JOHN CARLOS I

KING OF SPAIN

To all who present it and understand it.

Sabed: That the Cortes General have approved and I come to sanction the following Organic Law.

EXPLANATORY STATEMENT

I

The Constitution, in its articles 9.3 and 25, establishes the principles of legality and typicity as the basis of criminal law, principles that the jurisprudence of the Constitutional Court has concretized and developed. very clearly. Both principles aim to ensure the legal certainty of citizens, which is also mentioned in Article 9.3 of the Constitution.

According to them, the citizen has the right to know with legal certainty that it is a crime or a crime, and that it is not. The same right has to know what is the penalty that corresponds to the action typified in the criminal law as a crime or a fault.

The logic of these rights and the need for the principle of legal certainty governing our organization is the right of the citizen to know with certainty what form the sentences are going to be applied to. know, in short, that the penalty or sanction imposed will be translated into practice.

The daily reality and experience show how in the fulfillment of the penalties there are broad areas of discretion, variable areas in which it is appropriate, according to the best doctrine, to establish rules for make a more accurate forecast of the penalty to be met.

This organic law is aimed at perfecting the legal order in order to concretize the form of the fulfillment of the penalties in order to achieve that it is carried out in an integral and effective way and, consequently, to give greater The principle of legal certainty in this field, always from the scrupulous respect to the principles contained in Article 25 of the Constitution.

II

But, in addition to securing this right, the law pursues a clear objective, according to its own penal nature: that of achieving a more effective fight against criminality. As authorized criminal doctrine has pointed out, the greatest brake of crimes is not the hardness of penalties, but its infallibility, so that the certainty of a punishment, even if it is moderate, will take more effect than the fear of a more severe one united to the hope of impunity or of their failure to comply.

The society demands a more effective protection against the most serious forms of crime, in particular, the crimes of terrorism, those from organized crime and those that are very dangerous, protection that the Rule of law not only can it but it has an obligation to provide. The flexibility in the enforcement of prison sentences and benefits is right in order to reintegrate and re-educate the constitutionally-consecrated offender, but, precisely for this reason, the legislation must prevent it from being They are merely instruments at the service of the terrorists and the most serious criminals to achieve a very different end.

III

First of all, Article 36 of the Penal Code is reformed to introduce into our system the so-called "security period" in other European rights, which, in short, means that in certain crimes of The sentenced person will not be able to access the third degree of prison treatment until he has served half of the sentence imposed.

This reform comes from the proposals raised by the technical committee for the study of the reform of the system of penalties. It is considered necessary to introduce this figure in our penal system, which serves as a bridge between this order and the penitentiary, since, in determining the proportionality of the penalties, their specific extension and their suitability to the general and special prevention purposes cannot be put forward in the margins of prison legislation.

In effect, the system of progression of degrees, permits, open regime and granting of parole can make the penalty provided for by the Penal Code and set in the sentence very distant from the effectively accomplished.

In order to resolve this situation, at least as far as the most serious crimes are concerned, it is established in Article 36 of the Criminal Code that, when a prison sentence of more than five years is imposed, the sentenced person is not may be classified in the third grade until the half of the penalty imposed. However, provision is made for the monitoring judge to be able to agree well with his or her maintenance, or the application of the general compliance regime.

IV

Second, Article 76 of the Penal Code is reformed to amend the maximum limit for the compliance of sentences by raising it to 40 years for the alleged crimes of two or more terrorist crimes, They have been punished with imprisonment for more than 20 years, which fits in the cases where terrorist attacks are carried out causing the death of people.

The maximum limit for compliance with the penalties in the cases of two or more crimes of special gravity, punishable by the law with more than 20 years in prison, is also raised to 40 years.

The reform involves extending the maximum limit of compliance with sentences to 40 years, from scrupulous respect to the principle that the fulfillment of all the penalties corresponding to all crimes committed by the same author could to deprive in some cases of effects to the constitutional principles of compliance with the penalties. However, it is also true that there are certain crimes which, due to their particular seriousness, the nature of the legal good injured, the reoffending with which they are committed by their authors, as well as the fact that they can be carried out by gangs organized for the sole purpose of subverting the constitutional order, seriously altering public peace or terrorizing the inhabitants of a population or members of a social, political or professional collective, for these purposes, demand a more of the criminal legal order.

Even more so when, in practice, the rules that the Penal Code established with the constitutional purpose of complying with the general principles of criminal law are being used, precisely, to violate these rules. principles, becoming instruments that terrorists use to their advantage in their constant violation of the rules and principles of the rule of law.

