Third grade and open prison regime

If you have found your way here, you are probably counting days: you know by heart how long your son, your partner or your brother has served, and you have heard people talk about tercer grado in the visiting room without anyone ever explaining it to you.

Tercer grado (third grade, Spain’s open or semi-liberty regime) is not a prize or a favour: it is a stage of the sentence set out in law, with specific requirements and a procedure that can be prepared, argued and appealed. Many refusals happen not because the person fails to meet the conditions, but because the file reaches the Junta de Tratamiento (the prison’s Treatment Board) without the documents that prove family ties, work and efforts to make amends.

At Bataller Abogados we have spent more than 25 years working in prison law from Barcelona, before prisons in Catalonia and across Spain, and we prepare the file before the proposal is made, not just after the refusal.

What tercer grado actually is

Prison sentences are served under a system of scientific individualisation, divided into grades (art. 72.1 LOGP): the first is the closed regime, the second the ordinary regime and the third the open regime (art. 72.2 LOGP). In plain terms, tercer grado is semi-liberty: the person is still serving a sentence and remains under the control of the prison administration, but spends most of the day outside.

The Reglamento Penitenciario (the Prison Regulations, RD 190/1996) defines it in art. 102.4: it applies to those who, because of their personal and prison circumstances, are capable of living under a semi-liberty regime. The usual destination is a CIS, a Centro de Inserción Social (social integration centre); in Catalonia, the Generalitat’s centres oberts (open centres).

Requirements for tercer grado

It helps to separate three things that often get mixed up.

The substantive matters the Junta de Tratamiento weighs

Art. 102.2 RP requires personality, individual, family, social and criminal history, the length of the sentences and the social environment the person will return to all to be weighed. What counts most is:

• Progress in treatment and participation in programmes or therapy.
• Conduct in prison, the absence of serious punishments, and prison leave taken without incident.
• A genuine job offer or a documented training place.
• A stable address, verifiable family support, and the position on civil liability.
• No pending cases in which the person is held on remand (art. 104.1 RP).

The security period of art. 36.2 CP

Discretionary. Where the sentence exceeds five years, the court may order that classification in tercer grado cannot take place until half the sentence has been served. It is a discretion: if the judgment does not expressly impose it, there is no security period. And even where it has been imposed, art. 36.3 CP allows the prison supervision judge, after an individualised and favourable rehabilitation assessment, to order by reasoned decision that the general regime should apply, in other words to lift it.

Mandatory. Where the sentence exceeds five years and the offence is one of those listed in art. 36.2 itself, terrorism; offences committed within a criminal organisation or group; human trafficking where the victim is a minor or a person with a disability in need of special protection; offences under art. 181; and offences under Chapter V of Title VIII of Book II where the victim is under sixteen, tercer grado cannot be granted before half the sentence has been served, and the prison supervision judge cannot lift it.

Many websites in this field still reproduce the old wording, under which the security period was always mandatory. That has not been the case since LO 5/2010.

Civil liability and the reinforced cases

Art. 72.5 LOGP makes tercer grado conditional on civil liability having been met, but it does not impose blind payment in full: it requires an assessment of the conduct actually shown in making restitution, repairing the harm and compensating, of the personal and financial circumstances of the convicted person, and of the guarantees of future payment. The requirement is applied with particular strictness in serious property offences, offences against workers’ rights, offences against the Treasury and Social Security, and offences against public administration.

Separately from all of that, arts. 104.4 RP and 36.4 CP allow tercer grado on humanitarian grounds and grounds of personal dignity for people who are very seriously ill with incurable conditions, and for people over seventy.

Initial classification in tercer grado: when it is possible without passing through second

Many people believe you have to earn your way through second grade before you can aim for third. That is not so: art. 72.3 LOGP allows a prisoner to be placed initially in a higher grade, except parole, without passing through the earlier ones. It is the natural route for someone entering prison from liberty with a job, a home and established ties, and with no applicable security period.

There is no requirement to have served a set portion of the sentence, but art. 104.3 RP adds a safeguard where a quarter has not yet been served: enough time must have passed to study the person, and the factors in art. 102.2 must be favourably assessed.

