Integridad Moral y Crímenes

• The topic is Torture and Other Crimes Against Moral Integrity.

Moral Integrity: Concept

• Article 15 of the Constitution explicitly proclaims the right to moral integrity.
• The Constitutional Court stated that the right to physical and moral integrity protects the inviolability of the person, not only against attacks directed at injuring their body or spirit, but also against any intervention in those assets that lacks the consent of its owner.
• Inhumane or degrading treatment that could violate the moral integrity of another person includes those that cause suffering of a special intensity or provoke humiliation or a feeling of debasement to those who suffer them.
• The Supreme Court affirms that moral integrity is an attribute of the person, as an entity endowed with dignity for the sole fact of being so; that is, as a moral subject, an end in itself, invested with the capacity to decide responsibly on their own behavior.
• The constitutional guarantee of dignity implies the prohibition of any instrumental use of a subject and the imposition on the same of any impairment that does not respond to a constitutionally legitimate and legally foreseen purpose.
• Moral integrity integrates a space or scope of its own that translates into the right to be treated as a person and not as a thing or as a simple object.
• According to art. 177 CP, the assessment of a criminally relevant attack against moral integrity does not prevent the concurrence and punishment of other crimes when the typical conduct, in addition to attacking moral integrity, causes injury or damage to life, physical integrity, health, sexual freedom, or property of the victim or a third party.

Crime Against Moral Integrity (Art. 173.1 CP)

• Article 173.1 of the Penal Code contains in its first paragraph the basic type of crimes against moral integrity, which is defined in these terms: "Anyone who inflicts degrading treatment on another person, seriously undermining their moral integrity, will be punished with a prison sentence of six months to two years"
• It deals with a very open criminal type, in which, in principle, all those behaviors capable of injuring the legal right fit, provided that the means used can be considered as "degrading treatment" and the damage to moral integrity deserves to be considered serious.
• This figure acts as a type of collection of all those important affectations to moral integrity that cannot be included in other more serious conducts (such as torture).
• The Supreme Court states that moral integrity would be composed negatively by subjective elements, such as those constituted by the humiliation or vexation suffered by the victim who is treated instrumentally and devoid of dignity, and the note of physical pain, and also by objective elements in reference to the form and manner in which the attack occurs.
• The Chamber enunciates the following typical elements: an act of clear and unequivocal vexatory content for the passive subject; a concurrence of physical or psychic suffering; that the behavior is degrading or humiliating with special incidence in the concept of dignity of the person-victim; and all this together, as a guiding thread, with the note of seriousness, which will require an individualized study on a case by case basis.
• The open character of the typical description has meant that the casuistry is very diverse.
• Examples of acts considered a crime against moral integrity:
  • The accused forced the victim to remain kneeling for a long time and to bathe with cold water and cut their hair as punishment.
  • The accused hit the victim, forced them to undress and made them eat excrement and drink dog urine, causing vomiting.
  • Serious cases of bullying in schools, as in the case of an adolescent who committed suicide due to constant bullying from classmates.
• Examples of actions not considered a crime against moral integrity:
  • Shaving the mustache of an old man who suffers from incontinence as punishment for having urinated in bed.
  • Giving a strong tug to the victim's backpack, pushing her against the wall, and while the accused were holding her by both arms, telling her that she was going to pay for everything she had done, spitting on her afterwards.
  • Reprimanding some students with expressions such as "useless, bag of bones" or "you are not worth anything".
• Since the 2022 reform, in the second paragraph of art. 173.1 CP, "those who, knowing the whereabouts of the corpse of a person, repeatedly conceal such information from the relatives or close friends of the same" are sanctioned with the same penalty.
• Unjust vexations of a mild nature that do not have sufficient entity to integrate this crime are only punishable if the victim is the spouse and similar relations or a family member and other persons mentioned in art. 173.2 CP.
• Such a relationship is not necessary in the case of who addresses the victim with expressions, behaviors or propositions of a sexual nature that create an objectively humiliating, hostile or intimidating situation.

Workplace Harassment and Real Estate Harassment

• Art. 173.1 CP contains two additional paragraphs specifically designed to combat the phenomenon of workplace and real estate harassment, which are often referred to by the English expression mobbing.
• The common purpose that explains both provisions is to extend the scope of the crime against moral integrity to certain cases in which there is no degrading treatment, but rather a reiteration of humiliating or hostile acts.
• Regarding workplace harassment, punishment with the same penalty is established for those who "in the scope of any employment or official relationship and taking advantage of their relationship of superiority, repeatedly perform hostile or humiliating acts against another that, without reaching degrading treatment, constitute serious harassment against the victim".
• The reiteration of hostile or humiliating acts, even when they do not reach the seriousness of "degrading treatment", can be criminal if a situation is created for the victim that can be described as "harassment", a state that - starting from the preamble of LO 5/2010 that introduced this modality - could be defined as the result of psychological or hostile harassment that humiliates the sufferer and supposes the imposition of a serious offense to dignity.
• The conduct must constitute degrading treatment, since it is constituted as a specific modality of attack against moral integrity, being a characteristic of its realization the systematic and prolonged character in time that determines a climate of hostility and humiliation towards the worker by who occupies a position of superiority that they abuse. In particular, it generates in the victim a state of unease through psychological harassment that humiliates the worker, constituting an offense to dignity
• This crime encompasses removing cell phone, keys, changing office space, and launching a smear campaign in the media (Mayor Case).
• The legislator has clearly chosen to punish only these facts when there is a relationship of subordination between the victim and the perpetrator because workplace harassment between equals cannot be included in this precept.
• Acts of harassment that take place between equals cannot be subsumed in this precept.
• Regarding the punishment of what is called real estate harassment, the Code provides for the imposition of the same penalty provided in the basic type on the subject who "repeatedly carries out hostile or humiliating acts that, without reaching to constitute degrading treatment, are intended to prevent the legitimate enjoyment of the home”. This precept poses obvious problems.

