Prison leave in Spain

Few things are waited for as intensely inside a prison as the first period of leave. For the prisoner it is the first real proof that life outside is still there. For the family, it is a day marked on the calendar for months. So when the refusal arrives, sometimes with two lines of reasoning, the blow is felt throughout the house.

At Bataller Abogados we have spent more than 25 years supporting prisoners and families at exactly that moment. Prison leave is not decided only on the day the Junta de Tratamiento (the prison’s Treatment Board) votes: it is prepared over months, with the report from the Equipo Técnico (the Technical Team), documented family ties, the treatment programme and, in Catalonia, a RisCanvi risk assessment that is worth understanding before it becomes an obstacle.

We are available 24 hours a day on +34 696 967 181 and +34 937 490 708, and we act in prisons throughout Spain and Catalonia.

What permisos de salida are and what they are for

Permisos de salida (prison leave) are temporary authorisations to leave the prison without the sentence coming to an end. They are governed by arts. 47 and 48 of the Ley Orgánica General Penitenciaria (the Spanish Prison Act, LO 1/1979) and developed in arts. 154 to 162 of the Reglamento Penitenciario (the Prison Regulations, RD 190/1996).

Their purpose is not to reward good behaviour, even though it is often seen that way. The law frames them as preparation for life in liberty: they serve to maintain and rebuild family bonds, deal with practical matters, look for work and test, gradually and under supervision, how the person copes outside the prison environment. Each period of leave taken without incident is also an objective element supporting later applications for tercer grado and parole.

The Regulations distinguish three things that should not be confused: ordinary leave (art. 154 RP), aimed at preparing for reintegration and capped at a number of days per year; extraordinary leave (art. 155 RP), which responds to humanitarian or medical situations that arise unexpectedly; and programmed outings (art. 114 RP), specific treatment activities that do not count towards the annual allowance.

Ordinary leave: requirements and days

Art. 154 RP sets three requirements that must all be met together:

1. Being classified in second or third grade of treatment.
2. Having served a quarter of the sentence. This is calculated on the total sentence to be served, not on what remains.
3. Not showing bad conduct, in the literal wording of the rule.

To that must be added the mandatory report from the Equipo Técnico, without which the application cannot be decided.

Once the requirements are met, the limits are these: maximum length of each period of leave, 7 days; second grade, up to 36 days a year spread over the two calendar half-years with a maximum of 18 per half-year; third grade, up to 48 days a year, with a maximum of 24 per half-year.

Two points with real practical consequences. First: days not used in one half-year do not carry over to the next, so an application filed late can lose allowance irreversibly. Second: these are maximums, not automatic entitlements.

As to who authorises leave, art. 161 RP sets out a division worth knowing: ordinary leave of up to two days for sentenced prisoners is authorised by the Centro Directivo (the prison authority); anything longer goes up to the Juzgado de Vigilancia Penitenciaria (the Prison Supervision Court).

Extraordinary leave: death, serious illness and other situations

Extraordinary leave (arts. 47.1 LOGP and 155 RP) responds to situations that arise unexpectedly and does not require a quarter of the sentence to have been served, nor classification in any particular grade.

The law expressly covers the death or serious illness of parents, spouse, children, siblings and other people closely connected to the prisoner; the birth of a child to a wife or partner; other important and verified reasons, an open-ended provision that has been used to cover unavoidable court appearances or properly evidenced family crises; outpatient medical appointments outside hospital, lasting a maximum of 12 hours; and hospital admissions, up to 2 days, which can be extended.

Leave is granted with appropriate security measures, which may include escort. In first grade, extraordinary leave requires the express authorisation of the prison supervision judge. In urgent cases the prison governor can authorise it after consulting the Centro Directivo (art. 161 RP), a route that allows a response within hours.

Art. 158 RP adds two rules: granting extraordinary leave does not rule out ordinary leave in second or third grade, and extraordinary leave will not be granted where the situation can be dealt with as ordinary leave. Choosing the wrong route is one of the errors that most often ends in refusal.

The key here is immediate documentary evidence: the death certificate, a medical report describing the seriousness, proof of the family relationship. Without that, the urgency never reaches the file.

How an application is processed: from the Equipo Técnico to the supervision court

The route is set out in arts. 160 and 161 RP and has four stages.

1. The prisoner’s application. It is submitted to the prison management. It must specify dates, the address where the leave will be spent, a contact person and the reason.

2. Report from the Equipo Técnico (art. 156 RP). This is mandatory. The team gives an assessment of the likelihood of absconding, of committing further offences, or of the leave having a negative effect on treatment. If the report is favourable, it also proposes the conditions and controls for the leave.

