The Chapter I of the Title III, of the Book I of the Spanish Criminal Code (CP), is entitled “Of the punishments, their kinds and effects”. It is a chapter divided into six sections: Of the punishments and their kinds, Of the punishments which affect to the right to the liberty, Of the punishments which affect to other rights, Of the punishment of fine, Of the accessory punishments and Of the common dispositions. Each of these sections is concerned with one aspect or other of the punishments.
I am going to take advantage of the división made by the CP, for utilizing it during the analysis of the Chapter I. Therefore this work will be also divided into six sections, each one corresponding with one of the sections of the Chapter I.
– Of the punishments and their kinds:
Art. 32:
The first article which we find in this section, is the article 32, which classifies the punishments that can be imposed according to the CP into punishments which affect to the right of liberty, punishments which affect to other rights and the punishment of fine. Besides it adds that, these punishments can be imposed either as main punishments or as accessory punishments.
The punishments which affect to the right of liberty are defined later, in the second Section that we will see afterwards. But, it is interesting if at least we mention them. The punishments which affect to the right of liberty comprehend: The permanent reviewable imprisonment, the imprisonment, the permanent localization and the subsidiary personal liability for non-payment of fine (art. 35 CP).
The same happen with the punishments which affect to other rights, they have their own section too, the Third Section. According to the article 39 they are made up of: The total disqualification; the special disqualification for public job or post, profession, trade, industry or commerce, or another activities determined in this Code, or of the rights of custody, tutelage, curatorship or care, the keeping of animals, the right to stand as a candidate or of any other right; the suspension of public job or post; the privation of the right of driving motor vehicles or mopeds; the privation of the right to the ownership or carrying of arms; the privation of residing in determined places or of going to them; the prohibition of nearing to the victim or those part of his family or other persons which the court or judge determines; the prohibition of communicating with the victim or those part of his family or other persons which the court or judge determines; and, the privation of the custody.
And with the fine regulated in the Fourth Section. According to the art. 50 it consists in the imposition of a pecuniary penalty.
On the other hand, the distinction between main punishments and accessory punishments of the art. 32, is developed in the Fifth Section, exclusively concerned with the accessory punishments. Its article 54 says: “The punishments of disqualification are accessories in the cases in which, being not specially imposed, the law declares that other punishments carry it with them.” Thereby the punishments of total disqualification and special disqualification are accessory with respect to the punishments which affect to the right of liberty and the punishment fo fine. But besides, in the fifth section are established other accessory punishments, all pertaining to the catalog of right´s privative punishments of the art. 39.
Art. 33:
The next article which we find within this First Section is the article 33, which makes another classification of the punishments, this time not according their nature like the article 32 makes, bur according their intensity or gravity, the punishments can be classified into serious punishments, less serious punishments, and minor punishments. Here we have to bring the classification of the crimes, not of the punishments like is done by the art. 33, of the art. 13, which depending on the punishments assigned to determined crime, either it can be a serious crime, when is punished with a serious punishment (art. 13.1 CP), it can be a less serious crime, when is punished with a less serious punishment (art. 13.2 CP), or it can be a minor offence, when is punished with a minor punishment (art. 13.3 CP). But we must be careful, we cannot forget what is said by the las point of the art. 13, when the punishment which must be imposed to a crime comprehends its classification as serious and at the same time less serious, it must be classified as a serious crime, but when the punishment which must be imposed to a crime comprehends its classification as less serious or minor, it will be in any case a minor offence.
This last point is relevant for determining the proceeding according to which must be tried some facts, since there exists in the Spanish Criminal Procedure Act (LECrim) a specific procedure for trying the minor offences. For instance, the slanders made without publicity of the art. 209 CP and which are punished with a fine from three to seven months. This specific kind of slander is tried according to the procedure for the trying of minor offences, whose hearing and ruling pertains to the Examining Magistrate (art. 14.1 LECrim).
Therefore, if the punishment imposed to a crime has part of its range included within the boundaries of what can be regarded as a minor punishment, although the rest surpasses this boundary and can be regarded as a less serious punishment, the crime will be deemed as a minor offence. At this juncture, we are obliged to mention a key document for interpreting the procedure for the trying of minor offences, the Circular 1/2015, on guidelines for the exercising of the criminal action regarding the minor offences after the reform carried out by the Organic Law 1/2015 (Circular 1/2015). According to the Circular 1/2015, in the crimes which have associated a compounded punishment: “only can be considered a minor offence a crime when all the punishments which has assigned include or are altogether within the boundaries defined in the art. 33.4 CP; on the contrary, if any of the punishments of the crime is altogether within the boundaries of the less serious crimes (art. 33.3 CP), the art. 13.2 CP will prevail and the crime has to be regarded as a less serious crime”. This demands that, when a crime has assigned more than one punishment, all of them must be within the limits marked by the art. 13.4, otherwise, the crime cannot be catalogued as a minor offence and will not be able to be tried by the special procedure envisaged for them in the LECrim.
The criteria followed by the Circular 1/2015 is the same followed by the CP in its article 131.2 CP when it regulates the prescription of the crimes: “when the the punishment envisaged by the law is compounded, for the application of the rules comprehended in this article, the punishment which demanded the longer term of prescription will prevail.”
For more information about the procedure for the trying of minor offences, I recommend to you to visit my publication in which it is analyzed.
Another moment in which can be important the difference between a less serious crime and a minor crime, is when the convicted does not pay the fine according the terms established in the sentence, and the punishment of fine is substituted by the punishment of subsidiary personal liability for non-payment of fine. In this cases, the punishment of subsidiary personal liability for non-payment of fine con be changed for the punishment of permanent localization (art. 53 CP), which at least does not imply going to prison.
The serious punishments are enumerated in the second point of the article 33, the less serious in the third point, and the minor punishments in the fourth. As we have said at the beginning what distinguishes a serious punishment, from a less serious punishment, and from a minor punishment, is its intensity or gravity. A punishment of imprisonment is serious when the punishment imposed surpasses the five years, on the contrary it will be less serious when it is equal or inferior to five years, although it can never be regarded as a minor punishment, for the punishment of imprisonment is not among those gathered in the art. 33.4, which mainly are punishment of disqualification, or in other words, right´s privative punishments. We can use as an example too, the special disqualifications, which above the five years are serious punishments, but when they are equal or inferior to five years are less serious punishments, special disqualifications which does not appear either among the minor punishments. Although as we have just said the minor punishments are basically constituted of right´s privative punishments, like the privation of the right to the ownership or carrying of arms or the privation of the right of driving motor vehicles or mopeds, they will be regarded as a less serious punishment when it oscillates between a year and a day, and eight years, and minor punishments when it oscillates between three months and a year, being in these cases the frontier which separates the less serious punishments from the minor punishments the year.
