Assault, Threats and Coercion in Marbella

Initial medical attention versus medical treatment: the boundary that decides the sentence

Article 147 of the Criminal Code distinguishes the minor offense of assault — requiring only initial medical attention, punished by a fine — from the offense carrying a prison sentence, which requires that the injury objectively require, in addition to that initial attention, subsequent medical or surgical treatment. Case law has built a precise normative concept of this requirement:

"...el tratamiento médico debe ser requerido objetivamente para alcanzar la sanidad, lo que excluye la subjetividad de su dispensa por un facultativo o de la propia víctima... y debe trascender de la primera asistencia facultativa, como acto médico separado."

(Medical treatment must be objectively required to achieve recovery, which excludes the subjective view of the treating physician or of the victim themselves, and it must go beyond initial medical attention, as a separate medical act.) The law itself expressly excludes from this concept mere observation or monitoring of the course of the injury by a physician, as well as tests carried out as a mere precaution — X-rays, MRI scans, follow-up blood tests. By contrast, case law has resolved in favor of classification as a full offense scenarios that might at first appear minor: the application of sutures or of adhesive-strip wound closures constitutes surgical treatment, since the medical intervention has a continuing curative effect throughout the entire period they remain in place; and a course of antibiotics or painkillers prescribed with a specific dosage and duration also falls within the concept of medical treatment. This distinction, apparently minor, decides not only the applicable sentence but also the very nature of the proceedings, which is why we subject every medical report to an independent expert analysis verifying whether the attention given genuinely went beyond the threshold of first aid.

The mutually accepted fight: no self-defense available to either party

When injuries occur in the context of a fight in which both parties voluntarily attack each other, case law systematically excludes self-defense for either of them:

"...no es posible apreciar la existencia de una agresión ilegítima en supuestos de riña mutuamente aceptada, porque en ese escenario de pelea recíprocamente consentida, los contendientes se sitúan al margen de la protección penal al ser actores provocadores cada uno de ellos del enfrentamiento."

(It is not possible to find an unlawful attack in cases of a mutually accepted fight, because in such a scenario of mutually consented confrontation, both parties place themselves outside criminal-law protection, each being a provoking actor of the clash.) The practical consequence of this doctrine is twofold: on the one hand, each party is liable exclusively for the injuries they personally caused, without responsibility being diluted or offset between the participants; on the other, neither of them may rely on the defense of self-defense, not even in its incomplete form, for lack of the basic requirement of an unlawful attack — that is, one that is neither provoked nor consented to — on which that defense is built. In these cases, our defense focuses on the precise reconstruction of the sequence of events to determine whether there was genuinely a mutual acceptance of the confrontation or whether, on the contrary, one of the participants launched, without warning or sufficient provocation, a unilateral attack that would indeed support the other party's claim of self-defense.

The element of "harm" in threats: constituting an offense and not constituting one

The Code distinguishes threats of a harm that constitutes an offense (Art. 169 CP), prosecutable regardless of whether they are conditional or not, from threats of a harm that does not constitute an offense (Art. 171 CP), which are only punishable when conditional and, additionally, where the condition demanded does not consist of conduct the other party was already obliged to carry out. This last point is key in practice: when someone announces a harm that is in principle lawful — for example, filing a complaint or claiming a debt — conditioned on conduct the other party was already obliged to perform, there is no offense, since it amounts to the lawful exercise of a right. Case law has developed on this point the so-called theory of the relationship (teoría de la relación): the announcement of a lawful harm only becomes criminally relevant when the condition imposed is disproportionate or lacks an adequate relationship to the harm announced, a point we work through in detail when defending against charges of threats arising from negotiations, financial claims, or contractual disputes that are tense but lawful in origin.

Coercion: the requirement of violence and of an unlawful purpose

Article 172 of the Criminal Code punishes anyone who, without being legitimately authorized, prevents another person through violence from doing what the law does not prohibit, or compels them to do what they do not wish to do, whether that be just or unjust. Unlike threats, which operate on the victim's state of mind through the announcement of a future harm, coercion requires the use of violence — physical violence against persons or, according to settled case law, also against property where this results in physical force being brought to bear on the victim's will — aimed at overcoming that will immediately. Correctly distinguishing between these two offenses, and between them and the offense of degrading treatment or unlawful detention when the coercion reaches greater intensity or duration, is another of the technical pillars of our defense.