V

The law reform Article 78 of the Penal Code so that prison benefits, exit permits, third-degree classification and time-counting for parole in the alleged crimes The Court of Justice held that the Court of Justice held that the Court of Justice

It is a matter of activating a more effective criminal response to the perpetrators of very serious crimes, who have also committed a plurality of crimes, that is to say, in the face of those who are within the limits set by the Article 76 of the Criminal Code (25, 30 or 40 years of effective compliance with prison sentences) and provided that the penalty to be met is less than half the total amount of the penalty. Where these maximum limits do not come into play, the decision-making power of the judge or tribunal already indicated at the beginning must be fully maintained.

With this rule and in the face of cases of 100, 200 or 300 years of convictions, the offender will fully and effectively comply with the maximum sentence limit.

In addition, the minimum periods of effective compliance with sentences that would allow access to prison benefits are also incorporated, provided that the conditions that are generally specified in the law. In the case of terrorist offences or crimes committed within criminal organisations, the prison surveillance judge may agree to grant a third degree when one fifth of the maximum compliance limit for the offence remains to be met. Sentence imposed, and may agree to the granting of probation when one eighth of the above limit remains to be met.

VI

Articles 90 and 91 relating to probation are also amended in the Criminal Code. This amendment seeks to improve technically the conditions for granting such a parole and its adaptation to the various criminal procedures.

Thus, the need to assess the whole of the circumstances referred to in the article before adopting the decision to grant parole is reinforced. In this way, compliance with three-quarters of the sentence is not the only determining requirement, but must be assessed together with the other circumstances referred to in the precept.

Likewise, the criterion of the satisfaction of the civil responsibilities is introduced in the assumptions and in the terms provided for in the General Penitentiary Organic Law. Finally, the circumstances to be considered when granting parole in cases of terrorist offences and organised crime are also made explicit.

With all this, it is possible to give greater legal certainty to the virtuality of this prison benefit.

Also, Article 93 of the Penal Code is amended, in order to ensure that in the event of non-compliance with the conditions and rules of conduct that allowed for the release of parole, in the case of terrorist offences, the This is the case for a period of time, which is not the same as the time spent on probation.

VII

A new paragraph is introduced in the fifth additional provision of the Organic Law of the Judiciary, in which the suspensory effect of the appeal against decisions on the classification of penalties or the granting of provisional freedom to avoid the possibility of the release of the prison without the intervention of the court "ad quem", in the case of serious crimes, to prevent an immediate release for a decision of freedom (i) a conditional effect on the decision which, under an appeal, may be issued.

The Constitutional Court's doctrine on the immediate effectiveness of resolutions that agree on provisional freedom is not unknown. However, the supposed standard is different, since it is not part of a situation of freedom that has been interrupted by a judicial decision that has not fallen on the bottom, but a situation of compliance with penalty for judicial resolution of The Commission has also taken the view that the Commission has not been able to do so. The difference is that in this case the lack of freedom is the inherent consequence of the sentence imposed and the freedom implies an early release as a result of a degree progression or a probation agreement. Moreover, in order to ensure that the suspensory effect of the appeal lasts as little as possible, the ad quem organ is expected to be able to rule on the release and that the processing of the appeal should be preferential and urgent.

VIII

In Organic Law 1/1979 of 26 September, General Penitentiary, two new paragraphs are introduced in Article 72, in which the classification or progression to the third degree of treatment will require, in addition to The law requires that the penalty has satisfied the civil liability arising from the crime and that it shows unequivocal signs of having abandoned the terrorist activity, actively collaborating with the authorities in the fight against the crime. terrorism.

The first paragraph requires the satisfaction of the civil liability as a requirement to reach the third grade, taking into account that the favorable prognosis of social reinsertion that presides the concession of this degree of Treatment should consider the conduct effectively observed by the penalty in order to restore the property, repair the damage and indemnify the material and moral damages, as well as the guarantees that it will satisfy them with the patrimony that could to acquire as long as you have not satisfied your responsibility.

This requirement is fully justified in those crimes that have allowed the guilty party to obtain a significant illicit enrichment and the pecuniary responsibilities set in the judgment are not satisfied because of having hidden the penalty for his estate. This rule will therefore be applied, in particular, where the internal market would have been condemned by the Commission for offences against heritage and against the socio-economic order which would have been seriously serious and which would have damaged a generality of persons, for offences against the rights of workers, for offences of terrorism, for offences against public finances and against social security, as well as offences against public administration falling within Chapters V to IX of the Title XIX of book II of the Penal Code.

