The Murcia Court establishes a maximum limit

The Chamber has analyzed the different crimes for which the legislation establishes prison sentences or fines alternatively, to determine the cases in which a possible non-compliance in the event of imposing a pecuniary sanction may give rise to subsidiary personal liability that involves more time. of confinement than that established by the penal code for the custodial sentence .



Cases that, according to the Chamber, are found in some crimes such as driving without a license (prison sentence of 3 to 6 months or fine of 12 to 24 months), injuries caused by serious recklessness (prison of 3 to 6 months or fine from 6 to 18 months) or the Whatsapp Database crime of making use of goods seized in storage, in case of authority (prison sentence of 3 to 6 months or fine of 12 to 24 months). “In them, the subsidiary personal responsibility derived from non-payment of the fine may be higher than the custodial sentence imposed directly by the precept,” they reason.



And, “conversion established automatically” following the criteria of article 53 of the Penal Code, of one day in prison for every two daily quotas not satisfied, “the result of it could lead to unfair situations, contrary to the principle of proportionality ", emphasize the magistrates. Therefore, they choose not to follow the automatic conversion criterion and “moderate the result obtained” when the subsidiary personal responsibility thus resulting “yields a period of compliance greater than the custodial sentence itself imposed as a direct penalty in the type penal".



Thus, taking up the doctrine of the most recent Constitutional Court, the Court affirms that the custodial sentence resulting from subsidiary personal liability for non-payment of a fine is “excessively disproportionate when it exceeds, as in this case, by much of the maximum of the direct custodial sentence that it contemplates as an alternative sentence .







The magistrates allude to the “intangibility, invariability and unmodifiable nature of sentences”, connected to the “principle of legal certainty” and projection of the right to effective judicial protection, and to the “order of seriousness” or grading of sentences, which as explains the Explanation of Reasons of Organic Law 5/2020, “it allows reserving the prison sentence, as the most serious, for exceptional cases.”



And, in response to what was previously reasoned linked to the principle of proportionality, the Chamber concludes that “the deprivation of freedom that the subject must suffer in these cases in which the legislator has not taken it into account, should not be higher than to the initial prison sentence established as an alternative .” Therefore, they set subsidiary criminal liability at 6 months, the maximum prison sentence provided for the crime, and not 10 months, the result of the automatic conversion.