Torture and Crimes Against Moral Integrity

Crimes against moral integrity make up Title VII of Book II of the Spanish Criminal Code, in Articles 173 to 177. This group of offences protects an autonomous legal interest —the moral integrity of the person, understood as their right not to be treated in a way that undermines their dignity or reduces them to an object— and ranges from the degrading treatment that anyone may commit to the torture reserved for authorities and public officials. As criminal defence lawyers we provide defence of the accused and private prosecution in all of these offences, with over fifteen years of experience in the criminal jurisdiction.

Crimes Against Moral Integrity: Legal Interest and System

The legal interest protected in Title VII is moral integrity, a value connected with the dignity of the person under Article 10 of the Spanish Constitution and with the prohibition of inhuman or degrading treatment under Article 15. What is protected here is not physical integrity —which belongs to the offences of assault— nor liberty, but the inviolability of the person against conduct that humiliates, debases or objectifies them. That is why these offences may concur with others: the attack on moral integrity is conceptually distinct from the harmful result that sometimes accompanies it.

The system is arranged in a gradation. At the base lies the generic degrading treatment of Article 173.1, which anyone may commit. In its labour or civil-service form the same provision punishes workplace harassment or mobbing, which this firm addresses on a specific page. At the top, where the perpetrator is an authority or public official abusing their office, we find the torture of Article 174 and the attack on moral integrity of Articles 175 and 176, with markedly more severe penalties and disqualification. Article 177 closes the title with a concurrence rule.

Generic Degrading Treatment (Art. 173.1 CP)

Article 173.1 of the Criminal Code punishes with imprisonment of six months to two years whoever inflicts on another person degrading treatment, seriously undermining their moral integrity. The conduct requires the treatment to reach a relevant intensity: not any humiliation or lack of respect suffices, but conduct that produces in the victim feelings of humiliation, debasement or objectification of a certain magnitude. Case law looks at the nature of the acts, their duration and the surrounding circumstances to assess whether that threshold of seriousness has been crossed.

The same paragraph includes other forms punished with the same penalty: the repeated concealment of the whereabouts of a corpse from relatives or close ones by whoever knows it; the aforementioned workplace harassment or mobbing, within a labour or civil-service relationship and abusing a relationship of superiority; and real-estate harassment, consisting of repeated hostile or humiliating acts aimed at preventing the lawful enjoyment of a dwelling. Where, under Article 31 bis, a legal person is liable, the fine provided for in the article is imposed on it. The defence examines in each case whether the alleged conduct really reaches the required seriousness or whether it belongs to a level of conflict that does not amount to the offence.

Boundary with Workplace Harassment or Mobbing

It is worth precisely delimiting this offence from workplace harassment or mobbing, which shares the article but is an autonomous form. Workplace harassment (mobbing) requires a context of a labour or civil-service relationship, the abuse of a relationship of superiority and the repeated carrying out of hostile or humiliating acts that amount to serious harassment, without reaching degrading treatment. Degrading treatment under Article 173.1, by contrast, requires neither a labour context nor a relationship of superiority, and may be consummated even by a single act of sufficient intensity.

This distinction is decisive for the legal characterisation. Where harassment at work reaches, by its intensity, the level of genuine degrading treatment, that first form applies; where it remains repeated hostile acts with abuse of superiority, the correct form is workplace harassment. Harassment of a sexual nature, for its part, has its own offence in Article 184 and is not subsumed within this title. Framing the facts within the appropriate figure determines the penalty, the evidence required and the very strategy of defence or prosecution.

Torture under Article 174 CP

Article 174 defines torture as the offence committed by an authority or public official who, abusing their office, and for the purpose of obtaining a confession or information from any person (investigative form), of punishing them for an act they have committed or are suspected of having committed (punitive form), or for any reason based on some kind of discrimination, subjects them to conditions or procedures which, by their nature, duration or other circumstances, cause them physical or mental suffering, the suppression or diminution of their faculties of cognition, discernment or decision, or which in any other way attack their moral integrity.