In the second paragraph, the classification in the third degree of penitentiary in the case of crimes of terrorism or committed within the organizations

criminals demand that the terrorists have satisfied their civil responsibility in the terms of the previous paragraph, as well as have abandoned terrorist activity and have actively collaborated with the authorities for the to obtain evidence or the identification of other terrorists, as provided for in the Council Framework Decision of 13 June 2002 on the fight against terrorism.

IX

Within the same philosophy of guaranteeing legal certainty in the effective enforcement of the content of criminal sentences, article 989 of the Criminal Procedure Law is reformed to provide the administration with Justice for more legal means to enable them to carry out their sentences effectively.

To this end, the judges and courts may entrust to the State Administration of Tax Administration or, where appropriate, to the tax agencies of the tax authorities the necessary actions of patrimonial investigation for to show the income and assets present and to acquire in the future the sentenced person until the civil liability determined in judgment has been satisfied.

X

Finally, by means of the single transitional provision, the law provides that the objective criteria for access to prison benefits are applied to those who comply at the time of their entry into force. terrorist offences without any modification of the time limits and other conditions under which the conditions for such benefits were governed up to that date.

Article first. Amendment of the Organic Law 10/1995 of 23 November of the Penal Code.

One. Article 36 of the Organic Law 10/1995, of 23 November, of the Penal Code, which will have the following wording, is amended:

" Article 36.

1. The term of imprisonment shall be at least six months and a maximum of 20 years, except as otherwise provided for in other provisions of this Code.

Their compliance, as well as the prison benefits that they assume shortening the sentence, will be in accordance with the provisions of the laws and in this Code.

2. Where the duration of the sentence imposed is longer than five years, the classification of the sentenced person in the third degree of prison treatment shall not be carried out until the end of half of the sentence imposed.

The judge of surveillance, prior to the individualized and favorable prognosis of social reinsertion and valuing, where appropriate, the personal circumstances of the inmate and the evolution of the reeducator treatment, when it is not a crime of Terrorism in Section II of Chapter V of Title XXII of Book II of this Code or committed within criminal organizations may be agreed in a reasonable manner, the Prosecutor's Office, the Penitentiary Institutions and the other parties, the implementation of the general compliance regime. "

Two. Article 76 of the Organic Law 10/1995, of 23 November, of the Penal Code, which will have the following wording, is amended:

" Article 76.

1. By way of derogation from the foregoing Article, the maximum effective enforcement of the conviction of the culprit may not exceed three times the time for which the most serious of the penalties in which he has incurred, declaring the which have been issued since the ones already imposed have covered such a maximum, which may not exceed 20 years. Exceptionally, this maximum limit will be:

(a) 25 years old, when the subject has been convicted of two or more crimes and one of them is punished by the law with imprisonment of up to 20 years.

b) 30 years old, when the subject has been convicted of two or more crimes and one of them is punished by the law with imprisonment of more than 20 years.

c) 40 years old, when the subject has been convicted of two or more crimes and at least two of them are punished by the law with imprisonment of more than 20 years.

(d) 40 years of age, when the subject has been convicted of two or more terrorist offences under Chapter V of Title XXII of Title XXII of this Code and one of them is punishable by the law with imprisonment more than 20 years.

2. The limitation shall apply even if the penalties have been imposed in different processes if the facts, by their connection or the moment of their commission, may have been prosecuted in one. "

Three. Article 78 of the Organic Law 10/1995, of 23 November, of the Penal Code, which will have the following wording, is amended:

" Article 78.

1. If, as a result of the limitations laid down in Article 76 (1), the penalty to be complied with is less than half the total sum of those imposed, the judge or court of judgment may agree that the prison benefits, the exit permits, third-degree classification, and time-counting for parole refer to the totality of the penalties imposed in the sentences.

2. Such an agreement shall be required in the cases provided for in Article 76 (1) (a), (b), (c) and (d) of this Code, provided that the penalty to be met is less than half the total sum of those imposed.

