The Role of the Public Prosecutor in Relation to the Execution of Sanctions
Chapter IV
The Role of the Public Prosecutor in Relation to the Execution of Sanctions
As a point of departure, it must be taken into account that the execution of sanctions in Spain is the competence of the judiciary authority. In the jurisdictional hierarchy there is a specific judge, the Juez de Vigilancia Penitenciaria (Penitentiary Judge), who directs and supervises the execution of sanctions. His functions are:
- to control the concrete duration of the prison term;
- to resolve issues pertaining to parole and other benefits;
- to control the suspension of the sentence for legal reasons; and
- to pass resolutions concerning the specific basis for fulfilling the sanction, etc.
The regulation of the execution of sanctions must be carried out on the basis of the following rules: Sect. 25.5 Constitution, Sects. 94, 95 and the Additional Provisions 5th Judicial Organisation Act, Sects. 794, 803 and 974 CCP, OL 1/1979, and the 1996 General Penitentiary Act and Penitentiary Regulations (Ley General Penitenciaria y Reglamento Penitenciario) of, amended on several occasions.
From the point of view described, the prosecution service has very little participation in the criminal execution of sanctions. In any case, we shall try to determine some functions that the public prosecutor may perform at this stage:
1. as a general rule, his function consists of providing information when requested and supervising the decisions of the court, which is responsible for the execution (Sects. 141 and 985 CCP);
2. the legal system grants him the possibility of objecting to the resolution by means of the remedies established by the law, for example, Sect. 988 in fine CCP. In this way, when the offender of several criminal offences has been condemned in different proceedings for deeds that could have been heard in one, the judge who has passed sentence, ex officio, at the request of the prosecution service or the convict, shall proceed to set the execution limit of penalties imposed and determine the maximum execution of same. The prosecution service may lodge an appeal;
3. in cases where the judge decides to grant the suspension of the sentence or the application of prison benefits, the report of the prosecution service is binding to grant suspension (Sects. 80 ff. CC, Código Penal), or to substitute another penalty for the prison sentence (community service or penalty of permanent location, Sect. 88 CC), although the court is not bound by the report of the prosecution service. It is the judge who sees it is fulfilled, but in the event that it is not, he must inform the prosecution service, which shall apply for revocation (Sect. 84 CC), where applicable, by virtue of its function to guarantee legality;
4. in cases of criminal proceedings for crimes or misdemeanours against juveniles or the handicapped, the prosecution service plays an important role in the execution of penalties, because in these cases it must supervise fulfilment of those conditions required to grant the pardon to the defendant; and
5. finally, with a specific character, according to OL 5/2000, concerning the civil liability of juveniles (Ley de responsabilidad penal del menor), as in all cases of proceedings involving juveniles, the prosecution service has a crucial role at the execution stage. Sects. 46 to 60 of this Law address the public prosecutor’s powers to intervene in the execution of criminal sanctions imposed upon juveniles, so that he is notified at the start of execution (Sect. 46.2), has access to execution records (Sect. 48), receives periodical reports about the fulfilment of sanctions by juveniles in specific institutions for juveniles (Sects. 50 and 51), which are not binding for the juvenile judge, draws up reports about possible appeals that may be lodged by the juvenile during the execution stage (Sect. 52), among others.
The Role of the Public Prosecutor in Relation to the Execution of Sanctions
As a point of departure, it must be taken into account that the execution of sanctions in Spain is the competence of the judiciary authority. In the jurisdictional hierarchy there is a specific judge, the Juez de Vigilancia Penitenciaria (Penitentiary Judge), who directs and supervises the execution of sanctions. His functions are:
- to control the concrete duration of the prison term;
- to resolve issues pertaining to parole and other benefits;
- to control the suspension of the sentence for legal reasons; and
- to pass resolutions concerning the specific basis for fulfilling the sanction, etc.
The regulation of the execution of sanctions must be carried out on the basis of the following rules: Sect. 25.5 Constitution, Sects. 94, 95 and the Additional Provisions 5th Judicial Organisation Act, Sects. 794, 803 and 974 CCP, OL 1/1979, and the 1996 General Penitentiary Act and Penitentiary Regulations (Ley General Penitenciaria y Reglamento Penitenciario) of, amended on several occasions.
From the point of view described, the prosecution service has very little participation in the criminal execution of sanctions. In any case, we shall try to determine some functions that the public prosecutor may perform at this stage:
1. as a general rule, his function consists of providing information when requested and supervising the decisions of the court, which is responsible for the execution (Sects. 141 and 985 CCP);
2. the legal system grants him the possibility of objecting to the resolution by means of the remedies established by the law, for example, Sect. 988 in fine CCP. In this way, when the offender of several criminal offences has been condemned in different proceedings for deeds that could have been heard in one, the judge who has passed sentence, ex officio, at the request of the prosecution service or the convict, shall proceed to set the execution limit of penalties imposed and determine the maximum execution of same. The prosecution service may lodge an appeal;
3. in cases where the judge decides to grant the suspension of the sentence or the application of prison benefits, the report of the prosecution service is binding to grant suspension (Sects. 80 ff. CC, Código Penal), or to substitute another penalty for the prison sentence (community service or penalty of permanent location, Sect. 88 CC), although the court is not bound by the report of the prosecution service. It is the judge who sees it is fulfilled, but in the event that it is not, he must inform the prosecution service, which shall apply for revocation (Sect. 84 CC), where applicable, by virtue of its function to guarantee legality;
4. in cases of criminal proceedings for crimes or misdemeanours against juveniles or the handicapped, the prosecution service plays an important role in the execution of penalties, because in these cases it must supervise fulfilment of those conditions required to grant the pardon to the defendant; and
5. finally, with a specific character, according to OL 5/2000, concerning the civil liability of juveniles (Ley de responsabilidad penal del menor), as in all cases of proceedings involving juveniles, the prosecution service has a crucial role at the execution stage. Sects. 46 to 60 of this Law address the public prosecutor’s powers to intervene in the execution of criminal sanctions imposed upon juveniles, so that he is notified at the start of execution (Sect. 46.2), has access to execution records (Sect. 48), receives periodical reports about the fulfilment of sanctions by juveniles in specific institutions for juveniles (Sects. 50 and 51), which are not binding for the juvenile judge, draws up reports about possible appeals that may be lodged by the juvenile during the execution stage (Sect. 52), among others.
