This final chapter demonstrates how the State can fulfil its three fiduciary duties to end homelessness, maintain public property’s shared value, and legitimize laws that govern public space. This chapter unpacks each of these duties and explains their substantive content. Drawing on existing research, this chapter provides concrete proposals for how the State can respect each of its three fiduciary obligations related to homelessness and public property.

This chapter deals with the penalty of day fines in Spanish criminal law, examined both from the perspective of its legal regulation and its practical implementation. Particular attention is paid to explaining a remarkable peculiarity of the way in which day fines are applied in Spanish judicial practice: routinely lawyers, prosecutors and judges pay only superficial attention to the indications of the Spanish Penal Code as to how the daily fees of this penalty should be calculated. Hypothetically, the sole criterion for setting the daily unit should be the overall financial situation of the convicted, including not only his regular personal income but also property and other assets, debts, other sources of income, family obligations and other personal circumstances. However, in practice, in the vast majority of cases certain routine quantities are used through a method that is halfway between custom and intuition. Therefore, it can be said that theday fines system in Spain represents, instead of a way to take wealth seriously, rather one of taking income lightly

The two main justifications for punishment, and the ones most relevant for pecuniary sanctions are retribution and deterrence. This chapter aim to theoretically assess day fines in light of these two justifications. Whereas day fines seem to fit well the deterrence goal, their legitimacy in light of the proportionality principle (mostly attributed to retribution) is less straight forward. A fine, which accounts not only for the severity of the offence, but also for the income of the offender, has a better potential to deter all criminals irrespective of their income. On the other hand, such fine might not seem to be proportional to the severity of the crime if also income is accounted for, thus not fulfilling the retribution goal. However, if looking more broadly on the principle of proportionality, one can see day fines are more proportional than fixed fines. The number of days is the element which needs to be proportionate to the severity of the offence. The daily unit, on the other hand, assures that the imposed punitive bite of the sanction is similar for all offenders irrespective of their income. In addition to this analysis, this chapter discusses the theoretically optimal model of day fines.

The Austrian legislator introduced the system of day fines in 1975 with the aim of reducing short-term imprisonment sentences and combating social inequality in sentencing. Since then, day fines are an important part of the Austrian sanctioning system. This chapter analyses the theoretical background of the Austrian model of day fines and compares it to other forms of monetary sanctions in fiscal and administrative penal law. In the judgment the court has to determine on the one hand the number of daily units depending on the severity of the offence and the guilt of the offender. The minimum number is two daily units, the maximum number of daily units depends on the offence committed and is provided for each offence separately (usually 360 or 720). On the other hand, the court has to determine the amount of the daily unit depending on the personal circumstances and the financial capacity of the offender (EUR 4 – EUR 5000). The amount of the fine is calculated by multiplying these two factors. For the case that a fine cannot be recovered, the court has to prescribe imprisonment in default of payment. Two daily units correspond to one day of imprisonment.

Day fines were implemented into the Czech Republic criminal system in 2010. They shall reflect the gravity of the crime and personal and financial circumstances of the offender. For natural persons, the daily fine shall be based on an average daily income and for legal persons on their overall financial situation. Day fines are, together with the sanction of prohibition of an activity, one of the two most popular sanctions for legal persons and they are used for various crimes. On the contrary, natural persons are sanctioned with day fines in less than five per cent of cases and the fines are used mainly as a sanction for the crime of hazard due to intoxication (including some events of drunken driving), which represents more than half of the occasions when day fines were imposed. The courts’ practice is, however, somewhat detached from the theoretical underpinnings of the concept of day fines as it appears that judges in reality first set the overall amount of the fine they want to impose and then (without any clear system) divide it into the daily fine unit and the number of days. In most cases the total amount of the fine does not seem proportionate to the offender’s income.

The imposition of day fines and related questions on the optimal punitive policy have been for the last few decades one of the most extensively debated issues in the Slovenian criminal law scholarship. This chapter offers an overview of the historical development of day fines in Slovenia, provides a thorough discussion on its current regulatory structure, investigates its main sources of inefficiencies and problems of daily implementation, explores the issues of public perception of day fines and identifies the main obstacles, roadblocks and special challenges that lay ahead on the path towards the optimal implementation of day fines in Slovenia. Analysis suggests that the legislative infrastructure is in place for an optimal implementation of day fines. Yet, its de facto imposition, although on an increasing trajectory, is still far behind the percentage in some of the developed western legal systems. Ironically, the public discourse and some of the public prosecutors (and judges) perceive day fines as inefficient, unjust, ineffective and non-retributory.

