Recently, reviewing the cinematographic subgenre of prison escapes, a handful of interesting titles came out. Some are set in civil prisons, such as Escape from Alcatraz or the television series Prison Break; others take place in the context of world wars, case of The Great Escape, The Mckenzie Break or La Grande Illusion. In all those films and literary works that also deal with the subject, such as The Count of Montecristo or Papillon , it is assumed that trying to escape from the confinement is an element of human nature. But there is not always or everywhere such empathy.

In reality, with the law in hand, evading is a felony of conviction infringement, which means that the prisoner may see his sentence increased if he is captured. Of course, that’s not something that will stop anyone who might be craving freedom, especially if the alternative ahead of you is to spend many years – or your whole life – behind bars. In fact, you don’t have to go to extremes because it’s not uncommon for parole to be infringed as well.

The war case should be different but the conditional is not put at random because, historically, while the prisoner’s right to try to escape is recognized, in practice the thing does not amuse any guardian. Here we have seen cases of prisoners escaped from concentration camps who, when they were imprisoned again, paid with their lives. Gone are the days when a defeated enemy could give his word not to try to flee in exchange for being allowed a supervised freedom; of course these were gentleman’s agreements in times when these customs still existed.

The approach of the legitimacy of escaping from the confinement is not something current, as might be believed. The Jesuit Francisco Suárez, a man from Granada who lived between the 16th and 17th centuries and who was also known by the nickname Doctor Eximius because of his vast knowledge (he was a theologian, philosopher and jurist), being one of the best representatives of the Salamanca School, considered that a prisoner had full right to escape if the sentence received was very harsh and the jail where he was imprisoned was unhealthy; also if the scaffold was waiting for him, of course.

Suarez based this opinion on Natural Law, arguing that it is above the laws of Man and that the ius fugiendi has the duty to protect his life first and foremost. In reality, he was only establishing a principle of proportionality according to the usual conditions of the penal system of his time and he resumed the scholastic tradition in this regard, according to which justice must be commutative (not to exceed the limits of punishment), distributive (to be equitable) and legal (applied by the public administration); Suárez, it must be said, is considered one of the great figures of scholasticism.

In short, the subject is obliged to serve the penalty but, if the minimum conditions are not met, even if the penalty is just, he is entitled to avoid it. However, the Jesuit stresses that this is not a subjective right but a kind of permit and also adds that the legislator, in turn, would not act badly in trying to prevent the prisoner from leaving because he would be fulfilling his duty. Suarez thus anticipated human rights at a time when that concept was still far away, although what he really wanted was to clarify the moral context so that the laws would fulfill properly their social function.

In 1764 another scholar, the enlightened Milanese Cesare Beccaria, delved into the matter in his brief essay Dei deliti e delle pene (On Crimes and Penalties), which laid the foundations of a humanistic criminal policy by stating that all punishment must be essentially public, prompt, necessary, the smallest of the possible in the current circumstances, proportionate to the crimes, dictated by Laws.

Beccaria advocated the abolition of capital punishment as ineffective and for violating the principle of the unavailability of human life (which belongs only to God) for contravening the social contract aimed at protecting the citizen. Moreover, Beccaria was also against torture and life imprisonment, arguing that it was not the harshness of the sentence but the inexorability in its application that gave certainty to the offender not to break the law.

I do not know how they would have reacted to the knowledge that today the legal systems of some countries show extraordinary understanding and do not penalize attempts to escape. This is the case in Germany, Belgium or Austria, to name but a few, which do not add additional time to the conviction of the prisoner. Others do the opposite; the USA, Mexico, China and Russia, for instance, which not only extend the punishment of the frustrated escapee but empower their agents to use their weapons to try to prevent escapes, even shooting to kill.

