Stalking in Comparative Law: The Istanbul Convention’s Obligation to Criminalise and the Techniques of Criminalization

Abstract

In order to face the delicate criminal phenomenon of stalking, all legal systems feel the need to introduce an ad hoc regulation due to the failure of both extrapenal tools such as pre-existing criminal instruments, incapable of covering it. This need has been determined by the obligation of incrimination contained in Article 34 of the «Convention of the Council of Europe Convention on preventing and combating violence against women and domestic violence», better known as the Istanbul Convention. A comparative analysis reveals the difficulty of typifying this phenomenon in a legislative formula that, on the one hand, is compatible with the constitutional principle of legality and, on the other, is capable of criminalizing the variety of behavioral types in which it manifests itself. In particular the major difficulty encountered by the lawmakers is the identification of the typical threshold coinciding with an effective offense of the protected objects, precisely because of the fact that very often the individual conduct is in itself completely legitimate and socially appropriate, but their character offensive comes only from obsessive and stubborn repetition, making them eligible to offend the freedom of self-determination of the victim, its tranquility and mental and physical health, in addition to the associated risk of violence. In any case, the fight against stalking or harassment, in particular, and against gender violence in general, requires a cultural and legislative strong commitment, which should be aimed at the prevention and elimination of inequality between men and women, that the Istanbul Convention demands by imposing specific obligations. In this direction, the Spanish experience is very interesting.