“Of the coercions” is how is titled the Chapter III of the Title VI of the Book II of the Spanish Penal Code (CP). It is the last crime against the freedom regulated in the Title VI, and though it is the last, it may be regarded as the most important, for it is of subsidiary application with respect the others, the illegal detentions and kidnaps, and the threats. This means that, it has a broader scope of application, but also less defined, and only will be applicable when the specific requisites which determine the application of another crime against the freedom do not concur.
This Chapter III is made up of four articles. In a first description of them, we can say that in the article 172 is regulated the basic type of coercions, while in the articles 172 bis, 172 ter and in the 172 quater, what we find are more specific cases, among which has an special importance the crime of harassment or stalking of the article 172 ter.
The present work is divided into five points: 1) How to distinguish the crime of coercion from the crime of illegal detention and kidnap, and the crime of threats; 2) The crime of coercion; 3) The crime of harassment or stalking; 4) The other two specific cases of coercions regulated in this Chapter, and; 5) Possible affectations of the accusatory principle.
1) How to distinguish the crime of coercion from the crime of illegal detention and kidnap, and the crime of threats:
Those who have studied the chapter on the coercions deeply, may have had the doubt of whether the structure chosen by the legislator was the correct or not.
As we have pointed out at the beginning, the crime of coercions is considered of subsidiary application with respect to the other two which also protect against the attacks against the freedom, the crime of illegal detention and kidnap, and the crime of threats. Then, why we have to wait until the end to know which is the penal type of general application? Surely, the answer to this question is that, the legislator has ordered them according to the gravity of the punishment with which they are sanctioned, and not how those who study them would have liked it.
I have decided to follow the same order proposed by the legislator, to suppress my desires of telling to you the characteristics of the crime of coercion for later distinguishing it from the rest, and to begin directly with the crime of illegal detention and threats.
The three crimes regulated in the Chapter III, object of analysis, share a common characteristic, that is related with the evident common feature of sharing the same chapter of the CP, and this is that, the three of them protect the same legal good, the freedom. Freedom, which achieves the rank of fundamental right in the article 17.1 of the Spanish Constitution (CE). However, the affectation of each of them to such right is different, this is why each one has its own chapter.
In the case of the illegal detention and kidnap (art. 163 and following CP), which although different, are crimes that affect in the same way to the right to freedom, the characteristic is the privation by the active subject of the crime, of the right of freedom of movement of the passive subject of the crime.
Let us start with the illegal detentions. The objective type of the crime, is consummated with two kind of different actions, it will be enough with locking up or detaining a person. For locking up, we have to understand the cases in which a person is trapped inside a closed space, without possibilities of leaving it except when the active subject decides to end with this locking up. On the contrary, detaining suppose to deprive to the passive subject of the crime of the possibility of deciding its location, without having relevance that it is not in a closed space which impedes it from doing it, for this impossibility is represented by the coercion of the active subject.
On the other hand, the subjective type of the crime consists in the conscious will of the active subject of the crime of carrying out the locking up or detention of another person, without being necessary an special motivation for doing it. This is what is known as direct malice, in other words, to know and will the elements of the objective type of the crime, or in the own words of the Spanish Supreme Court´s sentence (STS) number 4840/2022: “As is argued by the STS of 16 June 2004 the malice, according to the more classic definition, means to know and will the objective elements of the penal type”. And an example applied to the concrete case of the illegal detention is the Spanish Supreme Court´s resolution (ATS) number 5516/2022: “The penal type of the article 163 of the Penal Code does not make references to goals or ends for committing the crime, therefore, the motives are irrelevant ( SSTS 1075/2001, of 1 June; 1627/2002, of 8 October).
Thereby, it is not necessary for the commission of this crime a specific malice or an subjective element of the unjust, being enough with having the accused a clear idea of the illicitness of its behavior (SSTS 1964/2002, of 25 November; 135/2003, of 4 February).
This is, the malice of the author consists in having knowledge of the privation of freedom of the passive subject without being important the motives or subsequent intentions of the agent – which could give rise to the corresponding concurrence of crimes (robbery with violence, sexual aggressions, forced entry…) – since due to the broad terms in which is expressed the article 163.1 CP it is allowed any means of commission (STS 1045/2003 of 18 July) included the intimidatory (STS 1536/2004 of 20 December).”
It seems that, for all that we have just seen, the crime of illegal detention can only be committed through direct malice, being left aside the possibility of its commission by means of eventual malice, in other words, in those cases in which the active subject represents to itself the typic result of its action or omission as probable and, in spite of this, it executes it. Or again in the own words of the STS 4840/2022: “The STS of 4 June 2001 says that the malice supposes that the agent represents to itself a damaging result, of possible and not necessary origination and not directly wanted, despite which it is accepted, also consciously, because the acts thought are not renounced. It means that, in any case, it is demandable in the author the consciousness or knowledge of the high risk of production of the result which its action contains.” However, we cannot wholly discard this possibility, for when we talk about malice we always are referring two its two sorts, the direct malice and the eventual malice, though due to the nature of the crime of illegal detention, this last possibility can be considered as highly unlikely, being difficult to find a case, even of laboratory, which can serve to us as an example.
