Racist or xenophobic harassment that is not yet a crime

Terms used

• Acoso — Acoso is stalking: insistent, repeated harassment that seriously alters your daily life.
• Amenazas — Amenazas are threats to cause you harm.
• Coacciones — Coacciones is coercion: using violence to stop you doing something or force you to do it.
• Trato degradante — Trato degradante is degrading treatment that seriously undermines a person's moral integrity.
• Injurias — Injurias are insults that seriously attack a person's dignity.

Key rules

• Police refusal: If police say it is not a crime, you can still insist on a written complaint and appeal a refusal.
• Discriminatory motive: A racist or xenophobic motive makes any crime more serious.
• Below the criminal line: Humiliating or discriminatory conduct that is not a crime can still lead to damages claims and administrative fines.
• Free help: Free legal guidance is available from the Consejo para la Eliminación de la Discriminación Racial o Étnica and from NGOs.

Which conduct is criminal

Racist abuse becomes a crime when it reaches a certain level. The conduct below is criminal even if there is no physical violence:

• Stalking (acoso): insistent, repeated harassment that seriously alters your daily life. It carries 3 months to 2 years in prison or fines.
• Threats (amenazas): serious threats of a crime carry 1 to 5 years in prison. Lesser threats carry fines or short prison terms.
• Coercion (coacciones): using violence to stop you doing something or force you to do it. It carries 6 months to 3 years.
• Degrading treatment (trato degradante): treatment that seriously undermines your moral integrity. It carries 6 months to 2 years in prison.
• Serious insults (injurias): only attacks that seriously damage your dignity. These carry fines.

A racist or xenophobic motive makes any of these offences more serious.

Ordinary minor insults are usually not criminal. They were decriminalised in 2015, except in some domestic situations. A single rude remark on the street will probably not be prosecuted. A pattern of following, messaging or confronting you can become stalking, so keep a record of dates, places, messages and witnesses.

If the police say it is not a crime

Do not drop it. You can do the following:

1. Insist that they take a written complaint.
2. Ask for the hate-crime prosecutors to review it.
3. Have a lawyer file directly with the court if the police will not move it forward.
4. Appeal if the case is refused or archived.

Free help is available from the Consejo para la Eliminación de la Discriminación Racial o Étnica. Local discrimination offices, regional equality bodies and NGOs such as SOS Racismo and Accem also give legal guidance. If a public body was involved, you can complain to the Defensor del Pueblo. The checklist below sets out these steps.

Where the civil and administrative route begins

Conduct below the criminal level can still be unlawful. Discriminatory treatment, humiliating comments or harassment because of your origin or race are covered by the equal treatment law in work, services, education and housing. This law has been in force since July 2022.

It defines discrimination and harassment and shifts part of the burden of proof onto the other side. It lets you claim damages in a civil case and allows administrative fines. Your route depends on where it happened:

• Work: complain to the labour inspectorate.
• Shops, services or housing: complain to the consumer or housing authority.
• Any of these: make a complaint to the relevant administration or bring a civil claim.

A prosecutor or court decides where the line falls between criminal and administrative. If you are unsure, start with a free legal guidance service. Whether the new independent equal-treatment authority is operating yet is unclear, so ask the Consejo or a local discrimination office before relying on it.

The decision block below helps you choose between the two routes.

Choosing between options

Should you take this harassment to the criminal route or the civil and administrative route?

• Criminal complaint: The conduct is threats, coercion, stalking, degrading treatment, serious insults or incitement to hatred, or any offence committed with a discriminatory motive.

• Civil or administrative route: The conduct falls below that level, such as discriminatory treatment or humiliating comments at work, in services, in education or in housing. You can complain to the relevant authority or claim damages in court.

If the conduct reaches the level of an offence, the criminal route applies; if it stays below that, the equal treatment law applies. If you are unsure, report anyway and let the prosecutor or court decide.

Checklist

• Insist on a written complaint even if the police say it is not a crime.

• Contact a local discrimination office or an NGO such as SOS Racismo or Accem for legal guidance.

• Check whether the conduct falls under the equal treatment law, for example humiliating comments at work, in services, in education or in housing.

• Send a workplace case to the labour inspection, and a consumer or housing case to the matching authority.

What to watch out for

• Police may say it is not a crime: Police may tell you the abuse is not a crime and discourage a complaint. That does not end your options. Insist on a written complaint and ask for the hate-crime prosecutors to review it.

• Repeated conduct can become stalking: Insistent, repeated harassment that seriously alters your daily life can be stalking, punished with 3 months to 2 years in prison or fines. Treating each incident as minor can hide this pattern. Keep a dated list of every incident and show the whole pattern when you report.

• Threats and coercion are criminal: Serious threats of a crime carry 1 to 5 years in prison, and forcing or preventing your conduct by violence carries 6 months to 3 years. Do not treat these as just words. Report them to the police or a court as soon as you can.

• Minor insults are usually not criminal: Minor insults and petty vexations are generally not crimes outside domestic settings, so a criminal complaint may be archived. Use the equal treatment route and ask a discrimination office whether it fits.

Frequently asked questions

Can insults alone ever be a crime in Spain?

Yes, but only when insults (injurias) are a serious attack on your dignity, and then they usually carry fines. Minor insults and petty vexations were decriminalised in 2015 for ordinary cases. If the insult was motivated by racism, that motive can make the penalty heavier.

What counts as stalking if someone keeps targeting me?

Stalking (acoso) means insistent, repeated harassment that seriously alters your daily life. It is punished with 3 months to 2 years in prison or fines. A single incident does not usually qualify, so keep track of each time it happens.

Where can I get free help if the police say it is not a crime?

Yes, you can still get free help: the Consejo para la Eliminación de la Discriminación Racial o Étnica supports victims at no cost. Local discrimination offices and NGOs such as SOS Racismo, Accem and Cruz Roja also give legal guidance.

Can I claim damages for racist harassment that is not a crime?

Yes, conduct below the criminal threshold can be claimed in civil proceedings for damages under the equal treatment law in force since July 2022. That law also lets part of the burden of proof shift to the other side. Whether the case is criminal or not is decided by a prosecutor or court.