Receiving notification that the third degree has been refused can be one of the hardest moments of serving a sentence. The inmate and their family had been preparing for that step for weeks or months, trusting that the work done within the facility, participation in treatment programmes, and the effort to build a life plan had borne fruit. And then, suddenly, a decision from the Treatment Board or the Directorate closes that door.
However, a refusal is not the end of the road. The Spanish legal system provides specific mechanisms for challenge that allow the inmate and their lawyer to contest the decision before higher bodies. And beyond the formal appeals, there is also an active strategy that can be implemented to strengthen the inmate's position and achieve progression to the third degree at the next opportunity, if the appeal is unsuccessful.
In this article we explain what to do when the third degree is refused: how to read the refusal decision, what appeals are available, within what timeframes they must be submitted, what arguments are most effective, and how to prepare for the next review if the appeal does not succeed.
The First Step: Understanding Why It Was Refused
The decision refusing the third degree must be reasoned. It is not sufficient to state that the inmate does not meet the conditions: the Treatment Board or the Directorate must explain with sufficient precision what criteria they assessed, which were found to be insufficient, and why the inmate is considered not yet in a position to face the open regime at that time.
Reading the reasoning of the refusal carefully is the essential first step, because it determines the strategy to follow. If the refusal is based on insufficient participation in treatment programmes, the response will be different from one based on a negative disciplinary history or an unfavourable reintegration prognosis. Each ground for refusal has its own legal and strategic response.
It is also necessary to identify whether the reasoning is legally sufficient. A decision refusing the third degree with vague or generic grounds, or without reference to the applicable legal criteria, may be challenged precisely for inadequate reasoning, regardless of whether the substance of the decision is correct or not. The right to know the reasons for a decision affecting the inmate's rights is a procedural guarantee that cannot be overlooked.
The Appeal Before the Directorate
When it is the Treatment Board of the penitentiary facility that proposes the refusal of the third degree, that proposal is passed to the Directorate — the Secretary General for Penitentiary Institutions or the competent regional body — for approval. If the Directorate approves the refusal, the inmate may appeal before the Penitentiary Surveillance Judge.
In some cases, the Treatment Board's proposal may be challenged internally before the Directorate itself before approaching the PSJ. This prior appeal is not always mandatory or always effective, but it may be useful in some cases to correct administrative errors or to provide additional information that the Treatment Board had not taken into account. The lawyer must assess in each case whether this preliminary route is advisable or whether it is better to go directly to the PSJ.
The Appeal Before the Penitentiary Surveillance Judge
The most important and most effective appeal against the refusal of the third degree is the one lodged before the Penitentiary Surveillance Judge. This judicial body has jurisdiction to review penitentiary classification decisions and may, if it finds that the refusal is not justified, order the reclassification of the inmate at the third degree.
The Timeframe for Appealing
The appeal before the PSJ must be lodged within five working days from the date on which the inmate is notified of the refusal decision. This is a short timeframe that requires acting quickly. If the inmate does not have a lawyer, or if their lawyer needs time to prepare the appeal, an express request for an extension of the timeframe must be made to the PSJ, arguing the need for adequate time to prepare the defence.
The Content of the Appeal
A strong appeal before the PSJ is not simply a complaint: it is a legally and technically robust document that identifies with precision the errors in the refusal decision and explains why the inmate does in fact meet the requirements for the third degree. The appeal must:
- Identify with precision the grounds of the refusal that are being challenged and the specific reasons why they are considered incorrect or insufficiently reasoned.
- Present in an organised and documented manner the criteria that the inmate does meet: the time of sentence served, participation in treatment programmes, the disciplinary history, and the reintegration prognosis.
- Provide up-to-date documentation supporting each of the arguments: reports of participation in programmes, employment certificates, external medical or psychological reports, evidence of family ties.
- If external expert reports are provided, argue why they should be weighed equally to or more heavily than those prepared by the facility's specialists.
- Propose a concrete and viable life plan for the third-degree period, indicating the intended residence, the work or training activity, and the available support network.
The Most Effective Arguments Before the PSJ
The case law of the PSJ and the Provincial Courts in matters of penitentiary classification offers guidance on which arguments have the greatest chances of success. The most frequently successful ones are:
Arguing that the reasoning of the refusal is insufficient — that the Treatment Board has relied on generic formulae without analysing the inmate's specific circumstances. The PSJ may annul an insufficiently reasoned decision even if the substance of the decision could be correct, because the obligation to give reasons is a procedural guarantee that cannot be disregarded.
Arguing that the facility's technical reports are outdated or do not reflect the inmate's recent progress. If the psychological report is more than a year old or does not record the inmate's participation in programmes recently completed, it may be challenged for failing to reflect the current situation.
Arguing that the risk-of-reoffending assessment was not conducted with the appropriate tools or that the results have been misinterpreted. The use of risk assessment instruments without the specific necessary training, or their interpretation outside the standardised parameters, may be a valid ground of challenge.
Arguing that the disciplinary history has been weighed disproportionately — that excessive weight has been given to old or already cancelled incidents, or that the most recent positive progress has not been sufficiently taken into account.
