“Of the threats” is how is titled the Chapter II, of the Tittle VI, of the Book II of the Spanish Penal Code (CP). Due to its location within this code, we already know that this is a crime which protects the legal good of freedom, enshrined as a fundamental right by the article 17.1 of the Spanish Constitution (CE).
This Chapter II is made up of three articles, but we will not follow this division for commenting its content. This writing has two sections, one which talks on the crime of threats, where we treat each of the articles we mentioned before, and another where we see the difficulties to prove these kind of crimes on a criminal procedure.
– The threats:
As we have said at the beginning, the crime of threats attempts against the legal good of freedom, which is regarded as a fundamental right by the article 17.1 of the CE. However, it is not the only crime which protect such legal good, for as we already know, the Title VI of the Book II of the CP, where is located this Chapter II, has other two chapters, a Chapter I where is sanctioned the crime of illegal detention and kidnap, and a Chapter III where are typified the coercions.
Though all this crimes protect the same legal good, each of them has an specific ambit of application, existing between them a relation of subsidiarity or specificity.
The crime of subsidiary application with respect to the rest, is the crime of coercion, while the crime of threat, and of illegal detention and kidnap have an ambit of application more specific.
Due to this relation, let us see first what have said the Spanish courts about the crime of coercion, and for that purpose we can make use of the Provincial Court of Madrid´s sentence number 183/2023: “The type of coercion envisaged in the article 172 of the CP demands: a) A violent behavior of material content -vis physical- or intimidating -vis compelling exercised against the passive subject, either directly or indirectly through the things; b) That the result followed is to impede to make what the Law does not forbid or to make what is not wanted, being either just or unjust; c) The subjective element or trending will which consists on a desire of restraining the alien freedom; d) The illicitness of the act.
However, as the appealed resolution correctly puts of manifest, our jurisprudence has consolidated a line of interpretation which supposes an evolution of the precept, extending the concept of violence to ways also coercive of intimidation or even of actions upon the things. As example of this jurisprudential line which has been repeatedly cited is the STS 843/05 of 29 of June (Pte Soriano Soriano) in which was defined the elements of the type and referring to the violence established that “that the activity is reflected in a behavior of violence, whose class has been broadened with the time for including not only the “vis physics” but also the intimidation or “or compelling vis” or even the strength upon the things or “bis in rebus”. The mere restraining of the freedom to do supposes in fact a violence and therefore a coercion, being the decisive the coercive effect of the action rather than the own action. This use of the means of coercion has to be adequate, effective and causal with respect to the result followed.”
If we take as the point of departure the above elements, which form the “generic” crime of coercion, now what we have to try to find is the specific element which will distinguish the coercions from the crime of illegal detention or kidnap and the crime of threats.
In the case of the illegal detentions, these will be distinguished from the crime of coercion in the way they affect to the legal good freedom. Since in order to exist a illegal detention will be necessary to deprive the passive subject of the crime of its freedom of movement, either locking up or detaining it. Besides, our jurisprudence has demanded that the duration of that privation of the right to the freedom of movement has to be enough relevant to be punishable, in other words, though the crime of illegal detention has to be regarded of instantaneous consummation, the detention which gives rise to the qualification of the crime as such, has to be of enough duration, not been included those which can be regarded as brief, or which can be included in another more specific penal type, as the crime of robbery with violence or the sexual aggressions. In relation with the above, the Spanish Supreme Court´s resolution number 5516/2022 says: “Regarding the illegal detention and the coercions it is true that generally they preserve the same legal good which is not other than the freedom of the person. For this reason when it is tried to differentiate both types the jurisprudence has considered that they are in a relation of gender (coercions) and species (illegal detention) in a way that the first responds to the principle of subsidiarity and only will be applicable when another type cannot be applied for reasons of greater gravity or speciality.
