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“Of the extortion”, is how is entitled the Chapter III, of the Title XIII, of the Book II, of the Spanish Penal Code (CP). Being placed within the Title XIII, it is a chapter which has as object the protection of the legal good patrimony, however, due to its special qualities it is affected another legal good of great importance, the liberty.
It is not a long chapter, since it is formed by only one article, the article 243, where are described the objective and subjective elements, where we find the punishment which should be imposed to who commits the typical behavior, and where there are no either aggravated or attenuated subtypes. We are going to focus ourselves in the study of this article 243, and as such, in the study of the crime of extortion, but in order to carry this out correctly we are going to analyze the way in which it is connected with other important crimes: the threats, robberies, illegal detentions, coercions and the arbitrary exercise of one’s own right. All with the intention, of learning how to distinguish them.
1) Article 243:
First, let us see the exact content of the article 243, for later analyzing each of its elements.
“Article 243.
Who, for profit, compels another, with violence or intimidation, to carry out or omit an act or legal transaction in prejudice of its patrimony or of a third, will be punished with the punishment of imprisonment from one to five years, without prejudice of those which may be imposed for the acts of physical violence committed.”
After reading the article, let us study the objective elements of the type. The typical action consists in compelling “another, with violence or intimidation, to carry out or omit an act or legal transaction in prejudice of its patrimony or of a third.”
In this “to compel”, we find the essence of the crime of extortion, for the active subject of the crime tries to obtain the collaboration of the passive subject for making him to carry out an act or legal transaction in his own prejudice or of a third. The Dictionary of the Royal Academy of the Spanish Language (RAE´s dictionary) says that “to compel” means: “To move or to drive to make or fulfil something, to oblige, to bind.” How is obtained this collaboration by the active subject from the passive subject?, what does the passive subject drive to make or fulfill what the active subject requests? The violence or intimidation carried out by the latter, other of the essential elements of the objective type.
The Spanish Court´s doctrine has identified the crime of extortion as a crime of “cut result” (this is a literal translation from the Spanish), in other words, it is consummated as soon as the violence or intimidation of the active subject, makes active subject to carry out or omit an act or legal transaction in prejudice of its patrimony or of a third, without being necessary the patrimonial enrichment of the active subject. The Spanish Provincial Court of Jaen´s resolution number 892/2008 says: “In the Spanish Supreme Court´s sentence number 892/2008, of 22 December, the Spanish Supreme Court´s establishes that “unlike the robbery, the typical structure of the crime of extortion varies demanding an essential collaboration (crime of encounter) of the passive subject with the aim of facilitation the drafting or delivery of the document incorporating an economic value; economical prejudice which is not necessary that it has been effectively produced, for it is a crime of “cut result”. The consummation is produced as soon as is achieved the carrying out or omission of the act or legal transaction (art. 243 CP), with the quoted purpose of profit and purpose of defrauding, hence any subsequent act not pertains to the commission of the infringement, but to its stage of exhaustion (Spanish Supreme Court´s sentences number 1050/98 of 18 September; 1382/99 of 29 September). And, in the same sense, in the Spanish Supreme Court´s sentence number 1022/2009 of 22 October, is established that, “the penal type is consummated once exercised the violence or intimidation and achieved the aim coveted, which is the carrying out or omission by the victim of the at or legal transaction (in other words, an action with efficacy in the legal traffic of any nature with economic meaning)”, later adding that “in the extortion the effective obtention of the profit pertains to the stage -penally irrelevant- of the exhaustion and not the criminal consummation.”
Then, in the cases in which the passive subject does not carry out or omit, the act or legal transaction in prejudice of its patrimony or of a third, but there does have been violence or intimidation for carrying it out or omitting it, we are going to be before an attempt, punished too, according to the rules of the article 16 CP. The Spanish Supreme Court´s sentence number 55/2023 says: “In this way it is advanced the moment of the penal intervention to the damaging of the freedom or will of the subject and to the risk for the patrimony. The attempt will be possible, then, when after using the violence or intimidation the victim uses its margin of will for deciding not to yield to the pression and not to carry out the act or legal transaction. It is precisely in this space of freedom where is left the subject where we find one of the differences with the robbery. The extorted has an opportunity of defense that the victim of robbery does not have.”