The Hearing Before the PSJ
In many cases, the PSJ convenes the parties — the inmate and the prosecutor — to an oral hearing before resolving the appeal. This hearing is a golden opportunity that the lawyer must prepare with maximum dedication: it is the moment in which they can present the judge with the inmate's real situation, set out the arguments with the force that direct speech affords, and respond to the prosecutor's objections.
The presence of the inmate themselves at the hearing — when possible — can carry significant weight. The judge may view positively the inmate's attitude, their capacity to articulate a concrete life plan, and their commitment to reintegration. An inmate who expresses themselves clearly, who shows awareness of the seriousness of their offence, and who projects a realistic plan for their life in freedom conveys a very different image from the one that the penitentiary file may have built.
If the PSJ Dismisses the Appeal: The Appeal Before the Provincial Court
If the PSJ dismisses the appeal and confirms the refusal of the third degree, the next level is the Provincial Court. The appeal against the PSJ's ruling must be lodged within the legally established timeframe — generally five working days — and is processed before the same PSJ to be resolved by the Provincial Court.
The Provincial Court has jurisdiction to review both procedural aspects — whether the classification procedure was correctly followed — and substantive aspects — whether the legal classification criteria have been correctly applied. Its decisions establish criteria that influence the practice of the PSJ within its jurisdiction, so a well-founded appeal may have a broader impact beyond the individual case.
If the Provincial Court also dismisses the appeal, there remains the possibility of a cassation appeal before the Supreme Court in cases that present an interest for the unification of penitentiary doctrine. This route is exceptional and requires that the issue raised has legal significance that goes beyond the individual case.
While the Appeals Are Being Processed: Preparing for the Next Review
Processing the appeals may take weeks or months. During that time, the inmate cannot remain passive waiting for the outcome: they must use that period to strengthen their position for the next review in case the appeal is unsuccessful.
This means continuing to actively participate in all available treatment programmes, maintaining impeccable behaviour within the facility, strengthening the life plan — seeking employment, consolidating the intended home, reinforcing family ties — and preparing external expert reports that complement or add nuance to those prepared by the facility's specialists.
A criminal lawyer specialising in Prison Law can be very valuable during this preparatory phase: they can advise on which activities within the facility carry the most weight in the Treatment Board's assessment, can provide guidance on what types of external reports are most effective, can supervise the construction of the life plan, and can maintain contact with the facility's specialists to identify which aspects of the inmate's situation need to be improved.
The Importance of a Specialist Lawyer
The refusal of the third degree is one of the areas in which the lawyer's specialisation in Prison Law makes the greatest difference. It is not simply a matter of knowing the rules: it means knowing the case law of the PSJ in each jurisdiction, understanding how different courts weigh the various classification criteria, knowing which arguments carry most weight and which are redundant, and having the capacity to construct a technically robust appeal within a very short timeframe.
Many convicted people who are perfectly entitled to the third degree see their progression refused because the application was poorly prepared, because the appeal was not sufficiently technical, or because the appropriate documentation was not provided at the right time. A skilled penitentiary lawyer does not only react to the refusal: they also work proactively to ensure that the application is well prepared from the outset and that the inmate's penitentiary record speaks in their favour when the moment of review comes.
Frequently Asked Questions
How long do I have to appeal the refusal of the third degree?
The timeframe for appealing before the Penitentiary Surveillance Judge is five working days from notification of the refusal decision. It is a very short timeframe, so it is essential to act as quickly as possible. If you need more time to prepare the appeal properly, you may request an extension of the timeframe from the PSJ, although this is not always granted. The ideal is to be in contact with a lawyer before the notification arrives, so that you can react immediately.
Can the refusal of the third degree be temporary, with conditions to be met in order to obtain it?
Yes. The Treatment Board or the Directorate may agree on the refusal of the third degree while indicating what aspects need to improve in order for progression to be possible at the next review. These indications are very valuable because they direct the inmate's work during the following period. If the refusal is accompanied by this type of conditions or recommendations, the inmate and their lawyer must take them very seriously and work systematically to fulfil them before the next review.
Is it possible to appeal the refusal without a lawyer?
Technically yes: the inmate may personally submit a complaint or an appeal before the PSJ without the need for a lawyer. However, the effectiveness of the appeal is significantly greater with specialist legal advice. Penitentiary classification is a technical field with specific case law that requires knowledge going beyond common sense. A legally well-founded appeal has significantly greater chances of success than a complaint drafted by the inmate themselves without professional guidance.
What happens if the PSJ grants the third degree but the Directorate refuses it?
The relationship between the PSJ and the Directorate in matters of classification is complex. In cases where the PSJ's approval is mandatory, a refusal by the Directorate may give rise to a conflict of jurisdiction. In practice, when the PSJ approves the third degree and the Directorate does not implement it, the inmate may return to the PSJ to request an order for the enforcement of its decision. If the administration persists in not complying with the judicial ruling, the PSJ may adopt the coercive measures necessary to ensure compliance.
When can the third degree be applied for again after a refusal?
Penitentiary classification is reviewed at intervals of no more than six months for second-degree inmates. This means that if the third degree is refused, the inmate may request a new review before six months have passed if there have been significant changes in their situation. If there are no material changes, the usual course is to wait for the next periodic review and attempt to ensure that the situation is more favourable at that point. The lawyer can advise on what the most appropriate moment is to submit a new application.