3. In these cases, the surveillance judge, prior to the individualized and favorable prognosis of social reinsertion and assessing, where appropriate, the personal circumstances of the inmate and the evolution of the reeducator treatment, may agree in a reasoned manner, the Fiscal Ministry, Penitentiary Institutions and other parties, the implementation of the general compliance regime. If terrorism offences under the second section of Chapter V of Title XXII of Book II of this Code, or committed within criminal organisations, and taking into account the total sum of the penalties imposed, the former possibility only applicable:

(a) To the third degree of imprisonment, when one fifth of the maximum limit of compliance with the sentence is observed.

(b) To probation, where one eighth of the maximum limit for compliance with the sentence remains to be met. "

Four. Article 90 of the Organic Law 10/1995 of 23 November of the Penal Code is amended, which will have the following wording:

" Article 90.

1. Parole is established in the custodial sentence for those sentenced in the following circumstances:

a) That they are in the third degree of prison treatment.

b) That the three quarters of the sentence imposed have been extinguished.

c) That they have observed good conduct and there is respect for those sentenced to an individualized and favorable prognosis of social reinsertion, issued in the final report provided for in Article 67 of the General Organic Law Penitentiary.

The previous circumstance shall not be understood if the penalty had not satisfied the civil liability arising from the offence in the cases and in accordance with the criteria laid down in Article 72.5 and 6 of the Organic Law Prison General.

Also, in the case of persons convicted of terrorist offences in Section II of Chapter V of Title XXII of Book II of this Code, or for crimes committed within criminal organizations, it shall be understood that there is a social reinsertion forecast when the penalty shows unequivocal signs of having abandoned the ends and means of the terrorist activity and has also actively collaborated with the authorities, or to prevent the production of others. crimes by the armed gang, organisation or terrorist group, or to mitigate the effects of the their offence, either for the identification, capture and prosecution of terrorist offences, for the purpose of obtaining evidence or to prevent the performance or development of the organisations or associations to which they have belonged or to which they have belonged; cooperation, which may be accredited by an express declaration of repudiation of its criminal activities and abandonment of violence and an express request for the pardon of the victims of their crime, as well as for the technical reports which show that the prisoner is really disengaged from the terrorist organization and the environment and activities of illegal associations and collectives that surround it and its collaboration with the authorities.

2. The Judge of Surveillance, by decree of the probation of the penalties, may give them the reasons for the observance of one or more of the rules of conduct or measures provided for in Articles 83 and 96.3 of this Code. "

Five. Article 91 of the Organic Law 10/1995 of 23 November of the Penal Code is amended, which will have the following wording:

" Article 91.

1. Exceptionally, the circumstances of paragraphs (a) and (c) of paragraph 1 of the preceding article are fulfilled, and provided that they are not terrorist offences under Chapter V of Chapter V of Title XXII of Book II of this Code, or committed in criminal organizations, the judge of penitentiary surveillance, prior to the report of the Prosecutor's Office, Penitentiary Institutions and the other parties, may grant parole to those sentenced to custodial sentences who have extinguished the two-thirds of their sentence, provided that they merit such benefit for having continuously developed work, cultural or occupational activities.

2. On a proposal from the Penitentiary Institutions and after a report by the Prosecutor's Office and the other parties, the circumstances of paragraphs (a) and (c) of paragraph 1 of the previous article shall be fulfilled, the Judge of Penitentiary Surveillance may advance, a (a) the time limit for the termination of the sentence, the granting of probation in relation to the time limit laid down in the preceding paragraph, up to a maximum of 90 days for each year of effective enforcement of the sentence, provided that the sentence is not terrorist offences in Section II of Chapter V of Title XXII or committed within the criminal organisations. This measure will require that the penalty has continued to develop the activities referred to in the previous paragraph and that it also provides effective and favourable participation in repair programmes for victims or treatment programmes or detox, if any. "

Six. The current Article 93 of the Criminal Code is converted into paragraph 1, and paragraphs 2 and 3 are added, with the following wording:

" 2. In the case of a person convicted of terrorist offences in Section II of Chapter V of Title XXII of book II of this Code, the prison surveillance judge may request the reports to prove that the conditions under which the allowed to obtain parole. If, in this period of probation, the convicted offender fails to observe the rules of conduct or fails to comply with the conditions that allowed him to access probation, the prison surveillance judge will revoke the sentence. granted, and the penalty will be re-entered in prison in the appropriate prison term or degree.

3. In the case provided for in the preceding paragraph, the penalty shall comply with the time remaining to comply with the sentence with a loss of time spent on probation. "

Article 2. Amendment of the Organic Law 6/1985, of July 1, of the Judicial Branch.