After classifying the punishments according their gravity the art. 33 says other important things, in its fifth point, that the subsidiary personal liability for non-payment of fine will have a character of less serious punishment or minor punishment, depending on the punishment which substitutes, thus its classification will not depend upon the days of imprisonment which take the place of the fine, besides if we remember what we have said before, the punishments which affect to the right of liberty are not comprehended among the minor punishments. In the art. 53, is where we find the correspondence between the days of fine unpaid and the days of imprisonment, it will be of one day of privation of liberty for each two daily unpaid quotas. On the other hand, in the sixth point of the article 33 we find another important aspect of the accessory punishments, which remember they will be the right´s privative punishments of the art. 39 (art. 54 and following), these will have the same duration that the main punishment, except when the CP envisages the contrary.
The article 33 ends with its seventh point, other important point, since in it are distinguished from the punishments explained so far, the punishments applicable to the legal entities, which will be criminally liable solely in the cases expressly envisaged in the CP (art. 31 bis). Here we are obliged to mention too, the art. 31 which envisages that, the manager in fact or by right of a legal entity, will be personally liable, although do not concur in him the conditions, qualities or relations which the corresponding crime requires for being an active subject of the same, if such circumstances are present in the entity or person on whose behalf he acts. Therefore, when a crime is committed within a legal entity, there must be imposed two kinds of punishments, one to the administrators, which will be some of the established in the second, third or fourth point of the article 33, and other to the legal entity, which will be some of the envisaged in the seventh point of the same article. For instance, in the crime of fraudulent bankruptcy typified in the art. 257 of the CP, is punished with the punishment of imprisonment from one to four years, and a fine from twelve to twenty-four months: 1º Who takes his goods damaging his creditor, and; 2º Who with the same goal makes any act of patrimonial disposition or generator of obligations which hinder or impede the efficacy of a seizure or an executive enforced collection procedure of seizure, judicial, extrajudicial or administrative, initiated or of foreseeable initiation. And if the same crime is committed within a legal entity, this legal entity will be punished with: a) Fine from two to five years, if the crime committed by the natural person has envisaged a punishment of imprisonment of more than five years; b) Fine from one to three years, if the crime committed by the natural person has envisaged of imprisonment of more than two years not included in the above point; c) Fine from six months to two years, in the rest of cases (art. 258 ter). There will be two punishments, thus, one to the natural person according to the art. 257 and another to the legal entity according to the art. 258 ter. Among the punishments to be imposed to a legal entity we find: fine for quotas or proportional, the dissolution of the legal entity, or the suspension of its activities.
Art. 34:
The First Section ends with the article 34, which expressly does not consider punishments: The detention and preventive prison and the rest of preventive measures of criminal nature; The fines and the rest of corrections that, in use of government and disciplinary attributions, are to be imposed to the subordinates or administrators, and; The privative of rights and the repairing sanctions that the civil or administrative laws establish.
The detention and the preventive prison or provisional prison how is denominated by the LECrim, are two preventive personal measures regulated in the LECrim that, have the goal of guaranteeing the subjection of the imputed to the criminal procedure and the effectiveness of the criminal sentence which eventually may end it. The detention (art. 489 – art. 501 LECrim) supposes that the detainee is deprived of his right to the freedom (art. 17 Spanish Constitution) for being in any of the cases envisaged in the art. 490 LECrim, in which are established the circumstances under which any person can detain another, as for instance: who try to commit a crime in the moment of going to commit it, to the in flagrante criminal o who has escaped from prison, or in the art. 492, where are stated the cases in which judicial Police is obliged to practice a detention, as: to anyone who is in some of the cases of the art. 490, or who was committed for trial for a crime which has assigned a punishment in the CP of more than the correctional prison (from six months to three years). According to the art. 520 of the LECrim, the detention cannot last more than the time strictly necessary for carrying out the investigations aimed to clarify the facts, and in any event in the term of 72 hours the detainee must be released or putted at the disposition of the judicial authority, who will decide either his provisional release without bail, or on bail, or the provisional prison (art. 505 LECrim). On the other hand, the provisional prison (art. 502 – art. 519 LECrim), implies that the imputed must be imprisoned before the existence of a firm sentence that determines it, and only can be agreed when the requisites of the art. 503 LECrim are met, nevertheless there is a maximum term which the imputed can be in provisional prison, this is established in the art. 504 LECrim. Besides, we have to take into account what is said in the last section of this chapter, in the art. 58 CP is established that, the time spent in provisional prison will be compensated in the conviction by the judge or tribunal.
Lastly regarding this section, the art. 34 also remembers to us that, the civil liability derived from the crime has not the character of a punishment.
– Of the punishments which affect to the right of liberty:
Art. 35:
As we have already seen, the punishments which affect to the right of liberty are enumerated in the art. 35, they are: the permanent reviewable imprisonment, the imprisonment, the permanent localization and the subsidiary personal liability for non-payment of fine.
The permanent reviewable imprisonment was introduced for the first time in the CP by means of the Organic Law 1/2015, a law which also made to disappear the distinction between crimes and misdemeanours. It is a controversial punishment, for in the practice it supposes the application of the life imprisonment, a punishment which should infringe the art. 15 of the Spanish Constitution (CE), in which is established that no-one can neither be subjected to torture nor to inhuman and degrading treatments, and which should also infringe the art. 3 of the European Declaration of Human Rights which also forbids the inhuman and degrading punishments. However, the Spanish Constitutional Court approved the legislative reform in its sentence 169/2021, of 6 October 2021, on the basis of jurisprudence of this own court and of the European Court of Human Rights, which deem that there is no infringement of the aforementioned rights when the legislation of a country which contemplates the life imprisonment, has at the same time mechanisms which allow the review of the conviction, with the possibility, at least, of a conditional release. In the case of the CP, it is the article 92, the article which establishes those mechanisms of review, which the TC also examined in the mentioned sentence. This Court regarded that the art. 92.3 of the CP granted “to the Prison Oversight Judge, as the organ with competence of controlling the conditional release, an all-embracing power for ordering the reentry into prison of the released by virtue of an assessment of his personal circumstances lacking of legal guidelines.”, limiting “the revocatory efficacy of the alluded change of circumstances to the cases in which it is produced in the context of the infringement of any of the legal duties with revocatory efficacy to which the art. 86.1 refers.” This sentence also considered that the legal system for revoking the conditional release was constitutionally unsatisfactory for being incomplete, and was fixed as interpretation that “after the revocation of the conditional release, have to be esteemed in force the exigences imposed to the sentencing court in the art. 92.4 CP of verifying, with a biannual periodicity, the fulfillment of the requisites for accessing to the conditional release and of resolving the petitions that the convicted directs to it with the temporal requisites established in such norm.” Notwithstanding all the above, it is important to clarify that the permanent reviewable prison, is this, permanent, it is a life imprisonment masked by un art. 92.3 which allows its suspension for periods from five to ten years, but such periods can be revoked at any moment, furthermore it can happen that after their exhaustion they are never granted again.