To lock up or detain, unavoidably has a temporal dimension, for all locking up or detention lasts a determined time. It can last seconds, minutes, hours, days or years. However, except in the cases in which we talk of the attenuated type of the second point of the article 163, where the guilty release the victim within the first three days of the locking up or detention without achieving its goal, or the aggravated type of the third point of the article 163, when the detention or locking up lasts more than fifteen days, the legislator does not envisage a determined time for the locking up or detention for regarding them as a crime. This is the reason why, it is said that it is a crime of instantaneous consummation, though, in apparent contradiction with the above, there has been also demanded by our courts a minimum of duration for the locking up or detention for being qualified as such, and not as a crime of coercion.
Therefore, the brief detentions which have lasted a very short period of time cannot be regarded as an illegal detentions. The ATS 5516/2022 says: “In general it is demanded a minimum of duration for the privation of freedom, being excluded from the type the brief or instantaneous detentions. But in any case the crime of illegal detention, the basic, is not legally subject to a determined temporal term and for that reason it is considered of instantaneous consummation and permanent effects (STS 98/2016, of 18 February).” And the Provincial Court of Gran Canaria´s resolution number 2443/2021 says: “It is an instantaneous infringement which is consummated from the same moment that the detention or locking up takes place, though the time is a factor which has to be taken into account, since for the consummation is necessary a relevant minimum ( STS no 812/2007, of 8 October).”
Then, we already know what distinguishes a illegal detention from the coercions. The time for which the passive subject of the crime, is deprived of its freedom of movement must long enough for being regarded as a illegal detention and not coercion. In order to underpin the above, we can use again an excerpt from the ATS 5516/2022: “Concerning the illegal detentions and the coercions, it is true that in general terms they preserve the same legal good, which is not another than the freedom of the person. This is why, when we have to distinguish between both the jurisprudence has considered that they are in relation of gender (coercions) and species (illegal detention) in a way that the former responds to the principle of subsidiarity and only will be applicable when cannot be applied another type for reason of greater gravity or specialty. In another occasions, too, the concurrence of the violence has been taken into account, envisaged in the articles 172 CP, or the duration of the detention and locking up. In general it is demanded a minimum duration of the privation of freedom, being excluded from the type the brief or instantaneous detentions.”
The temporal dimension, in the crime of illegal detention has more implications. We are referring to the cases of concurrence of either norms or crimes, as when the illegal detention concurs with a crime of robbery with violence or sexual aggressions. There will be a concurrence of norms of the article 8.3 CP, in which the broader penal precept absorbs the rest of the penal precepts which punish the infringements included in this, when the illegal detention only lasts the time necessary for being committed the main crime, in these cases the crime of illegal detention will be absorbed by the crime of robbery with violence or sexual aggression. On the contrary, there will be a concurrence of crimes, when the time of the illegal detention surpasses what can be considered as the strictly necessary for committing the main crime. In these cases, the concurrence of crimes may be of two kinds, we can be before a medial concurrence of crimes of the article 77 CP, or before a real concurrence of crimes of the article 73 CP. We will be in the former scenario, when the illegal detention surpasses the the strictly necessary time for committing the main crime, but yet it is related with it, in other words, it has an instrumental end, it is a means for committing the main crime. And we will be before a real concurrence of crimes, when the illegal detention lose any connection with the main crime, disappearing any connection between it and the supposed main crime, and being punished both crimes separately. 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 STS 740/2021, since it explains with clarity the dialectic difficulties of the different options which appear for resolving the questions and, besides, offers a exhaustive casuistic panoramic of the diversity of scenarios which may occur, with numerous quotations of resolutions from 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 does not exceed the ordinary which may be regarded as natural for a crime of robbery with intimidation, in which case the crime absorbs the crime of illegal detention, and; ii) a 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 essential minimum but it is instrumental: it is exclusively at the service of the predatory acts, and: ii) it is regarded as real in the cases where: a) the plurality of detained persons imposes this solution for one of the detentions will already form the medial concurrence, being punished the others separately; b) the detention is disconnected of the robbery medially; there is simultaneity, occasionality or the same temporal framework, but the privation of freedom becomes an autonomous and different objective disconnected from the lucrative will; c) the detention lasts more than the necessary.”
Later adding the same sentence: “The fundamental rule for knowing if we are before a concurrence of crimes or norms has necessarily to be a legal assessment by which, if the sanction for one of the crimes was enough to comprehend the total unlawful meaning of the punishable behavior, we will be before a concurrence of norms; otherwise before a concurrence of crimes.”
We have to distinguish too, the illegal detention from the kidnap. The kidnap is an aggravated type of illegal detention, in it is conditioned, by the authors of the crime, the release of the victim to the fulfillment of a condition by it or other persons, a condition which may consist into an action or an omission.
For more information about the crime of illegal detention and kidnap, I recommend to you to read my article where are wholly analyzed both crimes.