Sometimes the difference between one case and another lies in the degree of force used by the prisoner in his attempt, whether there is violence against prison staff or whether he receives help, whether external or internal (from an official). This has repercussions on the review of the sentence and may extend it. In Germany, the escape is legal as long as no crime is committed in the process, although there is a trick to it: there is a violation of legality if an official is assaulted, a state property is broken (sawing bars or opening a tunnel, for example) or stolen (escaping with clothes ceded by the prison), so the only way to escape in practice would be for someone to leave all the doors open. It doesn’t seem likely.

That is why, among other things, most escapes consist of not returning to the penitentiary after a permit. However, this is not a cause for concern because statistics indicate that in Spain there are approximately a hundred and a half such cases a year, a negligible percentage in comparison with the number of permits granted, which adds up to several tens of thousands. It is, after all, the basis of reintegration, to which the penal system is oriented in contrast to that of places such as the USA, where it has a purely punitive character.

In this regard, it should be added that the Criminal Code includes four articles dedicated to the issue of escapes under the heading Offences against the Administration of Justice which constitutes chapter VIII. It punishes them with a surcharge of six months to one year, which would be up to four years if there is violence or intimidation. It also provides for punishment – which carries with it a disqualification – for the official who collaborates with the prisoner.

Some progress has been made because there was a time, not far enough away, when the ignominious law of escape was in force. In reality it was not an official law but a covert murder of the inmates during their transfer (whether to the police station, the courthouse or between prisons), shooting them in the back to simulate that they had tried to escape. It was frequently applied in the nineteenth century and first quarter of the twentieth century, protected by the prerogative that the forces of order had to use their weapons if the evaded did not heed the order to stop.

Bandits and trade unionists were the main victims in Spain, the dead being counted in hundreds, especially in 1920s Barcelona, which became a battleground for anarchist and employers’ gunmen. Later, after the peculiar version of the law of escapes that were the strolls during the Civil War, the Franco dictatorship centred this method on the maquis. It was also used in Porfirio Díaz’s Mexico, with the express authorization of the president to “kill in hot” and other Hispanic countries; it is reasonable to deduce that in the Anglo-Saxon countries there would be something similar with another name.

In short, it is inevitable that as long as there are prisons there will be evasions, even when the conditions of internment are more and more bearable. But even if a frustrated escape may mean spending more time locked up than was originally planned, things will never be as dramatic as those suffered by Jean Valjean, the protagonist of Les miserables. For those who have not read it, a poor wretch who, starving to death, tries to steal a loaf of bread and is caught and sentenced to five years in prison. The rest is better left to the author of the novel, Victor Hugo:

At the end of that same fourth year, his turn came for evasion. His comrades helped him as they usually do in that sad mansion, and he escaped. He wandered free in the countryside for two days, if it is free to be persecuted, to turn his head at every moment and at the slightest noise, to be afraid of everything, of the path, of the trees, of sleep. In the night of the second day he was taken prisoner. He had not eaten or slept for thirty-six hours. The court sentenced him for this crime to a surcharge of three years. In the sixth year it was also his turn for evasion; at night the round found him hidden under the keel of a ship under construction; he resisted the guards who took him: evasion and rebellion. This fact, foreseen by the special code, was punished with a surcharge of five years, two of them of double chain. The tenth one had his turn again, and took advantage of it; but he was not better off. Three more years for this new attempt. Finally, the thirteenth year, he tried again his escape, and he was caught at four o’clock. Three more years for these four hours: total nineteen years. In October 1815 he was released: he had entered the prison in 1796 for having broken a glass and taken a loaf of bread.

This article was first published on our Spanish Edition on September 24th, 2018. Puedes leer la versión en español en El controvertido derecho del preso a fugarse, que no es delito en países como Alemania o Bélgica


Luis Carlos Amezúa Amezúa, Derecho de evasión y principio de humanidad. Notas de Francisco Suárez sobre la obligación penal y la fuga de presos | Victor Hugo, Los miserables | Víctor A. Payá, Vida y muerte en la cárcel. Estudio sobre la situación institucional de los prisioneros | VV.AA, Francisco Suárez. De Iuramento Fidelitatis. Conciencia y política

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