Moreover, in other occasions, there has been taken into account whether violence concurs or not, envisaged in the article 172 CP or the duration of the detention or locking up. In general, a minimum duration of the privation of freedom has been demanded, being excluded from the type the brief detentions. But in any case, the crime of illegal detention, the basic, it is not legally subjected to any duration and for this reason it is considered of instantaneous consummation and permanent effects (STS 98/2016, de 18-2).”
On the other hand, the illegal detentions will be absorbed by another more specific penal type, when we are before a concurrence of norms of the art. 8.3 CP, in other words, when the illegal detention is only the necessary to carry out the main crime. If the duration of the illegal detention exceeds this necessary minimum, we will be before a concurrence of crimes (art. 77 CP), when even though it exceeds the necessary minimum it has a instrumental character with respect to the main crime, or we will be before a real concurrence of crimes (art. 73 CP), when the illegal detention acquires its own relevance due to its intensity, and for this reason it loses altogether any connection with the crime or crimes with which it concurs. An instance of the above, is this excerpt from the Provincial Court of Barcelona´s sentence number 4017/2022: “For offering an enough description of what is this indispensable doctrine, we take as reference the Spanish Supreme Court´s sentence number 740/2021, since it explains with clarity the dialectic difficulty of the different options which appear to resolve the question and, besides, it offers a panoramic and exhaustive casuistry of the diversity of cases which can take place, with numerous examples of quotes of resolutions of the own Court. It says, from the generic perspective:
“The doctrine of this Chamber distinguishes two alternatives: i) concurrence of norms or apparent concurrence of crimes, when the privation of freedom do not exceed of the ordinary which can be considered as natural or embedded to a crime of robbery with intimidation, in whose case the crime of robbery absorbes the crime of illegal detention; and ii) concurrence of crimes in the rest of the cases.
Within the concurrence of crimes: i) It is regarded as medial if the privation of freedom exceeds this minimum indispensable but it is instrumental: it is exclusively at the service of the predatory acts; and ii) it is deemed as real in the cases where: a) the plurality of persons detained imposes this solution for one of the detentions will already form the medial concurrence, being necessary to punish the other detentions separately; b) the detention is disconnected from the robbery medially; there is simultaneity, occasionality or the same temporal frame, but the privation of freedom becomes an autonomous object and different disconnected from the lucrative will; c) the prolongation of the detention exceeds the necessary.”
On the contrary, the crime of kidnap may be considered a type even more specific than the crime of illegal detention, for to the privation of the freedom of movement we have to add the demand from the active subject of the crime of a condition to release the passive subject. The Provincial Court of Salamanca´s sentence number 182/2022 says: “The consolidated jurisprudence of the Spanish Supreme Court (STS 351/2001 of 9 March or the recent sentence 363/2020 of 2 July 2020) establishes that “the crime of kidnap -common denomination converted into nomen iuris- is an aggravated type of illegal detention in which the end of the privation of freedom is conditioned by the authors of the crime, to the carrying out of a fact (action or omission) which is demanded. It is precise, then, for the integration of the type in the kidnap, in the first place, that a person is deprived of its freedom by locking up or detaining it and, in second place, that the passive subjects or other persons are warned that the return of the freedom depends of the fulfillment of an imposed condition.”
And finally it is the turn of the threats. The characteristic of the threats is the intimidation of the passive subject through the announcement that something bad will happen to it. This is the characteristic feature which distinguishes the threats from the coercion, by application of the article 8.1 CP. The Provincial Court of Madrid´s sentence 183/2023: “The mere restriction of the freedom to do supposes in fact a violence and therefore a coercion”, which affects more in the means employed than in the passive subject. But this interpretation cannot be considered as a clear separation, at least theoretical, between both behaviors, for in any case the threats are the special crime when the will of the passive subject is affected by a way of intimidation, which consist in the announcement that something bad will happen to it (art. 8.1 of the Spanish Penal Code.”