On the other hand, the characteristic of the threats is the intimidation of the passive subject through the announcement of the causation of a future damage. This is the characteristic element which will distinguish the threats from the coercions, in application of the article 8.1 of the CP. The Provincial Court of Madrid´s sentence number 183/2023 says: “The mere restriction of the freedom to do supposes in fact a violence and therefore a coercion”, which affects the effect produced in the passive subject rather than the means employed.
But this interpretation has not to affect to the clear separation, at least theoretical, between both behaviors, for in any case the threat is a special crime when the affectation of the will of the passive subject is carried out through a way of intimidation, constituted by the announcement of the causation of a future damage (art. 8.1 of the CP).”
Therefore, though in the case of the threats and the coercions the legal good protected is the same, and in both cases is compelled the passive subject of the crime to make what it does not want or to not do what the law does not forbid, the threats is a special case because this is achieved through the announcement to the passive subject of a future damage which will affect to it negatively. Threats, which besides, can be conditional or not conditional, depending on if the causation of the future damage depends upon the fulfillment of any condition by the passive subject or any third party. In this demand of the condition, the conditional threats seem to resemble the kidnap, and the not conditionals to the illegal detention, but before we have already pointed out, the legal good freedom is affected in a different way by both crimes, while in the threats the legal good protected is the freedom of the person and its right to the peace in the normal development of its life, in the illegal detention or kidnap, the legal good protected is the freedom of movement.
For more information about the crime of threats, I recommend to you to read my article where is wholly analyzed this kind of crime.
2) The crime of coercion:
After reviewing the differences between the crimes of illegal detention and kidnap, threats and coercion, we are obliged to talk in deepness about the last.
In the coercions the legal good protected is the freedom, as with the illegal detention and kidnap, and threats, but in its case the concrete legal good protected is simply the individual freedom. In the ambit of the crime of coercion, we see this subsidiary application, with respect to the other crimes against the freedom, to which we referred before. In its case, there is no legal good freedom in the way of freedom of movement, of freedom in the way of the right to peace in the normal development of its life, it is the freedom without extras.
The more generic crime of coercion is regulated in the article 172, which says: “1. Who, without being legitimately authorized, impeded to other with violence from making what the law does not prohibit, or compels it to make what it does not want, whether just or unjust, will be punished with the punishment of imprisonment from six months to three years or with fine from twelve to twenty-four months, depending on the gravity of the coercion and the means employed.
When the coercion exercised has as object to impede the exercising of a fundamental right the punishments will be imposed in its superior half, except when the fact has assigned greater punishment in other precept of this Code.
The punishments will be imposed in their superior half too, when the coercion exercised has as object to impede the legitimate enjoyment of the house.
- Who mildly coerce to who is or has been its wife, or woman who is or has been bound to it by 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 to eighty one days and, in any case, the 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 interests of the minor or handicapped person specially needed of protection, special disqualification for exercising the parental authority, tutelage or guardianship until five years. The same punishment will be imposed to who mildly coerce one person especially vulnerable who lives with the author.
The punishment will be imposed in its superior half when the crime is committed in the presence of minors, or takes place in the common domicile of the victim, or is committed breaching a punishment of the envisaged in the article 48 of this Code or a preventive or security measure of the same nature.
Notwithstanding the envisaged in the above paragraphs, the Judge or Court, motivating it in sentence, according to the personal circumstances of the author and the concurring in the commission of the fact, may impose the punishment inferior in degree. - Out of the above cases, who mildly coerce other, will be punished with the punishment of fine from one to three months. This fact will only be prosecutable through report of the offended or its legal representative.
When the offended is any of the persons to which is referred the second point of the article 173, the punishment will be of permanent location from five to thirty days, always in a different domicile and far from the domicile 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 these cases will not be demandable the report to which is referred the above paragraph.”
Once we have seen what is said by the article 172, let us see how have been summarized the characteristic elements of this penal type by the Spanish Courts. The Provincial Court of Caceres´s sentence number 3072/2022 says: “For the shaping of the crime of coercion is necessary:
1º) A violent behavior of material content “vis physical”, or intimidating “vis compulsory” , exercised against the passive subject of the crime, either directly or indirectly through things “vis in rebus”, or even through third persons;
2º) whose way of working or goal is aimed as result to impede from making what the law does not forbid or to make what is not wanted, either just or unjust;
3º) whose behavior has to have the intensity of necessary violence for being crime, for lacking this this intensity it may constitute a misdemeanor (now minor offence); the STS 1181/97 of three October insists in the intensity of the violence as a distinguishing factor;
4º) there have to exist a will which consist in the desire of restraining the alien freedom as is derived from the verbs to impede or compel; and
5º) that the act is illicit -without being legitimately authorized- which will be examined from the normative demanded in the activity that regulates it. Such illicitness of the act, should be examined from the normative of social coexistence and the legal which presides or should regulate the activity of the agent ( SSTS 1382/99, of 29 September (EDJ 1999/28079); 1893/2 001 of 23 October (EDJ 2001/36736); and 868/20 01 of 18 May (EDJ 2001/11762)). The agent of the fact should not be legitimately authorized for employing violence or intimidation ( SSTS 1379/97 of 17 November (EDJ 1997/10009); 427/20 00 of 18 March (EDJ 2000/2563); 131/20 00 of 2 February (EDJ 2000/3590); and STS 539/2009, of 21 May (EDJ 2009/112094)).”