The chapter – after providing a brief history of day fines in Hungarian criminal law – analyses how the Hungarian Criminal Code regulates day fines. The article analyses how day fines fit into the system of Hungarian non-custodial sanctions, and also analyses the case law. Following this chapter, using data from the sentencing database of the National Office of the Judiciary, looks at the sentencing practice of Hungarian courts applying day fines. The core argument of the chapter is that – as the data clearly shows – Hungarian courts, despite the fact that the broad range of both the days and daily amounts would allow day fines to be used as a severe pecuniary non-custodial sanction, appear to be reluctant to consider it as an alternative to imprisonment for more serious offenses.

A comprehensive criminal law reform brought in Germany first an upgrade of (summary) fines to the principal criminal penalty in Germany (1969) and then the introduction of a day fine system (1975). The reform resulted in a mandatory sentencing rule which gives fines priority over prison sentences below 6 months. The reform was successfully implemented, also because fines can be imposed conveniently in summary proceedings and, imposing short prison sentences carries a heavy burden of reasoning. After 1969 the share of fines significantly increased and sidelined suspended and immediate prison sentences. Sentencing patterns remain stable and the outstanding role of fines as an alternative to imprisonment places Germany in a unique position in Europe. Introduction of the day fine system aimed at compensating for the unequal treatment of rich and poor offenders. The wide range of the daily unit, allows in principle for adjusting fines to different net income levels. However, the day fine system displays serious problems in face of offenders living in precarious financial conditions. As fines are backed up by default imprisonment and alternatives to day fines are not available at the sentencing decision, a significant share of day fines ultimately results in (short) imprisonment.

This chapter provides a comprehensive overview of the system of day fines in Croatia. Before explaining the current legal framework, it describes the historical role of the fine as a criminal punishment in Croatia and elucidates the reasons which in 1997 led to the switch from the system of fixed fines to day fines. This fundamental change sought not only to modernize fine as punishment, but also to address a sharply negative trend in the number of pronounced fines, which started in the early 1990s. Yet, the latter was not achieved as the share of fines in the overall percentage of criminal sanctions continued to decline. In 2011 an entirely new Criminal Code significantly amended the regulation of the fine, as systematically outlined in this chapter. One of the main goals of this reform was to avoid reliance of judges on the average daily income instead of determining the real income of the perpetrator – a legally-provided exception which quickly became a rule, thus negating the essence of the system of day fines. The 2011 legislative improvements, however, did not contribute to its increased use, leading to conclusion that the system of day fines has not yet become deep-rooted in Croatia.

The day fine system implies that the amount of the fine is tied to an offender’s daily earnings. In France, the use of this system seems to be quite limited in practice despite the fact that such a sentence is theoretically applicable to all offenses. This is certainly explained by the fact that fines have traditionally been based on the individual crime rather than on the individual offender’s ability to pay. However, through the introduction of day fines, it is possible that judges become more comfortable with the monetary penalties when the amounts can be adjusted to individual cases and circumstances.

In 1921, Finland was the first Nordic country to introduce the day fine system into its system of criminal sanctions. The main reason for adopting the new system was an attempt to introduce a system where fines would have an equal impact on people with varying means.An important objective of the total reform of Finnish criminal law (1980–2003) was to reduce of custodial sentences and, therefore, the increased use of financial sanctions had a preference. In a comparative analysis day fines are imposed to very great extent in Finland.There has been a general satisfaction with the fining system in Finland.The efficiency of the day fine system has been furthered by the detailed provisions on the assessment of the person’s income and the effective enforcement of fines. As for the future of the fining system, there is an urgent need of coordinating various punitive pecuniary sanctions (whether they are criminal in nature or administrative and whether they are day fines or fixed fines).

This chapter, based on the reviewed countries’ experiences, provides a comparative analysis of the day fines system in Europe. It seems that making the sentencing system more equal, and reducing short-term imprisonment, are common goals for countries to adopt day fines. Some countries can be rendered as a success in terms of the extent of implementing day fines and the ability to meet the desired goals. Nevertheless, as the experience of many other countries shows, there can be major challenges for day fines to be properly implemented. The main two challenges identified in this chapter are the complexity of calculating the fine, exacerbated by the frequent lack of guidelines, and a negative perception, derived mainly from lack of understanding of the system (by the public) and lack of support from the sentencers. In this chapter, we provide policy recommendations how to address these two specific challenges, as well as more general recommendations to expand the use of day fines. Given the multiple advantages day fines offer, it seems worth investing in its proper implementation. These recommendations may assist jurisdictions who already implement day fines, well as those interested in introducing this model into their criminal justice system