Once we have been able to distinguish the threats, from the other types of crimes included in the Title VI of the Book II of the CP, with which share the characteristic of affecting to the right of freedom, it is the moment of deepening in their content. According to the Provincial Court of Madrid´s sentence number 183/2023 this are the general characteristics or requisites of application of the crime of threats: «a) The legal good protected is the freedom of the person and its right to the peace in the normal development of its life; b) It is a crime of simple activity, of expression or risk; c) The kernel of the type is constituted by the announcement through facts or expressions, of causing a damage which is considered a crime, announcement which has to be serious, real and permanent, in a way that causes an unquestionable social condemnation; d) The damage announced has to be future, unjust, determined and possible, since it depends from the will of the active subject of the crime and produces the intimidation in the threatened; e) It is a circumstantial crime, being necessary to take into account the occasion in which it is committed, persons who intervened, previous, simultaneous and later acts to the material fact of the threat; f) Finally has to concur an specific malice which consist in exercising pressure upon the victim, threatening it and depriving it of its calm and peace, undoubted malice, since it is a predetermined plan of acting with this end.”
Though we have to specify that, the above features are only wholly applicable to the threats of the article 169, for in it are regulated the threats that consist in the announcement of a damage which constitutes a crime, however, in the article 171 are also punished the threats which consist in threatening with a damage that is not a crime.
Now it is the moment to talk of the content of each of the articles. The first article is the 169, which says: “Who threatens other with causing to it, or its family or another persons with who is intimately linked a damage which constitutes crimes of homicide, injuries, abortion, against the freedom, tortures and against the moral integrity, the sexual freedom, the intimacy, the honor, the patrimony and the socioeconomic order, will be punished:
1º With the punishment of imprisonment from one to five years, if the threat had been made demanding an amount or imposing any other condition, though it is not illicit, and the guilty had achieved its purpose. If the purpose was not achieved, the punishment of imprisonment from six months to three years will be imposed.
The punishments envisaged in the above paragraph will be imposed in its superior half if the threats are made in writing, by telephone of any other means of communication or of reproduction, or on behalf of entities or real groups and cases.
2º With the punishment of imprisonment from six months to two years, when the threat has not been conditional.”
In the article 169 is punished, who conditional or unconditionally threats other person with a damage that constitute some of the crime mentioned in it: crimes of homicide, injuries, abortion, against the freedom, tortures and against the moral integrity, the sexual freedom, the intimacy, the honor, the patrimony and the socioeconomic order.
As we can see, the article 169 distinguishes two scenarios, when the threat had been conditional, in other words, imposing the active subject any type of condition, even though it had bee licit, for not executing its threat, or not conditional. In the former scenario, the punishments besides will vary depending on whether the active subject has achieved its end with the threat or not, being imposed a harsher punishment when it has been achieved. In the cases of conditional threats, the punishment will be also increased, when the threat had been made in writing, by telephone or by any other means of communication or reproduction, or on behalf of entities or real groups or cases.
The second of the articles where the threats are typified, is the article 170. In it are punished the threats which constitute a crime a which are aimed against determined group of persons, for pertaining to an ethnic group, race, religion, ideology or any other group of persons and the cases in which are publicly attributed the commission of violent actions by terrorist groups or organizations. Concretely the article 170 says: “1. If the threats of a damage which constituted a crime were aimed to frighten the inhabitants of a town, ethnic, cultural, religious or collective social or professional group, or any other group of persons, and they had the enough gravity to achieve it, the punishments superior in degree would be imposed with respect to those envisaged in the above article.
- Who with the same end, attribute to themselves the commission of violent actions by terrorist groups or organizations, will be punished with the punishment of imprisonment from six months to two years.”
As we can observe, for the threats punished in the first point of the articles 170, unlike what happens in the article 169, there is no close group of crimes, so it will be applicable to any threats regarded as a crime by any of the articles of the CP, always that, the rest of the requisites are also met: they have to be aimed to a determined group of persons; they have to have the intention of frighten such group, and; they have to have the enough gravity to achieve this purpose. Between this requisites, there is not included the demand of any condition.
