THREATS

The crime of threats, regulated in articles 169 to 171 of the Penal Code, is characterized by the announcement of an evil by the perpetrator to the victim. This announcement of an evil does not require an express verbalization (for example, “I am going to kill you”), but it is sufficient that it can be deduced from the behavior of the perpetrator. For example, the Courts have considered as a crime the conduct consisting of leaving a box simulating a coffin at the door of the victim’s home (STS no. 292/2012).

Threats are conditional if the causing of the evil is conditional on the performance of an action or omission on the part of the victim (for example, if the perpetrator tells the victim that he will kill her if she calls the police). On the other hand, we are dealing with a non-conditional threat if the announcement of the evil is not accompanied by any condition.

Threats of a criminal wrongdoing

On the one hand, Article 169 of the Penal Code punishes a person who threatens another person with causing him, his family or other persons with whom he is intimately linked an evil that constitutes a crime of homicide, injury, abortion, against freedom, torture and against moral integrity, sexual freedom, intimacy, honor, patrimony and socioeconomic order.

What elements characterize this crime? As established by the Supreme Court, among many others, in STS No. 744/2022 of July 21, the essential elements of this crime are the following:

• The legal right protected is the freedom of the individual and the right to personal tranquility in the development of his life.
• It is a crime of simple activity, expression or danger, and not of real injury.
• The content of the crime is the announcement in facts or expressions, of causing to another an evil that constitutes a crime of those listed above, and announcement of evil that has to be serious and real and persevering, in such a way that it provokes social repulsion.
• The announced evil must be future, unjust, determined and possible, depending exclusively on the will of the perpetrator and produce intimidation in the threatened person.
• The specific intent consists of exerting pressure on the victim, frightening him or her and depriving him or her of his or her peace of mind.

The penalty applicable to this type of crime is:

1. A prison sentence of 1 to 5 years, if a threat is made by demanding an amount or imposing any condition (i.e., a conditional threat), even if the condition is not unlawful, and provided that the offender achieves his purpose.
2. If it is a conditional threat but the culprit does not achieve his purpose, the penalty is imprisonment from 6 months to 3 years.

In both cases, if the threat is made in writing, by telephone or by any means of communication, or on behalf of real or supposed entities or groups, the penalty is imposed in its upper half.

1. Imprisonment from 6 months to 2 years, if the threat is not conditional.

Article 170 of the Penal Code provides for an aggravated form of this crime, which is applicable when the threats described above are aimed at terrorizing any group of persons (for example, the inhabitants of a town), and are serious enough to achieve this, in which case the higher degree of punishment is imposed. Likewise, this precept punishes with imprisonment from 6 months to 2 years those persons who, with the same purpose and seriousness, publicly call for the commission of violent actions by terrorist organizations or groups.

Threats of a wrong not constituting a crime

On the other hand, art. 171.1 of the Penal Code punishes threats of an evil that does not constitute a crime, provided that the threat is conditional and that the condition does not consist of a due conduct. In this case, the facts are punishable with a prison sentence of 3 months to 1 year or a fine of 6 to 24 months, penalty to be imposed in its upper half if the offender achieves his purpose.

Paragraph 2 of this same precept punishes blackmail, i.e., cases in which the perpetrator demands from someone an amount or reward under threat of revealing or disseminating facts about his private life or family relations that are not publicly known and may affect his fame or interest. The applicable penalty is:

1. Imprisonment from 2 to 4 years, if the perpetrator obtains the delivery of all or part of what was demanded.
2. Imprisonment from 4 months to 2 years, if the perpetrator fails to deliver what was demanded.

In cases of blackmail, art. 171.3 of the Criminal Code contains a clause to promote the denunciation of the blackmailer. Specifically, it establishes that, if the blackmailer’s behavior consists of threatening the victim to reveal or denounce the commission of some crime, the Public Prosecutor may refrain from charging for the latter crime, in order to facilitate the punishment of the threat, unless it is a crime punishable by imprisonment for more than 2 years. In the latter case, the judge may reduce the penalty to the victim of blackmail by one or two degrees.

Minor threats

Article 171.7 of the Penal Code punishes the person who threatens another person in a minor way, with a fine of 1 to 3 months. This crime can only be prosecuted by means of a complaint by the victim or his legal representative.

However, if the victim is an ascendant, descendant or sibling of the victim’s own or of the spouse or cohabitant, any other person integrated in the nucleus of family cohabitation, or a person who due to his vulnerability is subject to custody or guardianship in a center, the penalty is permanent localization from 5 to 30 days (in a different domicile and far from that of the victim) or community service from 5 to 30 days, or a fine from 1 to 4 months. In these cases, the prosecution of the crime does not require a complaint from the victim.

In addition, a series of aggravated modalities are regulated:

1. On the one hand, a prison sentence of 6 months to 1 year or community service of 31 to 80 days (i.e., a greater penalty than that indicated in the previous paragraph) is imposed on the person who slightly threatens his wife or a woman who is or has been linked to him by an analogous relationship of affectivity, or a particularly vulnerable person who lives with him. In these cases, the penalty of deprivation of the right to possess and carry weapons from 1 year and 1 day to 3 years is also imposed and, in addition, the Judge has the power to apply the penalty of special disqualification for the exercise of parental authority, guardianship, curatorship, guardianship or foster care for up to 5 years.

On the other hand, art. 171.5 of the Penal Code regulates an aggravated form of the crime of minor threats when these are carried out with weapons or other dangerous instruments against descendants, ascendants or siblings or the spouse or cohabitant, persons integrated in the nucleus of family cohabitation, persons who, due to their vulnerability, are subject to custody or guardianship in centers. In this case, the penalty is imprisonment from 3 months to 1 year or community service from 31 to 80 days and, in any case, deprivation of the right to possess and carry weapons from 1 to 3 years. Likewise, the judge can impose the penalty of special disqualification for the exercise of parental authority, guardianship, curatorship, custody or foster care for a period of 6 months to 3 years.