Bullying in the Spanish military is taken seriously

On August 8, 2018, the Fifth Territorial Military Tribunal (Tribunal Militar Territorial Quinto) dismissed the preliminary inquiry (sumario) against Army 1st Sergeant Juan Carlos for the alleged crimes of abuse of authority for mistreating a soldier of inferior rank, named Jose Pablo, and also for treating him in an inhuman and degrading manner, in violation of Articles 104 and 106, respectively, of the Spanish Military Penal Code of 1985.  It also dismissed the case against two other Army soldiers, Marco Antonio and Julian, who collaborated with the Army Sergeant, and who also were also charged with the crime of abuse of authority and degrading treatment under Article 106.  The Military Tribunal dismissed the charges because it decided that their conduct "did not constitute the crimes that had been imputed to them [abuse of authority] and they also did not constitute any other offense of any nature."

The case would have been definitively archived if the Prosecutor and the soldier's lawyer had not presented a constitutional amparo (writ of protection of one's constitutional rights) before the Military Chamber of the Supreme Court alleging that Jose Pablo had been deprived of a fair trial and the requisite guarantees of due process in violation of Article 24 of the Spanish Constitution.  On April 10, 2019, the Military Chamber of the Spanish Supreme Court, overturned the Military Tribunal's dismissal of the charges because it could not share the view that the behavior of the Sergeant did not constitute a crime because it had not been proven that the soldier suffered any injury.  What the Court held as decisive was not the result of the mistreatment, but the breach of fundamental rights, such as respect for the dignity and physical integrity of the soldier.

The conduct in question entailed insults ridiculing Jose Pablo during formation exercises at 10:30 in the morning, when the Sergeant would call him "Patatero (a soldier who has not attended a military academy), come here to the right side of your master", or "Patatero, come to the right side of your Papa."  The Sergeant would ridicule Juan Pablo for the way he walked, using expressions like "when he walked it looked like he was skiing," "he had a rare body" and that "he was badly made." They also ridiculed a video of his girlfriend on his cell phone.  Jose Pablo denounced the treatment he was receiving to his higher ups and on more than one occasion the Sergeant gave him a punch in the chest with a closed fist.  The soldiers, Marco Antonio and Julian, wrote a song about Jose Pablo and the Sergeant, as a joke, and one of them imitated the Sergeant's voice giving orders to Jose Pablo.

The Prosecutor's role in this matter is to defend fundamental rights because he personifies the public interest in the integrity and efficacy of these rights. The Prosecutor's empowerment (legitimacion activa) in the constitutional amparo is as a procedural party to the case and at the same time as defender of the fundamental rights and freedoms of citizens.  The Prosecutor is empowered to invoke the breach of fundamental rights and in particular the failure to provide effective judicial protection; he represents the interest of all of society against the State.

The definitive dismissal of the case ordered by the Military Tribunal puts an end to the criminal process with a pronouncement that is equivalent to an acquittal, which in practice has the effect of res judicata, which impedes the initiation of a new case for the same purpose.  In cases where there is evidence of the commission of an act, which in terms of reasonable probability could be determined to be a crime, it is not appropriate to dismiss the case and the continuation of the matter is justified.

In order to determine whether the acts could reasonably constitute a crime, the Supreme Court considered the acts by which the Sergeant ridiculed Jose Pablo.  The Sergeant called him names and several times punched  him in the chest and the actions of the soldiers who continued with the insults and jokes that had been initiated by the Sergeant led the Supreme Court to declare that it could not agree with the lower court that these acts did not amount to crimes.  The Supreme Court found that the acts which belittled, humiliated and dishonored the soldier consisted of degrading treatment and behavior, expressed in words and deeds, which belittled, humiliated and degraded the soldier of inferior rank, scorning the fundamental worth of his personal dignity.

The Supreme Court reviewed the European Court's (of Human Rights) interpretation of Article 3 (inhuman and degrading treatment) of the European Convention on Human Rights, finding that the intention with which the degrading action is realized is irrelevant.  The act in itself constitutes degrading treatment if the conduct is an attack on the dignity of the person that belittles the other and treats him or her as a thing. When a person is reduced to a mere thing and is used for amusement, it is clear that this person has been degraded in his or her dignity and has been considered as a simple object.

The Supreme Court held that abuse of authority in its modality of mistreatment of an inferior is a multifaceted crime in which three legal interests worthy of protection are conflated: 1) physical integrity 2) personal dignity and 3) discipline as a structural element of cohesion within the Armed Forces.  It held that the case should proceed to the trial of the Sergeant since there was sufficient evidence to affirm the reasonable probability that the acts he committed constituted the crime of abuse of authority.  With respect to the two soldiers, however, the Court held that the evidence did not support a finding of the crime of abuse of authority since they were only carried out in support of the Sergeant's actions.  The Court did suggest, however, that in their case, the activities amounted to a serious disciplinary offense.