What does article 197 of the penal code say?, What is the crime against privacy?, When is the right to privacy violated?, What is the right to privacy?, How is privacy respected?. These questions, along with other very important ones, are what we are going to answer in this article, thanks to the legal advice of two of the best criminal lawyers in Spain, JAVIER and MANUEL RINCON, (directors of RINBER ABOGADOS PENALISTAS), specialists in criminal defense crime against privacy.
What does article 197 of the penal code say?, He article one hundred and ninety sevenit says what it says. We don't need to transcribe it. More essentially, it addresses issues that are interesting. In the first place, it demands that it be possible to speak of a crime against privacy, of fraud. Fraud is understood as INTENTIONALITY. That is, "wanting to do voluntarily or decisively, not by mistake." Therefore, for the right to privacy to be violated, an express intention to violate it is required.
What is the crime against privacy?
But, …, What is the crime against privacy?Or rather, what is intimacy? Privacy is everything? Well no. But a NO, with capital letters.
JAVIER and MANUEL RINCON, (directors of RINBER ABOGADOS PENALISTAS), specialists in criminal defense crime against privacy, they will answer all the questions we ask: What is the crime against privacy?, When is the right to privacy violated?, What is the right to privacy?, How is privacy respected?, presenting us with a real case, from his office, so that we can understand it better. Go ahead then…
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A Mr. X comes to our professional office, who has been denounced by his ex-wife, through a criminal complaint, because Mrs., allegedly, had been violated in her right to privacy. It turns out that after the divorce, the family home was assigned to her and her children (3). Shortly after the divorce, it seems that Mrs. begins a sentimental relationship with another Mr., and a little later this Mr. takes up residence in the former family home.
Mr. X, under the latest doctrine of the supreme court, files a lawsuit to get the family judge to extinguish the use and enjoyment of the house in favor of his former wife, for having started it a marital relationship with another lord.
To do this, he hired the services of a private detective who took photographs at the exit of the house, (an urbanization), and in the garden areas of the same. Accompanying this Mr.'s demand were the photographs taken by the detective, both outside the urbanization and inside the garden areas.
Ms. Y, upon receiving the lawsuit and seeing the photographs inside the urbanization, in the garden areas, filed a criminal complaint, for a crime against privacy against Mr. X and the private detective.
Mr. X comes to our office with a copy of that criminal complaint for the alleged commission of a crime against privacy. As LAWYER SPECIALIST CRIME AGAINST PRIVACYFirst of all, we transmit TRANQUILITY and CONFIDENCE.
Just as it is not gold, everything that glitters is not privacy, everything that is intended. Let us explain what this is that we affirm:
"Whoever of his own free will discloses to the public light certain facts concerning his family life, excludes them from the sphere of his privacy." SENTENCE OF THE CONSTITUTIONAL COURT 197/1991.
*(This Judgment continues expressly, in the following sense) "Thus, WE HAVE DECLARED THAT NOT EVERY CLOSED CAMPUS DESERVES THE CONSIDERATION OF DOMICILE FOR CONSTITUTIONAL PURPOSES, and that, in particular, THE CONSTITUTIONAL GUARANTEE OF ITS INVIOLABILITY IS NOT EXTENDABLE TO THOSE PLACES WHICH HAVE A DESTINATION OR SERVE PURPOSES INCOMPATIBLE WITH THE IDEA OF PRIVACY, (STC 228/1.997, of December 16, FJ7)”.
* Judgment of the Provincial Court of Castellón, section 1, Judgment of 07/10/2012, no. 389/2012, rec. 264/2012, (EDJ 2012/204190) textual citation THIRD LAW FOUNDATION, 4TH PARAGRAPH:
"As the PROVINCIAL COURT OF VALENCIA, JUDGMENT NO. 134/2011, of MARCH 4, the concept dwelling generally constitutes a closed and roofed space.
(..), In such a way that if the exercise of the right to privacy cannot be developed in them BECAUSE IT IS WITHIN THE FIELD OF VISION OF NEIGHBORS OR PASSERS, THE PLACE CAN HARDLY BE CONCEPTED AS A DWELLING FOR THE PURPOSES OF THE CRIME IN QUESTION .”.
* Judgment of the Provincial Court of Vizcaya, section 6, Judgment of 06/25/2009, no. 666/2009, rec. 64/2009, textual quote: "Based on the configuring notes, related to the protected legal right, which are family privacy and home privacy, nor in the account of proven facts, nor are special circumstances noted in the legal justification for which it should be considered that the garden was used with the aforementioned connotations of privacy and home intimacy.
It was an open space and it is difficult to maintain the existence of that privacy when the garden is in the field of vision of the neighbors on the upper floors or of those who pass through the public thoroughfare..”.
Once we exhibited, along with these extracts from Sentences, which, (by the way), turn out to be DEMODELING, (if we are allowed, which torpedo launched to the waterline), many others, our client was much calmer.
And it is true that, as these Judgments say, neither the garden of an urbanization can be considered a home, nor those areas that are visible to the whole world, can be considered intimate, nor is a home what everyone sees, but, above all, above all, what seems to us THE MOST DEMOLISHING, is the content of the first sentence that we have commented on, that of the constitutional court. IS AMAZING. Basically, it comes to say that, what you voluntarily air, later, you cannot ask to be protected.
Logically, our client had to go before the Judge to testify as an investigated person. As soon as our client's statement was held, we requested the provisional filing of the case, invoking, (regardless of the Judgments that we have commented on), up to a total of 50. Such a devastating argument, served for the Investigating Judge dismiss the complaint for the alleged commission of a crime against privacy. What was claimed as privacy was far from being intimate. The action of our client, far from being reprehensible, was protected by law.
Finally, our client not only obtained the file of the complaint that had been filed against him for the alleged perpetration of a crime against privacy, but also obtained from the family court that the extinction of the use of the house which, in abuse of rights, Mrs. Y enjoyed, together with her new partner, was agreed. We as Lawyers specializing in crimes against privacy, even more than satisfied.