The procedure is in art. 103 RP: the Junta de Tratamiento makes its proposal within a maximum of two months from receiving the certified judgment, and the prison authority decides, in writing and with reasons, within a further two months, which can be extended. It is worth stepping in before the Junta meets, so that the file arrives with the evidence already in it.

Art. 100.2 and art. 86.4: the middle routes almost nobody explains

Between second grade and full tercer grado there is a middle ground that almost no family knows about, and which can unlock situations that look closed.

Art. 100.2 RP: the flexibility principle

Art. 100.2 RP allows the model of enforcement to be made flexible: the Equipo Técnico (the Technical Team) can propose to the Junta de Tratamiento that, for a particular prisoner, a model be adopted combining features of more than one grade, provided it is based on a specific treatment programme that could not otherwise be carried out. It is an exceptional measure that needs the subsequent approval of the prison supervision judge, although it takes effect immediately.

In practice: a person can be in second grade and still have regular releases to work, to attend a therapeutic service or to care for a dependent relative. It is not tercer grado by the back door: the focus is not the grade but the programme. A well-argued 100.2 rests on three pillars: a written programme with objectives, a timetable and an organisation behind it; an explanation of why it cannot be carried out under the ordinary regime; and a system of supervision that can be verified.

Art. 86.4 RP: tercer grado with electronic monitoring

Art. 86.4 RP governs the widest form of life under the open regime. It provides that, as a general rule, the minimum time spent in the centre will be eight hours a day, sleeping at the establishment, unless the prisoner voluntarily accepts monitoring of their presence outside by suitable electronic devices or other sufficient means of control; in that case they need only be at the centre for the time set in their treatment programme.

In other words: tercer grado without sleeping at the CIS, living at home with a tag or another form of monitoring. It requires voluntary acceptance, a stable address, the agreement of those living there and, normally, work, training or caring responsibilities that justify it. It matters a great deal for people caring for dependent relatives.

You can see how this fits with everything else in our prison law section and on our pages about prison leave and parole.

Tercer grado refused: what can be done

A refusal does not close the matter: it opens the appeal stage. The prison authority’s decision can be appealed to the Juzgado de Vigilancia Penitenciaria (the Prison Supervision Court), which has jurisdiction over initial classification and over progression and regression between grades (art. 76.2 LOGP). These appeals are won on their content: you have to attack the specific reasoning and supply whatever was found to be missing.

Against the court’s order, the fifth additional provision of the LOPJ provides for a recurso de reforma (review by the same court) within three days of notification; an appeal within five days, decided in matters of sentence enforcement by the sentencing court and in matters of prison regime by the Audiencia Provincial; and a recurso de queja only against the refusal to admit an appeal.

Alongside the appeal there is review: art. 105 RP requires the prisoner to be reassessed at least every six months, which allows a fresh proposal to be prepared correcting whatever caused the refusal.

Regression to second grade: how to respond

Regression usually arrives out of nowhere: a positive test, a late return, an incident at work. Art. 106 RP requires an unfavourable change in the prospects of social integration and in conduct, and it follows the same formal requirements as initial classification: a reasoned proposal from the Junta, a decision by the prison authority, and an appeal to the prison supervision court.

The defence rests on three ideas: the law requires an overall assessment, not a reaction to an isolated event; it must be reasoned on concrete facts; and there are less severe alternatives, such as changing the form of life within the open regime. If disciplinary proceedings are also under way, both fronts need attention: this is how we approach disciplinary proceedings.

The cases we usually handle

• Initial classification in tercer grado for someone entering prison from liberty with a contract and established ties.
• Progression from second grade after prison leave taken without incident.
• Lifting the discretionary security period of art. 36.2 CP.
• Files involving high civil liability and a payment plan.
• Applications under art. 100.2 or art. 86.4 with electronic monitoring.
• Appeals against refusals and opposition to regression.
• Tercer grado on humanitarian grounds.

How we work on your case

1. First consultation and a clear picture. We go through the sentence, the calculation of time served, the merging of sentences, the grade, prison leave and punishments, and map out the deadlines and the available routes.
2. Reviewing the prison file. We analyse the classification record, the Equipo Técnico reports and the treatment programme to see what is blocking tercer grado.
3. Building the evidence and the submission to the Junta. With the family we gather what is missing, a job offer, reports from organisations, certificates, municipal registration, receipts, and we file the representations.
4. Appeals and support afterwards. If the decision goes against us we appeal to the prison supervision court and, where appropriate, by reforma and appeal; if it is favourable, we support the first months under the open regime.

