Wednesday, June 29

All unpaid fines decline


Madrid

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The declaration of unconstitutionality of the most restrictive measures of the state of alarm decreed on March 14 of last year by the TC has as a consequence the nullity of fines and criminal proceedings initiated within the framework of the measures now questioned. The main one was the lockdown indiscriminate of the population that imposed a suspension, instead of a limitation, of the freedom of movement of the citizens. Anyone who bypassed this confinement without being protected by any of the cases expressly contemplated in the decree law (go for basic necessities, go to the hospital or the doctor, among others), was fined by the State Security Forces and Bodies. The future that this sanction now has depends on its route and on how the offender reacted to them.

Are the fines imposed under the alarm decree all null?

No, only those related to the precepts that the Court has declared unconstitutional are. Thus, it would be those imposed for having violated the confinement (the person who was fined jogging or going to a second residence) but not who was sanctioned for not wearing a mask or skipping a traffic control, which has nothing to do with freedom traffic.

What path have been followed by those imposed for bypassing confinement?

When the agents denounced the citizen, what they were actually doing was a sanction proposal, which was sent to the corresponding Government Delegation. It is here where the sanctioning procedure began and the citizen was notified of the sanction proposal and its amount. If it was not done and that proposal never came, it was ‘lost’ along the way. A year later it is very unlikely since he will receive it or, where appropriate, it could be prescribed. If he received it, the offender could choose to pay the fine by taking advantage of a discount or submit claims, for which he had a period of 15 days. If he did nothing, the sanction became final. If the Administration accepted those allegations, there was no fine; if he did not accept them, the final sanction was decreed. Faced with this situation, the offender could pay and end the administrative procedure or appeal already in court before the contentious-administrative, where it may be processing or may have already passed a sentence.

Which of them can be voidable?

In principle, and pending the terms in which the sentence is pronounced, it is clear that all those that are “alive”, that is, pending or pending an appeal, will be annulled. The citizen will not have to pay it. The person who has been sanctioned and has not yet paid will not have to do it either. The problem arises with the fines that are already paid, either because the citizen did not formulate allegations about the sanction proposal and decided to pay it to benefit from the discount as the one who, after doing so, was notified of the sanction and faced the payment. In these cases, legal sources acknowledge that unless the Constitutional Court specifically states otherwise in its judgment, the general regime would apply.

What does this general regime establish?

Article 73 of the Law of Contentious-Administrative Jurisdiction states: “Final judgments that annul a precept of a general provision will not by themselves affect the effectiveness of the judgments or final administrative acts that have applied it before the annulment reach general effects, except in the event that the annulment of the precept supposes the exclusion or the reduction of the sanctions not yet fully executed ”. In other words, the final administrative acts under the rule that is annulled are not reviewed.

Could the TC specify that the money be returned?

Article 40 of the Organic Law of the Constitutional Court allows magistrates to modulate the effects of their sentences, so that final sentences or sanctioning procedures can be reviewed or not. If this is the case, the citizens who paid their fine could claim the amount paid. Otherwise, the experts consulted reiterate, the aforementioned general regime applies. There are law firms that are offering their services to recover money through a review appeal. The right thing to do, however, experts say, is to wait for the exact terms of the sentence and the viability of that action.

If my fine is pending or appealed, do I have to do something?

The Administration or judicial body itself should act ex officio taking into account that it is a nullity of right and that compliance with the judgments, in this case that of the TC, is mandatory for everyone, including administrative and judicial authorities. However, the defendant may submit a letter to the Administration alluding to the ruling of the TC that declares unconstitutional the precept on which his sanction was articulated. If the fine is in court, the court should also act ex officio but if it does not do so, it will be necessary to urge that it declare that nullity.

When can you act?

Mere knowledge of the sentence is not enough, but its inclusion in the BOE, which does not happen with the immediacy of the Government’s actions, but when several sentences of the TC are accumulated. They are usually published once a month (sometimes twice) in the decision supplement of this court. This month’s was published on July 7 and contains 15 sentences. Being such a relevant case, the publication can be accelerated.

Are many affected by the fines?

Of 1,142,127 complaints filed throughout that period by agents of the National Police (286,980), the Civil Guard (337,866) and the different municipal and regional police (517,281), only 7,408 ended with a sanctioning resolution, which means 0.64%. Unauthorized movements were the most common sanctions. Serious infringements were settled with 601 euros.

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