Aggregation of sentences

When a person has several prison sentences, someone has to add them up. And that sum is not always done properly. Aggregation of sentences is the legal mechanism that puts a ceiling on the time a person can actually spend in prison where there are several judgments for facts that, at the time, could have been tried in a single set of proceedings.

It is not a prison benefit and it is not a pardon. It is a rule of the Código Penal (the Spanish Criminal Code) that often goes unapplied simply because nobody asks for it. Courts enforce each case separately: if there are four judgments from four different courts, the normal thing is that none of them has the full picture in front of it.

At Bataller Abogados we have more than 25 years of experience in sentence enforcement and prison law, working from Barcelona and acting throughout Spain. If your family has several cases running and the release date you have been given does not add up, it is worth having it checked. You can call us on +34 696 967 181 or +34 937 490 708. We are available 24 hours.

What acumulación jurídica of sentences is

The starting point is art. 75 CP: where several penalties cannot be served at the same time, they are served one after another, beginning with the most serious. That is consecutive service. Added up without more, four six-year sentences would come to twenty-four years in prison.

Art. 76 CP corrects that result. It provides that the maximum time actually served cannot exceed three times the length of the most serious penalty imposed, subject to absolute caps expressed in years. Once the penalties already served reach that limit, the remainder are declared extinguished.

The key point: that limit applies even where the penalties were imposed in separate proceedings, provided a timing requirement is met, which we explain below. Aggregation does not wipe out the convictions and it does not reopen whether they were fair. It only fixes the ceiling on the time to be served. It is decided by a judge, by court order (auto), through the procedure in art. 988 of the Ley de Enjuiciamiento Criminal (the Criminal Procedure Act).

Aggregation and refundición are not the same thing

Acumulación jurídica (legal aggregation of sentences) is a judicial matter. It is ordered by the competent criminal court, it applies art. 76 CP and it fixes a maximum limit on time served. It can cause outstanding penalties to be declared extinguished. This is the one that directly affects the release date.

Refundición de condenas (consolidation of sentences) is a prison administration operation. It comes from art. 193.2 of the Reglamento Penitenciario (the Prison Regulations), which provides that where a prisoner is serving two or more custodial sentences, the sum of them all is treated as a single sentence for the purposes of parole. It is used to calculate time periods and benefits, not to shorten the total.

Put simply: consolidation adds up so that time can be counted; aggregation imposes a ceiling. A consolidated sentence is not an aggregated one. Families are often told the sentences are “already consolidated” and believe the matter is settled, when aggregation under art. 76 has never been applied for.

You can see how all of this fits together in our section on prison law.

The maximum limit on time served under art. 76 CP

Art. 76.1 contains two brakes that operate at the same time. Whichever produces the lower figure is the one that applies.

• Three times the most serious penalty. If the highest sentence is five years, the ceiling would be fifteen.
• The absolute cap of 20 years, which operates as the general rule.

That twenty-year cap rises in defined situations:

• 25 years where the person has been convicted of two or more offences and one of them carries a statutory prison sentence of up to 20 years.
• 30 years where one of the offences carries a statutory prison sentence of more than 20 years.
• 40 years where at least two of the offences carry statutory prison sentences of more than 20 years, and also in certain terrorism cases.

One detail confuses many people: the brackets are measured by the penalty the law attaches to the offence, not only by the one imposed in the judgment. Where a reviewable permanent prison sentence is involved, specific rules govern the calculation.

The connection test: which sentences can be aggregated

For years there was argument about whether the sentences had to be related to each other. Today the test is purely chronological. There is no requirement that the offences be similar, of the same type, or share victims.

Art. 76.2 puts it this way: the limit applies even where the penalties were imposed in separate proceedings, where the facts were committed before the date on which those facts that are the subject of aggregation were first tried.

Translated: the question is not “are these offences alike?”, but “could they all have been tried in the same proceedings?”. Two dates are compared: the date each offence was committed, and the date of the reference judgment.