Then, we can conclude from the above that, the act of compelling by means of violence or intimidation upon the passive subject for subduing its will with the end of obtaining a profit, is what constitutes the kernel of the behavior analyzed.
According to the Spanish Provincial Court of Jerez de la Frontera´s sentence number 708/2021: “In accordance with the Spanish Supreme Court, by intimidation has to be understood the announcement of an immediate damage, grave and possible, susceptible of inspiring fear, which is not only limited to the employment of physical means or weapons, words or threatening acts are suitable depending on the circumstances of the intimidated person.”
Or the Spanish Provincial Court of Valladolid´s sentence number 1477/2020: “The intimidation is of psychic nature and needs the employment of any strength of coercion, threat, frightening with a rational and founded damage (Spanish Supreme Court´s sentences number 1382/1999, 1583/2002 of 3 October.)”
In order to define what we should understand by violence, we do not have any example from the jurisprudence, but in these cases we can always make use of the RAE´s dictionary. According to this dictionary “violence” means: “Action and effect of forcing”. And “to force”: “To apply violent means on things or persons for subduing their resistance.” Then, for violence we should understand, the employment of physical aggressions, or even aggressions on things, for controlling the will of the passive subject.
Regarding, the nature of the act or legal transaction which should be carried out by the passive subject. Currently, the courts have not imposed any specific requisite, being possible any act or legal transaction, which effectively damages the patrimony of the passive subject or of a third. The Spanish Provincial Court of Murcia´s resolution number 1251/2021: “To this end, the Spanish Supreme Court´s sentence of 26 April 2002 marks the difference with the jurisprudential doctrine corresponding to the former CP, which demanded the effective subscription of a public deed or document, whereas for the current, the extortion is committed always that is employed violence or intimidation for obliging to other to carry out or omit some act or legal transaction in prejudice of its patrimony or of a third, without necessity of subscribing any document.”
Let us now analyze the subjective type of the crime. The first that the article 243 says us is that, there has to exist profit intent, indeed, the active subject has to carry out the acts of violence or intimidation with the intention of obtaining an unjust enrichment.
Concerning the legal good, as we already said it is the property, but also the freedom, since there must be violence or intimidation for subduing the will of the passive subject, in order to obtain its collaboration in the act or omission which damages its patrimony or of a third.
Besides, the article 243 ends saying: “without prejudice of those which may be imposed for the acts of physical violence committed”. This implies that, the acts of violence have to be punished independently of the crime of extortion committed, in other words, there will be a real concurrence of crimes which should be punished according the rules of the article 73 CP, in spite of the medial character which may have had the acts of aggression with respect the crime of extortion.
With the help of the Spanish Provincial Court of Murcia´s resolution number 610/2021, we can sum up the elements of the crime of extortion as follows: “The sentence of the First Section of the Provincial Court of Mallorca of 15 March of 2010 tells us that “the jurisprudence fixes that the elements which constitute the crime of extortion are: a) the behavior of obliging a person to carry out or omit a legal transaction, without being necessary to identify this legal transaction with an act of disposition, though it should have patrimonial content; 2. The violence or intimidation as a means of compelling; 3. A prejudice in the patrimony of the compelled or of a third, though it is specified that it is not necessary that this has to be finally produced, since the crime is consummated with the carrying out of the legal transaction, though this does not produce the result; and 4. The profit intent which, though generally is built in relation with the patrimonial prejudice, it should be understood with the wideness with which the doctrine builds this intent in all the crimes.”
Let us see some examples of extortion, provided by the jurisprudence of the Spanish courts:
Spanish Provincial Court of Valladolid´s sentence number 1477/2020: “In the case here tried, taking into account the proven facts, it is observed that in a broad period of time the accused provokes meetings and encounters with the victim, with the intention of obtaining an illicit economic benefit, demanding the delivery of money, all of them employing intimidation by threatening with beating up him and his father if he did not yield to it, what effectively caused a great fear in Juan Carlos.
