Article 76 of the Organic Law 7/2003 of June 30^th, 2003, on measures aimed to reform the effective and complete execution of sentences, reads as follows:

1. Notwithstanding the foregoing article, the maximum amount of time that the convict shall serve the sentence shall not exceed three times the duration of the most serious sentence incurred by him, expiring therefore whichever sentences from the moment the already imposed sentences cover such maximum, which in no case shall exceed 20 years.  Exceptionally, this maximum limit will be of:

a) 25 years, should the subject have been convicted for two or more crimes, and should any of these be punishable by law with a prison sentence of up to 20 years.

b) 30 years, should the subject have been convicted for two or more crimes, should any of these be punishable by law with a prison sentence of more than 20 years.

c) 40 years, should the subject have  been convicted for two or more crimes, and at least two of them being punishable by law with a prison sentence  of more than 20 years.

D) 40 YEARS, SHOULD THE SUBJECT HAVE BEEN CONVICTED FOR TWO OR MORE TERRORIST CRIMES FROM THE SECOND SECTION OF CHAPTER V OF TITLE XXII OF BOOK II OF THIS CODE, AND ANY OF THEM BEING PUNISHABLE BY LAW WITH A PRISON SENTENCE OF MORE THAN 20 YEARS.

2. The limit will apply even when the sentences have been imposed in different trials, if the facts, due to their  connection or the time they were produced, could have been tried  in one single casl. 

The foregoing rule stipulates the maximum amount of time of effective execution of a sentence, indicating that this shall not exceed three times the duration of the most serious sentence incurred by him, expiring therefore whichever sentences from the moment the already imposed sentences cover such maximum, which shall not exceed 20 years.

Notwithstanding the foregoing, in Article 76.1 (a), (b), (c) and (d) a range of exceptions to the 20 year maximum of effective execution of a sentence is established, increasing this limit in the aforementioned paragraphs, respectively, to 25, 20, 40 and 40 years, concurring the circumstances in which each of them are determined.

Maximum limits of the effective execution of sentences referred to in this article shall apply even when the sentences were imposed in different trials, providing that the facts could have been tried in a single trial, due to its connection or the time they took place.

According to the provisions of Article 988 of Rules of Criminal Procedure, the accumulation of sentences tends to make effective the provisions of the Criminal Code in respect to the maximum amount of time of  the effective execution of various sentences when these are due to several crimes, subject to the limits stipulated in article 76 of the Criminal Code, which consist on the one hand, in three times the duration of the most serious sentences incurred and, on the other, in twenty, twenty-five or thirty years, depending on the case, (STS nº 128/2003, of January 31st, 2003). These limits have been set at forty years, for some cases, by the Organic Law 7/2003 of June 30^th, 2003.

As stipulated in the STS (Supreme Court Decision) of October 6^th, 2004 (Judge Colmenero Menéndez de Luarca), adding the following:

“Such provisions are aimed to recognize the need to avoid an excessive prolongation of the term of imprisonment as it may result in the ostracizing and increased marginalization of the convict, which is, exactly the opposite to that stipulated in Article 25.2 of the Constitution regarding the purpose of sentences involving a loss of liberty, (STS nº 1996/202, of November 25^th, 2002). However, rehabilitating the criminal is not the only purpose of a prison sentence, and therefore such a purpose should not be incompatible with other recognized purposes of a sentence, such as compensation, or in particular, the effects expected out of the sentence regarding special and general prevention.

Therefore, interpretation of said provisions should be made compatible with all those purposes, allowing maximum efficacy as  regards  rehabilitation of a convict and avoiding a situation of impunity in relation to possible crimes in the future in those cases where the sentences delivered in the firsts decisions exceed the maximum limits set by Law. On the other hand, the different levels covered by the execution of prison sentence system, together with the procedures regulated within the field of prison treatment, may, if applied correctly, make it possible in every case to rehabilitate the convict. This should not be in compatible with respecting the various purposes of the sentence, even when the duration of the sentence is exceeds the general limit stipulated in Article 76 regarding the fact that it is impossible for the same person to accumulate sentences in different time periods.

