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Against this resolution, the legal representation of the convicted person filed an appeal alleging violation of the judicial right to effective judicial protection and a process with all the guarantees for exceeding the limit of the prison sentence of 3 to 6 months, contemplated in art. 384 of the Penal Code for drivers without a license . Specifically, the appeal raised whether in cases in which the criminal offense provides for alternative penalties of imprisonment or fine, the subsidiary personal liability derived from non-payment, once the insolvency of the convicted person has been declared, may be higher than the custodial sentence imposed directly by the provision, in this case 3 to 6 months.

The Chamber has analyzed the different crimes for which the legislation establishes prison sentences or Fax Lists 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 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".
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