In the second point of the article 170, are punished a peculiar kind of threats, because for its wording what seems to be punished is a terrorist act already executed. We understand that, those who publicly attribute to themselves the commission of violent actions carried out by terrorist groups or organizations, besides being sanctioned according to the second point of this articles 170, they have to be punished as well, for the crime which constitute the violent action, if they have participated in it as authors, necessary cooperators, instigators, or accomplices, existing in those cases a real concurrence of crimes (art. 73 CP).
And the last of the articles we should comment is the article 171, which states: “1. The threats of a damage which does not constitute a crime will be punished with the punishment of imprisonment from three months to one year or fine from six to twenty-four months, taking into account the gravity and circumstances of the fact, when the threat was conditional and the condition did not consist into a owed behavior. If the guilty had achieved its purpose the punishment would be imposed in its superior half.
- If someone demanded of another an amount or reward under the threat of revealing or spreading facts referring its private life or family relations which are not publicly known and which may affect to its fame, reliability or interest, would be punished with the punishment of imprisonment from two to four years, if it had achieved the delivery of all or part of the demanded, and with four to two years, if it had not.
- If the fact described in the above paragraph consisted in the threat of revealing or reporting the commission of some crime the prosecution service may, for facilitating the punishment of the threat, abstain of accusing for the crime whose revelation was threatened, save that this was punished with punishment of imprisonment of more than two years. In this last case, the judge or court may reduce the sanction in one or two degrees.
- Who mildly threatens to who is or had been its wife, or woman who is or had been linked with him for an analogous relation of affectivity even without living together, will be punished with the punishment of imprisonment from six months to one year or of community services from thirty-one to eighty days and, in any case, privation of the right to the possession and carrying of weapons from one year and one day to three years, as well as, when the Judge or Court considers adequate to the interest of the minor or handicapped person needed of special protection, special disqualification of exercising the parental authority, tutelage, or guardianship up to five years. The same punishment will be imposed to who mildly threatens to a person specially vulnerable who lives with the author.
- Who mildly threatens with weapons or other dangerous tools some of the persons to which refers the article 173.2, being excepted the included in the above point of this article, will be punished with the punishment of imprisonment from three months to one year or community services from thirty-one o eighty days and, in any case, privation of the right to the possession and carrying of weapons from one to three years, as well as, when the Judge or Court considers it adequate to the interest of the minor or handicapped person needed of special protection, special disqualification for the exercising the parental authority, tutelage or guardianship from six months to six years.
The punishments envisaged in the fourth and fifth points will be imposed in their superior half when the crime is committed in the presence of minors, or it takes place in the common domicile or in the victim’s domicile, or it is carried out breaching a punishment of the contemplated in the article 48 of this Code or a preventive measure or of security of the same nature. - Notwithstanding the envisaged in the points four and five, the Judge or Court, reasoning it in sentence and taking into account the personal circumstances of the author and the concurring in the carrying out of the fact, may impose the punishment inferior in degree.
- Out of the above cases, who mildly threatens other will be punished with the punishment of fine from one to three months.
This fact will be only punished through report of the offended person or its legal representative.
When the offended was any of the persons to which is referred the second point of the article 173, the punishment will be of permanent localization from five to thirty days, always in different domicile or far from that of the victim, or community services from five to thirty days, or fine from one to four months, the last only in the cases in which concur the circumstances expressed in the second point of the article 84. In this cases will not be demandable the report to which is referred the above paragraph.”
In the first point, we find a peculiar case, because in it are sanctioned threats which are not regarded as crimes but only if they are conditional and the condition is not a owed behavior. This excerpt from the Provincial Court of Madrid´s sentence number 183/2023 is important for understanding the scope of this exception: “Traditionally, it has been regarded that the damage announced for been classified as a crime of threats has to be unjust (between others Supreme Court´s sentences 821/03 of 5 June Pte. Ramos Gancedo and 1820/99 of 21 December Pte. Marín Canivell). Indeed to announce something just or licit, is only the expression of a right, and cannot be the object of a sanction. This affirmation is not always valid when the carrying out of a damage is subordinated to a condition. In other words, when we are before a conditional threat.