Though, we have said that the crime of coercion is of subsidiary application with respect to the crime of illegal detention or kidnap, and the crime of threats, it is not less true that, the crime of coercion has also its characteristic elements, without which cannot be appreciated its concurrence. In its case, the characteristic in the crime of coercion is this physical or intimidating violence which can even be exercised through third persons, or the things. In order to exist an illegal detention, it is not necessary the exercising of violence, previously or during its commission, upon the passive subject, the important is that this had been locked up or detained. In the threats, can be argued that this violence concurs, at least in its intimidating form, but this characteristic, as we already saw, consists in the announcement of the causation of a future damage which serves to distinguish them from the coercions, in which the violence can be exercised upon the passive subject in a broader way.
In relation with such violence, the Provincial Court of Caceres´s sentence number 3072/2022 says: “In this point is convenient to remember that the interpretation that the jurisprudence has made of the demand contained in the article 172 of the Penal Code, insofar as it is referred to the employment of the violence, has considered included in the type not only the violent behavior of physical character but also the intimidating or moral (STS 660/2003 of 5 May), being like this that the concept of the “violent behavior” demanded in the activity carried out has been broadened with the time for including not only the “vis physical” but also the intimidation or “vis compulsory” or even the force upon the things or “vis in rebus”. The mere restriction 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 coercive means has to be adequate, effective, and causal with respect to the result wished (STS 843/2005, of 29 June).
The jurisprudence has supported the admission of the personal intimidation and even the violence through the things always that in some way it affects to the freedom to do or the capacity for acting of the passive subject, impeding to do what the law does not forbid or compelling it to do what it does not want. Thereby, it is said in the Sentence of 21 May 1997 that the acts of violence in the things may affect the freedom of the persons for the peaceful enjoyment of their rights without necessity of threats nor aggressions which will constitute punishable acts of another different type (SSTS 305/20 06, of 15 March; and 628/2008 of 15 October). Of not being like this, would be created spaces of impunity unacceptable, therefore as relevant for breaking the will is the employment of physical violence as another means which produces the same effect (STS 1191/2005, of 10 October).”
It is the use of such violence, in any of its forms what characterizes the subjective type of the crime of coercion. If the malice, in general and as we pointed out before, may be understood as knowing and willing the elements of the objective type of the crime, in the case of the coercions, according to the Provincial Court of Barcelona´s sentence number 13569/2022, such malice is characterized by: “comprehending no only the employment of the force or violence which breaks the alien will, but it is also necessary that this is the intention of the active subject, aimed to restraint in some way the alien freedom for subjecting it to the own wishes or criteria.”
As in the rest of crimes against the freedom, the special characteristics of the crime seem to exclude the cases of eventual malice, which as we said before, comprehends the scenarios in which the active subject of the crime represents to itself as probable the typical result, as consequence of an own action or omission, but despite this executes it. This case is even more clear than the cases of illegal detentions, therefore we can conclude, without being afraid of being wrong that, the crimes of either threats or coercion, always will be committed with the presence of direct malice and not of its eventual modality.
Now we shall analyze the article 172 in detail. In the first point of this article, is where we truly find the basic type of the crime of coercion. In it we are reflected the characteristic elements to which we referred before. Without being legitimated to it and making use of the violence upon another, to impede it from making what the law does not forbid or oblige it to make what it does not want, whether just or unjust. Therefore, the coercion has always to come from a not legitimate source, this is why a lot of people compare the states with authentic criminal organizations, since the only thing which distinguishes them from the last, is its capacity for exercising coercive measures upon its citizens, though backed by the legitimacy granted by the law. The second characteristic is that, the coercion has to be exercised by means of violence, with independence of the form which it may take, it may be physical, intimidating, or even being exercised through third person or things, besides, this violence has to have the enough intensity for being punishable according to the first point, if not, we will be before a minor offense of the third point of the article 172. And lastly, this unlawful violence, must be aimed to impede to another from making what the law does not forbid or oblige it to make what it does not want.
Lastly, the first point of the article 172 envisages two different scenarios, which are not included in the general rules for the application of the punishments of the articles 61 and following CP. The punishment envisaged for the crime of coercion may be applied in its superior half: 1) When the coercion is aimed to impede the exercise of a fundamental right, and; 2) When the coercion has as object to impede the legitimate enjoyment of the house.