The accused took advantage for these purposes of the intellectual disability of the victim, knowing that for that reason he could easily subdue the victim´s will through this threat. In this way, with an evident illicit profit intent, achieved that Juan Carlos inhibited by the fear collaborated in a way that he took money mainly from the sales of the tickets being Olmedo and later in Ataquines from his home or the bank account, under the mentioned intimidation.
Consequently, such behavior integrates, more than successive crimes of robbery with intimidation (alternative request of the public prosecutor´s office), a crime of extortion as has been described, being appreciated a criminal continuity (article 74 of the Penal Code) since a plurality of actions are carried out, concreted in the numerous encounters with the same victim who, due to the referred intimidation, delivered the amount of money demanded in each of them. Such behaviors form part of a plan previously conceived and are carried out taking advantage of the same circumstances for committing an offense, existing similarity in the execution of the typical actions. There exists too, the due normative homogeneity, for the different typical facts damage the same legal good: the alien patrimony.”
Spanish Provincial Court of Jerez de la Frontera´s sentence number 708/2021: “In the case the Penal Judge has had the clear and conclusive statement of the harmed matrimony, 80 and 82 years old each one, who indicated that the accused entered in their domicile after pushing the door and despite the negative of the elderly couple and that, also with their opposition, reviewed the installation of the gas and compelled them, with his only behavior and presence, to sign the budget of repair and the contract of maintenance.
These statements are endowed for this Judge and this Chamber with all the guarantees enough for destroying the presumption of innocence, since there is no subjective incredibility derived from the relation victim-accused, which may suppose the existence of resentment or enmity, of their truthfulness and of the persistence in the incrimination, without ambiguities and contradictions of substantial character.
Taking into account all the above, we consider that the proving assessment carried out by the trial judge is correct, logical, rational and coherent with the means of proof practiced in his presence. There existed an intimidating behavior of the accused towards the complainants since he imposed, with his presence in the domicile and with his hostile and compelling behavior, a service and the signing of a contract, disregarding the objections of the complainants who were compelled to accept the impositions of the accused in order to achieve his leaving from their domicile, and as consequence of their fear to his reaction perturbing in this way their will. Concurs, thus, the subjective element of the crime of extortion which the appellant questions.”
Spanish Provincial Court of Sevilla´s sentence number 2537/2021: “We considered accredited the crime on extortion in relation with Balbino. It has been proven that the aggression suffered in a context of illegal detention forms part of the violence and intimidation utilized for the execution of a crime of extortion. As Balbino declared at the beginning they sought information about the destination of the drug, for later claiming a compensation for the damages caused even quantifying this in 80.000 euros, which later was diminished to 40.000 euros or 20.000 euros, as Balbino told us during the oral trial and only after offering the land deeds property of his wife for paying the due amount and bringing them to the domicile where his partner was still being beaten and retained, was him allowed to leave it, not Bienvenido who continued there.
We see how Balbino was forced, obliged to hand over a document that incorporates an economic value from which results a prejudice for the passive subject or a third, -his wife in our case-, economic value which given by Cosme when he requested days later to Fermin the carrying out of the pertinent arrangements aimed to the viability of the operation, which were materialized in his visit to the land, although finally these does not yield the result desired by Cosme.”
2) Comparison of the crime of extortion with others of similar nature: Robbery with violence or intimidation against the persons, threats, coercions and the arbitrary exercise of one’s own right. And a brief commentary about the accusatory principle.
Robbery with violence or intimidation against the persons (art. 242 CP):
In both crimes, in the crime of robbery with violence or intimidation against the persons and in the crime of extortion, there exist an important common element, the profit intent, of obtaining an unjust benefit, this is what drives the active subject to commit the crime.
On the contrary, the way in which is developed the action of patrimonial appropriation in both crimes, is different altogether. We said that, in the crime of extortion is demanded from the passive subject by the active subject an essential collaboration, and therefore, it is a crime of encounter, the violence and intimidation exercised by the latter has the aim of provoking that the passive subject carries out or omits an act or legal transaction in prejudice of his patrimony or the patrimony of a third.