The doctrine has questioned what is the criteria for distinguishing between the licit transaction and the conditional threat when it is announced the carrying out of an licit damage for obtaining a licit compensation. For example when it is announced the will of exercising a judicial action if it is not payed certain amount in exchange for a behavior of the passive subject. It has been regarded that the extreme to assess is the existing relation between the just damage which is announced and the condition imposed. From this position, which has been denominated Theory of the Relation, can be affirmed that the announcement of a just or licit damage will constitute a crime when it is carried out imposing illicit conditions, inadequate to the traffic and without relation with the damage which is threatened. Thus, returning to the examples quoted above, would be constitutive of a crime to threaten someone with lodging a report for a true fact, in exchange for a patrimonial compensation much more greater than the owed, or when it is subordinated the eventual report of a fact, to the receipt of an amount of money which is not owed (an scenario expressly typified in the article 171 of the Penal Code when it is a crime).
It seems that the legislator assumes this criteria sanctioning, in the article 171 of the Penal Code, the threats of a damage which do not constitute a crime only when is imposed a condition and this “is not an owed behavior”, requisite which is a reference to the institution of the unjust or wrongful enrichment.
In this way, it is necessary to consider penally relevant the fact that exists a disproportion between the right of the active subject and the condition which is demanded or when between that and this exists a clear disconnection either for being of different nature or for lacking the subject of title for pretending it.”
Therefore, the threats with a damage which is not illicit only are punishable according to the CP if they are conditional, and in accordance with we have just seen “there exists a disproportion between the right of the active subject and the condition which is demanded or when between that and this exists a clear disconnection either for being of different nature or for lacking the subject of title for pretending it.”
On the other hand, in the second point, it is sanctioned the behavior that consists in threatening a person with revealing facts which pertain to its private life, and in the third point when this threat consists in revealing or reporting a crime. In this last case, the Public Prosecutor may abstain from accusing for the crime whose revealing has been threatened, save when this has a punishments of more than two years of imprisonment, in whose case the judge or court may diminish the punishment to be imposed in one or two degrees.
Lastly, in the following points of the article 171 is punished the mild threats. As we already know, the distinction between crimes and misdemeanors disappeared with the reform of the CP through the Organic Law 1/2015, but even though this distinction has disappeared the following excerpt from the Spanish Supreme Court´s sentence number 2314/2022, can help us to distinguish between the threats and the mild threats: “Well, the criminal infringements typified in the articles 169 and 620, have identity, denomination and legal structure and are only distinguished from the gravity of the threats, this has to be assessed in function of the occasion in which these take place, persons who intervene, previous, simultaneous or later acts. The difference is circumstantial and resides in the greater or lesser intensity of the damage with which is threatened the protected legal good.
The jurisprudence has usually agreed the existence of the crime when we are before a grave, serious and credible threat for being probable to wait an aggressive behavior which carries out the damaged threatened. The criteria determining of the distinction, has mostly quantitative aspects, but we should not forget the qualitative traits of the threat which should be extracted from the previous and concurring data in the case (Spanish Supreme Court´s sentences number 1489/2001 of 23 July and 832/98 of 17 June.)”
Therefore, the difference between the threats and the mild threats, will depend upon the circumstances which surround them, as the persons to which are aimed, the moment in which are uttered, or the relation between the active and passive subject.
– The difficulties to prove the crime of threats:
When a crime is committed, the best for the victim who suffers is to report it as soon as possible. The main reason for reporting the crime with this promptitude is that, the proofs which prove its existence do not disappear, or that the author does not flee. For example, in a crime of injuries the best proof will be the bruises, the wounds which has left the aggression, being important to rapidly go to a doctor who will assess their existence and gravity, and with this assessment to report the facts. Otherwise the injuries will disappear without leaving any trace, and if we go to a doctor and we do not report the facts as soon as possible, when we finally decide to report them, the report may be tarnished, since the judge may believe that the report of the facts is motivated for other factors than just the compensation of the damages suffered.