3. Decision of the Junta de Tratamiento. In light of the report, the Junta grants or refuses. If it refuses, art. 162 RP requires the reasoned decision to be notified to the prisoner with express mention of their right to complain to the prison supervision judge.

4. Final authorisation. If the Junta grants leave, the file goes up to the Centro Directivo (up to two days) or to the Juzgado de Vigilancia Penitenciaria (longer periods). For prisoners on remand, art. 159 RP requires in every case the prior approval of the court dealing with the case.

Our work concentrates above all on stages 1 and 2: arriving with the file prepared before the Equipo Técnico reports is usually more effective than trying to correct it afterwards.

Common reasons for refusal

• Risk of absconding, especially where a lot of the sentence remains.
• Little of the sentence served: the quarter mark has only just been reached.
• Weak or absent ties: no documented address or family able to take the person in.
• An unfavourable Equipo Técnico report or a high risk assessment, in Catalonia typically through RisCanvi.
• Recent or uncancelled punishments. It is worth reviewing the disciplinary file, because a finding successfully challenged no longer weighs.
• Not accepting responsibility for the offence, or no awareness of the harm caused.
• Active or untreated drug dependency, or dropping out of a rehabilitation programme.
• Lack of participation in the individual treatment programme.
• Civil liability neither met nor addressed through documented efforts to make amends.
• The nature and seriousness of the offence, especially for the first periods of leave.
• Pending legal matters: open cases, arrest warrants or a risk of deportation.

Many of these reasons can be turned around with groundwork: documenting an address, providing a contract or job commitment, evidencing attendance at a programme, or showing part payments towards civil liability all change the factual basis on which the decision is made.

Leave refused: appeals and deadlines

A refusal does not close the matter, but the deadlines are short and strict.

Complaint to the prison supervision court. Where it is the Junta de Tratamiento that refuses, the prisoner can complain to the court. It should be filed promptly and with proper argument: it is not enough to express disagreement, you have to rebut the specific reason and provide new documentation.

Recurso de reforma: 3 days. Against the order of the prison supervision court there is a recurso de reforma, a review by the same judge, within three days of notification.

Appeal: 5 days. In matters of prison regime, which is where leave sits, the appeal is decided by the Audiencia Provincial for the area where the prison is located. If the decision comes from the Juzgado Central de Vigilancia Penitenciaria, it is decided by the Criminal Division of the Audiencia Nacional.

Two useful points. The reforma and the appeal can be lodged together, with the appeal put forward in the alternative, which avoids losing time. And, quite apart from appeals, nothing prevents a fresh application for leave when circumstances change.

RisCanvi and its weight in leave decisions in Catalonia

If the person is in a prison in Catalonia, there is an additional factor that does not exist in the rest of Spain and that can prove decisive: RisCanvi.

It is the risk assessment and management protocol that the Catalan prison administration has applied since 2009. It works with two scales: RisCanvi-S, for screening, and RisCanvi-C, the full version, which assesses 43 risk factors shared among different professionals on the team. The tool produces a risk level, low, medium or high, across five criteria: self-directed violence, violence within the institution, general reoffending, violent reoffending and absconding.

That last criterion is the one that bears directly on leave, because it matches exactly what art. 156 RP asks the Equipo Técnico to assess. Its use is mandatory in classification, leave and parole decisions, and an assessment remains current for around six months.

Officially, the administration maintains that RisCanvi accompanies the decision rather than determining it. But academic studies of how it is actually used record that a high risk score creates clear friction when leave is being considered. There are technical criticisms too: some factors are ambiguously defined, there is variation between assessors, and there is little transparency about how the scoring is weighted. And there is an imbalance of information that matters a great deal: the prisoner rarely knows their own result.

What can be done? Ask for access to the assessment and the scored factors; identify factual errors in the static factors and ask for them to be corrected; work on the dynamic factors, which can be changed, such as substance use, employment, family support and participation in programmes; and challenge the automatic approach where a refusal in reality rests on the score without individual reasoning.

Failing to return from leave: consequences

Not returning may amount to the offence of breach of sentence under art. 468.1 CP, punishable by six months to a year in prison where the person was deprived of liberty. The Tribunal Supremo settled the position in its judgment 50/2020 of 14 February. A short and justified delay is not automatically a criminal breach, but it can still carry disciplinary and treatment consequences. If it has happened, the priority is to contact a lawyer before taking any step.

The cases we usually handle

• Preparing and filing the first application for leave once a quarter of the sentence has been served.
• Urgent extraordinary leave for the death or serious illness of a relative.
• Complaints and appeals to the supervision court against refusals by the Junta de Tratamiento.
• Appeals to the Audiencia Provincial against unfavourable orders.
• Refusals based on an unfavourable Equipo Técnico report or a high RisCanvi risk score.
• Evidencing ties for foreign prisoners or those without a stable address in Spain.
• Leave for remand prisoners, with the double authorisation of art. 159 RP.
• Revocation or suspension of leave already granted (art. 157 RP).
• Defence on a breach charge after a failure to return.

