How is a request processed in Spain for a convicted individual abroad to serve their sentence in Spain?

We will distinguish between two scenarios: if the sentence was imposed by a European Union Member State or another State.

Procedure for the Transfer to Spain of Individuals Sentenced in a European Union Member State

The Ministry of Justice lacks competence in this area. Competent judicial authorities handle the transfer request directly from a Member State to Spain. In Spain, these authorities are the Central Criminal Court and the Central Court for Prison Oversight.

The applicable European legislation (Framework Decision 2008/909/JHA, of November 27, 2008) was transposed into Spanish law through Law 23/2014, of November 20, on mutual recognition of criminal judicial decisions within the European Union. This law regulates the transfer process without direct intervention by the Ministry of Justice and provides in its first article:

“Pursuant to the principle of mutual recognition of criminal decisions within the area of freedom, security, and justice of the European Union, Spanish judicial authorities issuing an order or decision regulated by this Law may transmit it to another Member State for recognition and enforcement.

Pursuant to the principle of mutual recognition of criminal decisions, the competent Spanish judicial authorities will recognize and enforce within the prescribed period the European orders and criminal decisions provided for in this Law, when they have been correctly transmitted by the competent authority of another Member State, and no specific ground for refusal of recognition or enforcement applies.”

Procedure for the Transfer to Spain of Individuals Sentenced in a Non-EU State

In this case, the Ministry of Justice is responsible for processing transfer requests from a non-EU State to Spain. However, the convicted individual’s country must apply one of the multilateral or bilateral agreements on this matter, listed in the following file: CONVENTION ON THE TRANSFER OF SENTENCED PERSONS (mjusticia.gob.es).

These procedures, however, do not constitute a right. In other words, there is no inherent right to transfer; rather, there is a right to submit the request, whose acceptance depends on the decision of the participating States in the agreement.

Processing for Individuals Sentenced in a European Union Member State

Below is a schematic overview of the procedure for enforcing criminal decisions in Spain issued in other EU Member States:

1. Application:
   • The process can be initiated by the issuing State (the State imposing the sentence) or by the convicted person, who may request their transfer to Spain to serve the sentence.
   • The Central Criminal Court of the National Court may, on its own initiative or upon the request of the convicted person (and following consultation with the Public Prosecutor), request the transmission of a decision imposing a custodial sentence or measure for enforcement in Spain.
2. Transmission of Necessary Documentation:
   • The issuing State must send the sentence and the corresponding certificate containing essential information about the imposed penalty to the Central Authority of the Ministry of Justice.
3. Reception and Examination of Documentation:
   • Upon receipt, the Central Authority verifies that all documents and certificates are complete and meet formal requirements. If in order, they are forwarded to the Central Criminal Court, which is the competent authority to recognize and decide on enforcement in Spain.
4. Compliance Review:
   • The Central Criminal Court will recognize decisions issued in another EU Member State for enforcement in Spain if the following conditions are met:
     • The transfer facilitates the convict’s social reintegration.
     • The convict is Spanish and resides in Spain or will be expelled to Spain due to the sentence imposed in another State. Alternatively, consent has been granted by the Central Criminal Court, except when consent is unnecessary.
     • Double criminality is satisfied unless it pertains to offenses listed in Article 20.1 of Law 23/2014 (for which double criminality is not required), and the custodial penalty is at least three years.
     • The convict has given consent, unless unnecessary due to Spanish nationality and residence in Spain, or imminent expulsion, escape, or return to Spain.
5. Consultation and Opinion:
   • If any consultation is requested by the issuing authority regarding the transfer to Spain, the Central Criminal Court must respond within 20 days. Without consultation, and after receiving the sentence and certificate, the Court may issue an opinion on the adaptation of the penalty for enforcement in Spain and its contribution to the convict’s reintegration.
6. Referral to the Public Prosecutor:
   • Within five days of receiving the certificate, it is forwarded to the Public Prosecutor, who must issue an opinion within ten days regarding the recognition and enforcement of the decision.
7. Recognition of the Sentence:
   • The Central Criminal Court assesses whether the recognition facilitates social reintegration and meets the conditions for enforcement in Spain.
8. Decision:
   • The Central Criminal Court decides within ten days whether to recognize or deny the enforcement of the decision. A final resolution is reached within 90 days.
9. Execution:
   • Once the decision becomes final, it is forwarded to the Central Court for Prison Oversight, which enforces the custodial sentence or measure under the Spanish penitentiary system’s conditions and rights.

Requirements for Recognizing and Enforcing EU Member State Penalties in Spain

The requirements for recognizing and enforcing custodial penalties or measures imposed by a Member State are detailed in Title III of Law 23/2014, specifically in Article 83, which states:

“1. If the duration of the imposed penalty in the decision is incompatible with the Spanish legislation in force at the time of recognition due to exceeding the maximum penalty for that offense, the Central Criminal Court may adapt the sentence. The adaptation shall limit the duration to the maximum penalty provided for equivalent offenses under Spanish law.

If the penalty’s nature is incompatible with Spanish law, the sentence may be adapted to a penalty provided under Spanish legislation for equivalent offenses. The adapted penalty must correspond to the penalty imposed in the foreign decision and cannot be converted into a different type of penalty, such as a fine.

In no case may the adaptation increase the original penalty imposed by the issuing State.”

Grounds for Denying Recognition and Enforcement of EU Member State Penalties in Spain

The Central Criminal Court may deny recognition and enforcement of penalties imposed by another Member State in specific cases outlined in Articles 32, 33, and 85 of Law 23/2014, such as:

• Non bis in idem: If a final judgment has already been rendered on the same facts and individual in Spain or another State.
• Lack of competence or prescription under Spanish law.
• Deficient documentation submitted by the issuing State.
• Immunity of the convicted individual.
• Sentencing in absentia under certain conditions.
• Age, if the individual was not criminally liable under Spanish law.
• Remaining sentence duration below six months.
• Incompatibility with Spanish legislation or concurrent prosecution for other offenses in Spain.

Appeals against decisions follow the general appeal system outlined in Article 24 of Law 23/2014.