On the other hand, in the robbery, the violence or intimidation exercised by the active subject does not have the aim of making the passive subject to carry out or omit an act or legal transaction, it simply has the aim of subduing the resistance of the passive subject for directly taking the movable property, without necessity of a previous, current or subsequent collaboration from the passive subject.
Let us see a couple of examples:
Spanish Provincial Court of León´s sentence number 735/2023: “The Chamber does not consider either that has been committed by the accused a crime of robbery with violence or intimidation, but of a crime of extortion since both crime distinguishes themselves not only by the material object but namely by their different “modus operandi” in so far as in the robbery, either with force on the things or violence and intimidation, the subject takes possession directly of the thing, while in the extortion the action is aimed to achieve the carrying out or omission by the passive subject of an act or legal transaction in prejudice of its patrimony or of a third, in other words, it is a complementary action between both subjects, where the active pretends the carrying out or omission of an act or legal transaction apparently valid, though null, since in the robbery is not necessary any collaboration for the active subject directly and physically takes the movable property from the alien property.”
Spanish Provincial Court of Murcia´s resolution number 1251/2021: “As the jurisprudence remember us, the doctrine made it look like a modality of robbery, however, this comparison does not seem the most accurate since the modus operandi is different altogether. In this criminal modality it is acted with force on the things or violence or intimidation for having directly access to the alien patrimony, while in the extortion the way of acting consists in a physical or intimidating threat aimed to achieve, by means of an act or legal transaction, which evidently would be wholly null, an own economic benefit. If we center our attention in this typical element, to compel other to carry out an act with violence or intimidation, we connect in a natural way with the types of the crimes against the freedom, coercions and threats. In the end, the essence of the crime consists in obliging other, by the coercive means, to carry out what he does not want. Confirmed the existence of the coercions for a profit is discarded the transformation of the facts into a crime of threats.”
The threats (art. 169 and following CP):
The threats are located within the Title VI, along the rest of the crimes against the freedom, the coercions and the illegal detentions and kidnaps. However, we cannot be misled so easily by this data, the extortion shares important elements with these crimes, since the violence and intimidation of the active subject is aimed to restrain the freedom of the passive subject, until his submission to the desires of the active subject.
Indeed, the extortion should be regarded as a specific kind of threat, only distinguishable from the latter thanks to its characteristic elements. In other words, always that the violence or intimidation is exercised by the active subject for obtaining the collaboration of the passive subject, in order to compel him to carry out or omit an act or legal transaction in prejudice of its patrimony or of the patrimony of a third, there will be extortion. On the contrary, always that the active subject threats with causing to the passive subject or any person related with him a harm, we are going to be before a threat, if this is not with the object of making the passive subject to carry out or omit an act or legal transition in prejudice of its patrimony or of the patrimony of a third, or even before a coercion if the restriction of the will of the passive subject is achieved by different means.
Let us see an example:
Spanish Provincial Court of Leon´s sentence number 735/2020: “the own threats and intimidations also of the extortion, cannot be punished as threats too for we would be before a duplicity (“ne bis in idem”) and, therefore, again there is a concurrence of norms (art. 8 CP), which should be punished according to the principle of specialty. A different question would have been if, for example, for achieving the granting of the legal transaction, the complainant had been attacked and he had had injuries, in whose case, besides the extortion he could have been convicted for injuries, for in this case we would be before a real concurrence of crimes.”
Coercions:
With the coercions happens the same that with the threats. The crime of extortion and the crime of coercions share the characteristic of the use of the violence or intimidation for subduing the will of the passive subject. However, the ambit of application of the crime of extortions is more limited, than the crime of extortion.
The Spanish Provincial Court of Madrid´s sentence number 6888/2020 says: “The crime of extortion is typified in the article 243, according to which:
“Article 243.
Who, for profit, compels another, with violence or intimidation, to carry out or omit an act or legal transaction in prejudice of its patrimony or of a third, will be punished with the punishment of imprisonment from one to five years, without prejudice of those which may be imposed for the acts of physical violence committed.”
And the crime of coercions in the article 172.1 CP:
“Who, without being legitimately authorized, impedes to other with violence to make what the law does not forbid, or compels him to make what he does not want, either just or unjust, will be punished with the punishment of imprisonment from six months to three years and fine from 12 to 24 months, depending on the gravity of the coercions and the means employed.”