On the other hand, the imprisonment supposes the fulfillment of the conviction in a prison for a determined term established in a firm sentence, this previously determined term and that its end implies the recovery of the liberty is what distinguishes it from the permanent reviewable imprisonment. The permanent localization obliges to the convicted, to remain in its domicile or in a determined place established by the judge in sentence or motivated resolution (art. 37 CP). And the subsidiary personal liability for non-payment of fine, will take place as consequence of the non-payment of various quotas of fine, it is another privation of liberty in a prison which will be calculated according to the envisaged in the art. 53, as we have already seen, it is a day of privation of liberty for each two daily quotas not satisfied.
Art. 36:
The first point of the art. 36 is concerned with the permanent reviewable prison, and the first thing it does, is connecting it with the art. 92 for remembering to us, this special feature of reviewable, it says: “The punishment of permanent reviewable imprisonment will be reviewed in accordance with the stated in the art. 92”. One of the requisites which establishes the art. 92, for agreeing the suspension of the execution of the punishment of permanent reviewable imprisonment is that, the convicted has to be classified in third degree, and the classification of the convicted to third degree only will happen when the requisites of the article 36 are met, in other words, that previously there exists individualized and favorable prediction of social reintegration, by the Public Prosecutor and Penitentiary Institutions, and that: there has been fulfilled twenty years of effective imprisonment, when he has been convicted for a crime of the Chapter VII of the Title XXII of the Book II of the CP, in other words, related with terrorist organizations or groups or crimes of terrorism, or; there have been fulfilled fifteen years of effective prison in the rest of the cases. Besides, the exit permits are restricted until there has not been fulfilled at least twelve years of prison in the first case, and eight years of prison in the second.
We have to clarify that, the third degree, supposes the application of the open regime in any of its modalities (art. 101.2 of the Prison Rules) to those who can continue their treatment in regimen of semi-liberty (art. 74.2 of the Prison Rules). The convicted classified in third degree can go out of the place where they are complying with the punishment for developing the laboral, formative, family, treatment activities, or of another kind which ease their social reintegration (art. 86.1 of the Prison Rules), and as a general rule, these convicted will enjoy of weekend exit permits, at most, from the sixteen hours of the Friday to the eight hours of the Monday (art. 87.2 of the Prison Rules).
The second point of the article 36 is concerned with the punishment of imprisonment, it begins establishing the term during which it can be applied: “The punishment of imprisonment will have a minimum duration of three months and a maximum of twenty years, except what exceptionally state other precepts of this Code.” That is right, there exit cases in which the punishment of imprisonment can reach up to twenty-five years, and even the forty in determined cases when there are imposed several punishments (art. 76 CP), for instance, in the case of kidnapping (art. 166 CP) the punishment can reach the twenty-five years if the victim is a minor or handicapped, or when the author has carried out the kidnapping with the intention of attempting against the sexual liberty or indemnity of the victim, or he has acted afterwards with this goal. And the art. 76 allows to reach the forty years of imprisonment, for instance, when the subject has been convicted for two or more crimes and, at least, two of them are punished by the law with more than 20 years of imprisonment.
In the case of the punishment of imprisonment, the second point of the art. 36 also establishes the conditions for having access to this third degree which has great benefits to those convicted who has been classified as such. The access to the third degree is conditioned in two ways, one which depends on the discretion of the judge or tribunal which dictates conviction, and other which is established in the law. In the first case, such judge or tribunal may agree that the convicted cannot have access to the third degree, until the fulfillment of the half of the conviction, when this surpasses the five years of imprisonment. In the second case, according to the art. 36.2, the convicted cannot access in any event to the third degree until he has not comply with the half of the conviction when, the punishment of imprisonment is of more than five years, and it is as consequence of committing some of the following crimes: a) Crimes concerned with terrorist organizations or groups of the Chapter VII of the Title XXII of the Book II of the Code; b) Crimes committed within a criminal organization or group; c) Crimes of the article 183, in other words, crimes of sexual abuses and aggressions to minors with less than sixteen years old; d) Crimes of the Chapter V of the Title VIII of the Book II of the Code, when the victim is a minor with less than thirteen years old, in other words, when they are crimes concerned with the prostitution and the sexual exploitation and the corruption of minors.
On the other hand, for allowing the convicted to have access to the general regime of complying, the art. 36.2 has not established restrictions if he has not been convicted for any of the four kinds of crimes mentioned above. In order to have access to the general regime of complying, the convicted needs that the Prison Oversight Judge agrees it, after previously having heard the Public Prosecution, Penitentiary Institutions and the rest of the parties, without being necessary to wait to the fulfillment of half of the conviction.
The general regime of fulfillment is denominated by the Prison Rules as the ordinary regimen, which is applied to the convicted classified in second degree, to the convicted without having been classified yet and the detainees (art. 74 of the Prison Rules).
To all the above, the last point of the article 36, its third point, establishes one exception, the Prison Oversight Judge or Court, after having been informed by the Public Prosecution, Penitentiary Institutions and the rest of the parties, may agree the progression to the third degree for human motives and the personal dignity of the convicted when either they suffer incurable illnesses or they are septuagenarian, taking into account their little danger. Therefore, in these cases, there will be indifferent whether the convicted to permanent reviewable imprisonment complies with the requisites of the art. 36.1 (access to the third degree for those convicted with permanent reviewable imprisonment), or whether the judge or tribunal which dictates a conviction of more than five years of imprisonment has established that the convicted has to wait at least to comply with half of the conviction for having access to the third degree, or whether the convicted to more than five years of imprisonment had committed any of the crimes mentioned in the art. 36.2 CP.
Art. 37:
If the article 36 talks about the permanent reviewable imprisonment and the imprisonment, the art. 37 is concerned to the punishment of permanent localization. Like the art. 36.2 with the punishment of imprisonment, the first thing which it does is establishing its limit: “The permanent localization will have a duration of up to six months.” And after this, it determines its character: “Its fulfillment obliges the convicted to remain in his domicile or a determined place established by the judge by means of sentence or afterwards by means of motivated resolution”.
However, the punishment of permanent localization can be also complied in the nearer jail to the domicile of the convicted and, only the Saturdays, the Sundays and the holidays, when the crime for which he was convicted has it as a main punishment, it is a reiteration in the commission of the infringement and it is expressly established in the precept applicable.
In the second point of the article 37, also offers the possibility of allowing the convicted to permanent localization to comply with the conviction, only Saturdays and Sundays or in a discontinuos way. This option has the advantage of complying conviction in the domicile or other place determined by the sentence or motivated resolution, and making it only the weekend, without necessity of being reoffender in the commission of the infringement or that some precept of the CP has established this punishment as principal.
