The 2nd Chamber of the Supreme Court ruled on May 12, 2016 (Rec.10974 / 15 No. 409/16) annulling the expulsion of a Dominican citizen convicted of a crime of drug trafficking.

From July 1, 2015 is in effect a number of changes in the regime of expulsion of aliens, under which prison sentences of more than a year imposed on a foreign national will be replaced by his expulsion from Spanish territory ( Article 89.1 Penal Code), the measure is an exception in the fourth of that article, which states that there shall substitution when, in view of the circumstances of fact and personal to the author, particularly its roots in Spain section, expulsion is disproportionate.
Therefore, the Attorney General’s Office issued a directed prosecutors (FGE Circ 7/2015) Circular whose aim was to establish a uniform implementation of the new regime replacing it for the expulsion in the case of foreign nationals criteria. Setting the following:

• Expulsion shall apply to offenses punishable with imprisonment of more than one year and replacement expulsion of those prisoners who reach the third grade and / or parole will take place.
• It will affect foreign citizens regardless of their administrative status, in the case of stateless and undocumented within 30 days extendable for managing legal admission into another country be granted. Citizens of the European Union if attended by a number of circumstances.
• Application of the principle of proportionality, taking into account the factors residence time in Spain, family and economic situation, labor, social, cultural integration, and links with the country of origin.
  Exception: If from the firmness of the judgment or order two years elapse without the expulsion has been executed, the situation may be reviewed if circumstances have changed.
• The Chamber finds on an administrative decision which is subsequently confirmed by the Provincial Court of Zaragoza where the expulsion from Spain of a Dominican citizen convicted of a drug crime is solved, replacing the prison sentence for the expulsion under Article 89.1 of the Penal Code.

The Chamber understands that this rule is based on the principle of proportionality in accordance with Article 89.4 of the same legal limit, given that the offender has roots in Spain derived from: 12 years of residence in Zaragoza, have stable job and partner, a three year old daughter and assumes family expenses, the Chamber considers that the deportation order is a disproportionate measure.

Sara González Benjelali
Lawyer