If in the first point of the article 172 we find the basic type of the crime of coercion, where besides is defined the scope of the typical behavior, in the second point of the article 172 we find the first of its variables. This second point punished the mild coercions aimed to who is or has been wife of the active subject, or woman who has been bound to it by analogous relation of affectivity. In this case, the special characteristics of the passive subject of the crime, has made that the legislator punished more severely the coercions of this second point, than those of the point third of the same article 172, though both are classified as minor offences. There is who has argued that, for being applicable this special type the coercions have to express this feeling of domain of the man upon the woman. However, the Spanish Supreme Court has been clear regarding this, it is not necessary, being enough with being fulfilled the elements of the objective type, to carry out mild coercions upon who is or has been the wife or woman bound by analogous relation of affectivity. Regarding the above, the Provincial Court of Barcelona´s sentence number 14250/2022 says: “In the same sense, for example, the Resolution of 31 July 2013 from the Penal Chamber of the Supreme Court says with great clarity the following:
“In no way wanted the legislator to add a demand of intentional assessment for demanding the proof of a special intention of domain of the man upon the woman. This is already implicit with the commission of the penal type envisaged in the articles 153, 171 and 172 CP for concurring the special conditions and circumstances of the penal type. The concrete situation of greater or lesser inequality is irrelevant. The basic is the sociological context of imbalance between the relations: this is what the legislator wants to prevent; and what is more gravely punished though the author has a well-known convictions about the essential equality between man and woman or in the concrete case cannot be argued a physical or emotional imbalance.”
In the last point of the article 172, are punished the mild coercions, but in this case without taking into account the special conditions of the passive subject of the crime. Besides, in these cases, the crime of mild coercions can be only prosecuted at the request of the offended, what transforms it into a semi-public crime. The complicated will be to distinguish when we are before the simple coercions of the article 172.1 or the mild coercions of the second and third point of the article 172. According to the Spanish Supreme Court we have to attend to two factors for distinguishing between both: 1) The violence exercised, and; 2) The activity which is imposed by means of such violence or what is impeded from being carried out. Being the more relevant, the second. The Provincial Court of Madrid´s sentence number 331/2023 says: “As the jurisprudence points out, among others in the STS of 19 May 2008, “Our Penal Code defines the coercions in the quoted first paragraph of the article 172.1, in terms which are as much applicable to the crime punished in this norm as to the misdemeanor of the article 620.2º (now minor offences). The difference between both figures is of quantitative character: the grave coercions are crime and the mild coerciones are misdemeanor (now minor offences). In this definition of the article 172.1 we have to distinguish two elements: 1º The violence exercised which can be of physical character (just violence) or psychic, when intimidations or threats are used, being possible that it is even aimed against the things (vis in rebus), as happens when the lock of a door is changed for impeding the access to a home or premises, being possible its commission too, by means of third persons. 2º The activity which is imposed through this violence, or that which being legitimate is impeded from being carried out. These two elements has to be taken into account to measure this gravity for distinguishing between crime and misdemeanour (now minor offence). We have to take into account the greater or lesser entity of the concrete violence carried out; but even more we have to asses this second element which in the end is the characteristic and peculiar of this penal infringement: the behavior which is imposed, or that which is impeded from being done, has to be the data perhaps always more relevant for distinguishing the crime from the misdemeanor (now minor offences).»
Here we have to stop a moment to make a clarification. The mild coercions exercised upon wife, or woman who has maintained an analogous relation of affectivity with the active subject of the crime, only can be punished according to the second point of the article 172 when they are that, mild, otherwise it must be punished according to the first point of the same article.
But we have to continue, because this third point of the article 172 has a second paragraph. In it, are imposed special punishments when the victim of the coercions has been one of the included in the second paragraph of the article 173. In other words, when such victims are “who is or has been its spouse or upon person who is or has been bound with it by an analogous relation of affectivity even without living together, or upon the descendants, ascendants or brothers by nature, adoption or affinity, of the active subject of the crime or its spouse or live-in lover, or upon the minors or handicapped persons needed of special protection who live with it or who are subject to the legal authority, tutelage or guardianship of the spouse or live-in lover, or upon person protected in any other relation by who is integrated in the kernel of its family cohabitation, as well as upon the persons whom by their special vulnerability are subject to the custody of public or private centers.” But we have to be careful, because as we have already seen, we have to exclude from the above, the wife or woman bound to the active subject of the crime by an analogous relation of affectivity, because in this cases as we already saw, the minor offence is punished according to the second point of the article 172, and not according to the third. In these special cases, due to the concrete characteristics of the passive subject of the crime, it is not necessary its report for being prosecutable the crime, therefore we will be before a public crime.
3) The crime of harassment or stalking:
The crime of harassment or stalking was introduced in the CP, by means of the reform carried out of this by the Organic Law 1/2015. The point twenty-ninth of its exposition of motives says: “Also within the crimes against the freedom, it is introduced a new penal type of harassment which is aimed to offer an answer to behaviors of unquestionable gravity that, in a lot of occasions, could not be qualified as coercions or threats. They are all these cases in which, without announcing a future damage (threats) or the direct employment of violence for restraining the freedom of the victim (coercions), are produced reiterated behaviors by means of which is gravely harmed the freedom and feeling of security of the victim, who is subject to constant chasing and watching, reiterated phone calls, or another continuos acts of stalking.”
