BREAKING AND ENTERING

The crime of breaking and entering, regulated in art. 202 of the Penal Code, protects the right to inviolability of the home. This right is included in art. 18.2 of the Spanish Constitution, which prohibits the entry into another’s home, except in those cases in which there is consent of the owner, judicial resolution or flagrant crime. The criminal conduct consists of entering or remaining in another person’s home against the will of its owner, which is punishable with imprisonment from 6 months to 2 years.

What spaces are considered as dwelling?

According to the Supreme Court, any enclosure, generally closed and roofed, in which a person and his or her close relatives live and develop their intimate and family life, including not only the rooms intended for cohabitation in privacy, but also those rooms which constitute the environment of the private life of the inhabitants and which are indispensable for the development of said family intimacy, constitutes a dwelling (STS of November 17, 2000). Consequently, second homes are included in the concept of domicile, and even spaces such as a caravan, provided that someone lives in them.

What requirements must be met in order to appreciate this crime?

According to the Supreme Court, the crime of breaking and entering is characterized by the following elements (STS No. 18/2021 of January 15):

• Any person can be a perpetrator of this crime, as long as they do not live in the same dwelling.
• The criminal action consists of a positive element, consisting of entering another’s dwelling or remaining in the same against the will of its inhabitant, and another negative element, consisting of such conduct being carried out against the will of the inhabitant (which may be express, tacit or presumed).
• As an intentional crime, it presupposes an action aimed at violating a specific interest that constitutes the legal object to be protected, consisting of the action of being in another person’s home, whether by breaking into it or by remaining in it, always against the will of the passive subject, without requiring a specific intent to violate the privacy of the home.

Aggravated modalities

On the one hand, if the perpetrator, in order to gain access or remain in the dwelling, uses violence or intimidation, the penalty is imprisonment of 1 to 4 years and a fine of 6 to 12 months (art. 202.2 of the Penal Code).

On the other hand, if the perpetrator of this crime is an authority or public official, acting outside the legally permitted cases and without legal cause for the crime, the penalty of imprisonment is imposed in its upper half and, in addition, the penalty of absolute disqualification of 6 to 12 years must be imposed (art. 204 of the Penal Code).