Shakira’s crimes

Let's see:

The first thing we have to say is that the crime against the Public Treasury,(art 305 of the CP) is punishable by a prison sentence of 1 to 5 years and a fine of six times the amount defrauded.

In this case, the prosecution filed its indictment, in which it requested for the singer sentences totaling 8 years and 2 months in prison and a fine of 23.8 million euros for six art 305 offenses committed during the years 2012, 2013 and 2014 (3 for personal income tax fraud and 3 for wealth tax fraud for those years).

Spanish law allows, before the trial is held, to acknowledge the facts, and in this way what is called a "conformity trial" is held in which, in exchange for this acknowledgement, the Prosecutor reduces the penalty requested and the defendant is sentenced to that penalty. In this case, as the singer, in addition to acknowledging the facts, had previously paid the 14.6 million euros that she had allegedly defrauded, the prosecutor applied a mitigating circumstance of reparation of the damage, which allowed her to reduce her sentence to 6 months in prison for each of the offenses for which she was accused and to reduce the fine by 50%.

Therefore, Ms. Shakira has not been sentenced to three years imprisonment, but to 6 sentences of 6 months imprisonment each (plus the 6 corresponding fines also reduced, and totaling 7,329,990.06 euros). It may seem the same, because in the end, the sum of the 6 sentences, result in 3 years imprisonment, but for the application of the penalties is completely different as we shall see.

Article 80 of the Penal Code allows a person who has not previously committed a crime, who has paid outstanding civil liabilities (compensation), and who has been sentenced to a penalty (or sum of penalties) not exceeding two years of imprisonment, not to enter prison, since the penalty is suspended from execution for a period of up to five years.

This suspension is always conditioned to the convicted person not reoffending, since if he/she does so, both sentences would be served (the one for the new crime and the one that was suspended). In plain English: if you have been sentenced to a sentence of less than 2 years, you do not have a criminal record and you pay the compensation, you do not serve that sentence.

But this legal provision could not be applied to the case at hand, since the sum of the sentences to which he has been sentenced is well over two years of imprisonment. What happened then?
There were two possibilities

1) At the time of the commission of the crimes, Article 88 of the criminal code was in force, which allowed the substitution of prison sentences of less than one year for a fine. (This article was repealed in the 2015 reform, but as we have already seen, the prosecuted facts date back to 2012, 2013 and 2014, and for that reason it could be applied to this specific case).

2) Article 80.3 of the same Code (with the wording after 2015) allows the suspension of sentences that despite totaling more than two years, individually do not exceed 2 years of imprisonment, provided that a reparatory effort has been made by the accused, but in this case the suspension would be conditioned, not only to the convicted person not to commit a crime, but also to the payment of a fine or to the performance of work for the benefit of the community.

Either of the two could be applicable, since the first one was the law in force at the time the facts were committed and is more favorable to the defendant, but in the case of understanding that the article could not be applied, the second one is the law in force today, so it could also be applicable.

The first of the options was chosen because, as I have already said, it is more favorable for the convicted person, since with the payment of the fines the sentence would be fully served and the term for the cancellation of the penalties could already begin to count (the second possibility is a suspension, so that in addition to the payment of the fine, it would still have to wait for the suspension term to verify that no new offenses had been committed). For this reason, it was requested that the 6 prison sentences be replaced by 6 fines for a total amount of 432,000 euros, and the Chamber accepted this request.

In summary: Ms. Shakira has been sentenced as criminally responsible for 6 crimes against the Public Treasury to 6 months imprisonment and a fine for each of them, but the prison sentences are replaced by 6 fines (432,000 euros) which are added to the fines that the crimes themselves entail (7,329,990.06 euros), and that once paid in full, will mean the fulfillment of the penalties.

But why did Isabel Pantoja have to serve the two-year prison sentence to which she was sentenced if she did not serve more than two years in prison and, as has been said before, if you have been sentenced to less than two years and you do not have a criminal record, you do not serve that sentence?

It turns out that the conditional suspension of the sentence provided for in Article 80 of the Penal Code is not mandatory, i.e.: just because you have been sentenced to a sentence of two years or less, and the civil liabilities have been paid, you are not necessarily free of it. The article states that:

"Judges or courts (...) may suspend the execution of custodial sentences not exceeding two years"
Case law has interpreted this "may" to mean that each judge or court may decide on a case-by-case basis whether the convicted person is deserving of a suspended sentence.