Therefore, the crime of harassment or stalking of the article 172 ter of the CP, came to cover a legal emptiness, which impeded that behaviors socially reproachable were punished. The introduction of this crime into the CP was a consequence of the Agreement of the Council of Europe for preventing and combating the violence against the women and the domestic violence signed in Estambul in 11 May 2011 which obliges the signing States, among them Spain, to punish the crime of “stalking” or harassment (art. 34 of the Agreement).
The STS 639/2022 of 23 June, reveals which is the legal good protected by the crime of harassment: “crime of harassment which protects the individual freedom and the right to live in peace and without anxiety.”
According to the article 172 ter: “1. Will be punished with the punishment of imprisonment from three months to two years or fine from six to twenty-four months who harasses one person insistent and repeatedly carrying out, and without being legitimately authorized, some of the following behaviors and, in this way, alteres the normal development of its daily life:
1ª Who follows, chases it or searches its physical proximity.
2º Who establishes or tries to establish contact with it through any means of communication, or any third person.
3º Who through the undue use of personal data, acquires products or goods, or contracts services, or makes that third persons enter into contact with it.
4º Who attempts against the freedom or against the patrimony, or against the freedom or patrimony of another person close to it.
When the victim is in a special situation of vulnerability by reason of its age, illness, disability or for any other circumstance, will be imposed the punishment of imprisonment from six months to two years.
- When the offended is some of the persons to which is referred the second point of the article 173, the punishment of imprisonment will be imposed from one to two years, or community services from sixty to one hundred and twenty days. In this case will not be necessary the report mentioned in the fourth point of this article.
- The punishments envisaged in this article will be imposed without prejudice of those which may correspond to the crimes in which were concreted the acts of harassment.
- The facts described in this article are only prosecutable through report of the offended or its legal representative.
- Who, without the consent of the owner, uses its image for making advertisements or opening false profiles in social networks, pages of contact or any means of public diffusion, provoking a situation of harassment, stalking or humiliation in the victim, will be punished with the punishment of imprisonment from three months to one year or fine from six to twelve months.”
In the first point of the article 172 ter, we find defined in which consist this crime of harassment or stalking. According to the Provincial Court of Burgos´s sentence 1064/2022, its elements has been summarized by the jurisprudence as follows: “a.- As first element, there has to exist a harassment to one person carrying out insistent and repeatedly some of the behaviors described in the own article 172 ter of the Penal Code.
b.- As second element, the reiteration of behaviors has to be referred to any of the four modalities of commission defined in the own article 172 ter of the Penal Code: “Who watches one person, chases it or search it physical closeness. 2. Who establishes or tries to establish contact with it through any means of communication, or by means of third persons. 3. Who acquires products or goods or contracts services through the undue use of personal data, or makes that third persons enter into contact with it. 4. Who attempts against its freedom or patrimony, or against the liberty or patrimony of a person close to it.”
On the other hand, the Provincial Court of Burgos´s sentence number 1064/2022 says in relation with this crime: “In this first approaching to the new penal type, the Supreme Court establishes that the behavior for being a crime has to have vocation of being prolonged in the time, the enough for provoking an alteration in the daily life of the victim, as is said by the penal type, until the point that are not enough some episodes, more or less intenses or, more or less numerous but concentrated in a few days and without continuity, which besides, do not suppose an affectation in the habits of the victim.
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Consequently, this crime is defined by the following features or elements: a) The activity has to be insistent. b) It has to be reiterated. c) As negative element of the type it is demanded that the active subject is not legitimately authorized to do it. d) It has to provoke a grave alteration in the life of the victim.
Certainly, the penal type does not concrete the number of intrusive acts which may give rise to the penal type, but they have to fulfill two requisites: a) Repetitive in the moment into which it is initiated. b) Reiterative in the time, for being repeated in different sequences in different times.
To this we have to add the consequence that this provokes a grave alteration in the daily life. For that must be understood something qualitatively superior to the mere troubles. Though the penal type is not precise, it is obvious that it is a crime of result insofar as it is demanded that the referred behaviors directly cause a transcendent limitation in some of the aspects integrating the freedom to do of the passive subject, either in the capacity to decide, or in the capacity of acting according to the already decided.”
Therefore, in the crime of harassment or stalking, what distinguishes it from the coercions punished in the article 172 is that, has to be carried out any of the four behaviors described in the first point of the article 172 ter, and besides, they have to be repeated during a long period of time, in a way which alters the daily life of the passive subject of the crime, without being necessary a determined number of reiterations or a minimum period of time.
In the second point of the article 172, it is increased the punishment for this type of crime, when the passive subject of the crime is any of the persons enumerated in article 173.2 of the CP, in whose case will not be necessary the report of the offended either. On the contrary, when the offended is not a person of those mentioned in the article 173.2, the offended has to initiate the criminal procedure by report or lawsuit.
