Suspended sentences in Spain

You have just received a prison sentence and there is a figure keeping you awake: two years. Perhaps someone has already told you that you probably will not go to prison, or perhaps nobody has explained anything at all. The first thing to know is that a prison sentence does not automatically mean entering a prison. The law provides a mechanism — suspensión de la ejecución de la pena (suspension of the custodial sentence), governed by articles 80 to 87 of the Código Penal (the Spanish Criminal Code) — that allows the sentence not to be served.

Now the honest part: suspension is neither automatic nor a right. It is a reasoned decision of the sentencing judge or court. Some cases are resolved with a well-argued submission and solid documents, and some are lost because what needed to be proved was not proved in time — above all, civil liability.

And there is a recent development almost nobody takes into account: since April 2026, when Ley Orgánica 1/2026 came into force, the way previous convictions for minor offences are treated has changed.

At Bataller Abogados we have spent more than 25 years working on the enforcement stage. We are available 24 hours and act throughout Spain. Call us on +34 696 967 181 before the court issues its ruling.

What suspension of the custodial sentence means

Suspension means that the judge, having sentenced you to a custodial sentence, decides not to enforce it and to hold it in suspense for a probationary period. If you get through that period while complying with the conditions imposed, the sentence is declared definitively remitted (article 87 CP). If you breach them, the suspension can be revoked and the sentence enforced.

The legal test is in article 80.1 CP: the judge may suspend the enforcement of custodial sentences of no more than two years where it is reasonable to expect that enforcement is not necessary to prevent further offending. It is, quite literally, a prediction about the future. And a prediction is built with evidence: work and family ties, reports, treatment, making good the harm caused.

It is worth distinguishing this from other mechanisms. Suspension is not tercer grado (third grade, Spain’s open or semi-liberty regime) and it is not parole: those belong to Spanish prison law and assume you are already serving a sentence. Nor is it the substitution once provided for by article 88 CP: that mechanism was repealed by Ley Orgánica 1/2015 and no longer exists.

Requirements for ordinary suspension (article 80.2 CP)

1. That the convicted person has offended for the first time. Previous convictions for negligent offences or minor offences are not counted; nor are spent convictions, or those that should have been spent under article 136 CP; nor convictions for offences that are not relevant to assessing the likelihood of further offending. Note the 2026 change: Ley Orgánica 1/2026 has introduced an exception — minor offences do count where they make up an aggravated offence based on repeat minor offending.
2. That the sentence imposed, or the total of those imposed, is no more than two years, excluding from that calculation any sentence arising from non-payment of a fine. That non-payment is a separate problem worth tackling: we deal with it on our page about unpaid criminal fines.
3. That civil liability has been met and any confiscation ordered in the judgment has been given effect.

Meeting all three requirements does not oblige the judge to suspend: the forward-looking assessment under article 80.1 still applies. So the application must be supported by evidence, not simply by citing the provision.

Exceptional suspension under article 80.3: when the ordinary requirements are not met

This is the route many convicted people do not know about, and it rescues cases that look lost. Article 80.3 CP allows suspension even where requirements 1 and 2 are not met — that is, even if you have previous convictions that count, or the total exceeds two years — provided that you are not a habitual offender; that no individual prison sentence exceeds two years; and that your personal circumstances, the nature of the offence, your conduct and, in particular, your efforts to make good the harm, point in that direction.

The second point is the key one: several sentences of two years each can add up to more than two years in total and still open the door to article 80.3.

It comes with trade-offs: the period is three to five years, it is conditional on actually making good the harm so far as you are able, and the judge must always impose one of the measures in article 84.1.2 or 84.1.3 CP — a fine or community service. It is not suspension for nothing, but it is liberty.

Suspension on grounds of drug dependence (article 80.5 CP)

If the offence was committed because of dependence on alcohol, drugs, narcotics, psychotropic substances or similar, article 80.5 CP raises the limit: custodial sentences of no more than five years can be suspended.

You must show, by adequate certification issued by a duly accredited public or private centre or service, that you are free of the dependence or undergoing treatment at the time the suspension is decided. It is not enough to state that you were using: you have to prove the link between the dependence and the offence, and document the treatment properly.

The suspension period in this case is three to five years. And there is one condition breached more often than you might think: abandoning treatment is a ground for revocation.

Article 80.4 CP deserves a separate mention: people suffering from a very serious illness with incurable conditions may obtain suspension without having to meet any requirement, unless they have already been granted one on the same ground.