Useful documents

• Certified copies of final judgments, the calculation of the sentence and the merging order.
• The latest classification decision, the treatment programme and Equipo Técnico reports.
• Certificates for courses and programmes, and the record of prison leave and punishments.
• A job offer or preliminary contract, or a training place.
• Municipal registration and proof of the address to be released to.
• Receipts or a payment plan for civil liability, and medical reports.

Deadlines

• Initial classification proposal: a maximum of two months from receipt of the certified judgment; the prison authority’s decision, a further two months, extendable (art. 103 RP).
• Review of classification: at least every six months (art. 105 RP).
• Recurso de reforma against orders of the prison supervision court: three days; appeal: five days.
• Security period, where it applies: half the sentence imposed (art. 36.2 CP).

Frequently asked questions

How long do you have to serve before applying for tercer grado?

As a general rule the law sets no minimum: art. 72.3 LOGP allows initial classification straight into tercer grado. The exception is the security period of art. 36.2 CP, which applies only to sentences of more than five years: discretionary where the court imposes it, and mandatory for the offences it lists. If a quarter of the sentence has not been served, art. 104.3 RP requires a more rigorous study of the prisoner.

Can tercer grado be granted with civil liability outstanding?

Art. 72.5 LOGP requires it to have been met, but not as automatic payment in full: it requires an assessment of the conduct shown in making restitution, repairing the harm and compensating, of the convicted person’s financial circumstances, and of the guarantees of future payment. That is why it is decisive to evidence genuine lack of means, or a sustained effort to make amends through instalments.

Does tercer grado mean leaving prison?

No. It means serving the sentence under an open or semi-liberty regime: the person is still serving a sentence and under the control of the prison administration, keeps to a treatment programme, observes set hours and is subject to checks. What changes is that they spend most of the day outside. A breach can lead to regression.

What is a CIS and how does the open regime work?

The CIS, or Centro de Inserción Social, is the establishment used for serving a sentence under the open regime; in Catalonia that role is played by the Generalitat’s centres oberts. Art. 86.4 RP sets, as a general rule, a minimum stay of eight hours a day including overnight, with the rest of the day given over to the authorised activity.

What is the difference between art. 100.2 and tercer grado?

Tercer grado is a classification; art. 100.2 does not change the grade but makes the model of enforcement flexible by combining elements of different grades. It requires a specific treatment programme that could not otherwise be carried out, and it needs the prison supervision judge’s approval. It comes into play when tercer grado is not yet viable but a controlled release is.

What happens if the prosecutor appeals against a grant of tercer grado?

The fifth additional provision of the LOPJ provides that, where the decision under appeal concerns classification or parole and could lead to the release of someone convicted of a serious offence, the appeal has suspensive effect. Release does not take place until the appeal is decided or the court rules on the suspension.

Can tercer grado be lost over a single breach?

Art. 106 RP requires, for regression, an unfavourable change in the prospects of social integration and in conduct, which points to an overall and reasoned assessment. An isolated incident may trigger the proposal, but it is no substitute for that overall assessment. Less severe alternatives can be argued for, such as a change in the form of life.

Can you take the case if the prisoner is held outside Barcelona?

Yes. We work with prisons throughout Catalonia and Spain, and much of the procedure is conducted in writing before the Junta de Tratamiento, the prison authority and the prison supervision court. We coordinate communication with the prisoner and the family and travel when needed. You can see our work as a prison lawyer in Barcelona.

Let’s talk about your case

Tercer grado is something you prepare for. Every month without building the file is a month in which the proposal will reach the Junta weaker than it could have been, and every refusal carries an appeal deadline that starts running from notification. We look at your case carefully and explain the possible routes without dressing them up.

C/ Aribau 205, 2nd floor, 08021 Barcelona. Telephones +34 696 967 181 and +34 937 490 708. You can also write to us from our contact page and we will call you back.