On the other hand, in the third point of the article 173 is specified that, the crime of harassment or stalking will be punished separately from the crimes into were concreted the crimes of harassment and stalking. Thus, in such cases we will be before a real concurrence of crimes of the article 73 CP, and not of norms of the article 8.3 CP. This is what is saying to us the third point of the article 172 ter.
Finally, in the fifth point of the article 172 ter, is punished a mild case of harassment or stalking, not defined previously in the first point of this article. We say that it is a mild case, since its punishment is inferior than the envisaged in the first point. In it is punished, “Who, without the consent of the owner, uses its image for making advertisements or opening false profiles in social networks, pages of contact or any means of public diffusion, provoking a situation of harassment, stalking or humiliation in the victim, will be punished with the punishment of imprisonment from three months to one year or fine from six to twelve months.”
4) The other two specific cases of coercion regulated in this chapter:
In the chapter dedicated to the coercions there exist another two articles which regulate specific cases of coercion, though like in the above cases, in general terms the legal good protected by such articles will be still the same.
The article 172 bis says: “1. Who with grave intimidation or violence compels another person to wed will be punished with a punishment of imprisonment from six months to three years and six months or with fine from twelve to twenty-four months, taking into account the gravity of the coercions or the means employed.
- The same punishment will be imposed to who, with the goal of committing the facts mentioned in the above paragraph, uses violence, grave intimidation or deception for forcing other to leave the Spanish territory or to not return to it.
- The punishments will be imposed in its superior half when the victim is a minor of age.
- In the convictions for the crime of forced matrimony, besides the pronouncement corresponding to the civil liability, there will be the necessaries concerning the declaration of nullity or dissolution of the matrimony and about the affiliation and setting of alimony.”
Therefore, in the article 172 bis are regulated two different scenarios: 1) Who with grave intimidation or violence compels another person to wed, and; 2) Who with the goal of obliging another person to wed, uses violence, grave intimidation or deception for forcing it to either leave the Spanish territory or not return into it.
The first scenario is clear, but the second is not as clear as the first. The later seems to be aimed, to who obliges one person to leave the Spanish territory for wedding in another country.
The other case of coercions is envisaged in the article 172 quater, which says: “1. Who for hindering the exercise of the right to the voluntary interruption of the pregnancy harasses a woman through annoying, offensive, intimidating or coercive acts which damage the freedom, will be punished with the punishment of imprisonment from three months to one year or community services from thirty to eighty days.
- The same punishments will be imposed to who, in the way described in the above point, harasses the workers of the sanitary ambit in its professional exercise or public function and the medical staff or executive of the centers habilitated for interrupting the pregnancy with the object of hindering the exercise of their profession.
- Taking into account the gravity, the personal circumstances of the author and the concurring in the carrying out of the fact, the court may impose, besides, the prohibition of going to determined places for six months to three years.
- The punishments envisaged in this article will be imposed without prejudice of what may correspond to the crimes into which were concreted the acts of harassment.
- In the prosecution of the facts described in this article will not be necessary the report of the person offended nor of its legal representative.”
Hence, in it are punished the coercions aimed to hinder that the women exercise their right to the voluntary interruption of the pregnancy. The passive subjects of the crime can be two kinds of persons: 1) The own pregnant woman, and; 2) The workers of the sanitary ambit, medical staff or executive of the center habilitated for interrupting the pregnancy.
5) Possible affectations of the accusatory principle:
Throughout the present writing, we have seen how slim is the line which separate each of the crimes included in the Title VI of the Book II of the CP, for all of them attempt against the same legal good, the right to freedom recognized as a fundamental right in the article 17.1 of the CE.
Summing up, we have said that the characteristic of the crime of illegal detention and kidnap is the way in which such right to freedom is affected, because what is restrained in this case is the right to the freedom of movement. Moreover, the illegal detention and kidnap are also different, since in the kidnap is demanded the fulfillment of a condition to the passive subject or a third person, for allowing it to recover its freedom.
We also have said that, in the case of the threats, the characteristic is the announcement of the causation of a future damage to the passive subject of the crime.
These are the determining elements for distinguishing both crimes, from the more generic crime of coercion, which in general terms consists in using the violence for impeding from making what the law does not forbid or obliging to make what is not wanted, but without depriving of the freedom of movement or announcing a future damage.
Furthermore, we have also seen how little is the difference existing between the crime of coercion and the crime of harassment. The crime harassment or stalking has to be materialized in any of the four behaviors described in the first point of the article 172 ter, and besides, they have to be repeated during a long period of time, in a way which alters the daily life of the passive subject of the crime, without being necessary a determined number of reiterations or a minimum period of time.
This complexity for distinguishing a penal type from another, may create problems for possible disparities between the writing of provisional accusation and the writings of definitive accusation, and between the last and the sentence. For in these cases it is said that, the accusatory principle may be infringed.
The Spanish jurisprudence says that the criminal procedure is of progressive crystallization. The first thing which marks the object of the procedure, is the committal for trial in the ordinary procedure (art. 384 LECrim) and the imputation in the abbreviated procedure (art. 775 LECrim). In both cases, such acts delimit the ambit of the investigation of a crime or crimes.