Suspension periods and the conditions the judge imposes

The period (article 81 CP): two to five years for custodial sentences of no more than two years; three months to one year for minor sentences; three to five years in drug dependence cases and in exceptional suspension under article 80.3.

Prohibitions and duties (article 83 CP). The judge can make suspension conditional on rules of conduct such as: a ban on approaching or contacting the victim; a ban on living in or visiting certain places; a ban on leaving your place of residence without permission; periodic reporting; participation in training, employment, road safety, sexual education or addiction treatment programmes. In offences committed against a woman by a current or former spouse or partner, certain rules must be imposed.

Additional measures (article 84 CP). The judge can also make suspension conditional on complying with a mediation agreement, paying a fine or carrying out community service.

Article 85 CP allows the judge to change, replace or lift those conditions if circumstances change. It is a useful route and an under-used one where a rule of conduct has become incompatible with a job or with a change in family circumstances.

Civil liability: the obstacle that brings down most cases

Let us put it plainly: most refused suspensions are refused not because of the offence, but because of the money.

That said, the law does not ask for the impossible. Article 80.2 accepts that the requirement is met where the convicted person undertakes to meet the civil liability in line with their means and to assist with confiscation, and where it is reasonable to expect that undertaking will be met within a reasonable period set by the judge.

What is fatal is silence or concealment. Article 86.1.d) CP makes it a ground for revocation to give inaccurate or insufficient information about the whereabouts of assets, to fail to comply with the payment undertaking, or to give inaccurate information about your own means. It is far better to prove honestly that you cannot pay and to propose a realistic payment schedule than to give the impression of means you do not have.

In practice we work on this with documents: employment history, payslips, tax returns, benefit certificates, family responsibilities, evidenced debts, and a specific, sustainable proposal for payment by instalments. A vague undertaking convinces nobody; a payment schedule with the first instalment already paid does carry weight.

Revocation of suspension: what causes it and how to respond

Article 86.1 CP sets out four grounds for revocation: being convicted of an offence committed during the suspension period that shows the expectation on which it was based can no longer be maintained; seriously or repeatedly breaching the prohibitions and duties in article 83; seriously or repeatedly breaching the conditions in article 84; and giving inaccurate or insufficient information about assets or means, or failing to comply with the payment undertaking.

The key to the defence lies in article 86.2: if the breach is not serious or repeated, the judge does not revoke; instead the judge may impose new prohibitions, duties or measures, or extend the suspension period, provided the extension does not exceed half the period originally set. Much of our work in these proceedings consists precisely of moving the case from paragraph 1 to paragraph 2.

In addition, article 86.4 requires the judge to hear the parties before deciding. That hearing is your opportunity and should not be wasted. And if suspension is ultimately revoked, article 86.3 provides that payments and measures already carried out are credited against the sentence to be served.

If revocation goes ahead and entering prison becomes unavoidable, the work moves to the prison stage: initial classification, tercer grado and prison leave.

Suspension and foreign nationals: the link with expulsion under article 89 CP

If you are a foreign national, the picture changes. Following the repeal of the former article 88 CP, the only substitution left in Spanish law is that of article 89: replacing a prison sentence with expulsion from Spanish territory. It can run alongside suspension, or even ahead of it.

Deciding whether to apply for suspension, to oppose expulsion, or to pursue both in a particular order is a strategic decision with enormous consequences for your ties to Spain and your future here. We look at this in more detail on our page about expulsion in place of the sentence.

Cases we regularly handle

• Sentences of one to two years for road traffic offences, where the person has work and family.
• Assault and violent offences with sentences around the two-year mark, where the rules of conduct in article 83 must be imposed.
• Property offences with outstanding civil liability and limited means to pay.
• People with previous convictions who seemed to be excluded but fit the exceptional route under article 80.3.
• Offences committed in the context of addiction, with sentences of up to five years, through article 80.5.
• Revocation proceedings already under way for breach of the rules or non-payment of civil liability.
• Foreign nationals with a suspendable sentence and expulsion proceedings open in parallel.

How we work on your case

1. Assessing viability and the enforcement file. We review the judgment, the sentence calculation and your actual previous convictions — including whether they can be spent under article 136 CP — and determine which route applies.
2. Building the favourable prediction. We gather the evidence of your ties: employment history, contract, social, family, medical or treatment reports.
3. Strategy on civil liability. We document your real means and design a credible payment proposal, with an actual payment made where possible.
4. The application and negotiating the conditions. We work on the rules in article 83 and the measures in article 84 so that they can be complied with in your real life, rather than becoming a trap later on.
5. Follow-up throughout the period. We stay with you while the suspension lasts and act urgently on any revocation proceedings.

