The question that today should be in the air would not be whether the player should enter prison, but when should he enter
After making public the ruling of the Barcelona Provincial Court in the case of Messi, the question asked by journalists, the public and citizens in general is whether the player, in view of the sentence of twenty-one months imposed, should enter prison or not. This, given several close precedents in which, despite having passed sentences not exceeding two years, and lacking a criminal record, has been decreed imprisonment.
However, it has gone unnoticed something that, from my point of view, should make us think about the configuration of the fiscal crime makes our current Penal Code, and is the fact that the sentence that condemns the player applies the alleged aggravated offense In article 305bis of the criminal law, because it is more favourable, despite not being in force at the time of the commission of the crimes for which he has been convicted.
That article 305bis, incorporated in 2012 by Organic Law 7/2012, with the intention, as stated in the preamble, to create an aggravated type that provides response to particularly serious fraud, where the Amount to more than €600,000, or is operated within a criminal organization, or tax havens are used, establishes a minimum sentence of two years, compared to that of a year established in article 305 in non-aggravated tax offense.
However, in the wording of article 305 applicable prior to the aforementioned reform, it was established that in cases of special gravity, the minimum penalty to be applied would be the one corresponding to the upper half of the base penalty, which entailed the imposition of less than two and a half years in prison, and therefore, and under the principle of retroactive application of the most favourable laws, the Court applies to Messi Article 305bis, which establishes a minor minimum penalty, two years.
In view of the ruling, the paradox is clear, which shows the true face of the reform of the tax offense in 2012. On the one hand, an additional benefit was established, with a considerable penalty reduction, for fraudsters which once charged – now, investigated – recognized the crime and assumed payment of outstanding debts within two months. On the other, and with the “intention” to apply greater punishment to the most serious cases of fraud, a new criminal figure was created which, as we have seen in Messi, is, on the contrary, a benefit for the fraudster.
Therefore, if the 2012 reform had not taken place and if the Provincial Court of Barcelona had applied the same criteria in terms of aggravating and mitigating factors, perhaps the question that would be on the air today would not be whether Messi should enter prison, but when he should enter.