SUBSIDIARY PENALTY

A subsidiary penalty is a penalty of imprisonment to be suffered by the accused if he

is insolvent or has no property for which to pay a fine imposed by the court as a
PRINCIPAL PENALTY. This means that the court may have sentenced the accused to
pay a fine ONLY, or suffer imprisonment WITH the addition of payment of a fine.

Being “subsidiary,” it is also a “secondary” penalty which is imposable only if the

accused has no means to satisfy the fine imposed as a penalty. It will only apply if the
accused has absolutely no property to pay the fine.

Note that the property here refers to property that is owned by the accused, and not
being held by him for some other person in trust (as in the case of a Certificate of
Title over property registered I the name of the accused in his capacity as
representative of a corporation, or money being held by him for some other person,
which he must prove) or by performance of a duty (where the accused is in possession
of properties delivered to him by a contract of deposit – also known as a contract for
safekeeping of personal property) or by reason of a contract (where the accused is in
possession of properties held by him pursuant to a contract of chattel mortgage).
Imposition of Subsidiary Penalty must be EXPRESS

The court must impose subsidiary penalty in its judgment. If the subsidiary penalty is
not written in the judgment, IT CANNOT BE IMPLIED. The result is that the accused
will not be able to avail of it even if he so desires.

Query: The judge in convicting the accused to suffer prision correccional and to pay a
fine of Php13,000.00 omitted subsidiary penalty from the judgment. The accused has
absolutely no money or property to pay the fine. May he avail of a subsidiary
imprisonment?
Answer: No, because for subsidiary penalty to be available, it must be expressly
provided for in the judgment. As a rule, it is the judgment of the court that finally
determines what penalty or penalties will be imposed upon the accused. Where the
judgment does not provide for a certain penalty, that penalty will not be imposable.

Follow up: What happens if the accused cannot pay the fine?

Answer: None. The State will be deprived of its right to demand payment of the fine
as a penalty or to demand the full satisfaction of the penalty by the accused. The
remedy is for the State, through the PROSECUTION, to file a Motion for
Reconsideration asking the court to impose subsidiary penalty in addition to the
principal penalty.
APPLICATION OF SUBSIDIARY PENALTY

Article 39 of the Revised Penal Code was amended by Republic Act No. 5465 on April
12, 1969. It was further amended by Republic Act No. 10159 on April 10, 2012. The
applicable rules are now covered by R.A. 10159:

1. Subsidiary imprisonment DOES NOT APPLY if the principal penalty imposed upon
the accused is higher than prision correccional .

Subsidiary imprisonment will apply only if the principal penalty is any of the
following:

i. Prision correccional with fine;

ii. Arresto mayor or arresto menor with fine;
iii. Destierro with fine;
iv. Suspension from public office with fine;
v. Fine only.

Destierro and suspension are included even if they do not consist of

confinement because under paragraph 4 of Article 39 as amended, the
convict will suffer a penalty of FIXED DURATION.
2. The accused shall suffer subsidiary imprisonment at the rate of ONE DAY for each
amount equivalent to the highest minimum wage rate applicable in the
Philippines at the time of judgment of conviction by the trial court.

Minimum wage rates are prescribed by Wage Orders issued by the NWPC -
the National Wages and Productivity Commission.

As of November 22, 2018 under Wage Order No. NCR-22, the highest
minimum wage rate in the Philippines is Php537.00.

The general idea is that the accused will suffer one day of imprisonment for
every Php537.00 from the fine he is to pay, with each fraction of a day not
being counted against the prisoner (In layman’s terms, one day must be
equivalent to Php537.00. If the remaining amount is Php268.50, which is
50% of the rate, the accused will not be required to serve an additional day
or even ½ day of subsidiary imprisonment. That amount will be WAIVED.)
3. When subsidiary penalty is imposed, the term of the additional confinement shall
not exceed 1/3 of the original term of the sentence, which shall not in any case be
more than 1 year.

Illustration 1: XANDER was sentenced to suffer prision correccional

maximum and to pay a fine of Ph10,000.00 with subsidiary penalty. How
will his subsidiary penalty be served?

i. Xander will serve his penalty and pay the fine. If the cannot pay
the fine he will first suffer his imprisonment and then suffer
subsidary penalty.

ii. In serving subsidary penalty the following formula applies:

Php10,000.00 / Php537.00 = 18.62 days

iii. Xander will serve an additional 18 days of subsidiary

imprisonment. He will not serve the .62 days because that is a
fraction of a day. Under the law a fraction of a day shall not be
counted against the accused.
Illustration 2: LIMUEL was sentenced to suffer prision correccional maximum and to
pay a fine of Ph2,300,000.00 corresponding to the actual damage of the property lost
by his actions, with subsidiary penalty. How will his subsidiary penalty be served?

i. Limuel will serve his penalty and pay the fine. If the cannot pay
the fine he will first suffer his imprisonment and then suffer
subsidary penalty.

ii. In serving subsidary penalty the following formula applies:

Php2,300,000.00/ Php537.00 = 4,283.05 days

iii. 4,283.05 days is equal to 11.73 years. Since Limuel’s penalty is

prision correccional maximum equivalent to 6 years
imprisonment, 1/3 of his penalty is 2 years. The law also limits
the term of subsidiary penalty to no more than 1 year.

iv. Limuel will only serve 1 year subsidiary penalty.

