As we explained in our previous article of 3 March 2025 (When is intimidation criminally relevant?), there are certain situations in which any person – regardless of their status or profession – may experience a negotiation in which a legitimate evil is announced to them if they do not comply with an equally legitimate condition.
In this article, we will analyse in which cases the requirement of such a lawful condition may be a criminal offence, whether as a conditional threat, coercion or extortion.
Intimidation as a common element in coercion offences
Before analysing the above-mentioned offences, it should be noted that they share a common element that is essential in the context at hand (dealing with a negotiation): the perpetrator provokes a psychological convulsion (intimidation) in the victim, with the aim of getting him to perform a certain conduct, normally the payment of a sum of money. In order to assess whether or not such a demand constitutes a crime, case law has developed the so-called relationship theory.
What does the relationship theory say?
According to this doctrine, there is no offence as long as there is a proper relationship between what is owed and what is demanded. In other words, there will be a crime if the lawful wrong announced is not related to the condition for not suffering said wrong, in such a way that this lack of relationship makes the condition unlawful.
In this sense, the SAP de Madrid, Secc.7ª, 338/2023 of 29 June, establishes that:
“The doctrine has questioned the criterion for distinguishing between the lawful transaction and the conditional threat when the realisation of a lawful evil is announced. It has been considered that the extreme to be assessed is the relationship between the just evil that is announced and the condition imposed. On the basis of this position, which has come to be called the Relationship Theory, it can be affirmed that the announcement of a just or lawful evil will constitute an offence if it is made by imposing conditions that are unlawful, inappropriate to the traffic and unrelated to the evil threatened. In a certain sense, the legislator assumes this criterion by punishing, in Article 171 of the Criminal Code, threats of an evil not constituting an offence only when a condition is imposed and this ‘does not consist of due conduct’, a requirement that refers to the institution of unjust or unjust enrichment. Moreover, the Criminal Code expressly foresees this possibility, when it refers in Article 171.3 to the case in which the evil that is the object of the threat consists of revealing a fact constituting a crime” (Article 171.3).
Furthermore, the STSJ of Madrid, Secc.1ª, 83/2024 of 27 February, adds that :
‘In this sense, the STS of 17 March 1992 illustratively indicated in cases of conditional threats that ’even if there is a right to do wrong (for example, denunciation of an existing crime, legitimate demand for eviction, cessation of commercial relations … which cannot be demanded and the passive subject is also authorised to do what is demanded of him …. it is clear that there is a criminal offence of this kind when, by virtue of the right whose exercise is threatened, one is not authorised to demand the conduct to which the condition refers, because the unlawfulness is determined in this case by attempting to impose on someone who is not obliged to do so a conduct that is alien to the content of the right that one has and whose exercise constitutes the evil that is threatened.
Certainly (continues the judgement) there is no offence of conditional threats when it is said that a lawsuit will be filed to claim an amount if the money owed is not paid. But the offence may exist if the intention is announced to file the same lawsuit in the event that the debtor does not agree to the amorous relations sought by the creditor”.
Practical application of the theory of the relationship
Applying the criteria established by case law in relation to the elements that make up the aforementioned offences, it is possible to illustrate their practical application by means of a series of paradigmatic cases.
Firstly, it should be stated that there is no criminal offence in those cases in which, within the scope of an employment relationship, the maintenance of employment is conditioned to the fulfilment of the tasks inherent to the job. Thus, it is not a punishable threat if the employer warns the employee that, in the event of failure to perform his duties, he will be dismissed, since such a warning is within the natural framework of the existing legal relationship and is a legitimate exercise of the employer’s contractual rights.
On the other hand, it would be criminally relevant – as it contravenes the so-called theory of the relationship – if the employer were to condition the continuity of employment on the acceptance of sexual demands (beyond its possible classification as harassment at work). In this case, the threat is not connected with the actual content of the employment relationship, and therefore the warning exceeds the limits of the employer’s right and is coercive and unlawful.
In a different field, such as tenancy, let us take the following example. A landlord has sued the tenant for non-payment, and eviction proceedings have been initiated. In such a situation, the tenant contacts the landlord and demands €1,000 to vacate the property and thus terminate the eviction proceedings (which can be translated into no longer opposing the civil proceedings). In this situation it can be argued that the tenant is not making a conditional threat to the landlord, as the sum requested is related to the costs incurred by the landlord in keeping the legal proceedings open.
Such treatment would be different if the tenant asks the landlord for a disproportionate sum – such as one hundred thousand euros without any justification for that amount – to vacate the property. In such a case, the condition imposed by the tenant, for the landlord to regain possession of the property, has no connection either with the civil lawsuit or with the property, so that we could be talking about a criminal act.
A third example would be where a businessman warns his ex-partner that he will file a complaint for misappropriation if he does not return the 20,000 euros diverted from the company. The threat to bring a criminal action is conditional on due conduct (the restitution of the damage caused), there being proportionality and a direct connection between the evil announced and the demand. In this case, there would be no criminal offence. However, if the employer threatens to sue the ex-partner if he does not hand over 100,000 euros, a sum much higher than the damage caused and without justification, the qualification of the facts may be criminal. Although the employer has the right to denounce, the disproportionate and unrelated demand breaks, as the theory of the relationship states, the similarity between what is due and what is asked for, making the conduct criminally relevant.
In conclusion, the announcement of a lawful wrong (in the field of business it is usually to claim what one is entitled to or not to claim) whose reality will depend on a lawful condition and owed by the person receiving the message only acquires criminal relevance when: (i) the condition is not related to the lawful wrong and, therefore, (ii) what is owed is not related to what is requested.
