International cases · Prison
Serving the sentence in your own country
A prison sentence imposed in Spain does not always have to be served in Spain. Within the EU and with many other countries there are ways to move the sentence to the country where the person lives or has family. They are slow and depend on paperwork, so it pays to start early, even before the sentence is final.
Saúl Rosell Manglano · Criminal defence lawyer · Madrid · ICAM 83.198
The essentials
EU
Between EU countries the sentence is sent to the country of nationality or residence under a common system, often without needing the person's consent.
1983
With many non-EU countries the Council of Europe convention applies; Spain also has its own treaties, for example with Morocco, Colombia and Peru.
90 days
Within the EU, the receiving country should as a rule take its final decision, appeals included, within 90 days. With paperwork and travel, the whole process usually takes months.
Within the European Union
Spanish law (Law 23/2014) applies the EU system for the transfer of prison sentences. As a rule, a sentence can be sent to the EU country of which the person is a national and where they live, or to the country they would be deported to after serving it. In those cases the person's consent is not required, although their opinion is heard. It can also be sent to another EU country if that country agrees, for example where the family has settled.
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The country that takes over the sentence deducts the time already served in Spain and applies its own rules on early release and parole. It can only adapt the length or type of sentence if it is incompatible with its law, and never to make it worse.
You must be told, in a language you understand and with an official form, that your sentence is being sent to another country. That is the moment to give your opinion and to provide documents about where you live and where your family is.
Outside the European Union
With non-EU countries the transfer follows the Council of Europe Convention on the Transfer of Sentenced Persons of 1983, signed by many countries including the United Kingdom and the United States, or a bilateral treaty. Spain has its own transfer treaties with Morocco (1997), Colombia (1993) and Peru (1986), among others.
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These systems usually require a final sentence, that the person is a national of the receiving country, that they consent, that the facts are also a crime in that country, that a minimum part of the sentence remains to be served (six months under the 1983 convention) and that both governments agree. Either country can say no, and there is no right to be transferred.
Other ways out of a Spanish prison
Transfer is not the only route. In some cases the Spanish court replaces the prison sentence with expulsion from Spain, and in others the prisoner can serve the final part of the sentence, on parole, in their country of residence. I explain both on the page about prison in Spain for foreigners.
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If the person is arrested in Spain on a European Arrest Warrant and lives here, the court can make surrender conditional on their return to Spain to serve any sentence. That condition has to be asked for at the start, and it is also open to people from outside the EU who are well settled in Spain. If the court refuses surrender so that the sentence is served in Spain, the foreign sentence has to be formally recognised here, and once Spain takes it over it cannot be suspended later under Spanish rules.
What I do
I check which route is available for the nationality and residence of the person, gather the documents that prove where they live and where their family is, file the request with the Spanish court or the Ministry of Justice and follow it until the transfer takes place. When the receiving country needs something on its side, I coordinate with a lawyer there.
How we will understand each other
I work in Spanish. With my clients from abroad I use translation tools to read and answer messages, and we manage well that way. At the police station and in court the law gives you a free interpreter, and I make sure that right is respected. If you write to me in English, I will answer you.
Common questions
Can my relative be transferred against his will?
Within the EU, yes, in some cases: when he is sent to the country of which he is a national and where he lives, or to the country he would be deported to. Under the 1983 convention and most treaties his consent is required.
Will the sentence be shorter in the other country?
The length is kept, with the time already served deducted, but parole and early release follow the law of the country that takes over the sentence. That can make a real difference, in either direction, and has to be checked before asking.
Can we ask before the trial?
The transfer itself needs a final sentence, but the documents and the strategy can be prepared earlier. In a European Arrest Warrant case, the condition of return to Spain must be raised before surrender is decided.
Is it urgent?
Call me on 688 884 488. I answer the phone myself, at any hour.
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