Documents that help

• The full judgment and, if it exists, the decision confirming it is final or the enforcement order.
• The enforcement file number and the court handling it.
• Your criminal record certificate and details of previous convictions, with dates and sentences.
• Employment history, payslips, employment contract, tax return, benefit certificates.
• Proof of family responsibilities: family record book, children’s school enrolment, dependants.
• Any payment already made towards civil liability, or sums deposited with the court.
• Medical, psychological or addiction treatment reports issued by an accredited centre.
• If you are a foreign national: NIE, residence card, registration certificate and any administrative proceedings open.

Deadlines: why to call before the judgment becomes final

Article 82.1 CP is clear: the judge or court is to rule on suspension in the judgment itself wherever possible; and where that is not possible, to rule as a matter of urgency once the judgment is final. This means that the best application for suspension is not prepared after the ruling: it is prepared beforehand, so that the sentencing court already has on file the documents that support a favourable prediction.

In addition, article 82.2 CP provides that the suspension period runs from the date of the decision granting it, or from the date the judgment became final if it was granted in the judgment. Starting late does not only put the outcome at risk: it lengthens the period during which you will be subject to conditions.

And there is one situation we see far too often: the person lets the moment pass, receives an order to report voluntarily to prison, and only then calls. Something can still be done, but the scope is far narrower. Do not wait for that order.

Frequently asked questions

I have been sentenced to 2 years. Will I go to prison?

Not necessarily. Two years is precisely the limit in article 80.1 CP, so your sentence falls within the scope of ordinary suspension. Whether it is granted will depend on meeting the requirements in article 80.2 and on the judge considering it reasonable that enforcement is not necessary to prevent further offending. Nobody can guarantee you an outcome, but we can make sure the case is put forward with everything that supports it.

Can a sentence be suspended if I have previous convictions?

Yes, by two routes. First, because not all previous convictions count: negligent offences are excluded, as are spent convictions or those that could be spent under article 136 CP, and those that are not relevant. Minor offences do not count either, except — new under Ley Orgánica 1/2026 — where they make up an aggravated offence based on repeat minor offending. And second, because even where previous convictions do count, there is exceptional suspension under article 80.3 CP.

What happens if I cannot pay the civil liability?

The law does not require you to pay what you do not have. Article 80.2.3 accepts that the requirement is met by undertaking to meet the civil liability in line with your means, where it is reasonable to expect that undertaking will be met within a reasonable period set by the judge. What matters is proving your actual financial situation and proposing a credible payment plan. Concealing assets is a separate ground for revocation.

How long does the judge take to decide on suspension?

Article 82.1 CP requires the court to decide in the judgment itself where possible and, failing that, as a matter of urgency once it is final. In practice the timings vary a great deal depending on the court and its caseload, and can range from a few weeks to several months. That is why it matters so much that the documents are already on file.

Is suspension a right, or does it depend on the judge?

It depends on the judge. Even where all the requirements in article 80.2 are met, granting it requires the forward-looking assessment under article 80.1. It is a reasoned decision and, as such, can be appealed if it is refused.

I have two separate sentences. Are the two years added together?

For the ordinary route, yes: article 80.2.2 refers to the sentence imposed or the total of those imposed, excluding any sentence arising from non-payment of a fine. But if the total exceeds two years and no individual sentence exceeds two years, the route under article 80.3 may open up, provided you are not a habitual offender.

If I am given community service, is that an extra sentence?

No. It is a condition of the suspension, provided for in article 84.1.3 CP. It does not replace the prison sentence: the sentence remains suspended and the community service is what allows it to stay suspended. If the suspension were ultimately revoked, article 86.3 provides that what has already been completed is credited against the sentence.

What do I do if I have been notified of revocation proceedings?

Act immediately. Article 86.4 requires the parties to be heard before a decision is taken, and that hearing is your defence. The aim is usually to show that the breach was neither serious nor repeated, which allows the judge to apply article 86.2 — new conditions or an extension of the period — instead of revoking.

Talk to us before it is too late

You are at liberty, you have a judgment and you have a window of time. That window is exactly the space in which it is decided whether you go to prison, and it closes by itself.

We are a boutique firm: your case is handled by a lawyer who knows it, not by a file that gets passed around. We are available 24 hours and act throughout Spain.

+34 696 967 181 · +34 937 490 708 · info@bbabogadas.com · C/ Aribau 205, 2nd floor, Barcelona. Contact our team now.