Replacing prison penalty with expulsion

The Spanish Criminal Code regulates the situation in which a foreign citizen has been convicted to a penalty behind bars in Spain, but, under certain conditions, this imprisonment can be replaced with the expulsion from the Spanish territory.
Article 89 of the Criminal Code states that prison sentences of more than one year applied to a foreign citizen will be replaced with the expulsion of the citizen from the Spanish territory. Exceptionally, when it is necessary to ensure the defense of the legal order, the Court may agree that only a part of the penalty can be served, but the part cannot exceed two thirds of the time; the rest of the penalty will be replaced with the expulsion of the convict from the Spanish territory. In any case, the rest of the penalty will be substituted only when the two thirds of the time are served, or after the conditional release is granted.
Moreover, when a penalty of more than five years of imprisonment has been applied, or there are several penalties exceeding that duration, the judge may order the execution of the entire duration of the sentence or part of it, depending if this is considered necessary as to ensure the reestablishment of the legal order and restore confidence in the validity of the rule infringed by the criminal. In these cases, the execution of the rest of the duration of the sentence will be afterwards replaced by the expulsion of the convicted person from the Spanish territory.

When taking into consideration the facts and personal circumstances, in particular the connection between the author/crime with the state of Spain, it is reached the conclusion that the expulsion is disproportionate – no Court will proceed with the granting of the substitution.
It’s important to know that the expulsion of a citizen of the European Union will only take place when the committed crime represents a serious threat to the public order or to the public safety, taking into consideration the author’s background, the circumstances and the gravity of the crime.
If the author had been a resident of Spain during the last previous ten years, the expulsion will still take place when the following conditions are also fulfilled:
the author has been convicted of one or more crimes against life, liberty, physical integrity and sexual freedom, crimes that are punishable with a maximum prison sentence of more than five years, and there is a serious risk of committing crimes of the same nature;
the author has been convicted of one or more crimes of terrorism or other crimes committed within a criminal group organization.
When the expulsion is granted, the foreigner will have the prohibition to return to Spain within a period of five to ten years, counted from the date of his expulsion, given the duration of the replaced sentence and the personal circumstances of the prisoner.

Comply with the penalties that were substituted

What is more, if the expelled foreigner returns to Spain before the expiration of the legally established period of time, he will comply with the penalties that were substituted, unless, exceptionally, the Judge or Court reduces their duration when their compliance is unnecessary to ensure the defense of the legal order, taking into consideration the time elapsed since the expulsion and the circumstances in which the breach occurred. However, if in this situation, the foreigner is caught at the border, he will be expelled directly by the government authority, starting to re-compute the period of prohibition of entry.

If you want to find out more information about the process of replacing a prison penalty with expulsion, or if you have any questions related to the legal area, don’t hesitate to contact Barcelona lawyers of the Marin&Pasalodos law office. We are specialized in commercial law, civil law, administrative law and criminal law, and will offer full professional and emotional commitment in order to obtain a satisfactory result for our clients! You can reach us at the phone number (0034) 932006766, or by e-mailing us at [email protected] Thank you for trusting in us!

by Marin Pasalodos

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