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Criminal penalty for a terrace bar open to the public

This article´s title may initially suggest an excessive use of criminal law, which ought always to be considered an “ultima ratio“, or, as laid out in a famous criminal principle itself, “a tool of minimum intervention” (which is precisely the first notion that is explained to one when he begins the study of this field of law).

That the Supreme Court should impose a criminal penalty for keeping a terrace open to the public in a business premises may seem surprising if one does not take into account other facts of the case.

An Examining Magistrate´s Court of Granada instructed, at the time, an Abbreviated Procedure against the owner of a premises, for a crime against the environment, and after the case was sent to the Criminal Court of Granada, judgment was rendered in which it was stated that the accused had installed two televisions and a chain of stereo speakers, none of which had acoustic limiters, causing (among other things) a family who lived on the property to suffer several anxious depressive disorders, insomnia, headaches, migraines and aggravation of previous pathologies, being forced to seek medical treatment.

The Court ruled against the property owner, deeming his acts a crime against the environment, as well as four misdemeanors of bodily harm. The convicted party presented an appeal.

The Supreme Court judgment 713/2014 of 22 October ruled against the author once again, and did so while drawing attention to “the lack of serious danger reported by such behavior. It places such acts in the administrative realm, merely rebuking the complainants for an alleged lack of appeal to the Administration”. This is because the local government did not act, despite thee being “no doubt that the administrative regulations on noise emission have been violated.”

The Supreme Courte states that, first of all, it should be noted that the offense of article 325 of the Penal Code is what scientific doctrine calls an offense of alleged or hypothetical danger, ie. those in which it is not necessary that a legal right be infringed, only that the different circumstances of the criminal situation be given, since the danger, in such a case, is presumed to exist. However, the potential and abstract danger of this behavior must be proven.

Accordingly, one must prove that the conduct not only violates, as occurs in this case, rules that protect the environment, but is also capable of creating a serious risk for the legally protected rights.

And once the behavior has been described, one must identify the risk which has been created (or that the conduct is capable of creating). As the Supreme Court explained, it is necessary to identify the possible damage to the balance of natural systems or, simply, to the health of people, that such a risk creates, which may or may not concur with other behaviors. And this risk must be serious.

In the case of the terrace bar (or rather the equipment that was installed), both the Court of Human Rights and the jurisprudence of the Constitutional Court have highlighted the serious consequences of prolonged exposure to high levels of noise on people´s health, their physical and moral wellbeing, their social behavior and in some especially serious cases their right to personal and family privacy in their home environment, to the extent that it seriously impedes or hinders the free development of their personal identity.

But, what about the attitude of the City Council? The convicted party in his appeal, tried to argue that, since the administration had not requested him to change his behavior, it could be inferred that he had acted lawfully. The Supreme Court stated that, although the negligent conduct of the authorities might merit reproach, even in criminal terms, the cases reported were so insistent that finally a closure order was given (which was not complied with by the respondent).

In short, a “simple, everyday” act, such as installing musical equipment in a terrace, coupled with the negligent conduct of the administration and accredited mental disorders for neighbors, can all lead to imprisonment, along with various fines and disqualifications.

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