The punishment of permanent localization, although it is regarded as a freedom’s privative punishment, it tempts to those who suffer it to its infringement, as consequence of being all day bored at home it is easy to have the idea of not being it any more, for having the perception that no-one will notice it. In order to dissuade those who think that it is easy to elude the fulfillment of this kind of punishment, the art. 37 establishes two kinds of mechanisms, one is the established in its third point, at the moment in which the sentencing judge or tribunal has notice of the infringement, the convicted will have to declare in order to be accused of a crime of breaking of sentence (art. 468 CP), what would worsen a lot its situation, because it is punished with imprisonment from six months to one year. The other mechanism of dissuasion is the established in its fourth point: “In order to guarantee the effective fulfillment, the Judge or Tribunal may agree the utilization of mechanic or electronic means that allow the localization of the convicted.” And attention, because if anyone has the temptation of trying to cheat any of these means of localization, the same art. 468 CP envisages in its third point a fine from six to twelve months for who tries to do it.
Art. 38:
With the article 38 ends the section concerned with the freedom’s privative punishment. In it is determined the moment in which will begin the counting of the punishments in two different scenarios, when the convicted is in jail or when the convicted is not in jail. If the convicted is already in jail, the duration of the punishment will be counted from the day in which the conviction is firm, firm is a sentence either when against it there is no appeal, when the term to lodge it has been exhausted or when the convicted has decided to not appeal it in the Abbreviated Procedure (art. 789.2 LECrim). Here we have to remember what is said by the articles 34 and 58, the former that the detention and the provisional prison and the rest of the preventive measure, will not be regarded as punishments, and the latter, that the time provisionally spent in prison will be compensated by the ruling Court or Judge. The second option that is offered by the article 38 is for when the convicted is not in prison yet, in this case the duration of the punishment will start to count from the day he enters into prison.
– Of the right´s privative punishments:
Art. 39:
The third section begins with the art. 39, in which are enumerated the right´s privative punishments, they are: a) The total disqualification; b) The special disqualification for public job or post, profession, trade, industry or commerce, or another activities determined in this Code, or of the rights of custody, tutelage, curatorship or care, the keeping of animals, the right to stand as a candidate or of any other right; c) The suspension of public job or post; d) The privation of the right of driving motor vehicles or mopeds; e) The privation of the right to the ownership or carrying of arms; f) The privation of residing in determined places or of going to them; g) The prohibition of nearing to the victim or those part of his family or other persons which the court or judge determines; h) The prohibition of communicating with the victim or those part of his family or other persons which the court or judge determines; i) The obligation to carry out community service, and; j) The privation of the custody.
This does not mean that the freedom´s privative punishments are not right´s privative punishments, but the enumerated in the art. 39 deprive of rights less relevant than the right to liberty, a fundamental right according to the art. 17 of the CE, in fact the art. 32 with which starts the chapter object of analysis says: “The punishments which can be imposed in accordance with this Code are… privatives of liberty, privatives of other rights and fine”. For example, the punishment of privation of the right of residing in determined places or going to them, affects to the right to the ambulatory liberty, another fundamental right recognized in the art. 19 of the CE, or the special disqualification for standing as a candidate would affect to the right to participate in the public matters, also another fundamental right in the art. 23 CE.
Art. 40:
In the art. 40 is established the duration of each of the right´s privative punishments enumerated in the art. 39. Each point of the art. 40 classifies the right´s privative punishments according their gravity, in descending order. The punishment of total disqualification has a duration from six to 20 years, the special disqualifications a duration from three months to 20 years, and the suspension of public job or post of three months to six years. In the next step we have, the privation of the right of driving motor vehicles or mopeds and the privation of the right to the ownership or carrying of arms which will have a duration from three months to ten years. In the third point we have that, the privation of residing in determined places or of going to them will have a duration up to ten years, and the prohibition of nearing to the victim or those part of his family or other persons or of communicating with them, will have a duration from one month to ten years. And finally, in the fourth point is established that, the obligation of carrying out community service will have a duration from one day to one year.
But we have to be careful, we cannot trust 100% the duration established for each of the right´s privative punishments of the art. 40 either. At its end, as seems to be the habitual in the articles we have seen so far, there is also established an exception: “The duration of each of these punishments will be the envisaged in the above points, except what exceptionally envisage other precepts of this Code”. Therefore, like what happened with the punishment of imprisonment (art. 36.2), the boundaries of each punishment can be surpassed in the cases expressly envisaged in the CP for determined kinds of crimes.
Art. 41:
In the art. 41 is defined what is the punishment of total disqualification, says: “The punishment of total disqualification supposes the definitive privation of all the public honors, jobs and posts which the convicted owns, although they are elective. Besides, it supposes the incapacity for obtaining the same or whatever other public honors, posts or jobs, and of being chosen for public post, during the term of the conviction.”
Let us see now, the definition of special disqualification which offers the art. 42, because in this way it is easier to see the differences between them.
Art. 42:
According to the art. 42: “The punishment of special disqualification for public job or post supposes the definitive privation of the job or post for which this is aimed, although it is elective, and of the honors which are attached. Besides, it supposes, the incapacity of obtaining the same or others of the same kind, during the term of the conviction. In the sentence have to be specified the jobs, posts and honors for which the special disqualification is aimed.”
Now that we have seen both, the total disqualification and the special disqualification, we see that the difference between both is the scope of the disqualification. The total disqualification supposes the losing of all the public honors, jobs and posts owned by the convicted, and the impossibility of obtaining the same or whatever others during the term of the conviction. On the contrary, the special disqualification supposes the losing of the public honors, jobs, or posts, and of the honors attached to them, which are expressly mentioned in the sentence, and the impossibility of obtaining the same or other of the same kind during the term of the conviction.
Art. 43:
The article 43 and following do the same which has been done in the article 41 and the article 42, in it is defined in what consists the suspension of public job or post. According to the art. 43: “The suspension of public job or post deprives of its exercise to the convicted for the term of the conviction.”
Art. 44:
The article 44 describes in what consists the special disqualification for the right to stand as a candidate, it: “deprives the convicted, during the term of the conviction, of the right to be elected for public posts.”
A right which, as we have mentioned before, is a fundamental right recognized in the art. 23 of the CE.
Art. 45:
In the art. 45 is described other of the special disqualifications, the special disqualification for profession, trade, industry or commerce, or whatever other right. It must be specified and motivated in the sentence, in other words, there must be established by means of firm sentence, the professions, trades, industries or commerce which the special disqualification affects.
Art. 46:
On the other hand, the art. 46 regulates de special disqualification for the exercise of the rights of custody, tutelage, curatorship, or care, and the privation of the custody.
There exist a big difference between what is the custody on the one hand, and what is the tutelage, curatorship, or care on the other. The custody is an inherent rights of the fathers upon their sons non-emancipated, which comprehends the following duties and rights according with the art. 154 of the Spanish Civil Code:
“This function comprehends the following duties and faculties:
1º To take care of them, to have them in their company, to feed them, to educate them and to procure them an integral education.
2º To represent them and to administer their goods.”