The Second Chamber of the Tribunal Supremo (the Spanish Supreme Court) has refined this test in several non-jurisdictional plenary agreements, in particular in 2016 and 2018. From these come some practical rules: you start from the oldest judgment; for the purposes of art. 76.2 the date of the first-instance judgment is what counts; a sentence already aggregated does not re-enter later exercises; and if one block cannot be aggregated, you must check whether the remaining sentences can be aggregated among themselves.

That is where the technical work lies: testing the possible combinations and keeping the most favourable one.

How it is handled: the procedure under art. 988 LECrim

Art. 988 of the Ley de Enjuiciamiento Criminal (the Criminal Procedure Act) is the procedural route:

1. Jurisdiction. It falls to the court that handed down the last of the judgments to be aggregated.
2. Starting the process. It can be started by the court itself, by the Ministerio Fiscal (the public prosecutor) or by the convicted person and their defence. In practice it almost always starts because the lawyer asks for it.
3. Gathering the material. The criminal record sheets and certified copies of all final judgments are requested, with the dates of the facts and of the judgments becoming final.
4. Prosecutor’s report and decision. After the Ministerio Fiscal reports, the court issues an auto (court order) listing all the penalties and setting the maximum time to be served.
5. Appeal. Both the prosecutor and the convicted person can appeal that order to the Tribunal Supremo by way of cassation for error of law.

That last point matters a great deal: an order refusing aggregation is not the end of the road. It can be reviewed by the Tribunal Supremo, which is where the case law in this area has been built.

Credit for time on remand

Another classic source of errors. Art. 58 CP provides that time spent in pre-trial detention is credited in full, unless it has already been credited in another case.

Where the credit has to be applied in a case other than the one in which remand was ordered, the decision rests with the Juez de Vigilancia Penitenciaria (the prison supervision judge), after a report from the prosecutor. It only applies where the remand came after the facts for which the sentence is imposed.

Art. 59 adds a rule for where the precautionary measure and the penalty are of a different nature: the judge sets off whatever part they consider fair.

Where several cases run at once, months of remand get lost because nobody claims them. No one does it of their own motion. It is a check we always carry out alongside the overall calculation.

Sentences handed down in other countries

It is increasingly common to carry sentences from Spain and from another EU country. Whether those foreign sentences enter the Spanish aggregation has been the subject of intense debate.

The framework combines the European rules on taking account of convictions handed down in other Member States, their transposition into Spanish law, Ley 23/2014 on mutual recognition of criminal decisions in the European Union, and case law of the Tribunal Supremo that has shifted over time. The Supreme Court at one point accepted aggregation of a sentence handed down in another Member State, and the legislator then introduced limits, which were later amended.

This is a developing area. If there are sentences served or imposed outside Spain, the individual case has to be studied: the country of origin, the dates, the basis of any transfer and the applicable rules.

Signs that your calculation may be wrong

Situations where it is worth asking for a review:

• There are several cases from different courts, especially in different provinces.
• The final release date you have been given does not match your own figures.
• You have been told the sentences are “consolidated”, but no order under art. 988 has ever been made.
• There was time on remand in a case that was later dropped or ended in acquittal.
• The facts date from before 1996 and could be compared with the 1973 Criminal Code, with its own limit and its remission of sentence through work.
• Nobody has ever looked at all the cases together.

That last point is the most important one: the system is built to enforce cases, not to review them as a whole.

Cases we typically handle

• Several convictions for property offences from the same period, tried in different years.
• Partial aggregation orders that left out judgments that could have been included.
• Refusals of aggregation that can be taken to cassation.
• Review of the final release date before applying for third grade, Spain’s open regime or parole.

