BREACH OF SENTENCE
The crime of breach of sentence is regulated in arts. 468 to 471 of the Penal Code. We are dealing with a special crime, which can only be committed by the person affected in each case by the conviction or precautionary measure agreed in a given proceeding.
The basic modality of this crime punishes the breach of a sentence, security measure, imprisonment, precautionary measure, driving or custody, with a prison sentence of 6 months to 1 year if the perpetrator is deprived of liberty, and with a fine of 12 to 24 months in other cases (for example, if the perpetrator does not return to the penitentiary center after enjoying a leave of absence).
In any case, a prison sentence of 6 months to 1 year is imposed on those who violate a sentence of deprivation of the right to reside or go to certain places or a prohibition to approach or communicate with the victim or a precautionary or security measure of the same nature imposed in a criminal proceeding in which the victim is a partner or relative of the perpetrator, as well as on those who violate the probation measure.
What happens if the victim himself consents to the non-compliance with the measure or penalty imposed on the perpetrator? For example, if the author has been sentenced to a prohibition of approach for committing a crime of gender violence against his ex-partner and the latter decides to resume living with the author despite the validity of such penalty. According to the jurisprudence of the Courts, the breach of the penalty of prohibition of approach will still constitute a crime of breach of sentence, even if it is consented to by the victim. In other words, the victim’s consent is irrelevant in these cases (STS No. 539/2014).
Finally, a fine of 6 to 12 months is imposed on those who disable or disrupt the normal operation of technical devices designed to control compliance with penalties, security measures or precautionary measures, do not carry them with them or fail to take the necessary measures to maintain their proper functioning.
Aggravated mode
Article 469 of the Penal Code punishes convicted or imprisoned persons who escape from the place where they are confined, provided they do so by using violence or intimidation against persons or force against things, or by taking part in a riot. The applicable penalty in this case is imprisonment from 6 months to 4 years.
Crime of aiding and abetting evasion
On the other hand, Art. 470 of the Penal Code punishes, with a prison sentence of 6 months to 1 year and a fine of 12 to 24 months, any individual who facilitates the escape of a convicted person, prisoner or detainee, either from the place where he is being held or while he is being transported. However, the penalty is aggravated in the following cases:
- On the one hand, if violence or intimidation of persons, force in things or bribery is used, the penalty will be imprisonment from 6 months to 4 years.
On the other hand, the higher penalty is imposed if the perpetrator is a public official in charge of the transportation or custody of a convicted person, prisoner or detainee, in which case the penalty of special disqualification for public employment or office is also imposed for 6 to 10 years if the fugitive is convicted by an enforceable sentence, or for 3 to 6 years in other cases.