How we work on your case

1. First contact and urgent assessment. We are available 24 hours. If there is an emergency, a death, a hospital admission, an appeal deadline about to expire, we act that same day.
2. Reviewing the prison file. We go through classification, the merging and calculation of the sentence, the individual treatment programme, the disciplinary record and, in Catalonia, the current RisCanvi assessment.
3. Contact with the prisoner and the family. We visit the prison and explain clearly what is realistic and what needs preparing. Ties are evidenced with documents that are usually sitting at home.
4. Preparing and filing the submission. An application or appeal built on the applicable rules, on the criteria of the relevant supervision court, and on documentation covering ties, work, health and treatment.
5. Following it through to the decision. Liaison with the prison, the court and the public prosecutor, and preparation of the next step so that each period of leave taken counts for something.

Useful documents

• The calculation and merging of the sentence, to verify that a quarter has been served.
• The grade classification decision and its reviews.
• The Individual Treatment Programme and certificates for activities, courses or workshops.
• Equipo Técnico reports and Junta de Tratamiento decisions.
• The notice of refusal, with its exact date: the deadlines depend on it.
• The criminal record sheet and the record of punishments.
• Evidence of ties: municipal registration, tenancy agreement or title deeds, family book, DNI or NIE.
• Employment documents: contract, job offer, employment history.
• Medical or addiction reports and certificates from rehabilitation programmes.
• Proof of payments towards civil liability, even partial ones.
• For extraordinary leave: death certificate, medical report on seriousness, or proof of the family relationship.

Frequently asked questions

When can a first period of leave be applied for?

For ordinary leave three conditions must be met: classification in second or third grade, a quarter of the sentence served, and no bad conduct (art. 154 RP). Once they are met, the application goes to the prison management, which passes it to the Equipo Técnico. Extraordinary leave under art. 155 RP does not require that proportion of the sentence to have been served.

How many days of leave are there in a year?

Each period of ordinary leave can last up to 7 days. The annual maximum is 36 days in second grade and 48 days in third grade, spread across the two calendar half-years with a cap of 18 and 24 days per half-year. Weekend releases under the open regime and programmed outings under art. 114 RP do not count towards this.

Can leave be applied for in first grade?

Not ordinary leave: art. 154 RP reserves it for those classified in second or third grade. Extraordinary leave under art. 155 RP is possible, for the death or serious illness of a relative, the birth of a child or other important and verified reasons, but in first grade it requires the express authorisation of the prison supervision judge.

What happens if I do not return from leave on time?

Failing to return may amount to the offence of breach of sentence under art. 468.1 CP, punishable by six months to a year in prison where the person was deprived of liberty, following STS 50/2020. A short and justified delay is not automatically a criminal breach, but it can carry disciplinary consequences. If it has happened, contact a lawyer before taking any step.

Can someone on remand apply for leave?

Yes. Art. 48 LOGP and art. 159 RP allow it, but they require the prior approval, in each case, of the court dealing with the proceedings. It is a more restrictive route and needs coordination between the prison and the court.

How long does an application take to decide?

It depends on the prison and on whether it has to go up to the supervision court. Leave of up to two days is authorised by the Centro Directivo; longer periods go to the court, which lengthens the process. In practice it is usually measured in weeks, so it is worth applying well ahead of the date you want and of the end of the half-year.

What is the deadline to appeal a refusal?

Against a refusal by the Junta de Tratamiento there is a complaint to the prison supervision court. Against that court’s order, a recurso de reforma is lodged within three days of notification and an appeal within five days, the latter decided by the Audiencia Provincial for the area where the prison is. These deadlines cannot be extended.

Does RisCanvi affect leave decisions in Catalonia?

Its use is mandatory in leave decisions in Catalan prisons and it assesses, among other criteria, the risk of absconding. Formally it accompanies the decision without replacing the professional judgement of the Equipo Técnico, but in practice a high risk score makes leave harder to obtain. That is why we work both on correcting errors in the assessment and on the dynamic factors that can genuinely be changed.

Let’s talk about your application

Every file is different and every supervision court has its own criteria. We cannot tell you in advance what the outcome will be, and nobody honest can, but we can look at your case rigorously, tell you frankly where the problem lies and work on every argument and every document that counts in your favour.

Call us on +34 696 967 181 or +34 937 490 708, write to us from our contact page, or come to C/ Aribau 205, 2nd floor, Barcelona. You can also look at our prison law section and our page on prison lawyers in Barcelona.