The Crime of Habitual Violence (Art. 173.2 and 3 CP)

• Gender violence, as well as domestic and family violence, often superimposed on the former, were problems that ran socially in a hidden way and only surfaced in their most extreme manifestations, normally in the form of death of the victims.
• The legal response to this kind of violence has been gradual and dispersed, generating a cluster of legislative reforms of all kinds, from LO 1/2004, on Comprehensive Protection Measures against Gender Violence to LO 8/2021.
• In the area of criminal procedure, the main instruments are the protection order for the victim, which integrates a set of civil and criminal precautionary measures such as the expulsion of the aggressor from the family home or the prohibition of approaching the victim, reforms of the provisional imprisonment.
• It should be noted is the crime of habitual violence of art. 173.2.1 CP, which defines:
  • "Anyone who habitually exercises physical or psychological violence against who is or has been their spouse, or against a person who is or has been linked to them by an analogous relationship of affectivity even without cohabitation, or against the descendants, ascendants or siblings by nature, adoption or affinity, of their own or of the spouse or cohabitant, or on the minors or persons with disabilities in need of special protection who live with them or who are subject to the power, guardianship, curatorship, foster care or de facto custody to which they have been subjected, shall be punished by a prison sentence of six months to three years, deprivation of the right to possess and carry weapons from three to five years and, where appropriate, when the judge is necessary, special disqualification to exercise parental authority, guardianship, curatorship, custody or reception for a time of one to five years, without prejudice to the penalties that may correspond to the crimes in which the acts of physical or psychological violence are specified.

Crime of Torture (Arts. 174-177 CP)

• The prohibition of torture is expressly proclaimed in the Constitution, as well as in numerous international conventions for the protection of human rights.
• The current Spanish law defines this crime in the following terms (art. 174. 1 CP): "The authority or public official who, abusing their position, and with the aim of obtaining a confession or information from any person or of punishing them for any act that they have committed or are suspected of having committed, or for any reason based on some type of discrimination, submits them to conditions or procedures that, due to their nature, duration or other circumstances, involve physical or mental suffering, the suppression or diminution of their powers of knowledge, discernment or decision or that, in any other way, attack their moral integrity, is committing torture".
• The active subject of the crime can only be an authority or public official, concepts that have their legal definition in art. 24 CP.
• In practice, the vast majority of criminal proceedings initiated for possible torture are directed against police officers for actions related to detainees or against prison officials for the treatment given to inmates. This last case is specifically contemplated in art. 174.2, which establishes that torture is also committed by "the authority or official of prison institutions or child protection or correction centers".
• The crime of torture requires that the subject act "abusing their position", which implies that the type can only be carried out when said subject acts, in the exercise of their functions or takes advantage of the facilities that their condition provides them.
• The typical conduct consists of attacking the moral integrity of another person by any means, specifically citing the legislator some behaviors that may have such an attacking capacity, such as causing the victim physical or mental suffering and diminishing their powers of knowledge, discernment or decision.
• In order for there to be torture, it is necessary that the active subject act with one of the three following purposes (subjective element of the type):
  • with the will to obtain from the victim a certain confession or information;
  • with the objective of punishing the victim for an act that they have committed or that it is suspected that they could have committed;
  • for reasons "based on some type of discrimination”.
• Art. 176, the Penal Code considers worthy of the penalties provided for this crime the authority or official who, failing to fulfill the duties of their position and without directly inflicting degrading treatment on the victim, allows other people to do so.
• The penalty provided for this crime is imprisonment of two to six years in cases where the attack on moral integrity is serious and of one to three years if it is not.
• Attacks on moral integrity committed by an authority or public official that are not capable of integrating the crime of torture will be punished, in accordance with art. 175 CP, with a prison sentence of two to four years if the attack is serious and of six months to two years if it is not, as well as special disqualification for employment or public office.

La integridad moral, protegida por el Artículo 15 de la Constitución, garantiza la inviolabilidad de la persona contra ataques que lesionen su cuerpo o espíritu. Incluye la protección contra tratos inhumanos o degradantes que causen sufrimiento intenso o humillación. La integridad moral es un atributo esencial de la persona, dotada de dignidad.