The Supreme Court considers that it is an offence to a missed call to a victim of domestic violence with a protection order in force that prevented her ex-husband to communicate with her. In particular, it is a crime of breach of conviction, although the woman had not attended the phone. The court understands this as well, provided that the call be recorded and be possible to know who made, since in these cases the victim is aware of the existence of this attempt to communicate with her. The court considers that the mere fact of the call, when it is possible to identify the source, amounts to an act accomplished in the communication and an attack on the person who wants to protect: “What matters is that someone does know something or the other,” says the ruling.
The Criminal Chamber of the Supreme, in a judgment of which he has been rapporteur Miguel Colmenero, dismissed with this argument, the appeal that he had presented the man. In 2016, was convicted of injury to his / her former spouse and was slapped with a restraining order of 500 meters and was prevented from communicating with her by any means until January 2018. However, the may 31, 2017, the man called on the phone to his ex-wife. In addition, on June 7, he went to a justice of the Puerto del Rosario (Fuerteventura), where you knew that you would find with your former spouse. He was sentenced in the first instance by a continuous crime of breach of conviction, with the aggravating circumstance of recidivism, to a year in prison. The Provincial court of Las Palmas confirmed this bug and has now returned to do the Supreme.
The man had resorted to considering that the call was not attended to, so that “does not communicate, does not talk, does not notify the receiver of the message” —noted in the judgment of the Supreme—. His defense argued that “the crime of destruction, is consummated with the establishment of the communication, not with the call attempt, which would be exempt from criminal responsibility”.
But the Criminal has refuted their arguments with this statement, dated the 20th December, and made public this Monday. “The disturbance of its tranquility, and the threat to their safety is apparent from the moment that he is aware of the existence of the call made by that other person, on the basis of the facts that are attributed to him, has been imposed a prohibition of communication”, pointing in the sentence.
In the failure is also specified that the prohibition on contact refers to “any means of communication or computer medium or electronic”. It is explained that any mobile terminal, and even most fixed-line, reflected in your screen is the number from which the call is made and, in the case that it is not attended to, it appears in the phone log as a missed call, including the time and number of origin. “In reality, this is a form of contact written equivalent to a message that had been forwarded to the person receiving the call, stating that this has been carried out”.
The man had been condemned in addition in September 2016 for the crime of injury in the area of gender-based violence to nine months of imprisonment, two years deprivation of the right to the possession and bearing of weapons and two years of prohibition of contact and approach the victim. In January 2017 he was sentenced for the offence of non-payment of pensions, a fine, and in June of 2016, for the crime of breach to 10 months in prison.
The sentence was appealed in cassation sentencing him also for violations of parole. The court justifies its decision on the fact that, when there is a prohibition of communication, the Criminal Code stipulates that prevents the sentenced person to establish, by any means of communication or computer media or electronically, contact, written, verbal, or visual with the victim or with those of their relatives or other persons determined by the judge or court. And, as underscored in the room, “does not require a contact, written or verbal, of a double direction; therefore, it is not necessary to find an answer. Nor does it set minimum limits for the contact, being enough with their existence. What matters is that someone does know something to another”.
The Supreme court therefore considers that it is “unsatisfactory to put in the hands of the victim,” the “consummation of the crime.” And ensures that just the fact of calling it, because she knew that it was he who was trying to contact. Pointing out that the missed call is a message that informs the recipient that he has made a call.”