Let us see other data about the custody. The custody is extinguished (art. 169 CC): 1º For the dead or the declaration of dead of the fathers or the son; 2º For the emancipation, and; 3º For the adoption of the son. And the emancipation takes place (art. 314 CC): 1º For the achievement of the legal age; 2º For the concession of whom exercises the custody, and; 3º For the judicial concession. For being able to take place the emancipation for concession of whom exercises the custody, it is required that the minor is, at least, sixteen years old and his consent (art 317 CC).
Besides, the custody can be extended the sons have been incapacitated, and when the son who has reached the age of majority and who lives with his fathers is incapacitated the custody will be restored (art. 171 CC).
On the other hand, the tutelage and the curatorship consist in the care and protection of the person and goods or only the person or goods pertaining to the minors or incapacitated (art. 215 CC). There will be subjected to the tutelage (art. 222 CC): 1º The minor non-emancipated who are not under the custody; 2º The incapacitated, when the sentence has established it; 3º The subjected to the extended custody, when it ends, except when the curatorships proceeds, and; 4º The minors who are destitute. Who is designed as guardian is obliged to protect the ward and, in particular: 1º To procure to him foods; 2º To educate the minor and to procure to him an integral formation; 3º To promote the acquisition or restoring of the capacity of the ward and his better social reintegration, and; 4º To inform the annually the Judge about the situation of the minor or incapacitated, and to give it annual account of his administration.
The curatorship represents a greater degree of autonomy to those who suffer it, the curatorship has the only object of the intervention of the guardian in the acts that the minors or prodigals cannot do on their own (art. 288 CC), or in the case of the incapacitated, the intervention of the guardian is limited to the acts which expressly has determined the incapacitation sentence (art. 289 CC).
And the care arises when, the Public Entity, in the respective territory, which has entrusted the protection of the minors verifies that a minor is a destitute, and consequently adopts the necessary measures for his care (art. 172 CC), also when the fathers or guardians, for serious and transitory circumstances duly proven, cannot take care of the minor, and solicit of the Public Entity that it assumes his care during the necessary term (art. 172 bis). The care will take place through family placement and, not being this possible or convenient for the interest of the minor, through residential care (art. 172 ter CC).
There also exists the called de facto guardian, which is the scenery in which a minor or incapacitated is under the protection of a third party, who has neither the custody nor the tutelage. Indeed, provisionally, meanwhile the situation of de facto guard is maintained and up to the constitution of the adequate measure of protection, can be judicially granted tutelary faculties to the de facto guardians (art. 303 CC).
When the privation of the custody is agreed, the fathers who have lost the custody may recover it afterwards, if a Tribunal agrees it in the benefit and interest of the son, when has ceased the cause which motivated the privation (art. 172 CC).
Art. 47:
The article 47 defines two kinds of right´s privative punishments: the punishment of privation of the right of driving motor vehicles or mopeds will disqualify the convicted, for the exercise of both rights during the term established in the sentence; and the punishment of privation of the right to the ownership or carrying of arms will disqualify the convicted also, during the term established in the sentence.
But be careful, because if the term of the punishment surpasses the two years, the extinction of the punishment will not suppose the automatic recovery of the permit or license.
Art. 48:
The article 48 develops three right´s privative punishments: the punishment of the privation of residing in determined places or of going to them, which according to this article impedes to the convicted to reside or to go to the place where he committed the crime, or where the victim or his family are residing; the prohibition of nearing to the victim or those part of his family or other persons which the court or judge determines, this impides to the convicted, to get near them, in any place where they are, and to get close their domicile, their places of work and any other frequented by them, and; the prohibition of communicating with the victim or those part of his family or other persons which the court or judge determines, which impedes to the convicted to establish with them, by any means of communication or computer means or telepathic means, writing, verbal or visual contact.
Besides, at the end this article adds that, the judge or tribunal which has imposed any of these punishments, may agree the control of this measures through those electronic means which allow it. Here we have to remember, what we have seen in relation with one of the freedom´s privative punishments, the permanent localization. The article 468.2 CP punish who, infringes any of the punishments established in the article 48 with the punishment of imprisonment from six months to one year. And the same article in its third point, punished with the punishment of fine from six to twelve months, those who have tried to alter the good working of a technical device which has been used for controlling the fulfillment of punishments, or when they do not wear it, or the omit the demandable measures to maintain its good working.
Art. 49:
The article 49 is the last article of the section concerned with the right´s privative punishments. It is about the community service, which cannot be imposed without the consent of the convicted. This community service consists on the unpaid cooperation of the convicted, in determined activities of public utility, which may be of a similar nature of the crime committed by the convicted. Like, in working to repair the damages caused or of supporting or assisting to the victims, or his participation in workshops or formative programs or of reeducation, work-related, cultural, of visual or sexual education, or others akin. But, its daily duration cannot exceed the eight hours.
In this kind of punishment, the punished can also incur in a crime of breaking of sentence (art. 468 CP), if for instance, he does not got to work, or his performance is outstandingly inferior to the demandable. Hence, he has to be careful, if he does not want to be punished with a fine from twelve to twenty-four months (art. 468 CP). Although, at least, the art. 49 does not talk about technical devices for controlling the fulfillment of the punishment.
– Of the punishment of fine:
Art. 50:
The article 50 begins saying: “The punishment of fine will consist in the imposition to the convicted of a pecuniary penalty.” This is the third category of the punishments mentioned in the art. 32, when it divides the punishments into: punishments which affect to the right of liberty, punishments which affect to other rights and the punishment of fine.
The fine is a pecuniary sanction, in other words, who is punished, is punished to the payment of a determined amount of money. Although be careful, because as we have previously seen, what seems to be just a pecuniary sanction can be transformed in a freedom´s private punishment, the art. 53.1 says: “If the convicted does not pay, willingly or by enforced execution, the fine imposed, he will be subjected to the subsidiary personal liability of one day of privation of liberty for each two quotas unpaid, which, being minor offences, may be fulfilled through permanent localization.”
The second chapter of the article 50, establishes that with general character the punishment of fine will be imposed by the system days-fine. At the same time, it is saying that there can be other systems of imposing a fine, like the system of proportional fine. This passage of a sentence is interesting, for what it says regarding the system of days-fine established in the art. 50 and following of the CP, Madrid´s Provincial Court number of sentence 11361/2020: “The Madrid´s sentence court number 198/2019 of 26 of March says, “The conformity achieved by the Public Prosecution and the defense was with the writing of accusation of the Public Prosecution, in which was solicited the punishment of 12 months of fine with a daily quota of 6 euros. In other words, the Court which dictated the sentence which now is impugned decreased in one third, not only the punishment of fine, but, also, the extension of the quota daily fine agreed. With the latter the Public Prosecution does not agree, who lodges the appellation (…)”.
