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Home » Content » The decision on the semi-freedom of prisoners remains in the hands of the Catalan prison service
The Supreme Court will have the last word after rejecting the request of the Prosecutor's Office not to having access to the open prison until they serve half the sentence

Photo: EFE | Video: ATLAS

Oscar López-Fonseca

Jesus Garcia

Madrid / Barcelona 14 OCT 2019 – 20:46 CEST

The high prison sentences imposed on the nine independence leaders are not an obstacle for them to obtain, shortly, semi-freedom. It is up to the Government of the Generalidad to decide whether to classify them in the third degree of prison, which would allow them to go to prison only to sleep in the night from Monday to Thursday. In the midst of the first protests against the sentence, the Counsellor of Justice, Ester Capella, referred to the technicians, but at the same time claimed that the prison serves to “prepare people for life in freedom”. The last word will be the Supreme Court’s one.

As the sentence is already final, the technicians of the penitentiary services of the Generalidad must grant the prisoners one type of penitentiary classification. The Prosecutor asked the court that in no case should they access the third degree of prison until they had served half the sentence. However, the Supreme Court has not heeded that decision and has opened the door for the so-called open prison regime to be a more or less close reality for the nine sentenced to prison.

The magistrates stress in their ruling that it is not their mission “to avoid decisions of the prison administration in advance” and remind the public prosecutor that she can appeal against those decisions that she considers “contrary to legality”. The head of the State Prosecutor Office, María José Segarra, rushed yesterday to announce that “if the Prosecutor’s Office considers the proposed prison regime to be inappropriate, they will present the appropriate appeals”.

The first word, in any case, has to be the one of the Generalidad, which yesterday picked wisely the glove of the Supreme up. Counselor Capella, from Esquerra Republicana, stressed that “the penalties are geared towards reintegration” and recalled that the decision is not political. “It doesn’t depend on me, but on the treatment boards [of each prison]. They are independent and objective officials who make a proposal once analyzed the situation of each prisoner”. The truth is that, although the proposed classification comes from these boards, it is finally the Secretariat of Criminal Measures, Reintegration and Attention to the Victim – which depends on the Department of Justice – which gives its approval or not.

The treatment board – an internal body made up of prison professionals – has a maximum of two months to decide, but that period does not always run out. In fact, you can do it in a matter of days, according to penitentiary sources. At that time, the technicians evaluate the prisoners and prepare their reports, which are subsequently assessed at the weekly meeting of the board. As those convicted in the procés were already on remand – the seven men in the Lledoners prison (Barcelona); women, in Puig de les Basses (Girona) and Mas d’Enric (Tarragona) -, this study process is already done and, therefore, the reports are almost ready.

In Catalonia, a quarter of the inmates serve their sentence in a third degree situation, compared to 16% of those convicted in prisons in the rest of Spain, dependent on the Ministry of Interior. And what is more relevant: 40% of the criminals who enter a Catalan prison for the first time – as is the case of the pro-independence leaders – are classified initially in a semi-freedom regime. The last case known for its media impact was that of Oriol Pujol Ferrusola, son of the former president of the Generalidad Jordi Pujol. Sentenced to two and a half years in jail for charging commissions in the ITV case, the former CiU MP was initially classified in third grade. A decision that provoked a great controversy and appeals of the Prosecutor’s Office, although finally the Provincial Court of Barcelona accepted the reasons of the Department of Justice.

A similar situation occurred with José Barrionuevo, former Minister of the Interior of the PSOE. Condemned in 1998 for the kidnapping of Segundo Marey, he did not enter prison while waiting for the Constitutional Court to resolve the appeal he had filed. When the TC rejected it in May 2001, Barrionuevo had to enter prison. The next day he was granted semi-freedom. The prison authorities then alleged that they had assessed this as his first crime; that he was ready to present himself “voluntarily” to serve a sentence; that he had a normalized life; the time elapsed since the events for which he was convicted; “its accredited socio-labor integration”; “his objective difficulty of recidivism when the exercise of his public functions disappears” and, above all, the “protection needs to guarantee his personal safety”.

The opposite case is represented by 13 of the 15 convicted in the black cards case. Sentenced to between two years and six months and three years and two months, they were a minimum of nine months in prison until from the summer Penitentiary Institutions agreed to classify them in the third grade. Two of the inmates for this cause, former Vice President Rodrigo Rato and former Caja Madrid counselor José Antonio Moral Santín, remain incarcerated with four-year and six-month sentences, and four years, respectively.

Appeal of the Prosecutor’s Office

The decision finally taken by the prison services of Catalonia would be applied immediately, as detailed by penitentiary sources, which clarify that the Prosecutor’s Office must be informed of it. This can be appealed before the prison surveillance judge and, in the second instance, before the court that sentenced them, in this case the Supreme Court, which will be the one with the last word.

In the event that instead of the open regime, the prisons division of the Generalitat chose to grant the second penitentiary degree, the so-called ordinary, the prisoners will have to wait until they have served a quarter of their sentence to be able to request exit permits, which would need prior authorization. The Prosecutor’s Office can also appeal against.

This classification in the second degree does not definitively close the possibility of accessing any of the benefits of the semi-freedom regime. Thus, once classified in the second grade (in which the majority of prisoners are in Spain), the treatment board may propose, and the Generalidad agree, the application of article 100.2 of the Prison Regime, which introduces the so-called “principle of flexibility” in compliance with the penalty. In this way, some of the characteristics of freedom could be applied to them, such as daily prison trips. This decision must be communicated to the prison surveillance judge, although its application is immediate. The Prosecutor’s Office also has the option to appeal.

The other way is article 117 of the same legal text. It is the same one that has recently allowed Iñaki Urdangarin to leave prison twice a week to collaborate in a center for people with disabilities. In this case, the decision must be previously approved by a judge and, in addition, include a “specific specialized care program” for the “treatment and social reintegration” of the inmate. It can also be appealed against by the Prosecutor’s Office as it happened with the husband of the Infanta Cristina.



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