The Rule of Law cannot allow that someone who, after being convicted to severe sentences for having committed serious crimes to criminally protected rights, and has exceeded the limits  in said Article 76, to acquire impunity for future crimes. In such cases, Society’s response through the passing and execution of a sentence is not incompatible with the aim of rehabilitation included in Article 25 of the Constitution, applying the provisions of prison legislation when appropriate, due to the special features of a particular case.

The doctrine of this Court has maintained that for the accumulation of sentences to proceed, only a specific connection between the facts is required, and this will always be appreciated when the punished crimes have been  judged in a single trial so that it is not transformed into open exclusion of the punishment for every crime committed later than the third one, and therefore it may only be excluded when the subsequent  sentence facts took place later than when the rest of sentences were ordered (SSTS 15-4 and 5-23-1994, 2-20-1995, 7-15-1996 and 1-11-1997). The Decision of May 30^th, 1997 maintains that regarding the accumulation of sentences any interpretation must be generous and in benefit of the defendant, and that only sentences judging facts that took place subsequent to the ordering of previous sentences, and as this  cannot be judged in same trial, must be excluded from accumulation

Therefore what is important, more than the analogy or connection between the crimes, is the connection in time, that is, that the facts could have been judged in a single trial considering when such facts took place. Maximum execution limits described in Article 76 of the Criminal Code, apply when, by  connection, the facts could have been judged in the same trial, but this does not mean that crimes committed subsequently to the date of the last condemnatory sentence or to the prescription of such maximum limits may result unpunished because of the impossibility of execution of the  sentences that could be imposed. (STS nº 729/2003, of May 16^th, 2003). These are the conclusions we reached in STS nª 105/2004, of january 30^th, 2004”.

Article 76 of the Penal Code establishes legal accumulation rules that limit the accumulation of sentences allowed for by Article 75 of the Penal Code; and Article 76.2 of the Penal Code and Article 988 of the Criminal Proceedings Law provide that “limitation shall apply even if sentences have been imposed at different trials if the facts could have been tried  in court case because of the connection between them.”

The Supreme Court Decision ruled on July 13 2004 (Judge García Pérez):

“In decisions dated 10 October 2001, 6 February 2002 and 18 May 2004. this Court holds:

(a) The connection requirement must be based on the  proximity in time, without a strict interpretation of Article 17 of the Penal Code.

(b) Time proximity must be with respect to  the time acts were committed.

(c) In case of reaching  maximum sentencing limits with the punishment of any acts, care should be taken to avoid the legal accumulation of these sentences to any others  imposed on offences committed after the sentence on the former has been passed.  Otherwise, there could be encouragement for committing more offences, contrary to any reason for a sentence.

(d) Legal accumulation shall also not apply when, due to the characteristics of the offences they would not be tried in the same court case. “

Both Rule 2 of Article 70 of the 1973 Penal Code, and Article 76 of the current Penal Code restrict cases where limitation of sentences may be applied when different sentences have been imposed in different trial. In this case, such limitation is only possible “if because of  the connection between the facts  they may be tried in  a single court case.” This is the Supreme Court Decision of 30 June 2004  (Judge Delgado García) (Supreme Court, Court 2, nº 860/2004, rec. 869/2003, Chief Judge: Delgado García, Joaquín). It adds the following:

“This decisions of this  Court’s have,  in short, taken two directions:

(A) First, It has admitted a broad criteria with respect the kind of offence that can be accumulated (“rationae materiae”), interpreting  the idea of connection from a the point of view of substantive law, unlike the procedural connection criteria provided by Articles 17 and 300 of the Criminal Proceedings Law. In this way, given the humanitarian reasons constituting the basis of the regulations in the Penal Code relating to the application of limitations on the serving of all the sentences imposed, the specific kind of offence should not be an obstacle to such application.

