The Provincial Court of Madrid (Section 26) handed down a judgment (No. 50/2016) on January 28, 2016 (Appeal No. 2116/2015) dismissing the appeal filed by R.R.O., Court Attorney and C. against the sentence handed down by Criminal Judge number 2 of Alcalá de Henares, dated October 5, 2015, and fully confirms it.
Arguments of the appellant. Summarizing, we can point out that the appellant challenges the first instance sentence, arguing that the content of the expressions that are made explicit in the account of proven facts of the aforementioned sentence would meet the requirements of the criminal type of threats for which she formulated the accusation, specifically the one provided for in article 171.4 of the Criminal Code, in attention to the sentimental relationship of a couple that C. y C. maintained in the past.
In particular, he argues on the basis of two of these expressions, namely: “If you don’t stop, I’ll go all the way and there’s no going back, so think because you’re slower than your fucking mother, Lisa”; and “I swear by the light that if you don’t stop you will regret until the last day of your life for what you have put me through, there is little left and there will be no going back.” In turn, the appellant points out that the expression used in one of said texts, “Lisa”, as the defendant himself would have recognized, is the one he habitually used to address Coral.
Proven facts. As it turns out from the account of proven facts contained in the contested sentence, the expressions already recorded were uttered by the defendant, incorporating them and maintaining them for a certain time in his “whatsapp status”. That is to say, we are not dealing here with messages sent by the defendant to a specific addressee (nor, therefore, to the now appellant).
Considerations of the Provincial Court. In the opinion of the Chamber, in order for the claims of the private prosecution to succeed, it would be necessary that, given that it was not a direct communication between the active subject and the victim, it would have been proven that the former tried to announce a wrongdoing. , with the characteristics that have already been exposed, to a particular person, -in our case to C.-, at least, indirectly. And the truth is, adds the Chamber, that C. herself stated that she had “blocked” the person of the accused in the aforementioned WhatsApp application.
The Chamber goes on to say that:
He does not threaten, the one whose purposes are discovered, but the one who reveals them, even though in his heart of hearts he discards the aggression that he announces, with the intention of undermining the, already so often cited, legal right protected in the crime of threats.
Therefore, coinciding with the point of view of the judge a quo (which the Public Prosecutor also endorses at the time of opposing the appeal filed by the private prosecution), the Chamber considers that it was not proven that the defendant acted in fraudulently, with the knowledge and intention of disturbing Coral’s right to peace and quiet, placing the aforementioned expressions in her WhatsApp status, taking into account that there are, at least, reasonable doubts that the defendant had the purpose that those would even get to know her; considerations that determine the need to dismiss this appeal.
Because the crime of threats – regardless of whether it is classified as serious or mild –, as our jurisprudence has repeatedly pointed out, consists, in substance, in the existence of expressions or even behaviors that announce to the passive subject of the crime the imminence of an unjust evil, determined, possible, serious and dependent on the will of the author, aimed at undermining the feeling of security and tranquility of the victim, essential for the free exercise of one’s existence.
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