Later it adds, “As we already said in sentence dictated by this Court in 12 December 2018, “the system days-fine appears regulated in our Criminal Code in the articles 50 to 53 of it. The system of days-fine, against the system of proportional fine which is also applicable in our Criminal Code (for instance the article 368 of the Criminal Code), comes from the Scandinavian law and tries to adapt the punishment of fine to the concrete economic capacity of the convicted, in such a way that the resocializating and punitive effect of the punishment of fine, is not altered for imposing pecuniary punishments to persons that, for their economic capacity, the fine becomes intrascendente. Or conversely, the purpose would be avoiding the imposition of disproportionate amounts for pecuniary punishments to persons with little economic capacity and in which the imposition of the fine, and with the Damocles´ sword of the privation of liberty in the case of non-payment, supposes an incompatible burden with the idea of adjusting the punishment to the concrete individual circumstances of each person.
This is why the article 50.5 of the Criminal Code points out: “The Judges or Courts will determine the extension of the punishment within the limits established for each crime and according the rules of the chapter II of this Title. Likewise, they will determine in the sentence, the amount of the quotas, exclusively taking into consideration for it the economic situation of the convicted, deduced from its patrimony, incomes, obligations and family burdens and the rest of his personal circumstances.”
As we see the legislator establishes two parameters. The first, the temporal extension of the punishment (days and months), is linked to the gravity of the fact and besides oblige to the application of the rules of the Chapter II of such Title III of the Criminal Code (articles 61 and following of the Criminal Code), in other words the general rules of application of the punishments, like the obligation of imposing the inferior punishment in one or two degrees attending to the degree of execution (art. 62 of the Criminal Code), the application of the mitigating and aggravating factors of the article 66 of the same legal text, etc…
On the contrary and for adjusting the fine to the different economic capacity of each person, the own art. 50.5 of the Criminal Code, expressly points out that, the amount of quotas will be fixed, “exclusively”, attending to the general or global economic capacity of the convicted, in other words, not only his incomes, but his burdens, obligations, etc…
If the only criteria which can be taken into account for fixing the daily fine quota is the global economic capacity of one person and the temporal extension of the punishment of fine is referred to the gravity of the fact with fulfillment of the general rules of application fo the fines, it is not logic that the punitive reduction of the art. 801 of the LECrim, is applicable too to the fixation of the daily fine quota, for in such daily fine quota, only and exclusively has to be taken into account the economic capacity of the person and not the general or special rules of application of the punishments. The goal of such article 801 of the LECrim, framed in the context of the denominated “fast trial”, is to diminish gravity to the application of the punishments, allowing even the imposition of punishments which surpass the legal minimum, in exchange for the benefit which supposes for the administration of justice and for the society in general, a criminal rapid answer. However, if we extend such punitive “fall” to the extension of the daily fine quota, we would denaturalize the own system of days-fine, which as we say, tries of searching the concrete adaptation of the punishment of fine to the concrete economic capacity of each person, something which is only achieved with the fixation of such extension takin into account, exclusively, the global economic capacity of the punished. The appeal should prosper and is agreed the revocation of the sentence in such concrete point, therefore the daily fine quota will pass to be of 6 euros and 4 euros as was established in the appealed sentence”.”
Later, in its third paragraph, the article 50 determines the maximum and minimum extension of the fine imposed by the system days-fine: “Its minimum extension will be of then days and the maximum of two years. “The punishments of fine imposable to legal entities will have a maximum extension of five years”. And if in this third point is established its maximum and minimum extension, in the fourth point of the article 50 is established its maximum and minimum amount: “The daily quota will have a minimum of two and a maximum of 400 euros, except in the case the imposable to the legal entities, in which the quota will have a minimum of 30 and a maximum of 5.000 euros.” Here the same happens that when, are classified the punishments by the article 33, in the art. 50 the legal entities have a special type of fine, at least, with regard to its extension and amount.
The fifth point of the article 50, is an important point because in it, are described the two ways in which must be established the two different parameters of which is made up the punishment of fine by the system days-fine, its extension and amount. Its extension will be established within the limits established for each crime and according to the rules fo the Chapter II of this Title, in other words, the envisaged in the art. 61 and following of the CP, like the imposition of the inferior punishment in one or two degrees to the established by the law for the crime in case of tentative (art. 62 CP), o the effects of the aggravating and attenuating factors in the application of the punishment in the malicious crimes (art. 66 CP). And its amount, which will be established exclusively taking into account the economic capacity of the convicted, either his obligations and incomes. Division which as we have already seen in the above sentence, is relevant in the procedure for the fast trying of determined crimes in the LECrim (art. 795 – art. 803 LECrim), for if the defendant conforms himself with the writing of provisional qualification of any of the accusations, always that the agreement is achieved with the accusation who solicits the highest punishment, he will have the right of a decrease of a third of the punishment solicited, if this is not greater than three years of imprisonment, or of ten years if it is a right´s privative punishment, although with respect to the fine it can have any amount. For the application of these limits, we have to take into account the punishment in concrete (which is the solicited by the accusation taking into consideration all the concurring circumstances in the crime, as the aggravating factors), including when this decrease of a third supposes diminishing it under the limit marked by the CP for the punishment of such crime (art. 801.1 and art. 801.5). Decrease in the punishment which only will be taken into account in relation to the first of the aspects, its duration and extension, and not in relation to its amount, since the last only is established taking into account the criteria of the economic capacity of the convicted.
In the Procedure for acceptance of decree (art. 803 bis a – art. 803 bis i LECrim), the Public Prosecution can also propose a reduction of one third of the punishment of fine legally envisaged. Where the same rules stated above will be of application.
Art. 51:
The Art.51 opens the possibility of allowing that the amount of the fine and its installments, determined according the economic capacity of the convicted by virtue of the fifth point of the above article, are altered, for having precisely changed the economic capacity of the convicted.
Due to the fact that the article 51 does not say anything about it, it is understood that the change in the amount of the fine and the installments for its payment, can be either for incrementing such amount and for diminishing the term which elapses between the installments when the convicted betters his economic situation, or for diminishing the amount and increasing the term which elapses between the installments when it worsens.
Art. 52:
The article 52 gives us more data about what was already said to us by the art. 50.2: “The punishment of fine will be imposed, except when the Law envisages other thing, by the system days-fine.” The art. 52 talks about the system of proportional fine, which will take place when the CP determines it, according to the criteria of the damage created, the value of the object of the crime or the benefit provided by it. We can use as an example, the art. 368, which establishes a punishment of fine of three folds the value of the drug object of the crime, if it is a substance or product which gravelly harms the health, and of two folds its value the rest of the cases, for those who execute acts of cultivation, elaboration or traffic, or in another way, promote, favour or facilitate the illegal consumption of toxic drugs, narcotics, psychotropic substances, or have them for such goals.
The article 52, for the system of proportional fine, specifies the cases in which the amount of the proportional fine imposed by firm sentence can be modified. When after the sentence, the economic situation of the convicted worsens, the judge or tribunal may reduce the amount of the fine within the limits marked by the law, or authorizing its payment in the installments agreed. Something which seems to exclude the possibility, in the system of proportional fine, that the fine increases in the case that the economic situation of the convicted betters.
