The Concept of Intimidation in Criminal Law: Coercion, Threats, or Extortion?
It is not uncommon for a criminal law practitioner to encounter situations, whether in negotiations or conflicts, where one person “intimates” another, and the latter perceives themselves as having been “intimidated.” In such cases, the legal professional must determine: Are we dealing with the offence of coercion, threats, or extortion?
This issue is particularly complex due to the elasticity of the term “intimidation”, which is why we shall outline a series of jurisprudential criteria to assist in this intricate task.
It is important to highlight that intimidation is not only relevant in criminal law but also plays a significant role in business and contractual contexts. In this regard, you may wish to explore how intimidation in negotiations can influence agreements and contracts.
Intimidation in the Offence of Extortion
Under the offence of extortion (Article 243 of the Criminal Code), intimidation manifests as psychological coercion exerted on the victim through threats or menacing behaviour that convey a rational and credible risk of harm.
The aim of such intimidation is to override the victim’s will, compelling them to actively participate in the disposal of their assets against their free will.
Thus, in extortion, intimidation goes beyond a generic threat; it must be sufficiently serious, credible, and realistic to constrain the victim’s decision-making, thereby allowing the perpetrator to exert control over their conduct and obtain financial gain.
The Supreme Court addressed this issue in Ruling 882/2014 of 29 May, stating:
“The offence of extortion under Article 243 of the Criminal Code requires the direct collaboration of the victim and an intention to gain financially through the use of violence or intimidation (Supreme Court Ruling 1382/1999, among many others). This Court considers intimidation to be psychological in nature and requires the use of any form of coercion, threat, or intimidation with a rational and credible risk of harm (Supreme Court Ruling 1583/2002 of 3 October).”
Intimidation in the Offence of Threats
Similarly, the Lleida Provincial Court (First Section, Ruling 236/2017 of 12 June), addressing the offence of threats (Articles 169 and 171 of the Criminal Code), defines intimidation as an act or statement intended to cause harm to another, infringing upon legally protected rights.
For such an act to constitute criminal intimidation, it must be:
- Genuine and serious
- Connected to a future, plausible harm
- Entirely dependent on the perpetrator’s will
- Capable of instilling fear in the victim
This jurisprudence was reinforced by Supreme Court Ruling 1986/2000 of 22 December, which stated:
“The offence of threats, in any of its forms, has been consistently interpreted by this Court (Rulings of 25 October 1983, 9 October 1984, 30 April 1985, 18 September 1986, and 9 December 1992) as a conduct-based offence—albeit closely linked to offences of endangerment—where the essential element is the announcement, through actions or words, of causing harm that constitutes a criminal offence against legally protected interests. Such an announcement must be serious, real, and related to a future, plausible harm that depends exclusively on the perpetrator’s will, to the extent that it is capable of creating a state of intimidation in the victim.”
Intimidation in the Offence of Coercion
Regarding coercion (Article 172 of the Criminal Code), intimidation must constitute a direct and effective attack on the victim’s freedom of decision; mere psychological discomfort or unease caused by the perpetrator’s behaviour is insufficient.
For coercion to be legally relevant, the threat must have an objective compulsive nature, functionally restricting the victim’s liberty. This ensures that the criminal assessment is not based on the victim’s subjective perception alone.
The Barcelona Provincial Court (20th Section, Ruling 354/2023 of 23 May) clarified this distinction:
“This distinction is crucial in assessing the perpetrator’s coercive intent—even if only as potential intent—but also in differentiating between two distinct factual situations: (1) coercion as an attack on freedom (criminal conduct) and (2) the victim’s mere annoyance or discomfort in response to the perpetrator’s undesirable or unwelcome behaviour (non-criminal conduct).
Furthermore, for the offence of coercion, the victim’s mere subjective perception of intimidation is not sufficient to establish its legal relevance. Otherwise, the determination of criminal conduct would rest solely on the victim’s personal feelings, rather than on objective legal standards. The critical element in assessing criminal coercion is whether the perpetrator’s words or actions are objectively capable of constituting intimidation with a coercive intent.”
This approach was echoed in Supreme Court Ruling 310/2023, which stated:
“There can be no coercion merely on the basis of psychological disturbance or infringement upon the victim’s interests. The essence of the offence lies in the violation of personal liberty through direct, violent, or intimidating compulsion, which causally forces the victim to act against their will or to refrain from exercising a legitimate right.
Violence and intimidation, despite their various manifestations, must be perceived by the victim as a direct and effective attack on their ability to make autonomous decisions. Only such a direct attack, in the terms outlined in Article 172 of the Criminal Code, can be legally relevant. If these elements are absent or insufficiently substantiated, the conduct does not constitute the offence of coercion.”
Strict Interpretation of Intimidation in Criminal Law
Supreme Court Ruling 502/2023 of 26 June underscores that the classification of certain behaviours as extortion, threats, or coercion hinges on a strict interpretation of criminal provisions. The ruling warns against:
“The risks of over-expanding the scope of coercion, ultimately transforming it into a catch-all category for various unlawful but ambiguously criminal acts.”
Similarly, Supreme Court Ruling 235/2024 of 11 March clarifies that intimidation involves the threat of an unlawful or unjust harm to compel the victim into a certain action, whether just or unjust. The credibility of such harm must be assessed from the perspective of a reasonable third party, rather than solely from the victim’s subjective standpoint.
“Intimidation involves the unequivocal announcement of a legally unjust harm intended to force an action or omission, whether lawful or unlawful. This announcement must be perceived as serious, plausible, imminent, and solely dependent on the perpetrator’s will.
The seriousness and credibility of the harm must be assessed using a mixed objective-subjective standard. First, the threat must meet an objective threshold, appearing identifiable and capable of overpowering the victim’s will in the eyes of a reasonable person. Secondly, the specific circumstances of both the perpetrator and the victim must be considered to determine the likelihood of the threatened harm materialising.”
Jurisprudential Criteria for Establishing Criminal Intimidation
Based on established case law, criminally relevant intimidation is not merely a matter of the victim’s personal discomfort in response to an unwelcome action. Rather, it must involve:
- The threat of an unlawful harm designed to compel the victim’s conduct, whether lawful or unlawful.
- An intent to override the victim’s free will.
- A credible and plausible threat.
- A harm that the perpetrator is realistically capable of inflicting.
- An assessment of intimidation from the perspective of a neutral third party, excluding purely subjective distress.
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