The question is that, in a criminal procedure the most important is the practice of the proof, from it will depend the guilty or innocence of the accused. We can divide the criminal procedure in three parts, the stage of investigation, the so-called intermediate stage and the oral trial. During the stage of investigation are gathered the proofs which eventually will support the accusation and defense in the oral trial. During the intermediate stage, the accusation accuse and the defenses defend themselves, and these accusations and defenses will mark the boundaries of the discussions on the future oral trial. And in the oral trial is where is practiced the proof which will underpin the conviction or the acquittal, for with the exception of the preconstituted or anticipated proof (art. 714 and art. 730 of the Spanish Criminal Procedure Act) the only proofs which can destroy the presumption of innocence of the accused are the practiced in an oral trial, under the principles of orality, publicity, contradiction and immediacy.
The problem of the threats is that, it is a crime which does not leave marks, the only ones who may corroborate that a crime was committed are the own victim, and the witnesses who could have been during its commission. For the most logic and usual, is that there existed no cameras or microphones recording what had happened. In this cases, the immediacy of the judge or court will be essential for assessing the credibility of the victim and of the witnesses. The way they express themselves during the trial, if they fall into contradictions doing it, will be determinant. Will be also essential to assess their credibility, the previous relations between accused and victim or witnesses, their mental and physical health, and any other circumstance which helps to determine the veracity of the facts related. All these will help to form the criteria of the judge or court, since once the proof is practiced its assessment is their competence, according to the principle of free assessment of the proof of the article 741 of the Spanish Criminal Procedure Act.
But, what happens if the only person who saw the commission of the crime, leaving aside the accused, is the victim? For in these cases, the usual will be to have two different versions of the facts, the version of the victim and the version of the accused. In these cases, the jurisprudence of the Spanish Courts has established that the declaration of the victim is enough to destroy the presumption of innocence of the accused, taking into account the concurrence of three requisites: subjective credibility, objective credibility, and persistence in the accusation. The subjective credibility will depend upon the previous relations between accused and victim, as well as, the mental health of the vicim or its addiction to toxic substances. The objective credibility, of any objective element which underpins the declaration of the victim, as a text message which proves that the accused and the victim were at the same time at the same place where supposedly took place the facts. And the persistence in the accusation, is founded in the necessity that the victim maintains, in the essential, the version of the facts throughout all the procedure, without being necessary that the victim repeats each of the words previously uttered, but as we have said, the different testimonies of the victim have to coincide in their most important elements, from here, the necessity of reporting the fact as soon as possible, since it will contribute to the freshness of the memory of the victim, what will strengthen the credibility of its testimony before the judge or court.
It is not necessary that the three requisites above mentioned are met for allowing a judge or court to consider a testimony as truthful, the lack of one of them does not determine that the victim is lying, but the lack of the three will impede the court or judge to assess this testimony as enough to destroy the presumption of innocence of the accused. Therefore we have to conclude that, the testimony of the victim is enough to convict the accused.
Notwithstanding the above, the more usual is that, the convicted appeals the conviction based only in the declaration of the victim for infringement of its right to the presumption of innocence. Though in these cases, the appealing and cassation courts will be limited to assess that the inference of the court or judge of instance is rational, logical, according to the rules of science and experience, for they cannot assess a proof lacking of the immediacy needed to do it, and which did have the court or judge of instance. Therefore, in these cases, except when the judge or court of instance has committed a grave error assessing the declaration of the victim, as for instance, because it has incurred in grave contradictions, its assessment of the proof will prevail, in application of the principle of free assessment of the proof which we mentioned before.
Víctor López Camacho.
Twitter: @victorsuperlope.
Más en mi website: www.victorlopezcamacho.com