Lastly, in its fourth point the article 52 establishes a subsidiary system for determining the amount of the fine to be imposed to a legal entity, when the criteria established in the CP cannot be applied. In these cases the Judge or Court will motivate the impossibility of proceeding with such calculation and the fines envisaged will be substituted by the following:
a) Fine from two to five years, if the crime committed by the natural person has envisaged a punishment of imprisonment of more than five years.
b) Fine from one to three years, if the crime committed by the natural person has envisaged a punishment of prison of more than two years not included in the las point.
c) Fine from six months to two years, in the rest of cases.
Art. 53:
The article 53, is the last article of the fourth section. In it, we find one rule which has been already repeated along this article: “If the convicted does not pay, willingly or by enforced execution, the fine imposed, he will be subjected to the subsidiary personal liability of one day of privation of liberty for each two quotas unpaid, which, being minor offences, may be fulfilled through permanent localization. In this case, the limitation established in the first point of the article 37 will not be applied.
The judge or court may also agree, previous conformity of the convicted, that the subsidiary liability will be fulfilled through community services. In this case, each day of privation of liberty will be equivalent to a working day.”
Let us now see each of the characteristics of this first point of the article 53. The subsidiary personal liability for non-payment of fine, is regarded as a freedom´s privative punishment by the art. 35, along the permanent reviewable imprisonment, the imprisonment and the permanent localization.
Other characteristic to be emphasized is that, the punishment of subsidiary liability may be substituted by the punishment of permanent localization, when the fine imposed is the consequence of a minor offence, and according to the art. 13.3 are minor offences those which are punished with a minor punishment, in other words, those punished by any of the punishments of the art. 33.4. Although here, we should not forget the last point of the art. 13.4: “When the punishment, for its extension, may be deemed as minor or less serious, the crime will be regarded, in any case, as minor offence.”
After, this first point of the art. 53 establishes that, for the case of being substituted the punishment of subsidiary personal liability for the permanent localization, there will not be of application the limit that is established in the first point of the art. 37, which limits the punishment of permanent localization to 6 months.
And the end of its second paragraph the art. 53 adds that, the punishment of subsidiary personal liability may also be substituted, previous conformity of the convicted, for the punishment of community services, being equivalent each day of privation of liberty to one working day. The community services, are not regarded a freedom´s privative punishment as the permanent localization, but a right´s privative punishment. Besides, due to the independence of this second paragraph with respect of the rest of what is said in the first point of the article 53, it is understood that for the substitution of the punishment subsidiary personal liability for the community services, there is no necessity of being classified the punishment imposed as a minor offence by the art. 13.3 and 13.4. Something which surprises, because for substituting the punishment of fine for the punishment of permanent localization, is demanded that the fine imposed is associated to a crime catalogued as minor offence by the art. 13.3 and 13.4, conversely, for substituting the punishment of fine for the punishment of community services, which is not a freedom´s privative punishment but a right´s privative punishment, and consequently less harming for the rights of those who suffer it, is not established any restriction, except the requisite that is necessary the conformity of the convicted.
But what we have seen so far, only is valid for the punishment of fine by the system of days-fine, which is of general application. The second point of the article 53, is the point which refers to the punishment of fine by the system of proportional fine. In the cases of proportional fine, such fine can be substituted for the appropriated days of subsidiary personal liability, which in no event can exceed the year. In these cases, when the fine is imposed by the system of proportional fine, this can also be substituted for community services when the convicted previously has granted his conformity. What is not granted by the second point of the art. 53 is the possibility that the fine, when is imposed by the system of proportional fine, can be substituted by the punishment of permanent localization, when the fine substituted is the imposed to a crime classified as minor offence, something which does not seem to have an explanation, except that it is due to the lacking of minor offences in the CP that are punished according to the system of proportional fine.
Now we have changed to the third point of the art. 53, which says: “This subsidiary personal liability will not be imposed to the convicted to freedom´s privative punishment of more than five years.” Here we have to take into account two things, the first and more important, that in most cases the punishment of fine is associated to a freedom´s privative punishment as the imprisonment, and the second, that the freedom´s privative punishments of more than five years, only can be of two kinds, the permanent reviewable imprisonment and the imprisonment, which a serious punishments. Probably, the legislator has limited the substitution of the punishment of fine, for the subsidiary personal liability for non-payment of fine, to cases in which the freedom´s privative punishment is equal of inferior to five years, because this time in jail can already be regarded as considerable, and to add more days in prison as consequence of the economic impossibility of paying the fine can be deemed as excessively cruel.
Although the subsidiary personal liability, as we have just said, can be deemed as an excessive punishment, above all when is applied upon those who really do not have economic means to pay the punishment of fine imposed, at least, its fulfillment extinguishes the debt. This is what is said to us, by the fourth point of the art. 53.
The last point of the article 53, the fifth point, refers to the legal entities, which logically cannot be punished with Freedom´s privative punishments. In the case of the legal entities, the legislator has opted for granting to them the possibility of paying the fine through installments for a period up to five years, when the amount of the fine puts into risk either the survival of the legal entity, or the maintenance of the jobs which depend upon it, or when the general interest advises it. So far, looks like more than a sanction to the legal entity, is granted to it a benefit, but afterwards this point of the art. 53 adds that, if the legal entity does not satisfy the fine´s installments which have been imposed, the Court can agree its intervention until the payment of the fine is fulfilled. The intervention of the legal entities, is one of the kinds of punishment which can be imposed to them according to the art. 33.7, which, as we have already said, considers all the punishments included in it as serious punishments.
– The accessory punishments:
Art. 54:
As we have already see, the art.32 placed in the First Section, distinguishes between the punishments which are imposed with general character and with accessory character. Well, in the Fifth Section is developed what we must understand as accessory punishments.
The first of the articles of the Fifth section is the article 54, which says: “The disqualification punishments are accessory in the cases in which, not being specially imposed, the Law declares that others punishments carry it with them.” From this we have to understand that, the accessory punishments are the punishments of total disqualification and special disqualification which we saw previously in the Third Section, and that are defined in the article 41 and 42 respectively. Moreover, they will work as accessory punishments of the freedom´s privative punishments and the fine.
Art. 55:
Through the art. 55 is imposed the punishment of total disqualification, as accessory punishment, to all the punishment of imprisonment equal or of more than ten years. Nevertheless, it is limited to the term of the freedom´s privative punishment of imprisonment. It will not be necessary, when such total disqualification is already envisaged as main punishment.
To the punishments of special disqualification, can be added the special disqualification for the exercise of the custody, tutelage, curatorship or care, or the privation of the custody, when these rights had had direct relation with the crime committed. In other words, the punishments of imprisonment equal or of more than ten years, will have always attached the total disqualification as accessory punishment, and besides, the imposition of the punishment of special disqualification for the exercise of the custody, tutelage, curatorship or care, or the privation of the custody, will be left to the discretion of the judge or court, when these rights had had direct relation with the crime committed.
