Article 172 Spanish Criminal Code: Coercion

Article 172 of the Spanish Criminal Code punishes coercion: preventing another person by force from doing what the law does not prohibit, or compelling that person to do what he does not wish to do. The penalty is imprisonment of six months to three years or a fine, imposed in the upper half where the coercion was directed at preventing the exercise of a fundamental right or the lawful enjoyment of a dwelling. That last aggravation is the provision under which landlords who cut off water or electricity in order to force a tenant out are prosecuted, a situation that arises regularly among property owners on the Costa Blanca.

Wording of Article 172 of the Spanish Criminal Code

Elements of the offence

1. Conduct that prevents another from doing what is lawful, or that compels another to act against his will. The result is a restriction of the freedom to decide, which distinguishes coercion from the deprivation of freedom of movement in article 163.
2. Violence, understood broadly to include force applied to things and irresistible psychological pressure, as in the cutting off of supplies to a dwelling.
3. Absence of lawful authorisation. A person exercising a right through the channels the law provides does not coerce, however unwelcome the consequence for the other party.
4. For the aggravated forms, that the object was to prevent the exercise of a fundamental right or the lawful enjoyment of a dwelling, which must be established as the purpose and not merely as the effect.

Defence strategy

The exercise of a right through lawful channels. The offence requires the absence of lawful authorisation. A landlord who serves notice, who begins proceedings for possession or who declines to renew a tenancy exercises a right, and the fact that the tenant is thereby compelled to leave is not coercion. The line is crossed only where the pressure is applied outside those channels, and the defence establishes which steps were taken formally, with the documentary record of the notices and of the proceedings commenced.

Absence of violence in the required sense. Coercion requires force, whether physical or the irresistible pressure the case law equates with it. Insistent telephone calls, unwelcome messages, an argument in the street or a refusal to cooperate do not amount to violence and fall, at most, within the minor coercion of paragraph 3, punished by a fine and prosecutable only on complaint. Because the initial classification in the file is habitually the more serious, this argument is made at the earliest stage.

Supplies and dwellings: causation and authority. In cases founded on the interruption of water or electricity, the defence examines who held the supply contract, whether the interruption was the act of the utility for non-payment, whether works or a genuine fault intervened, and whether the property was lawfully occupied at the time. Where the supply was cut by the provider, or where the occupation was itself unlawful so that there was no lawful enjoyment to prevent, the aggravated form does not apply.

The complaint requirement and the reduction of one degree. Minor coercion outside the domestic context cannot be prosecuted without a complaint by the injured person, and its absence or withdrawal ends the proceedings. Within the domestic context the complaint is not required, but the final paragraph of paragraph 2 expressly permits the court, giving reasons, to impose the penalty one degree lower having regard to the personal circumstances. That submission, supported by the context of the relationship and the absence of any previous record, is the route to a non-custodial outcome in this class of case.

• Threats and coercion: defence service
• Article 169: threats
• Article 163: unlawful detention
• Spanish-language entry

This entry is provided for information only and does not constitute legal advice. The application of any provision depends on the circumstances of the individual case and requires examination of the case file by a qualified lawyer.