One. A new paragraph 5 is added to the fifth additional provision of the Organic Law 6/1985, of July 1, of the Judiciary, with the following wording:

" 5. Where the decision which is the subject of appeal relates to the classification of penalties or the granting of probation and may give rise to the release of the inmate, provided that he is convicted of serious crimes, the the appeal shall have suspensory effect which shall prevent the person sentenced to be released until the decision of the appeal or, where appropriate, until the Provincial Court or the National Court has ruled on the suspension.

The appeals referred to in the preceding paragraph shall be dealt with on a preferential and urgent basis. "

Two. The current paragraph 5 of the fifth additional provision shall become paragraph 6.

Article 3. Amendment of Organic Law 1/1979 of 26 September, General Penitentiary.

Two new paragraphs are introduced, on 5 and 6, in Article 72 of the Organic Law 1/1979, of 26 September, General Penitentiary, with the following wording:

" 5. The classification or progression to the third degree of treatment will require, in addition to the requirements provided by the Penal Code, that the penalty has satisfied the civil liability arising from the crime, considering to such effects the conduct effectively observed in order to restore the property, to repair the damage and to indemnify the material and moral damages; the personal and property conditions of the culprit, in order to assess its actual, present and future capacity (a) to satisfy the corresponding civil liability; the guarantees to ensure the future satisfaction; the assessment of the enrichment that the culprit would have obtained for the commission of the offence and, where appropriate, the damage or impingement produced to the public service, as well as the nature of the damages caused by the crime, the number of injured and their condition.

Uniquely, this rule will apply when the inmate would have been convicted by the commission of any of the following offences:

(a) Crimes against the heritage and against the socio-economic order which would have been seriously serious and which would have harmed a generality of persons.

b) Crimes against workers ' rights.

c) Crimes against Public Finance and Social Security.

(d) Crimes against public administration falling within Chapters V to IX of Title XIX of Book II of the Criminal Code.

6. Similarly, the classification or progression to the third degree of penitentiary treatment of persons convicted of terrorist offences under the second section of Chapter V of Title XXII of book II of the Criminal Code or committed within the criminal organisations, will require, in addition to the requirements laid down by the Criminal Code and the satisfaction of the civil liability with their present and future income and heritage in the terms of the previous paragraph, showing signs It is clear that they have abandoned the terrorist aims and means, and have also actively collaborated with the authorities, either to prevent the production of other crimes by the armed gang, organisation or terrorist group, or to mitigate the effects of their crime, or to identify, capture and prosecute those responsible for crimes terrorists, to obtain evidence or to prevent the performance or development of the organisations or associations to which it has belonged or to which it has collaborated, which may be credited by means of an express declaration of repudiation of their criminal activities and the abandonment of violence and an express request for forgiveness of victims of violence crime, as well as technical reports that the prisoner is actually disengaged from the terrorist organization and the environment and activities of illegal associations and collectives that surround it and its collaboration with the authorities. "

Article 4. Amendment of the Criminal Procedure Law.

A new wording is given and a new paragraph is introduced in Article 989 of the Criminal Procedure Act, which is left with the following wording:

" 1. Statements on civil liability shall be subject to provisional enforcement in accordance with the provisions of the Civil Procedure Act.

2. For the purpose of executing civil liability arising from the offence or misconduct and without prejudice to the application of the provisions of the Civil Procedure Act, the judges or courts may entrust the State Administration Agency with Tax or, where appropriate, the tax authorities of the estates foral the actions of patrimonial investigation necessary to show the income and the present patrimony and those that the condemned person acquiring until not has satisfied the civil liability determined in judgment. "

Single transient arrangement.

The provisions, in accordance with this law, in Articles 90 and 93.2 of the Penal Code, regarding the circumstances for accessing the granting of probation, and in article 72.5 and 6 of the General Organic Law Penitentiary the classification or progression to the third degree of penitentiary treatment shall be applicable to the decisions taken on those matters since its entry into force, irrespective of the time of the commission of the criminal acts or the date of the resolution under which the penalty is being paid.

Final disposition first. Nature of this law.

This law has an organic law, except for the fourth article that modifies the Law of Criminal Procedure.

Final disposition second. Entry into force.

This organic law shall enter into force on the day following that of its publication in the "Official State Gazette".

Therefore, I command all Spaniards, individuals and authorities, to keep and keep this organic law.

Madrid, 30 June 2003.

JOHN CARLOS R.

The President of the Government,

JOSÉ MARÍA AZNAR LÓPEZ