Art. 56:
The article 56 imposes three kinds of accessory punishments in the cases in which have been imposed a punishment of imprisonment of less than ten years. I said, it imposes, because this is what it seems to do, the judge or court must establish along the punishment of imprisonment any of the three accessory punishments mentioned in the article 56, being indifferent if them impose one, two, or the three, without existing the possibility of imposing none. Besides, it seems to establish this obligation, without establishing a minimum of years of imprisonment, therefore there will be indifferent whether the punishment of imprisonment is of one year or nine, in order to be mandatory to impose any of these accessory punishments.
These accessory punishments are three, and the three are classified as freedom´s privative punishments:
1º The suspension of public job or post.
2º The special disqualification of the right to stand as a candidate.
3º The special disqualification for public job or post, profession, trade, industry or commerce, or of the rights of custody, tutelage, curatorship or care, or any other right, the privation of the custody, if these rights had had a direct relation with the crime committed, being necessary to expressly determine in the sentence this connection, without prejudice of the application of the envisaged in the art. 579 of this Code.
Art. 57:
Besides of the above two cases where the accessory punishments always have to accompany the punishment of imprisonment, being different the accessory punishments if the punishment of imprisonment is equal or of more than ten years, or inferior, in the article 57 are gathered certain crimes which allows to the judge or tribunal to impose any of the right´s privative punishments of the art. 48, being indifferent the punishment imposed and its duration always that it is for any of these crimes, and such crimes are classified as serious or less serious crimes according to their punishments (art. 13 CP), but without being an obligation their imposition unlike the two above cases. The crimes are: homicide, abortion, injuries, agains the liberty, of tortures and against the moral integrity, human trafficking, against the liberty and sexual indemnity, the intimacy, the right to self-image and the inviolability of the domicile, the honor, the patrimony and the socioeconomic order. Although the judges and courts are free to establish any of the right´s privative punishments as accessory punishments if the crime is one of the above mentioned, the first point of the article 57 establishes a limit, these right´s privative punishments will not be able to exceed the ten years, if they are the accessory punishment of a serious crime (art. 13.1 CP) and five if they are the accessory punishment of a less serious crime (art. 13.2 CP).
To the above general rule, the second paragraph of the first section of the art. 57 establishes an exception, if the convicted was sanctioned with a punishment of imprisonment and the judge or tribunal has decided to impose any of the right´s privative punishments of the art. 48, the term of the accessory punishments should surpass from one to ten years the duration of the punishment of imprisonment, if the crime was serious, and from one to five, if the crime was less serious. Therefore, we must understand that the limit of ten years for the serious crimes and of five for the less serious, included in the first paragraph of the article 57 should not apply, and it can be surpassed as consequence of the special rule of this second paragraph of the first point of the art. 57.
Let us now see the second point of the article 57. We have said that, whereas what happens with the art. 55 and 56 which impose to the judge or court the obligation of imposing some of the right´s punitive punishments mentioned in them, the article 57 simply offers the possibility, establishing a temporal limit to the right´s privative punishments. This option given to the judges and tribunals, of imposing any of the right´s privative punishments of the art. 48 ends in the second point of the article 57. When any of the crimes mentioned in the first point of the article 57, are committed against certain persons, like either who is or has been the spouse, or against a person who is or has been linked with the convicted by an analogous relation of affectivity even without cohabitation, or against the descendants, ascendant or brothers for nature, adoption or affinity, the judge or court must agree the right´s privative punishment established in the second point of the art. 48 as accessory punishment, in other words, the prohibition of nearing to the victim or those part of his family or other persons which the court or judge determines, this impides to the convicted, to get near them, in any place where they are, and to get close their domicile, their places of work and any other frequented by them. Like in the first point of the article 57, there is established a temporal limit for this accessory punishment, it cannot exceed the ten years if the crime is classified as a serious crime, or of five if the crime is a less serious crime. Nevertheless, this limits will not apply when the accessory punishment of the second point of the art. 48 accompanies a punishment of imprisonment, in such case, the limits applicable will be those established in the second paragraph of the first point of the article 57. This rule established in the second point of the art. 57 is only applicable to serious and less serious crimes, like the established in the first paragraph.
If what we have seen in relation with the first and second point of the article 57, only is of application to serious and less serious crimes, in its third point is regulated the imposition of the right´s privative punishments of the article 48 as accessory punishments, to the crimes classified as minor offences. In this case, their imposition also will be an option of the judge or court, but it has to be for one of the crimes mentioned in the first point, and the accessory punishment cannot surpass the six months.
– Common dispositions:
Art. 58:
With the article 58, commences the last of the sections. It is an important article, above all to those who has suffered a freedom´s preventive measure, which as we already know does not have the consideration of punishment according to the article 34.
The article 58 determines that: “The time of privation of liberty provisionally suffered will be compensated in its totality by the sentencing judge or court for the fulfillment of the punishment or punishments imposed in the cause in which such privation was agreed, except when it has coincided with any privation of liberty imposed to the convicted in other cause, which has already been compensated or is compensated in such cause. In no event, the same term of privation of liberty can be compensated in more than one cause.”
Therefore, the provisional imprisonment that the convicted has suffered waiting firm sentence, at least, will serve to compensate the punishment established through firm sentence. The only condition, will be that the preventive measure of provisional prison has to be agreed in the cause where he is convicted.
Notwithstanding what we have seen, the time which a convicted has endured in provisional prison may be compensated in a different cause to which motivated it, by petition of the convicted and previous verification that is has not been previously compensated, by the Prison Oversight Judge, with the condition that, the provisional prison is later than the criminal facts, in which is based the punishment that will be compensated.
In the case that the preventive measure suffered by the convicted, was a right´s privative punishment, the rules mentioned above will be also of application.
The art. 59:
The article 59 envisages the case, in which the preventive measure and the punishment imposed by firm sentence are not of the same nature. In these cases, the judge or court will compensate the preventive measure with that part which they esteem convenient of the punishment imposed. Something which seems to leave to the judge and courts all the burden of the decision, since there is no guideline on the law.
Art. 60:
In the first point of the article 60 is regulated the possibility that, after being dictated firm sentence, appears in the punished a lasting grave mental illness which impides to him knowing the sense of the punishment. In these cases, the Prison Oversight Judge may suspend the execution of the punishment imposed and substitute it for a measure of security.
Before such measure of security ends, the Prison Oversight Judge will communicate this situation to the public prosecution, for the case in which was suitable the declaration of incapacity before the Civil Jurisdiction.
If the convicted recover his mental health, and the punishment imposed by firm sentence was substituted by a measure of security, the punished must comply the sentence if the punishment have not prescribed. In these cases, the judge or tribunal may either understand extinguished the sentence or reduce its duration. But, unlike what happens with the preventive measures of the art. 58, the art. 60 does not talk in any moment of compensating the measure of security with what was left of the conviction, the extinction of the conviction or its decrease will be based in the fact that it is either unnecessary or counterproductive.
Víctor López Camacho.
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