The next milestone, which defines even more the object of the procedure, is the resolution of transformation to the abbreviated procedure (art. 779.1.4º LECrim) in the abbreviated procedure, for in it, the examining magistrate motivates the existence of evidences of the commission of a crime or crimes for justifying the opening of the intermediate stage of the procedure, and the writings of provisional qualification of the crime of accusation and defense in the ordinary procedure (art. 650 LECrim). Although it is true that, in the abbreviated procedure there are also writings of provisional qualification of the crime (art. 780 and following LECrim), them have to respect the limits of the resolution of transformation to the abbreviated procedure, something which does not happen in the ordinary procedure, where there is not a comparable resolution except for the above mentioned committal for trial, but this is agreed at the beginning of the stage of investigation, and not at the end as the resolution of transformation to abbreviated procedure.
After the intermediate stage of the procedure, where the accusation accuse and the defense defends itself through the writings of provisional qualification of the crime, the oral trial is open. During the oral trial is practiced the proof that the parties have proposed in their writings of provisional qualification of the crime. Only the proof practiced according to the principles of immediacy, orality, contradiction and publicity, is able to destroy the presumption of innocence of the accused, with the exception of the preconstituted or anticipated proof (art. 714 y art. 730 LECrim).
Depending on the result of this proof, the parties will qualify again the facts, this time in their writings of definitive qualification of the crime (art. 732 y art. 788.4 LECrim). These writings of definitive qualification of the crime are the really relevant when we have to asses if a sentence has infringed the accusatory principle. Among other things, because if there exist a truly transcendent change in the accusation´s writings of definitive qualification of the crime, with respecto to its provisional writing of qualification of the crime, the defense is obliged to solicit the suspension of the oral trial (788.5 LECrim) for requesting the practice of new proof which may allow it to defend itself from such changes.
It is between the writings of provisional qualification of the crime and the sentence, where must to exist the due correlation. The sentence cannot convict for facts which do not appear in the writings of definitive qualification of the crime, nor can it impose a greater punishment than the requested by the accusation, and between the crimes requested by the accusation and the finally included in the sentence has to be homogeneity.
Once we have clear the above, let us see what is said by the Provincial Court´s of Madrid’s sentence number 563/2023: “As the SSTS 359/2019 of 15 July and 184/2019 of 2 March point out, “the accusatory principle in the framework of a system which demands the absolute separation between the functions of accusing and judging, with the object of preserving the impartial position of the Court, supposes that no one can be convicted without having been formally accused.
In other words, the conviction presupposes an accusation carried out by someone different from the Court which judges. To this is added, though in relation with the right of defense, that the accusation has to be formulated in such conditions that the accused can defend itself from it. Though it is not expressly established in the Constitution, the Constitutional Court, in its sentences number 17/1988, 168/1990, 47/1991, 14/02/1995 y 10/10/1994 has developed a constant doctrine which is reflected, among others, in the Resolutions of this Chamber of 14 February 1995, 14 March, 29 April and 4 November 1996, and which is as follows “the rights to effective legal protection, to be informed of the accusation and a procedure with all the guarantees which are recognized in the article 24 CE, bring to think that this precept envisages the accusatory principle in all the penal procedures, in such a way that no one can be convicted if there has not been an accusation against it, of which it has had the opportunity of defending itself in a contradictory manner, what obliges to the Court to pronounce itself about the terms of the debate as has been formulated by the accusation and defense. This means, besides, that has to exist a correlation between the accusation and the conviction ( STS number 1590/1997, of 30 December). To this has to be added that the principle accusatory demands: a) that the accused has to be duly informed of the accusation; b) that between the fact object of accusation and the one which support the conviction have to exist homogeneity; and c) that the qualification legal-penal does not vary, except when, maintaining the homogeneity, the change is in favor of the accused. Summing up, the Judge or Court must respect the terms of the accusation, except in the exceptional cases of identity of fact, unequivocal homogeneity, and the same punishment or less severe; or that the punishment imposed does not surpass the gravity of the solicited by the accusation, that are not varied the facts object of it, and the crime for which is convicted has the due relation of homogeneity with the accused.”
Now let us apply all what we already know to a concrete case. Let’s guess that, the accusation qualifies the crime as illegal detention, but the judge or court finally qualifies them as coercions, for considering the detention did not last the time necessary. In this case, there would not be a infringement of the accusatory principle according to the rules we have seen.
The same will happen, if the accusation qualifies the facts as coercions of the article 172, but the judge or court finally convict for harassment or stalking of the article 173 ter. Always that there exist homogeneity between the crimes established in sentence and the requested by the accusation (the same legal good protected), are respected the facts described in the writings of definitive qualification of the crime by which there is a conviction, and punishment is not greater than the requested by the accusation, there will not be an infringement of the accusatory principle.
Víctor López Camacho.
Twitter: @victorsuperlope.
More on my website: www.victorlopezcamacho.com