The jurist answers.

I am pleased to answer these questions directed to me by the editorial team of “Ecos de Soto”: a unique publication. It represents a chant to many noble values, to hope, to a deep trust in human beings.

I am taking this opportunity, using the two questions posed, to include some more general reflections on criminal law, and the meaning of some of the institutions involved in that pair of questions. Although I intend to, I am afraid I won’t be able to completely shake off a certain technical tone. After all, the questions asked invite some considerations of a too technical nature. They can be easily understood, but perhaps their ultimate meaning may not be as comprehensible.

Although it seems obvious and could be considered unnecessary to point out, it is clear that the formula of asking questions about the specific criminal situation of a specific person is a journalistic resource devised by the reporters of “Ecos…”. is obvious that they are imagined situations. If they were real—which they could be—a judge decline to respond: it would be interfering in the territory of another worthy profession: lawyering. Judges are prohibited from providing any kind of legal advice to individuals or institutions. Our function is limited to applying the laws to specific cases that are assigned to us by virtue of objective rules for the allocation of matters. That does not prevent us from providing teaching, with prior authorization, or through publications or articles, interviews or interventions in media, public or smaller ones, to disseminate the content of the laws, explain what the Administration of Justice is, how its different areas work, or disseminate what the judiciary power means and represents in a rule of law. It is an educational function towards society that the principles of judicial ethics consider praiseworthy and necessary, encouraging members of the judiciary not to shy away from it.

That is what I want to contribute to in some way with these brief notes, delving into the topics that concern the editorial team of this magazine, which, as expected, given that the person being interviewed is a judge from the Criminal Division of the Supreme Court who has dedicated a large part of his professional life to the application of that discipline—as a prosecutor for many years, and in the recent period, as a judge—revolve around criminal law issues and more specifically around prison sentences and the legal rules for determining their duration. This is what professionals pedantically call penal dosimetry. These are not always simple rules that, in consideration of various circumstances (crime, mitigating or aggravating factors, degree of participation -whether one is the perpetrator or an accomplice-, number of offenses…) limit a penological range (a maximum and a minimum: for example, between three years and six months and five years) within which the judge or court will choose a specific duration, the one they consider fairest, explaining why that number of years, months, or days seems appropriate to them. When they choose the minimum, that explanation is no longer necessary: a good reason to choose the minimum allowed by the law is not finding good reasons to increase it.

I have my trial pending, and the total requested by the prosecutor is 23 years, but my lawyer tells me not to worry, that I should request the triple of the highest penalty, is that correct? How do I request it and who should grant it to me? What would be the maximum sentence I could serve?

Someone familiar with criminal law will quickly identify behind that question the institution known as legal accumulation, although it is sometimes improperly called merging.

Let me try to explain it. If an eight-year-old child misbehaves, or disobeys the order given by their parents (not to play ball in the living room: I’m afraid that’s from my time, nowadays children are prohibited from playing FIFA on their playstation for more than two hours, for example), the parents will impose a punishment. Perhaps they already warned them before: you won’t watch your favorite TV show on Saturday. Let’s imagine the child is home alone, and when the father returns because he forgot something, he catches him playing ball in the living room. He will punish him as he had announced.

If the following week he disobeys the order again and the parents find out because he broke a vase, the punishment will be imposed again, perhaps increased due to his persistence: no TV all afternoon on Saturday (recidivism).

However, let’s suppose that every afternoon when his parents leave him at home with his younger brother, he systematically goes with his ball into the living room. After several weeks, the vase becomes a victim of the ball: that day he forgot to hide it, and the parents discover that he has been playing ball. They get angry and scold him. “Have you done it before?” Although the mischievous child remains silent in a suspicious way, the younger brother (who is present) looks at his parents and tells them, “Every day!”

Logic and intuition allow us to understand that it will not be a matter of counting the days and depriving the offender of their TV program as many times as they played ball. But it is also logical that the punishment is somewhat more severe than that assigned for playing ball one day. It is probably proportionate to deprive him of TV all afternoon on Saturday. Just like it was imposed for disobeying the order for the second time in the previous hypothesis. And that’s even though in one case there were two infractions and in the other, many more. It seems reasonable to us.

Let´s move on to criminal law, which operates with a similar human logic. If you are convicted of committing a crime, and then commit another one, you will be given the same punishment, probably slightly increased. But if you have committed many crimes and are caught after committing numerous offenses, it is not appropriate to add up all the corresponding penalties arithmetically. It is more reasonable to have a single, but higher, punishment. That’s what accumulation is for. When several offenses need to be sanctioned without an intervening conviction, the law establishes a maximum limit. All penalties are imposed, but not all will be served: when the triple of the most severe penalty or, in any case, twenty years have been reached, the rest are left unfulfilled. This limitation is only established when there has not already been a conviction. Offenses committed after a conviction cannot be accumulated. Let’s think about what Jorgito – our young protagonist – would do if he knew that the punishment would only be missing one Saturday of television. He would continue playing ball every day: he’s already paid for it!

Other times, when the crimes are similar and as long as there is no conviction yet, the legislator refers to a continuous offense and establishes a single aggravated penalty. The question refers to this mechanism: the triple of the highest penalty is imposed. In the mentioned case, he would certainly never serve 23 years: the maximum would be twenty. But if he had committed 23 crimes punished each with a one-year penalty, he would only serve 3 years. But if he had committed 20 crimes each punished with one year and one punished with three years, then he would serve nine years. And if he had committed one crime punished with six years and seventeen crimes punished with one year, then he would serve 18 years. Always the triple of the most severe penalty. Why the triple of the most severe penalty? I don’t know: it seems like an arbitrary criterion to me. We can see this by comparing these three scenarios. But it is what the legislator established. Perhaps it should be reconsidered, but the legislator, so active in other things, does not seem to be diligent on this important point. It is only limited when all the crimes are tried in the same case, as the question raised, or when they are tried in different cases. In this latter case, a Judge (the one who issued the last sentence) needs to view all the convictions, verify which ones are accumulable as they are not facts committed after a sentence, and establish the limitation. It is very important to do it right. Sometimes, some people risk many years in prison due to this simple operation.

In the case of many crimes to be tried, that is why it is most efficient not to achieve a reduced total, but to ensure that the most severe penalty is as low as possible. If we manage to reduce a six-year sentence request to two, it will be much more beneficial than if we reduce the ten two-year penalties demanded to one year.

I have my trial in a couple of months and I have been told that the concept of “concurso medial” could be applied to me. What is that? When can it be requested and who can request it? Is it possible to request it? Is there any other alternative? In my opinion, this is another poorly regulated penology rule in the current system.

Unlike accumulation, “concurso medial” must be requested during the trial; never afterward. It occurs when a crime is committed as a means to commit another crime. A frequent example is forgery with the intention to defraud. The legislator believes that this should be punished together and states that, as a general rule, a single penalty will be imposed, formed by a very complicated rule that is very difficult to understand – many practitioners do not understand it. And we apply it in different ways. It is very dysfunctional for the law to be so confusing in such a relevant matter. In simplified terms, it states that the lowest possible punishment will be the penalty for the most severe crime, but increased by one day. And the highest possible punishment will be the sum of the penalties for both crimes. This opens up an excessively wide punitive framework, leaving the judge to determine the specific outcome. If I try to explain this further, I know I will confuse the reader. I have read article 77.3 of the Penal Code, as it emerged in the 2015 reform, many times and I acknowledge that it can be interpreted in very different ways. That’s why I think it’s better not to try to clarify what cannot be clarified. “Concurso medial” can be very beneficial, but it will depend on what the Judge or Supreme Court, called upon to issue a sentence, decides.