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With the last major reform of the Penal Code(Organic Law 1/2015), a crime that already existed in other legal systems such as the German one, on which the current regulation in our country is based, was incorporated into it, but which was necessary to include due to the increase in unquestionably serious conducts that, because they did not constitute crimes of threats or coercion, could not be punished until this moment.
WHAT IS THE BEHAVIOR THAT IS PUNISHED?
The crime of "stalking", according to article 172 ter of the Penal Code, consists of illegitimately harassing a person in an insistent or repeated manner, seriously altering the development of his or her daily life.
From this definition we can extract the requirements that will make up the crime, since not all harassment behaviors can be considered criminal, but only persistent harassment will be criminal, without determining the number of occasions that are necessary to constitute the crime, although the most authoritative doctrine is inclined to understand that we will find ourselves before this crime when we find ourselves before a "behavioral pattern" with a vocation of endurance.
In addition, the criminal code requires that the harasser is not legitimately authorized to do so, so that conduct that could be justified on the basis of the legitimate exercise of a right, office or position, or because of an administrative or judicial authorization (for example, police surveillance as part of an investigation or ordered by a judge for the verification of certain conduct) cannot be punished.
Finally, it is required that the daily life of the victim be altered, which implies that it must be so serious that the person harassed must lead the victim to modify his or her daily habits or customs.
Regarding the types of harassment, Article 172 ter describes four types of conduct:
1. Surveillance, pursuit or seeking the physical proximity of the victim (whereby it would be sufficient to remain close to the victim without requiring physical or verbal contact). This type of commission would also include surveillance through electronic devices.
2. Establishing or attempting to establish contact with the victim through any means of communication or through third parties. (This involves communication through the most common means of communication - email, telephone, social networks, etc. - as well as other less common ones, such as leaving messages on the windshield of the victim's vehicle).
3. Using the victim's personal data to purchase products or contract services, or have third parties contact the victim (this refers for example to the person who places an advertisement with the victim's telephone number offering sexual services).
4. Attempting against the freedom or property of the victim or any person close to him/her (by graffiti on the victim's home, for example).
IS IT NECESSARY TO FILE A COMPLAINT?
These conducts may only be prosecuted if there is a prior complaint from the aggrieved person or his legal representative, although this has exceptions in which any person who knows of the crime may report it: when the victim is one of those described in Article 173.2 of the Code (who is or has been the spouse of the harasser, or his partner (even without cohabitation), or is a descendant, ascendant, or sibling, either of the perpetrator or his partner, or who is integrated within the nucleus of family cohabitation or who due to his special vulnerability is subject to guardianship or custody in public or private centers).
WHAT IS THE PENALTY FORESEEN FOR THESE CONDUCTS?
The crime of "stalking" carries a penalty of three months to two years or a fine of six to twenty-four months, although if the victim is a particularly vulnerable person due to age, illness or situation, the penalty to be imposed will always be imprisonment, in this case from six months to two years, without the imposition of a fine.
In the case where the victim is one of those referred to in Article 173.2 above, the penalty shall be higher: imprisonment for one to two years or alternatively community service for 60 to 120 days.
It is important to note that the crime of harassment to which we are referring does not absorb the possible related crimes (threats, coercion, damages...) which will be punished separately as expressly prescribed in Article 172 ter in its point 3.
