The Supreme Court of the Kingdom of Spain last March 11, in STS 235/2024, on the concept of intimidation as a result of the well-known “Ausbanc Case”, stating that not all pressures arising within the negotiations reach the level of intimidation necessary to constitute a crime of extortion, as defined in Article 243 of the Criminal Code.
According to the Judgment, the concept of intimidation in the criminal field 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.
As stated in this STS, criminal jurisprudence, since long ago, understands that “intimidation consists in the announcement of an evil, an announcement that does not necessarily have to be explicit, although it must be unequivocal…” and discernible from the surrounding circumstances. Regarding non-explicit intimidation, it can arise when the victim perceives objective reasons to suffer fear, even if the perpetrator has no real intention to cause the evil he has suggested. This type of bullying is called “environmental bullying” and occurs when the context and circumstances generate actual fear in the victim.
In view of the above, the aforementioned STS goes on to determine that certain specific criteria must be met for conduct to be considered intimidating in the context of an extortion offense.
First, 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 to which intimidation refers 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 (excluding, therefore, the lawful or just “evil”), but the resulting conduct “…may be lawful or unlawful, as long as, in the most generalized understanding in the doctrine (…) it is not due conduct”.
The repeated STS stresses the importance of distinguishing between conduct that may be inappropriate or questionable, but which does not amount to intimidation in the criminal sense of the term. The judgment stresses the need for a rigorous interpretation of the elements of the crime, thus guaranteeing the protection of individual rights and avoiding the unfair application of the law.
Secondly, it must be taken into account that such announcement is “…aimed at provoking the performance of an unwanted conduct, active or omissive, whether just or unjust”. That is to say, the origin of such action is not due to the will of the victim but precisely due to the will of the perpetrator. Therefore, when in the context of a negotiation the perpetrator exposes his pretensions to obtain a benefit (which in turn is a harm/fear for the victim), and the subject voluntarily decides one of them (e.g. to contract advertising or receive criticism based on reality), this cannot be qualified as extortion because the passive subject has acted freely.
Thirdly, it is necessary to evaluate the seriousness and credibility of the announced evil from a combined perspective of objective (impartial third party) and subjective (perception of the victim) criteria. This implies that the announced evil must “exceed the canon of objectivity in such a way that in the most generalized 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 instill fear and influence the decision of the addressee are also taken into account, which is crucial for the qualification as a crime.
In this sense, the aforementioned STS understands, in the case it resolves, that the announced evil (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); in addition to the fact that such powerful companies can hardly be intimidated by such evil (the subjective criterion is not met either).
In short, 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 we have outlined.