This broad criteria in favour of those being sentenced allows the accumulation of all sentences which could have been tried in a single case, because of the time when the offences were committed. If they were not tried together for reasons of jurisdiction, or because of the different kind of offence involved, or because some cases were tried faster and others slower, or for any other reasons, and if the offences  took place in the same period of time, whatever procedural reasons were given for not trying them in the same case, then, accumulation of all sentences imposed will be effective for the purposes of applying these maximum limits imposed by substantive law  in consideration of  humanitarian criteria which -  we insist - are  beyond the particular procedural circumstances of each trial.

We  have thus been applying the broadest criteria with respect to  the interpretation of the idea of connection expressly demanded by our criminal law.

Apparently these principle of jurisprudence have been the reason for the recent amendment made by Organic Law 7/2003, which adds the expression “or the time of its commission”  to Article 76.2 as an alternative to the connection requirement, and for the purposes of considering that the acts could had been tried in the same case.

(B) Second, it has assumed a strict criterion with respect to the other requirement specifically demanded by our Penal Codes: that the different trials in which the different sentences to be accumulated were imposed “could had been tried  in a single court case” (“ratione temporis”). When there is a conviction, it is clear that offences committed subsequently can not be accumulated to those already sentenced, because they could not have been tried in the same case. This Court considers this  limitation well founded because of the threat that would be created of encouraging the commission of new offences. A convicted offender would know that because of the sentences already imposed against him, he could commit another offence and not serve the sentence for it, since his previous sentences  had already pushed him above the legal limits.

Obviously, this sense of impunity cannot be  and therefore it is essential to be demanding with regard to compliance with the requirement related to time. In other words, is only possible to accumulate sentences when the offences were committed in the same period of time, understanding different period of time to mean those that are separated by any conviction.”

We can not conclude this opinion without indicating that, firstly: A RESOLUTION OF NOVEMBER 29 2005 BY THE FULL BENCH OF COURT 2 OF THE SUPREME COURT, THE DECISION DOES NOT HAVE TO BE FINAL FOR THE PURPOSES OF THE LIMIT OF THE ACCUMULATION PF SENTENCES; AND, SECONDLY: WITHOUT CONSIDERING NEW PRINCIPLES OF JURISPRUDENCE ON THE ACCUMULATION OF SENTENCES set as a result of Supreme Court Decision 197/2006, of 28 February 2006 (the Henri Parot case), which establishes how several sentences imposed on the same person should be served, when all or some of the sentences corresponding to the offences committed could not be served simultaneously by the offender (normally, sentences of the same kind, and in the case of court orders, prison sentences). The solution offered by jurisprudence is based on the three grounds for actual overlapping of offences in the Penal Code:1) Arithmetic accumulation of sentences of the same kind, Articles. 69 of the 1973 Penal Code and Article 73 of the 1995 Penal Code; 2) Consecutive enforcement of the sentences ordered according to seriousness, Article 70.1of the 1973 Penal Code and Article 75 of the 1995 Penal Code; 3) Limitation of the time of enforcement, Article 70.2 of the 1973 Penal Code and Article 76 of the 1995 Penal Code. In addition, the Court’s interpretation is based on the fact that the perpetrator of different offences should serve all or at least most of the sentences imposed on him; and that a person who has committed only one offence can not be put on the same level as a criminal who has a long criminal record, by treating him the same from the point of view of  punishment.  From the above it can be concluded that the expression “consolidation of sentences” is highly ambiguous and inappropriate: Nothing is consolidated in order to include everything together, but rather in order to limit the serving of several sentences up to a maximum resulting from this legal operation. Consequently, the different sentences will be served by the offender, along with all the difficulties which this implies, and with all benefits to which he may be entitled. Therefore, in the course of the discharging the sentences served successively by him, benefits may be applied in the way of remission of sentences by work, under Article 100 of the 1973 Penal Code. In this way, the whole sentence will be served in the following way: It will begin in order of seriousness of the different sentences, applying the benefits and remissions appropriate to each of the sentences being served.  Once the first one has been discharged, the next will be served, and so on until reaching the limitations provided for by Article 70 of the 1973 Penal Code. At this point, all the separate sentences included in the total sentence resulting from the sum of all the others are discharged..