CASE COMMENTARY · PROVINCIAL COURTPraying outside a clinic: the Provincial Court of Alava sets the threshold of criminality under Article 172 quater
DECISION
Judgment of the Provincial Court of Alava (2026)
COURT
Provincial Court of Alava
IDENTIFICATION
Appeal against the Criminal Division of the Court of Instance of Vitoria-Gasteiz, seat no. 1
OUTCOME
Appeals dismissed, acquittal upheld
The Provincial Court of Alava has upheld the acquittal of twenty-one people charged under Article 172 quater of the Spanish Criminal Code, a provision introduced by Organic Law 4/2022 to punish harassment aimed at obstructing the exercise of the right to voluntary termination of pregnancy. The ruling dismisses the appeals brought by the private prosecution and by the Public Prosecutor and settles a criterion of much wider interest than the case itself: where the threshold of criminality lies in an offence with open-textured contours.
The decision does not question the existence of the protected right or the legitimacy of the reform. It confines itself to the task of the criminal court: verifying whether the established conduct meets the elements of the offence. It concludes that it does not, because the statutory description calls for acts of a gravity that the proven facts lacked.
The facts held proven
- Period running from 28 September to 6 November 2022
- Gatherings outside a health centre in Vitoria-Gasteiz where terminations of pregnancy are carried out
- Groups that never exceeded five people, standing on the pavement
- Prayers sometimes silent and sometimes audible outside, but not perceptible inside the centre
- Small placards with messages such as “you are not alone” or “we are praying for you”
- No insults, no intimidating acts and no obstruction of access
The legal keys
- Article 172 quater requires annoying, offensive, intimidating or coercive acts
- Those acts must undermine the woman’s freedom
- Presence, or the expression of a conviction, is not enough
- The court also rejects the construct of environmental harassment
- The acquittal is upheld against the appeals of the private prosecution and the Public Prosecutor
- An appeal in cassation to the Supreme Court remains available
THE DOCTRINEWhat the court holds
The structure of Article 172 quater
The provision punishes anyone who, in order to obstruct the exercise of the right to voluntary termination of pregnancy, importunes a woman through annoying, offensive, intimidating or coercive acts that undermine her freedom. The structure is that of offences against freedom: what is punished is neither an opinion nor a presence, but conduct bearing on the addressee’s capacity to decide. The offence therefore incorporates a double filter, one concerning the nature of the acts and another concerning their effect on another person’s freedom.
The gravity threshold of the conduct
The Court places the heart of the debate on that second filter. The proven facts describe small groups, standing in a public street, praying and carrying small placards, not addressing any particular person, without insults and without preventing access to the centre. The court concludes that something more than the conduct carried out by the defendants would be required for it to be criminal. This is not an assessment of the wisdom of the rule, but an application of the principle of legality: the offence describes specific conduct and the judge may not extend it by interpretation.
Environmental harassment and its limits
The prosecution argued that the repetition of the gatherings created an intimidating climate capable of satisfying the offence even without individualised acts. The Court rejects that construction on the established facts: repetition alone does not make up for the lack of gravity of each item of conduct, and the climate relied on was not reflected in the statement of facts with the precision that a criminal conviction demands. Environmental harassment, a useful notion in other fields, cannot become a device that dispenses with proving the elements of the offence.
Coexistence with fundamental rights
The ruling operates in a field where constitutional rights converge on both sides: on the one hand, the freedom and privacy of the woman attending the centre; on the other, the freedoms of conscience, religion, expression and assembly of those gathering. The court’s technique consists precisely in not resolving that balance in the abstract, but in verifying whether the specific conduct crossed the threshold set by the legislature. Where it does not, the response is not a criminal one, without prejudice to any administrative or public-order avenues that may apply.
THE FIRM’S READINGWhat it means in practice
For the defence. The effective strategy in these proceedings is factual rather than ideological. Establishing the number of people, the distance from the entrance, the content and size of the placards, whether there was any direct address and whether the prayers were audible inside the centre is what determines the legal characterisation. Debate about the constitutionality of the provision, by contrast, rarely decides the case.
For the prosecution. The ruling requires the indictment to be built on individualised acts and on their impact on the freedom of specific persons. Generic descriptions of a hostile climate, without support in determinate facts attributable to each defendant, lead to acquittal for lack of criminality.
On the evidence. In these matters the decisive material is usually audiovisual: the centre’s security recordings, videos produced by the parties and police reports. The chain of custody and integrity of those recordings should be anticipated, as should the individual identification of each person in them, because criminal liability does not admit collective attribution.
FREQUENTLY ASKED QUESTIONSFrequently asked questions
What does Article 172 quater of the Spanish Criminal Code punish?
It punishes anyone who, in order to obstruct the exercise of the right to voluntary termination of pregnancy, importunes a woman through annoying, offensive, intimidating or coercive acts that undermine her freedom. It was introduced by Organic Law 4/2022.
Is praying outside a clinic a criminal offence?
According to this ruling, not in itself. The Provincial Court of Alava upheld the acquittal on the basis that small groups praying on the pavement with small placards, without insults, without addressing anyone directly and without preventing access, do not reach the gravity the offence requires.
What is environmental harassment and why was it not found?
It is the idea that repeated conduct creates an intimidating climate even where no isolated act is serious. The court rejects it here because repetition does not make up for the lack of gravity of each act, and the climate relied on did not appear in the proven facts with the necessary precision.
Is the judgment final?
Not necessarily. The decision of the Provincial Court may be challenged by way of an appeal in cassation before the Second Chamber of the Supreme Court.
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Commentary prepared by the SCJE team from public sources on the decision. Its content is summarised for informational purposes, without full reproduction. It does not constitute individual legal advice.
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