The vice president of the TC proposes to endorse the permanent prison and reject the appeal of the PSOE

The vice president of the Constitutional Court, Encarnación Roca, proposes declare the constitutionality of the reviewable permanent prison, a sentence in force in Spain since July 2015 and which was introduced by the PP Government in the midst of a strong political and legal controversy.

In a draft sentence that the TC plans to debate on October 5, Roca proposes to dismiss practically the entire appeal filed in June 2015 by deputies from the PSOE and other groups (CiU, IU and PNV, among them) with two exceptions: one section of an article is subject to a compliant interpretation and another is declared unconstitutional by a loophole in the law, which does not guarantee a procedure for review of the sentence when it has been the conditional suspension of the punishment.

The now President of the Government, Pedro Sánchez, then in opposition, was the first to announce the challenge to the reviewable permanent prison. In the 2016 electoral program, he promised to repeal it “immediately”, although once in La Moncloa he has not done so.

2016 PSOE electoral program, with the commitment to repeal the permanent prison./

2016 PSOE electoral program, with the commitment to repeal the permanent prison./


The challenge to the reviewable permanent prison is the second oldest unconstitutionality appeal pending resolution of the TC, after the one promoted by the PP against the 2010 abortion law.

Roca is not responsible for this delay: the vice president assumed that presentation at the end of last year after the resignation of Fernando Valdés, who was the initial speaker and never brought a proposal to the full court.

The vice president endorses the inclusion in the Penal Code of a penalty such as permanent prison that can be reviewed in line with the doctrine of the European Court of Human Rights, which has declared that this punishment is not contrary to the right not to suffer an inhuman or degrading punishment as long as it is subject to review in terms of compliance, that is, it has possibilities of mitigation and flexibility depending on the personal evolution of the inmate.

This penalty has been applied dozens of times in Spain since the first conviction, imposed in July 2017 by the Hearing of Pontevedra on a man who beheaded his two daughters, aged nine and four, with a radial saw. Most of the rulings have been confirmed by the Criminal Chamber Supreme Court, which has not objected to its constitutionality.

In its current regulation, the reviewable permanent prison is applied in particularly serious murder cases (committed on minors, perpetrated after having sexually assaulted the victim, when the perpetrators form a criminal organization, when the victim is the king or a foreign head of state or if they have been committed within the framework of crimes against humanity or genocide ).

Review mechanisms

Those sentenced to this prison sentence, notwithstanding the adjective permanent, can access the third grade penitentiary or open compliance regime as long as they have been effectively in jail for a minimum time of 15 years as a general rule, or between 18 and 22 years in the most serious cases.

The decisive thing, according to the doctrine of the ECHR to which the rapporteur of the TC refers, is that the law provides mechanisms for reviewing the penalty. Article 92 of the Penal Code provides for suspension of compliance and parole of those convicted when they have served a certain time (generally 25 years in prison), are in the third degree and the court finds that there is a favorable prognosis for social reintegration.

In addition, the law establishes the obligation of the court to review, at least every two years, if the requirements for access to parole are met.

According to sources from the TC, the presentation denies the alleged disproportion of the sentence recalling that the terms of access to the third degree or to the conditional suspension do not represent a greater punitive reaction than the non-permanent prison sentences, which can reach 30 years.

An unconstitutional section

The rapporteur proposes a consistent interpretation of Article 92 (3), which allows prison surveillance judges revoke the suspension of grief “when a change in circumstances is revealed” that would have given rise to such suspension.

Roca considers that the section is constitutional as long as it is interpreted that such “circumstances” can only be the breaches that the Penal Code itself provides in its article 86.1, for example, that the person sentenced to permanent prison whose sentence has been suspended re-offends or violates the conditions imposed by the judge to access parole.

The vice president It does consider section 4 of article 92 unconstitutional, but not because of what it provides but because of what it omits. The norm establishes a review every two years of the requirements of probation -which seems correct- but does not expressly guarantee a procedure to re-review the sentence of those who have seen the suspension revoked for having incurred in some way. failure to remain on probation.

In the absence of this procedure – which in his opinion should be introduced by the legislator – the permanent prison sentence could become perpetual, whatever the Constitution prohibits.

This is the only section of the reform that led to permanent imprisonment that the rapporteur objects to.

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