In connection with the deportation of a foreign citizen we should recall that there are two types of deportation. The administrative one (whose resolution corresponds to the field of administrative law) and judicial one (regulated by the criminal law). We refer now to the latter.
Article 89 of the Criminal Code provides for judicial deportation as an alternative to the prison sentence, by which the rights to enter, reside and travel within Spanish territory are restricted. This article was modified by Organic Law 1/2015 amending the Organic Law 10/1995 amending the Criminal Code, in force since July 1, 2015.
Until the reform, the article 89.1 stated: <<the replacement of penalties of freedom deprivation of less than six years imposed on a non legal resident alien in Spain, unless reasons justifying compliance in a prison in Spain ... >>.
The new wording, instead says: <<imprisonment of more than a year imposed on a foreign national will be replaced by his deportation from Spanish territory. Exceptionally, where necessary to ensure the defence of the legal order and restore confidence in the validity of the rule infringed by the crime, the judge or court may order the execution of a part of the sentence which may not exceed two-thirds of its length, and the substitution of the deportation of the offender of Spanish territory. In any case, the rest of it will be replace by expulsion from the Spanish territory when it accesses the third degree or granted parole ... >>.
The State General Public Prosecutor Office by means of Internal Directive 7/2015 analyses the modification.
For the Public Prosecutor Office, the reform focuses on the deportation of foreigners replacing the punishment when prisoners reached the third degree or are granted with probation. From the subjective point of view the measure extends to all foreigners (legally resident in Spain or not) and citizens of the EU and assimilated States with restrictions).
From the objective point of view, non imprisonment penalties and crimes included under article 177bis (human beings trafficking), article 312 (rights of workers), article 313 (fraud emigration) and article 318bis (against rights of foreign citizens), etc.
We may distinguish 3 scenarios according to the length of imprisonment sentence:
1. Penalties of up to 1 year duration. In this case there can be no deportation replacement, corresponding, as appropriate, the execution of the sentence or probation.
2. Punishment of 1 year and 1 day up to 5 years. In this case the Public Prosecutor will ask for total or partial replacement of punishment by deportation. Exceptionally they seek partial replacement depending on the nature and seriousness of the facts. If a judgment imposes two or more imprisonment sentences and none of them individually exceeded the duration of one year, although the sum of them exceeds that limit, there will be no deportation. If two or more imprisonment, of which only one or a few exceed yearlong imposed in the judgment, it may be replaced for deportation, if fulfilling all requirements.
3. Punishment of more than five years, the Prosecutor, will generally ask for execution of the judgment.
Although apparently the rule is imperative, there are exemptions (that exceed the scope of this column), bearing in mind that, whenever possible deportation should be stated in the judgment itself, indicating the time limit that the prisoner can not return to Spain.
Remember that we are talking about judicial deportation (replacement) and that the measure will not apply if this is disproportionate for which it will take into account the residence time in Spain, family and economic situation, roots, etc.
It is interesting to say, that in many cases up to July 1st 2015 I was able to replace the execution of the judgment for the deportation even before the judgment (or trial), as this was what the foreign accused was interested in. In all these cases the penalties were less than six years (as imposed by the rule) and also legal non-resident foreign nationals. The change of the rule will lead to a number of cases that must be studied in each case, taking into account that now the replacement is applicable to all foreign citizens (legal resident or non-resident), regardless of their administrative situation (case of foreigners who are residing irregularly).