House arrest vs. prison sentence: Requirements and cases where it applies

Facing criminal proceedings is one of the most complex and trying situations an individual or their family can go through–. However, not all measures that deprive or restrict liberty necessarily entail placement in a correctional facility. Concepts such as house arrest (commonly referred to as “supervised residence”) and a prison sentence differ significantly in terms of requirements, implementation, and practical consequences.

At ActumAdvocats, a leading criminal law firm in Girona, we conduct an in-depth analysis of the fundamental differences between these two measures, the legal requirements imposed by current legislation, and how specialized legal defense can influence the outcome of the proceedings

1. What are the differences between house arrest and a prison sentence?

Although both measures entail a direct restriction on the fundamental right to freedom of movement, their nature, purpose, and place of execution are radically different:

• Prison sentence : It involves the actual incarceration of the convicted person in a penal institution. It is the quintessential custodial sentence for the most serious offenses or in cases of recidivism where a suspended sentence does not apply..

• House arrest (Permanent location): Provided for in the Spanish Penal Code primarily in the form of the “permanent location” sentence (Article 37 of the Penal Code), it requires the convicted person to remain at their home or at a specific location designated by the judge. Similarly, during the pre-trial investigation phase, detention or pre-trial imprisonment may, in exceptional cases, be replaced by a precautionary measure of house arrest.

While incarceration entails immersion in prison life, remaining at home allows the individual concerned to maintain a basic family and social environment, subject to strict judicial and police monitoring.

2. Conditions for granting house arrest

Serving a sentence or a precautionary measure at home constitutes neither an automatic alternative nor a discretionary measure; on the contrary, it requires strict adherence to exceptional criteria:

A. Serious illnesses or incurable conditions

Article 91 and related provisions of the Penal Code, as well as prison regulations, provide for the possibility of suspending a sentence—thereby allowing it to be served under house arrest—for individuals suffering from health issues, in order to ensure dignified treatment and access to appropriate care.

B. Advanced age

Individuals over the age of 70 who meet the legal requirements may opt for special arrangements regarding the serving or suspension of their sentence at their usual place of residence.

C. Rehabilitation and reintegration programs

For sentences of less than two years, where the offense was committed due to severe drug dependency, [execution may take the form of] confinement in a treatment center or supervised house arrest within the framework of a program.

D. Precautionary measure during the investigation phase

During the criminal investigation, the court may order provisional house arrest (with or without electronic monitoring), taking into account factors such as the presence of minors or exceptional family responsibilities, while ensuring there is no risk of flight or destruction of evidence..

3. Monitoring and supervision of house arrest

It is essential to understand that house arrest is not equivalent to unrestricted conditional release. Compliance with this measure is strictly monitored by means of:

1. Electronic monitoring systems: use of electronic bracelets or radio-frequency or GPS tracking devices. managed by security forces and agencies.

2. Unannounced police checks: Officers from the National Police, the Mossos d’Esquadra, or the Civil Guard may appear at the assigned residence at any time to verify the convicted person’s presence.

3. Consequences of a violation: Any unauthorized departure from the residence or any tampering with the electronic monitoring devices constitutes a separate offense of sentence violation (Article 468 of the Penal Code), resulting in the immediate revocation of the measure and direct incarceration..

4. The importance of an expert criminal defense strategy: how ActumAdvocats can help you in Girona?

The difference between a mandatory prison sentence and a suspended, commuted, or alternative sentence (such as house arrest) depends largely on speed and timing.

At ActumAdvocats in Girona, we offer comprehensive legal assistance :

• Urgent assistance for the detained person: Immediate intervention at the police station and before the duty courts in Girona and the surrounding region to avoid pre-trial detention.

• Rigorous documentation support: Preparation and filing of medical expert reports, social reports, and evidence of family ties—essential elements for requesting permanent placement.

• Prison-related negotiations and legal challenges: Handling sentence suspensions (Article 80…substitutions, and appeals before the Prison Oversight Judge.

  If you or a family member are facing criminal proceedings or the enforcement of a sentence, having a dedicated, rigorous legal team with deep knowledge of the Girona courts is essential to protecting your freedom and rights.

  Do you need criminal legal advice in Girona?