance judge.
The Prison Regulations
The regulatory development of the LOGP is found in Royal Decree 190/1996, of 9 February, approving the Prison Regulations. These regulations govern in greater detail the practical aspects of serving sentences: the classification of inmates, release permits, the disciplinary regime, communications with the outside world, healthcare, and treatment programmes, among others.
European Legislation
The Spanish prison system is also shaped by European legislation and case law. The European Prison Rules of the Council of Europe, although not directly binding, establish minimum standards for the treatment of prisoners that member states undertake to respect. The case law of the European Court of Human Rights concerning Articles 3 and 5 of the European Convention has significantly shaped Spanish Prison Law in areas such as conditions of detention, the disciplinary regime, and the limits of security measures.
The Fundamental Differences Between Criminal Law and Prison Law
Although Prison Law arises as a consequence of Criminal Law — there can be no execution of sentences without a prior criminal conviction — they are two distinct legal disciplines with different objects, principles, and operators.
The Subject Matter of Regulation
Criminal Law regulates offences and penalties: which conducts are criminal, what penalties they carry, what the elements of an offence are, the modifying circumstances of criminal liability, and the process by which it is determined whether someone is guilty. Its focus is on the past — the acts committed — and on the determination of responsibility.
Prison Law regulates the execution of the sentence: how the penalty is served, under what conditions, with what objectives, and with what guarantees. Its focus is on the present and the future — the treatment of the convicted person and their possible reintegration into society.
The Stage at Which Each Operates
Criminal Law operates during the stages of investigation, preliminary proceedings, trial, and sentencing. Its main setting is the criminal process, with the police, the prosecutor, the examining magistrate, and the court as the principal actors.
Prison Law operates during the sentence execution phase, that is, once the judgment is final and the convicted person enters the prison system. Its principal actors are the prison administration — the Secretary General for Penitentiary Institutions or the competent regional bodies —, the penitentiary surveillance judge, and the inmate themselves.
The Bodies That Apply Each
Criminal Law is applied by criminal courts and tribunals: examining courts, Provincial Courts, the National Court, the Supreme Court. Prosecution is the responsibility of the public prosecutor and, where applicable, the private prosecution.
Prison Law is applied by the prison administration — the penitentiary establishments, the Treatment Boards, and the Secretary General for Penitentiary Institutions — under the supervision of the penitentiary surveillance judge, which is the judicial body specifically designed to oversee the lawfulness of sentence execution and to protect the rights of inmates.
The Principles Governing Each
Criminal Law is governed by principles such as legality, typicality, culpability, proportionality, and the presumption of innocence. Prison Law incorporates these principles — insofar as the convicted person remains the holder of rights — but supplements them with its own: the principle of individualisation of treatment, which requires adapting the reintegration plan to the personal circumstances of each inmate; the principle of progressiveness, which directs the serving of sentences towards the gradual reintegration of the convicted person into society; and the principle of humanity, which prohibits any form of treatment that violates the dignity of the inmate.
The Rights Retained by the Prisoner
One of the most significant aspects of Prison Law is the determination of which rights the convicted person retains during the serving of the sentence. Deprivation of liberty does not equate to the loss of all rights: the inmate continues to hold their fundamental rights, with the sole exception of those that are incompatible with the deprivation of liberty or that are expressly restricted by the sentencing judgment.
The rights retained by the inmate include:
- The right to physical and moral integrity and the prohibition of inhuman or degrading treatment.
- The right to personal privacy insofar as it is compatible with the prison regime.
- The right to communicate with their lawyer, confidentially and without restrictions.
- The right to adequate healthcare appropriate to their state of health.
- The right to education, vocational training, and access to culture.
- The right to communicate with family members and friends within the limits of the prison regime.
- The right to practise their religion or beliefs in accordance with the establishment's regime.
- The right to complain and to appeal decisions of the prison administration before the penitentiary surveillance judge.
The rights that are suspended or restricted are, principally, the right to freedom of movement — the suspension of which is precisely the content of the sentence — and certain rights linked to freedom of movement and participation in ordinary social life. But even in relation to those restricted rights, the restriction must be proportionate and may not extend beyond what the sentence requires.
The Penitentiary Surveillance Judge: The Guardian of Inmates' Rights
The penitentiary surveillance judge is the central figure of Prison Law. Created by the General Organic Prison Law of 1979, this is a specific judicial body whose function is to supervise the lawfulness of sentence execution and to protect the rights of inmates against possible abuses or irregularities by the prison administration.
Their powers include:
- Resolving complaints and appeals by inmates against decisions of the prison administration.
- Approving or denying release permits when proposed by the administration.
- Ruling on the classification and progression in degree of inmates when there is dispute.
- Controlling the lawfulness of disciplinary sanctions imposed on inmates.
- Deciding on conditional release and the conditions governing it.
- Supervising that the individualised treatment plan for each inmate is adequate and executed in accordance with the law.
The penitentiary surveillance judge is, in essence, the arbiter who balances the authority of the prison administration with the rights of the inmate. When a penitentiary establishment makes a decision that the inmate considers unlawful or abusive, the avenue for challenging it is to go before this judge, who has the power to annul it or to order the measures necessary to restore the rights that have been violated.
Frequently Asked Questions
Can a criminal lawyer also handle Prison Law matters?
Yes, although Prison Law is a specialisation within the criminal sphere that requires specific knowledge of prison regulations, the case law of the surveillance judge, and the procedures before these bodies. Many criminal lawyers also handle the execution phase for their clients — accompanying them from sentencing to release — but there is also the figure of the lawyer specialised in Prison Law who acts primarily at that stage. In more complex matters — accumulation of sentences, review of sentence calculation, appeals before the surveillance judge — the lawyer's specialisation in the subject makes a significant difference.
Does the inmate have the right to be informed of their prison rights?
Yes. The General Organic Prison Law and the Prison Regulations establish the obligation of the prison administration to inform the inmate, at the time of admission, of their rights and duties, the establishment's regime, and the procedures available for making claims or appeals. This information must be provided in a language comprehensible to the inmate and, if necessary, with the assistance of an interpreter.
Can an inmate be transferred to another penitentiary establishment without their consent?
Yes. The prison administration has the power to transfer inmates between penitentiary establishments without requiring their consent, although the transfer must be justified by reasons related to treatment, security, the separation of individuals who should not share a facility, or the availability of places. The inmate may appeal the transfer before the penitentiary surveillance judge if they consider it unjustified or if it violates their treatment plan or their right to maintain family ties.
What is the difference between the ordinary regime, the closed regime, and the open regime?
The ordinary regime is that applied to the majority of inmates classified at the second degree. It entails life in collective modules with structured regimental activities. The closed regime is applied to first-degree inmates or those presenting extreme dangerousness or inability to adapt to the ordinary regime: it involves greater restriction of movement and contact with other inmates. The open regime applies to third-degree inmates, who may leave the facility during the day to work or carry out activities and only return to sleep in the establishment at night.
Can the penitentiary surveillance judge annul a sanction imposed on an inmate by the facility?
Yes. One of the most important powers of the penitentiary surveillance judge is precisely the control of the lawfulness of the disciplinary regime. If the inmate considers that a sanction was imposed unlawfully — on account of an infraction that did not occur, through disciplinary proceedings that failed to respect the procedural guarantees, or through a sanction disproportionate to the infraction — they may appeal before the surveillance judge, who may annul, reduce, or modify the sanction. This judicial oversight of the disciplinary regime is an essential safeguard against possible abuses of penitentiary authority.