Both crime share, as typical characteristics, the compelling to other, through violence or intimidation, for carrying out a behavior. The difference is in the end, more restricted in the extortion, for it is to carry out or omit an act or legal transaction and more generic in the coercions, of carrying out what is not wanted, either just or unjust (the pretended by the author, it is understood). It seems, then, that if we move in a negotiating ambit or of legal activity, the compelling to the other will be better placed in the extortion. Thus, it can be understood according to the criterion of the Spanish Supreme Court which points out that “there concurs differentiating factors, but also the circumstance (…), that the infringement described in the second precept (coercions), for its basic character, would be in some way comprehended in the first (extortion)” (Spanish Supreme Court´s sentence number 552/15 of 23 September and in the same sense “the violence or intimidation which is integrated by the Audience in the crime of coercions is likewise taken into account, as phenomenon of progression, for building the crime of extortion” (Spanish Supreme Court´s sentence of 27 January 2011. This is, the coercion would be consumed by the extortion. That said, the question of considering consumed the coercion by the extortion, which would remit to a mero concurrence of norms between both crimes for resolving in favor of the broader (according to the criterion of the article 8.3 CP), only acquires relevance if the rest of the typical elements of the coercion concur. These typical elements are, as we have pointed out “to carry out or omit an act or legal transaction in prejudice of its patrimony or the patrimony of a third.”
The arbitrary exercise of one’s own right:
As in the case of the coercions, in a specific way in the threats and in the crime of extortion, in the crime of arbitrary exercise of one´s own right there is also violence or intimidation. But this crime, has a characteristic element which distinguishes it from the rest, the violence or intimidation of the active subject is aimed at the repair of an unjust impoverishment, not existing profit intent like in the robbery or the extortion.
We have two good examples:
Spanish Supreme Court of Madrid´s sentence number 15823/2020. “The proven facts would fit in the figure envisaged in the article 455 of the Penal Code, the crime of arbitrary exercise of one´s own right. Concerning the purpose of carrying out one´s own right, subjective element of the unjust, the jurisprudence (Spanish Supreme Court´s sentences of 3 February 1981 and 26 February 1982) has understood that is not demanded profit intent, what marks the difference with the robbery (and with the crime of extortion which is now being analyzed). The intention of unjust enrichment presides the crime of robbery, while the article 455 of the Penal Code, seeks the reparation of the unjust impoverishment. Here, what the appellants wanted was to collect a debt previously assumed by the Sr. Bernabe. Or said in a different way, to repair an unjust impoverishment.”
Spanish Provincial Court of Madrid´s sentence number 6888/2020: “Said the above, however, it is not swindle the crime which the Chamber considers more adjusted to Law. Taking into account that the intention was to collect due debts, acquired by Dimas through the buying of the company SURTIDOS CÁRNICOS SL, its violent obtention was an arbitrary exercise and out of the legal means which corresponded him as creditor. This behavior, fits better in the crime of arbitrary exercise of one’s own right described in the article 455 CP. This precept states:
“Who, for exercising one´s own right, acting out of the legal means, employs violence, intimidation or strength in the things, will be punished with the fine from six to twelve months.”
The elements of this crime are described in the Spanish Supreme Court´s sentences numbers 520/17 of 6 July and 24/11 of 1 February:
a) the exercise of one´s own right; b) acting out of the legal means; and c) in danger of violence, intimidation or force on the things.
a) Regarding the purpose of exercising one´s one right, the subjective element of the unjust. The jurisprudence has understood that this determines the elimination of the profit intent and marks the difference with the robbery. The intention of unjust enrichment presides the crime of robbery, while in the article 455 CP (EDL 1995/16398), is sought the repair of an unjust impoverishment. Right which in any case, unlike it Italian model, should exist; what implies its acknowledgement by the legal system, in a way that if the cause is illicit the right is not born and its exercise by means of fact does not integrate this crime, but coercions or robbery.
The jurisprudence, regarding the previous penal legal relation, traditionally demanded that the author of the crime should be owner of a lawful, recoverable, and enforceable credit (Spanish Supreme Court´s sentence of 31 March 2000), with the current wording, it is also possible to apply this kind with respect to non-credit and non-obligational rights, as the real.