How we work on your case

1. First meeting and gathering papers. We listen to the situation and ask for the documents. If necessary, we request them ourselves from the courts and the prison.
2. Rebuilding the map of cases. We put all the judgments in order by date of offence and date of judgment. That is where the errors show up.
3. Working through the scenarios. We test the possible combinations for aggregation and check the credit for time on remand in each case.
4. Application and procedure. We file the application with the competent court under art. 988 LECrim, with a reasoned proposal for the limit, and follow the matter through to the court order.
5. Follow-up. If the order goes against you, we assess an appeal to the Supreme Court. If it is favourable, we pass the new calculation to the prison and to the supervision court.

We tell you frankly what scope we see before you decide anything. If there is nothing in it, we will say so.

Useful documents

For a first analysis it helps to have:

• An up-to-date criminal record sheet and the sentence calculations.
• A copy or certified copy of every judgment, with the date of the facts and the date it became final.
• The prison’s calculation sheet with the dates for three quarters, two thirds and final release.
• Any earlier orders on aggregation or consolidation.
• Decisions on pre-trial detention, and cases that were dropped or ended in acquittal.

If you have none of this, it does not matter. The name, the prison and the courts you can remember are enough to start.

Frequently asked questions

Can I apply for aggregation myself?

Yes. The convicted person can apply, and the Ministerio Fiscal can also start the process, as can the court of its own motion. That said, an application without the full map of cases and without a reasoned proposal for grouping them usually ends in a refusal. The real work is in gathering the judgments, ordering the dates and proposing the combination that fits best.

What do I gain from aggregation?

What aggregation fixes is a maximum limit on time served. Where it applies, penalties exceeding that ceiling are declared extinguished and the calculation is redone on the limit rather than on the arithmetic total. That can bring forward the final release date and the dates for the later stages. We cannot anticipate the outcome of any individual case: it depends on the dates and the penalties. What we can tell you is whether there is a basis for trying.

How long does it take?

It depends above all on how long each court takes to send its certified copy of the judgment, which is the least predictable part. Once the papers are together, the procedure requires a report from the prosecutor before the order is made. Overall it usually takes several months, and longer if there is an appeal to the Supreme Court. It is worth starting as early as possible.

Can sentences from different courts be aggregated?

Yes, and that is the typical situation. Art. 76.2 CP says expressly that the limit applies even where the penalties were imposed in separate proceedings. Jurisdiction lies with the court that handed down the last judgment. Cases coming from different provinces do not prevent aggregation; they simply mean nobody has looked at them together.

Is it the same as refundición?

No. Refundición under art. 193.2 of the Reglamento Penitenciario (the Prison Regulations) adds the sentences together so they are treated as one for parole and for calculating time periods. Aggregation under art. 76 CP fixes a maximum limit on time served and can extinguish penalties. You can have your sentences consolidated and never have applied for aggregation.

My sentence has been calculated wrongly. What do I do?

The first step is to pin down where the discrepancy is: aggregation never applied for, credit for time on remand, a faulty calculation, or a judgment that was not taken into account. Each has its own route and its own court. Gather the sentence calculations and the prison’s calculation sheet. If we find the error, it is challenged through the appropriate channel.

Can aggregation be refused?

Yes. The most common reason is that the facts of one conviction came after the reference judgment and could not have been tried together. A refusal does not close the door either: you then have to check whether the remaining judgments can be aggregated among themselves in another block. And the order can be appealed to the Supreme Court for error of law.

Is it any use if I am already in third grade or on parole?

Yes, because what changes is the date the sentence expires. A corrected calculation affects final release and the length of the period under supervision. It is worth reviewing at those stages too. You can read our information on parole in Spain.

Let us review your calculation

Where several cases are involved, the question is not whether the calculation is right. It is whether anyone has ever looked at the whole of it.

We are a boutique firm in Barcelona, at C/ Aribau 205, 2nd floor (08021), with more than 25 years of experience in sentence enforcement and we act throughout Spain. We study the complete file and tell you clearly what can be argued and what cannot.

Call us on +34 696 967 181 or +34 937 490 708. We are available 24 hours. You can also write to us from our contact page. You may want to look at our sentence enforcement area and the profile of our prison lawyer in Barcelona.