Third grade and open prison regime

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.

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.