At the outset of the analysis, it should be clarified that the cases examined by the law firm NURIA GRANDA Y ASOCIADOS concerning harassment refer to repeated conduct of harassment or pursuit that generates a significant disturbance in the daily life of the affected person. These types of behaviours, which may occur through multiple means — in person, by telephone, or through digital channels — constitute a form of psychological violence characterised by persistence and repetition.
The offence of harassment represents a criminal provision designed to protect individual freedom, personal tranquillity and the right of every person to carry out their daily life without illegitimate interference. The legal interest protected is therefore the individual’s freedom of personal self-determination and psychological security against persistent behaviour involving intimidation or surveillance.
The Legal Interest Protected
The legal interest protected in this offence is the freedom of personal self-determination and psychological security against persistent behaviour involving intimidation or surveillance.
Article 172 ter of the Spanish Criminal Code
Within the Spanish legal system, this offence is regulated in Article 172 ter of the Código Penal, introduced through the reform enacted by Organic Law 1/2015. The purpose of this regulation was to provide a criminal response to repeated acts of pursuit or harassment that, even without involving direct physical violence, create a situation of constant pressure capable of seriously disrupting the victim’s life.
The provision establishes that a person commits an offence when, in an insistent and repeated manner, and without being legitimately authorised, they carry out certain actions that seriously disrupt the development of the victim’s daily life.
The Essential Elements of the Offence
The legal structure of the offence requires the presence of several essential elements.
- First, there must be repeated conduct of pursuit or harassment: RRepetition constitutes a central element of the criminal offence, since the offence is not defined by a single isolated act but rather by the persistence of a series of behaviours that, taken together, generate a situation of pressure or intimidation.
- Second, there must be an absence of legitimate justification for carrying out such conduct. : The offender must act without a lawful reason that would justify the behaviour, which excludes situations involving the legitimate exercise of rights.
- Third, there must be a serious disruption to the victim’s daily life: TThis requirement implies that the harassment must produce a real impact on the life of the affected person, forcing them, for example, to modify their routines, avoid certain places, change habits, or adopt measures to protect their safety.
- Finally, the offence requires the presence of intent on the part of the offender: his means that the individual must act with knowledge and willingness to engage in repeated acts of harassment, being aware of their disturbing nature.
Behaviours that Constitute the Offence of Harassment
Article 172 ter of the Código Penal identifies several forms of conduct that may constitute the offence of harassment. These include:
- The surveillance, pursuit or seeking of physical proximity to the victim.
- The establishment or attempted establishment of contact with the victim through any means of communication.
- The misuse of the victim’s personal data in order to purchase goods or contract services in their name.
- The performance of acts affecting the victim’s personal, family or professional environment.
Harassment in the Digital Environment
These behaviours may occur both in the physical sphere and within the digital environment, with cases of harassment through social networks, instant messaging applications and electronic mail becoming increasingly common.
Penalties for the Offence of Harassment
The penalties established for the basic form of the offence consist of imprisonment from three months to two years or a fine from six to twenty-four months. However, the legislator has provided for aggravating circumstances that may increase the criminal penalty.
Among these circumstances are cases in which the victim is particularly vulnerable due to age, disability, or personal situation, as well as cases where there has been or is an existing emotional relationship between the offender and the victim.
Aggravated forms are also considered when harassment occurs within the context of gender-based violence or when the victim belongs to a category particularly protected by the legal system, such as minors.
There are also aggravating circumstances when harassment occurs in the context of gender-based violence or when the victim is a person particularly protected by the legal system, such as minors.
The Evidentiary Process in Harassment Cases
From an evidentiary standpoint, proceedings for the offence of harassment present significant particularities. Unlike other offences, it is necessary to prove the repetition of the reported behaviours and their impact on the victim’s daily life.
The necessary evidentiary elements are:
- Call records
- Text messages
- Communications through social media
- Emails
- Testimonies from the victim’s social environment
The Importance of Context in the Analysis
Case law has established that the serious disruption of daily life constitutes a key element in distinguishing between socially annoying behaviour and conduct that is criminally relevant. Not every persistent or bothersome behaviour constitutes harassment from a criminal law perspective; the conduct must generate a significant level of disturbance or intimidation.
In legal practice, analysing the prior relational context between the parties is essential. The existence of previous conflicts, terminated romantic relationships or personal disputes may represent a relevant factor for understanding the origin and evolution of the reported conduct.
Likewise, examining the frequency, intensity and duration of the harassing behaviour allows courts to determine whether the legal requirements of the criminal offence are met.
Intent and Criminal Responsibility of Minors
From a subjective standpoint, the offence requires intent, meaning that the perpetrator must be aware that their actions form part of a repeated pattern of harassment. The mere occurrence of isolated acts or negligent behaviour is insufficient to establish the offence.
In cases where the alleged offender is a minor, criminal responsibility is governed by the specific legislation applicable to juvenile offenders, which replaces custodial penalties with educational measures aimed at rehabilitation and social reintegration.
Finally, professional experience demonstrates that criminal proceedings related to the offence of harassment require a thorough analysis of the available evidence, as well as a detailed assessment of the real impact that the reported conduct has had on the life of the affected person.
Conclusion
The distinction between an interpersonal conflict or socially reproachable behaviour and conduct that is criminally relevant always requires a rigorous legal analysis, contextualised and based on the criteria established by case law.