On 11 March, in STS 235/2024, the Supreme Court ruled on the concept of intimidation as a result of the well-known “Ausbanc case“, stating that not all pressures that arise in negotiations reach the level of intimidation necessary to constitute the crime of extortion, as defined in article 243 of the Penal Code.
Legal definition of bullying
According to the judgment, the concept of intimidation in the criminal sphere cannot be reduced merely to the generation of a simple fear of the intended victim, but requires a contextual and detailed analysis for its specific interpretation and application.
Characterisation of intimidation in criminal jurisprudence
As this STS states, criminal jurisprudence has long understood that “intimidation consists of the announcement of an evil, an announcement that does not necessarily have to be explicit, although it does have to be unequivocal…” and discernible from the surrounding circumstances.
Regarding non-explicit bullying, it can arise when the victim perceives objective reasons to be afraid, even if the perpetrator has no real intention to cause the evil he or she has suggested. This type of bullying is called environmental bullying and occurs when the context and circumstances create actual fear in the victim.
Specific criteria for intimidation in extortion
Concept of a bad advertisement
Firstly, the judgment itself raises the debate as to what is considered an unequivocal announcement of a wrong in the context of intimidation. It is argued that, in general, the evil referred to in intimidation cannot consist of a lawful or just action, exemplifying the situation of the landlord who warns the tenant of eviction for non-payment of rent, where the evil is not considered to be unjust.
Intimidation, therefore, must be based on “…the announcement of an evil in the legal sense (thus excluding lawful or just “evil”), but the resulting conduct “…may be lawful as well as unlawful, provided that, in the most general understanding in the doctrine (…) it is not due conduct”.
Behaviour resulting from bullying
The repeated STS stresses the importance of distinguishing between conduct that may be inappropriate or questionable, but which does not amount to bullying in the criminal sense of the term.
The judgment underlines the need for a rigorous interpretation of the elements of the offence, thus ensuring the protection of individual rights and avoiding unfair application of the law.
Combined perspective of objective and subjective criteria
Secondly, it should be borne in mind that such an announcement is “… aimed at provoking the performance of unwanted conduct, active or omissive, whether just or unjust“. In other words, the origin of this action is not the will of the victim but precisely the will of the perpetrator.
Therefore, when in the context of a negotiation the perpetrator sets out his claims in order to obtain a benefit (which in turn is a harm/fear for the victim), and the subject voluntarily decides on one of them (e.g. contracting advertising or receiving criticism based on reality), this cannot be qualified as extortion because the passive subject acted freely.
Importance of the perception of the victim and the impartial third party
Thirdly, it is necessary to assess the seriousness and credibility of the announced evil from a combined perspective of objective (impartial third party) and subjective (victim’s perception) criteria. This implies that the evil announced must “exceed the canon of objectivity in such a way that in the most generalised or “average person’s” perception it appears as identifiable and potentially capable of bending the will of the addressee of the announcement“.
However, personal circumstances such as the perpetrator’s perception of the ability to instil fear and influence the recipient’s decision are also taken into account, which is crucial for the qualification as a crime.
Assessment of the seriousness and credibility of the advertisement
In this sense, the aforementioned STS understands, in the case it resolves, that the evil announced (lawsuits with legal justification and/or journalistic criticism based on reality) is neither serious nor credible, given that the alleged victims are powerful companies with large legal departments and the criticism would be published in a journalistic medium with little repercussion (the objective criterion is not met); furthermore, it is difficult for these powerful companies to be intimidated by this evil (the subjective criterion is not met either).
Ultimately, the concept of intimidation goes beyond mere fear, and the Supreme Court holds that, although certain bargaining actions may be ethically questionable, they do not constitute true acts of intimidation if they do not meet the three criteria outlined above.
If you are faced with negotiation situations that you may consider intimidating or if you need legal guidance in interpreting these complex scenarios within the criminal framework, do not hesitate to contact Ayuela Jiménez. Our experience in criminal law and complex negotiations guarantees a first class defence and advice to protect your legal and commercial interests.
