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Can I go to prison for a debt I have not paid?
Imprisonment for debt has existed since Roman times and is reflected in the law where non-payment of a debt could lead to the debtor becoming the creditor's slave.
What is the current situation in Spain? When can I go to prison for non-payment of a debt? Today we are going to talk to you in depth about debt imprisonment.
1. Imprisonment for debt and type of liability
In law, there are two ways for a person to pay debts owed to creditors.
On the one hand we have the personal liability which is the one in which the debtor responds to the debts contracted with the body of the person himself and on the other hand we have the patrimonial liability which is the most extended in the countries of the world in which the debtor responds to the debts contracted with his patrimony, his present or future goods before his debts.
Imprisonment for debt is therefore personal liability.
2. Imprisonment for debt in Spain
Historically in Spain, imprisonment for debt has appeared and disappeared in the different legal systems that have followed one another over time.
Until its definitive disappearance in the drafting of the penal code of 1932, a person could be imprisoned for non-payment of debts previously contracted. The rationale for the disappearance of this figure is to prevent a person who involuntarily cannot meet a pecuniary obligation from being punished for it.
3. Imprisonment for non-payment under international law
In international law, the prohibition of this figure is included in Protocol IV of the 1963 Convention for the Protection of Human Rights and Fundamental Freedoms, ratified by Spain in 1978, which states that "No one shall be deprived of his liberty solely on the ground that he is unable to fulfill a contractual obligation".
4. When can I go to jail for non-payment of debts?
We can affirm that in Spain a person cannot go to prison for the simple fact of not paying a debt he/she has contracted.
However, there are cases in which the non-payment of an amount of money can lead the debtor to prison, as we are going to explain below:
Imprisonment for non-payment of a fine
In law, this is known as Subsidiary Personal Liability, and means that a person who fails to pay a fine to which he or she has been sentenced must go to prison.
The non-payment of a fine is not a debt imprisonment as such but the execution of a penalty (a fine) to which a person has been sentenced in a criminal proceeding, but we include it as it is also a way to get to prison for leaving unpaid an amount of money. This information can be consulted in Art. 53 of the penal code that regulates the non-payment of fines.
Punishable Insolvency; The lifting of assets.
Punishable insolvency is a crime regulated in Art. 257 of the Penal Code that is committed when the debtor consciously and deliberately avoids payment of a debt previously contracted.
Clearly in this situation we are facing a debt imprisonment with the only difference that whoever is accused of this crime is because he has deliberately (maliciously) placed himself in the position of insolvency, that is to say, that there is a will not to pay, and for this the debtor gets rid of the money or goods with which he should respond to the debt. For this reason the legal system considers that the debtor must go to prison in this case.
Non-payment of Social Security contributions or taxes to the Tax Agency.
These are very similar offenses that are regulated in the same Article of the Penal Code, Art. 307, although as they are different public law entities.
As in the previous case of punishable insolvencies, these must be deliberate non-payments, i.e., if the person who has to pay the Social Security contributions does not pay them involuntarily (i.e., his economic situation does not allow it) in this case it will not be considered a crime and the person will not go to prison, only prison for debt would be considered in those cases in which the debtor who by action or omission fails to pay the contributions and that such contributions exceed the limit amount regulated by law.
Non-payment of pensions
Another crime that can be considered as a residual assumption of imprisonment for debt is the crime of non-payment of pensions under Art. 227.
In case of non-payment of pensions, those who do not pay what is usually called "pensions" established in cases of matrimonial crisis and whether it is the alimony in favor of the children or the compensatory one established in favor of the spouse, are punished with a prison sentence for debt.
Revocation of the suspension of the sentence due to the imposition of civil liability.
In some cases the prison sentence to which a person is sentenced may be suspended on the condition that a fine is paid, with the result that if the person does not pay the fine, the suspension granted to the convicted person may be revoked and he/she would have no choice but to enter prison to serve the sentence.
If this resolution were inflexible, the result would be that people with low economic potential would be disadvantaged with respect to those with higher incomes, since it would be easier for them to make the payment and thus avoid serving the penalty.
For this reason, this provision must be qualified, and thus, before proceeding to the revocation of the penalty, the criminal court or Tribunal must verify the financial capacity of the obligor before making a decision.
So much for today's post on debt imprisonment, we hope you have found it useful. Do you have any questions? Do you need advice? Click here to get in touch with us
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