Specialist Stalking Defence Attorneys

The crime of harassment, internationally known as "stalking", is regulated in Art. 172 ter CP and protects the freedom to act and personal tranquillity of the victim against obsessive intrusions into daily life. Introduced by Organic Law 1/2015 and consolidated by Supreme Court case-law, the offence has clear contours: not every annoying insistence is a crime, only systematic and repeated conduct that alters the normal course of the victim's life. As criminal defence lawyers specialising in stalking, we know the frontier between inappropriate conduct and criminally relevant persecution is narrow and requires rigorous forensic analysis of every interaction.

The typical modalities under Art. 172 ter CP are exhaustively listed and group into four alternative conducts: physical surveillance or pursuit of the victim (appearing at home, work or habitual locations); establishment or attempted establishment of contact through any medium (calls, messages, social media, emails, third parties); improper use of the victim's personal data to hire services, subscribe to products or impersonate them; and attack on freedom or property through harassment acts. A particularly worrying variant is cyberstalking, mediated by fake profiles, bots, geolocation and AI tools that have multiplied the harasser's capacity for intrusion.

Penalties vary by context. The basic type carries prison from 3 months to 2 years or fine from 6 to 24 months. When the victim is a partner or ex-partner, descendant, ascendant or another of the persons listed in Art. 173.2 CP, the penalty is prison from 1 to 2 years or 60 to 120 days of community service, with no fine option and no need for a complaint; if the victim is especially vulnerable on account of age, illness or disability, the prison term is 6 months to 2 years. Where she is the woman who is or was the offender's partner, the investigation lies with the Violence against Women Section of the Tribunal de Instancia. Accessory consequences usually include restraining order and prohibition of communication with the victim for extended periods, supervised liberty, withdrawal of weapons if applicable and, frequently, civil liability for moral damage. Breach of the restraining order opens a new procedure for the offence under Art. 468 CP.

The technical defence articulates several complementary lines. First, the insufficient alteration of daily life: if the victim continued with normal routine, kept their phone number, maintained their routes and did not change sociolabour habits or attend psychological treatment, the typical result is missing. Second, the absence of qualified repetition: isolated, sporadic or low-intensity acts do not integrate the type, which requires a prolonged obsessive pattern. Third, partial consent or bilaterality of communication: computer expertise may show the victim replied, kept cordial conversations or did not express unequivocal rejection. Fourth, mistake of prohibition and challenge of digital evidence obtained without chain of custody, impersonated profiles or manipulated screenshots.

In current forensic practice we observe a strong increase in digital stalking proceedings, especially after sentimental break-ups, employment conflicts or disputes on social media. Case-law on electronic evidence requires the authenticity of messages to be proven when it is challenged, which usually calls for hashing, time-stamping and computer expertise, safeguards that are seldom met in early police steps. At Alonso Sala, we intervene from the first police summons: we review the message chain, contrast metadata, articulate psychological expert reports to assess the real impact on the victim and challenge the classification when conduct does not reach the threshold of the type. When representing the victim, we trigger the precautionary restraining order, electronic bracelet and civil liability piece with the urgency that cessation of the harassment demands.

Not all insistence is a crime. For criminal stalking to exist, the conduct must alter the normal course of the victim's daily life (Art. 172 ter CP; Organic Law 10/2022 removed the requirement that the alteration be serious). The most common sign is that the victim has had to change their habits. For example: having to change phone number, stop going to certain places, change route to work or need company to go out. As defence, our goal is usually to prove that, although the conduct may have been annoying, the victim continued with their normal life, which downgrades the accusation to a minor crime or penal irrelevance.

Most accusations today are based on digital evidence: massive WhatsApps, creating fake profiles on Instagram/Facebook to bypass blocks, or email 'bombing'. Computer forensics is crucial for defence, either to deny authorship (impersonation) or to demonstrate that communication was bidirectional and consented to previously.