The sentence of 29 June 2009 applies this type to the injured worker who threats and beats the businessman, for pressuring him to the payment of the compensation.
In relation with this personal quality of the active subject, who has the condition of owner of the right, trying to be collected out of the legal means, through violence, intimidation or force on the things, this is who has the quality or condition of creditor, nothing impedes the participation of thirds according to the article 28.2 -necessary cooperator- or article 29 -accomplice- maintaining the imputation (Spanish Supreme Court´s sentence of 16 June 2006 of 18 November 2008). Therefore, departing from a common characteristic to the three criminal figures considered, the exercise of violence or intimidation for achieving the end, the CP delimits the ambit of application of each of them depending on whether it is pretended the carrying out of new legal transactions or the fulfillment of a pre-existing obligations or any other scenario. It seems, then, more adequate the application of the article 455 instead of the more generic coercions. There is another reason which justifies it and is that the crime of the article 455 CP is punished with less punishment than the crime of coercions, not being possible to worsen the position of the accused for the fact of being accused of a graver and more generic crime than the one which is best suited to his behavior.”
Accusatory principle:
Once we have clear the great similarities between the above crimes, we are obliged to talk about the accusatory principle. Such principle demands, in broad terms, that the defense should have the opportunity of knowing and, therefore, defending itself of the facts of which is being accused. In a way that, between the accusations´ writings of definitive qualification of the crime and the sentence should exist a correlation, though this should not be absolute, two limits have to be respected, the sentence could neither: 1) impose a graver punishment than the requested by the accusations, nor 2) convict for a different crime when this protects a different legal good or a substantial change of the fact tried. These limits, are the imposed by the article 789.3 of the Spanish Criminal Procedure Act (LECrim) for the Abbreviated Procedure, though we should understand them applicable to the rest of procedures.
The question is, can a judge or court convict for a crime of extortion if the accusation typified the facts as coercions? Or, can a judge or court convict for a crime of arbitrary exercise of one’s own right if the accusation typified the facts as extortion? Evidently, the question arises with any possible combination of the above crimes, but the answer is always the same, yes.
Yes, because, though the article 789.3 demands homogeneity between the legal goods protected by the crime by which someone is accused and crime by which someone is convicted, the interpretation which have made the courts and judges of this demand is much more flexible, giving all the importance to the essential similarity between the facts included in the accusations´ writings of definitive qualification of the crime, and the facts included in the sentence which serve as basis of the conviction.
But, careful, not all the judges and courts share this opinion, and though I have given the answer mostly followed by them, we can always find examples of the contrary. Here, we have two good examples of this:
Spanish Provincial Court of Madrid´s sentence number 15823/2020: “Reached this point, as the appellants manifest, in the writings of definitive conclusions, there was no accusation, either by the public accusation or the particular accusation, for the crime of arbitrary exercise of one’s own right of the article 455 of the Penal Code, being this a crime of different nature of the crime of extortion, having the latter an element which the former does not, the profit intent; being both articles regulated in different Titles and Chapter of the Penal Code, thereby not being homogeneous crimes, it is not possible to convict for a crime of arbitrary exercise of one’s own right, by virtue of the accusatory principle.”
Spanish Provincial Court of Madrid´s sentence number 6888/2020: “The typical difference between the extortion and the arbitrary exercise of one’s own right is that the former would be followed an end of illicit enrichment forcing the victim to carry out an act or legal transaction in prejudice of its patrimony and in the latter only would be pretended to obtain from the debtor the fulfillment of a pre-existing obligation with the author. Utilization either of violence or intimidation out of the legal means is inherent to both figures. Well then, in the current case, the facts imputed in the writings of accusation to the authors with respect to the two victims to whom we are referring contemplated the pre-existence of the debt and the demand by intimidatory means. Therefore, were known and discussed in the oral trial all these facts, which are typical elements that constitute the crime of arbitrary exercise of one’s own right.”
Víctor López Camacho.
Twitter: @victorsuperlope.
Más en mi website: www.victorlopezcamacho.com