The latest reform of the Criminal Code went almost unnoticed, but it will have huge consequences for foreigners who may be involved in the criminal process.
This is a reform of article 89 of the Criminal Code, which in the previous version provided that:
The punishment in the form of imprisonment for a term of less than six years, imposed on a foreigner illegally residing in Spain , is replaced by his expulsion from Spanish territory, unless the judge or court, after hearing in the General Prosecutor’s Office , exclusively and reasonably, considers that the nature of the crime justifies execution of a sentence in a correctional institution in Spain.
In addition, judges or courts, at the request of the Prosecutor General’s Office , sentenced to expel from the territory of the country an foreigner illegally residing in Spain sentenced to imprisonment for a term of six or more years, if it comes to the third prison term or after three quarters of the sentence, unless, solely and reasonably, they consider that the nature of the crime justifies the execution of a sentence in a correctional institution in Spain.
Following the reform, Article 89 provides as follows:
- Imprisonment for a period of more than a year in relation to a foreign citizen shall be replaced by his expulsion from Spanish territory. In exceptional cases, in order to protect the rule of law and restore faith in the validity of the norm violated by the crime, the judge or court may decide to execute a part of the sentence, which cannot exceed two-thirds of its duration, and to replace the rest of the sentence by expelling the offender from Spanish territory. In any case, the remainder of the sentence is replaced by the expulsion of the offender from Spanish territory, if it is a third degree felony or conditional conviction.
- When a sentence of more than five years in prison or several sentences exceeding this period has been imposed, thejudge or court shall decide on the execution of all or part of the sentence, as necessary, in order to ensure the protection of the rule of law and restore faith in the validity of the norm violated by crime. In these cases, the execution of the remainder of the sentence is replaced by the expulsion of the offender from the territory of Spain when the offender has served part of a specific sentence or if it is a third degree felony conviction or probation .
Thus, a fundamental innovation has been added: if earlier it was possible to criminalize foreigners without a residence permit in Spain, now a sentence of more than a year also provides for the expulsion of legally residing foreigners in any case .
In addition, the intervention of the Prosecutor General’s Office is cancelled if the judge considers that the sentence should be served in Spain, or if he could have insisted on deportation in cases of imprisonment for more than one year. Now, such an intervention is not provided for, but the judge is obliged to issue a decision on expulsion, and can also coordinate the execution of part of the sentence before expulsion.
In addition, the judge must expel foreigners (legal or illegal residents) sentenced to more than five years in prison after the execution of part of the established sentence or when it comes to the third degree or conditional release, without any restriction. That is, the provision of a third degree or conditional release one day before the full execution of the sentence would be enough to replace the current sentence with expulsion.
Along with this, at least paragraph 4 of Art. 89 leaves a small right to appeal against the replacement of a sentence by expulsion:
Replacement is not made when, due to the circumstances of the case and the personal nature of the culprit, in particular, his justification in Spain, the expulsion is disproportionate.
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