The Supreme Court considers that a lost call to a victim is a crime of macho violence with a valid protection order that prevented his ex-husband from communicating with her. Specifically, it is a crime of breaking the sentence, even if the woman did not answer the phone. The court understands it this way, provided that the call is recorded and it is possible to know who made it, 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 calling, when it is possible to identify the origin, involves an accomplished act of communication and an attack on the person who wants to protect: "What matters is that someone let someone know something," says the failure.
The Supreme Criminal Chamber, in a sentence of which Miguel Colmenero has been a speaker, dismisses with this argument the appeal filed by the man. In 2016 he was convicted of injuries to his ex-partner and a 500-meter restraining order was imposed and he was prevented from communicating with her by any means until January 2018. However, on May 31, 2017, the man phoned to his ex-wife. In addition, on June 7 he went to a court in Puerto del Rosario (Fuerteventura) where he knew he would meet his ex-partner. He was sentenced in the first instance for a continuing crime of breaking the sentence, with the aggravating recidivism, to one year in prison. The Provincial Court of Las Palmas confirmed this ruling and now the Supreme has done it again.
The man had resorted to consider that the call was not answered, so that "no communication is initiated, no conversation is made, the recipient of the message is not involved" - it is indicated in the Supreme Court ruling. His defense argued that "the crime of breach is consummated with the establishment of the communication, not with the attempted call, which would be exempt from criminal responsibility."
But the Criminal Chamber has refuted its arguments with this ruling, dated December 20 and made public on Monday. "The disturbance of his tranquility and the threat to his security is appreciable from the moment he is aware of the existence of the call made by that other person who, depending on the facts attributed to him, has been imposed a communication ban ", is stated in the sentence.
The ruling also specifies that the prohibition of establishing contact refers to "any means of communication or computer or telematic means". It is explained that any mobile terminal, and even most of the landline, reflects on its screen the number from which the call is made and, in case it is not answered, appears in the telephone log as a missed call, consisting of the time and the number of origin. "Actually, this is a form of written contact equivalent to a message that has been sent to the person receiving the call, stating that it has been made."
The man had also been convicted in September 2016 for the crime of injury in the field of gender violence to nine months in prison, two years of deprivation of the right to possession and possession of weapons and two years of prohibition to communicate and approach the victim. In January 2017, he was convicted of a crime of non-payment of pensions, a fine, and in June 2016, for the crime of breaking 10 months in prison.
The sentence he appealed in cassation also condemned him for breaking his sentence. The court justifies its decision that, when there is a communication ban, the Criminal Code itself provides that the prisoner shall establish, by any means of communication or computer or telematic means, written, verbal or visual contact with the victim or with those of his relatives or other persons determined by the judge or court. And, according to the room, "a contact, written or verbal, double direction is not required; therefore, it is not necessary to find an answer. Nor are minimum limits established for the contact, being sufficient with its existence. What matters is for someone to let someone know something. "
The Supreme Court therefore considers that it is "unsatisfactory to place the" consummation of the crime "in the hands of the victim. And assures that the fact of calling her is enough, since she knew that it was he who was trying to contact her. He notes that the missed call is a message "in which the recipient is informed that a call has been made to him".