Failure to pay a fine is currently the second most common reason why Spaniards are deprived of their liberty, second only to imprisonment itself. This is because the Spanish legislature decided to treat those who fail to meet these financial obligations as criminals.
The purpose is to prevent the obligated party from evading the penalty on the grounds of financial insolvency. Insolvency will not be declared simply due to voluntary nonpayment, but rather due to enforcement proceedings. This is definitely something you should be aware of to avoid future penalties, and we’re here to help you do just that.
Framework Law on Subsidiary Penalties for Failure to Pay Fines
The legal basis for ancillary criminal liability for failure to pay a fine is set forth in the Spanish Criminal Code. The Code establishes specific and detailed provisions in this regard.
Specifically, Article 35 of the law classifies this situation as one of the misdemeanors subject to penalties aimed at restricting an individual’s freedom. This means that fines imposed by a court judgment that have not been paid must be satisfied through imprisonment.
How is the prison sentence for failure to pay a fine calculated?
The method for calculating the period of restriction of liberty for failure to pay a fine is set forth in Article 53.1 (Penal Code). This provision outlines several factors to consider, such as:
A person charged with such an offense shall be sentenced to one day in prison for every two unpaid (daily) installments.
To calculate this period, the number of unpaid penalty installments will be taken into account and divided by two (number of installments ÷ 2).
To illustrate this more clearly, let’s take the example of a person sentenced to 12 months with a daily fine of €20. Under these circumstances, the person would be sentenced to 6 months of imprisonment. However, for offenses considered minor, electronic monitoring could be imposed as a penalty.
In addition, with the convicted person’s consent, the judge may impose community service as an alternative form of punishment. This is calculated on the basis of one day of community service for each day of restriction of liberty.
How can the length and form of a prison sentence for failure to pay a fine be changed?
It could be the case that the convicted person has partially paid the installments specified in the sentence, which would entitle them to certain benefits. Let’s imagine a person sentenced to 400 daily payments who has paid only 100 of them. In this case, the restriction on their freedom would pertain to the 300 unpaid installments.
Therefore, by applying the aforementioned formula to calculate the length of the sentence, a specific term would be determined. We are talking about a total of 150 days (300 divided by 2) of imprisonment or, alternatively, community service for failure to pay a fine.
Another important point to consider is that, once their freedom has been restricted, the convicted person may discharge the debt. This is because if they pay the amount owed while serving their sentence, they will be released upon fulfillment of their obligations. This, of course, excludes the days during which they were deprived of their liberty.
Maximum length of imprisonment
The Criminal Code sets limits on the penalties resulting from subsidiary personal liability for failure to pay a fine. This entails the following:
Article 50.3 sets a maximum limit of two years. Based on the aforementioned formula, this implies a maximum of one year in prison.
Article 53.3 provides that subsidiary liability may not be imposed for prison sentences exceeding five years.
Thus, for many criminal defense attorneys, this rule prevents impunity within the rule of law, but for others, it violates the constitutional principle of equality. This is because it only punishes people living in poverty who are unable to meet their financial obligations.