The penalty is imprisonment of two to six years where the attack is serious and imprisonment of one to three years where it is not. To this is added, in every case, absolute disqualification of eight to twelve years, a consequence of enormous significance because it deprives the convicted person of all honours, employment and public office. The second paragraph extends the same penalties to the authority or official of penitentiary institutions or of centres for the protection or correction of minors who commits those acts in respect of detainees, inmates or prisoners. The core elements of the offence are the status of authority or official, the abuse of office and the presence of one of the typical purposes; their absence redirects the facts to other figures.

Attack on Moral Integrity by an Authority (Arts. 175-176 CP)

Article 175 punishes the authority or public official who, abusing their office and outside the cases covered by the preceding article, attacks the moral integrity of a person. It is a residual offence in relation to torture: it applies where the attack does not pursue the investigative, punitive or discriminatory purposes that characterise Article 174. The penalty is imprisonment of two to four years where the attack is serious and six months to two years where it is not, with special disqualification from public employment or office of two to four years in every case.

Article 176 introduces a form of commission by omission: the penalties respectively established in the preceding articles are imposed on the authority or official who, failing in the duties of their office, allows others to carry out the acts provided for in them. The provision holds liable whoever, having the legal duty to prevent torture or the attack, does not do so and consents to its execution by third parties. The defence of an official reported on this basis must rigorously examine the actual scope of their duties, their position of guarantor and their effective knowledge of the facts.

The Concurrence Rule of Article 177 CP

Article 177 resolves an essential technical question: what happens where the attack on moral integrity is accompanied by other harmful results. The provision states that if, in the offences of the preceding articles, in addition to the attack on moral integrity, harm is caused to life, physical integrity, health, sexual freedom or property of the victim or a third party, such acts are punished separately with the penalty corresponding to the offences committed, except where the attack is already specifically punished by law.

The rule therefore establishes a real concurrence of offences as the general criterion: the attack on moral integrity and the harmful result are sanctioned independently and cumulatively, precisely because they protect distinct legal interests. The final clause introduces an exception to avoid the double assessment of the same wrongfulness where the law already contemplates it in a specific offence. The correct application of this rule —determining whether real concurrence applies or whether the attack is absorbed— has a direct impact on the total penalty and is one of the central pillars of the technical debate in these proceedings.

Private Prosecution and Defence of the Reported Official

From the private prosecution, the victim of degrading treatment, of torture or of an attack on their moral integrity may take part in the proceedings to sustain the accusation alongside the Public Prosecutor. The strategy is aimed at establishing the serious undermining of moral integrity, the status and abuse of office of the official where the offence requires it, and any concurrence of harmful results that opens the way to the concurrence rule of Article 177. Medical and psychological expert evidence, documentary evidence and witness testimony are decisive in reconstructing the facts and their seriousness.

From the defence of the reported official, the analysis starts by denying the objective and subjective elements of the offence: the absence of a genuine attack on moral integrity, the lack of abuse of office, the absence of the typical purposes of Article 174 or the absence of a position of guarantor in the commission by omission of Article 176. It is common for legitimate actions in the exercise of public duties —an arrest, a proportionate restraint, the application of a prison regime— to be reported as attacks on moral integrity. The defence establishes the legitimate exercise of the office and the proportionality of the action, distinguishing the criminal reproach from mere disagreement with the administrative conduct.

Limitation Period and Modifying Circumstances

As to the limitation period, under Article 131 of the Criminal Code the period depends on the maximum penalty set for the offence. Degrading treatment under Article 173.1 and the non-serious attack of Article 175, since their maximum penalty does not exceed five years, become time-barred after five years. Serious torture under Article 174, punishable by up to six years' imprisonment, becomes time-barred after ten years because its maximum penalty exceeds five. Time runs from consummation of the act, a point the defence always checks because the full elapse of the period extinguishes criminal liability.

As regards modifying circumstances, the defence may invoke, depending on the case, reparation of harm under Article 21.5 —of particular relevance where there is a victim to compensate—, undue delay where the proceedings are prolonged without justification, or the analogous mitigating factor in situations close to confession or cooperation. The assessment of these circumstances, as well as any plea agreement, is always carried out on the basis of an individualised analysis of the evidence and of the legal characterisation, with the aim of protecting the rights of the person under investigation at every stage of the proceedings.