3. If the penalty imposed is only a fine:

IF the charge is for a GRAVE or LESS GRAVE FELONY, the term of subsidiary
imprisonment shall not exceed 6 months.

IF the charge is for a LIGHT FELONY, the term of subsidiary imprisonment

shall not exceed 15 days.

Article 26 of the Revised Penal Code has been amended by Republic Act
No. 10951 in 2017, adjusting the amount of fines to be considered grave,
less grave or light:

GRAVE FELONY – if the fine exceeds Php1,200,000.00

LESS GRAVE FELONY – if the fine does not exceed Php1,200,000.00 but is at
least Php40,000.00

LIGHT FELONY – if the fine is less than Php40,000.00.

Illustration: RENO was charged for reckless imprudence resulting in damage to
property amounting to Php600,000.00 . He was convicted and sentenced to pay a
fine for the same amount with subsidiary penalty. How will his subsidiary penalty be
applied?

i. Reno was charged for a LESS GRAVE FELONY because the fine
imposable is correctional. Applying the rules:

Php600,000.00/ Php537.00 = 1,117.31 days

ii. 1,117.31 days is equal to 3.06 years. But since Reno was charged
for a less grave felony, his subsidiary imprisonment will only be up
to 6 months.
Illustration: JANET was charged for reckless imprudence resulting in damage to
property amounting to Php5,000.00 . She was convicted and sentenced to pay a fine
for the same amount with subsidiary penalty. How will hersubsidiary penalty be
applied?

i. Janet was charged for a LIGHT FELONY because the fine

imposable is light. Applying the rules:

Php5,000.00/ Php537.00 = 9.31 days

ii. Janet will only suffer 9 days of subsidiary imprisonment.

Rationale for Subsidiary penalty:

When an individual is ordered to pay a fine but is unable to do so because of lack of

property, the law has no remedy because no payment can ever be enforced if there is
nothing to pay with (which is also the reason why in civil cases, the defendant cannot
be made to pay more than what he can afford).

In imposing subsidiary penalty, the State may be appeased because at the least, the
culprit is subjected to a penalty which satisfies the requirement that a penalty must
be suffered by him.

THIS IS HOWEVER, not intended to mean that the accused will be relieved of the
fine. Under Paragraph 5 of Article 39 as amended, the accused SHALL not be relieved
of the fine in case his financial circumstances should improve EVEN IF he already
suffered a subsidiary penalty.

While it may seem oppressive, there are persons who are willing to be imprisoned
than lose properties they already own. This is to serve as a deterrent to those who
will attempt to conceal properties just to avoid paying a fine.
Query: If an accused is convicted of a crime under a special penal law and sentenced
to imprisonment with payment of a fine, may the court impose subsidiary
imprisonment?

XEREX was convicted for availing of the services of a sexually-trafficked

person (“prostitute”) punished as “use of trafficked persons” under
Republic Act No. 9208, the Anti-Trafficking in Persons Act of 2003 and
sentenced to serve 1 year imprisonment and to pay a fine of
Php100,000.00. Despite Republic Act No. 9208 not having any provision for
subsidiary imprisonment, may the court impose a subsidiary penalty
nevertheless?

Answer: YES. Under Administrative Circular No. 13-2001, the Supreme Court
instructed the members of the judiciary that there is no legal obstacle to the
application of the Revised Penal Code provisions on subsidiary imprisonment.
Query: If an accused is convicted and sentenced to destierro and payment of a fine,
how will the subsidiary penalty be applied?

DONALD was convicted for a crime and sentenced to destierro medium and
payment of a Php20,000.00 fine. If he has no means to pay the fine, how
will the subsidiary penalty be applied against him?

Answer: Donald will FIRST suffer destierro AND THEN the subsidiary penalty if he
cannot pay the fine. Under Article 39(4) the subsidiary penalty will involve the same
deprivation that is involved in the principal penalty.

Thus, when Donald has satisfied his principal penalty of destierro and is unable to pay
the fine, he will suffer destierro again in the equivalent period of his subsidiary
penalty. This is because under Article 39(4) he will suffer the same deprivation as that
of the principal penalty. Since destierro involves restriction of liberty in the form of
"banishment," he will suffer the same restriction of liberty in the form of
"banishment" as his subsidiary penalty.