Use of the Baton as a Weapon by the State Security Forces

Factual Background:

On May 25, 2016, during the third night of riots caused by the okupa movement in protest of the eviction of the so-called “Banc Expropiat,” when the demonstration had already ended and only a few protesters remained in the square, a police officer in the second line of the cordon approached a photojournalist—who had identified himself as a member of the press—and, without any indication that the officer heard him, struck him on the right leg with his baton. Later, when the police cordon advanced to the Plaza de la Revolució and stopped by order of the commanding officer, the accused officer disobeyed orders, moved into the square on his right where a small group of people stood, approached the same photojournalist, and struck him on the hand, causing a fracture of the first phalanx of his left hand.

The Crime of Aggravated Bodily Harm:

Bodily harm is defined in Article 147 of the Criminal Code as: “Anyone who, by any means or procedure, causes another an injury that damages his bodily integrity or physical or mental health…”

However, the law provides for an aggravated form of this crime depending on the result, regulated in Articles 148 and 149 of the Criminal Code, punishable with imprisonment of up to 12 years in the most serious cases.

Given the facts, this case falls under Article 148.1, which applies “when the assault involves the use of weapons, instruments, objects, means, methods, or forms that are specifically dangerous to the life or physical or mental health of the victim.”

The Supreme Court, in judgments 832/1998 (June 17) and 2164/2001 (November 12), established that the dangerousness of the instrument used must be assessed both objectively (its nature, form, and composition) and subjectively (the intensity, intent, and direction of the blows).

Here, the baton qualifies as an inherently dangerous instrument, and the injuries suffered confirm this.

Although some rulings (STS 860/2022, 339/2001, and 1203/2005) have not considered police batons “dangerous instruments,” those cases did not involve abuse or overreach. By contrast, other rulings (STS 1401/2005, 778/2007, and 1010/2009) emphasize that although police officers have both the power and the duty to use force—including their assigned weapons—this must always follow the principles of congruence, necessity, and proportionality (Article 5.4 of Organic Law 2/1986). Weapons may only be used when there is a serious, rational risk to life, physical integrity, or public safety.

For an officer’s use of force to be considered justified, the following conditions must be met:

1. The perpetrator is a public authority or official legally authorized to use force.
2. The act occurs in the course of official duties.
3. Violence is strictly necessary for fulfilling the duty (necessity in abstract).
4. The specific force used is the minimum required, both in choice of means and in how it is applied (necessity in concrete).
5. Proportionality exists between the force used and the situation prompting police intervention.

The Court stresses that lawful duty or legitimate exercise of office is not a blank check—acts must remain within the proper scope of authority. Any abuse beyond this can trigger criminal liability.

Conclusion:

The Supreme Court ruling of June 27 sets out when the use of a standard police baton is justified and falls outside the aggravated bodily harm offense under Article 148.1 of the Criminal Code. In this case, the Court found that the officer overstepped: he disobeyed orders, acted without proportionality, and faced no concrete threat to his safety or to public security. Consequently, the baton was considered a “weapon” under Article 148.1, and the officer’s conduct was not protected by his official duties.

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