THEFT

The crime of robbery has in common with the crime of theft in that both consist of seizing another’s movable property for profit. However, the crime of robbery is punished with more severe penalties because this seizure occurs either by using force on things, or by means of violence or intimidation of persons. Therefore, we distinguish between two types of the crime of theft, which we will see below:

Burglary and robbery

We are faced with a crime of robbery with force in things when the perpetrator seizes other people’s movable property by using force to access or abandon the place where they are located (art. 237 of the Penal Code). We must take into account that in those cases in which the perpetrator uses force on things, but not to access or abandon the place where they are located (for example, if he breaks the window of a vehicle or the chain of a bicycle to steal them), the facts must be qualified as a crime of theft.

In relation to the concept of “force in things”, art. 238 of the Penal Code provides for a series of assumptions that are included within this concept:

1. Scaling.
2. Breakage of wall, ceiling or floor, or fracture of door or window.
3. Breaking of closed or sealed cabinets, furniture or objects, or forcing their locks or discovering their keys.
4. Use of false keys, considering as such lock picks or similar instruments, legitimate keys lost by the owner or obtained through the commission of a crime or any other keys that are not those intended by the owner to open the lock. Also considered as keys are magnetic or punch cards, remote controls or remote opening instruments and any other technological instrument of similar effectiveness (art. 239 of the Penal Code).
5. Disablement of specific alarm or guard systems.

The penalty associated with the crime of burglary is imprisonment from 1 to 3 years. However, the penalty increases to imprisonment of 2 to 5 years if any of the circumstances provided for in section 235 of the Penal Code (aggravating circumstances of the crime of theft).

Burglary in an inhabited house or building or premises open to the public

Article 241 of the Penal Code punishes theft committed in an inhabited house or in buildings or premises open to the public, or in any of its dependencies, with a prison sentence of 2 to 5 years. If the acts are committed in establishments open to the public outside opening hours, the penalty shall be imprisonment from 1 to 5 years.

What should we understand by an inhabited house? An inhabited house is considered to be any shelter that is the dwelling of one or more persons, even if they are accidentally absent from it at the time of the robbery. Likewise, their yards, garages and other enclosed apartments or places contiguous to the building and in interior communication with it, and with which they form a physical unit, are considered dependencies of an inhabited house or of a building or premises open to the public.

Finally, art. 241.4 of the Criminal Code regulates an aggravated form of this crime, which is applicable when the facts are particularly serious, taking into account the manner of commission of the crime or the damages caused and, in any case, when any of the aggravating circumstances of the crime of theft provided for in article 235 are present.

Robbery with violence or intimidation

This type of crime occurs when the perpetrator seizes other people’s movable property by using violence or intimidation against persons when committing the crime, to protect the escape, or against those who come to the victim’s aid or against the persons who are pursuing him (art. 237 of the Criminal Code). The perpetrator of this crime shall be punished with imprisonment of 2 to 5 years, without prejudice to the penalty for violent crimes committed (art. 242.1 of the Penal Code).

What do we mean by violence? According to the Supreme Court, violence involves the use of physical force or assault on a person to overcome or avoid his opposition or physical resistance to the seizure (STS no. 491/2019 of October 16). Some of the most problematic cases are those known as cases of tugging (for example, when the perpetrator pulls the victim’s purse to take it from her), cases that the Courts usually qualify as theft, understanding that the simple tugging involves the use of violence aimed at breaking the resistance offered by the victim to the theft, although when the skill or the surprise factor prevails over the physical force, only a crime of theft can be considered (STS no. 920/1998).

What is meant by bullying? Intimidation consists of the announcement of an immediate, serious, personal, concrete and possible evil that inspires in the victim a feeling of fear, thus overcoming his opposition to the loss of the thing (STS no. 491/2019 of October 16). Consequently, we find ourselves before a robbery with intimidation, for example, when the perpetrator asks the victim to give him his wallet while pointing a gun at him.

Aggravated modalities

The crime of robbery is punishable with a higher penalty than the one previously indicated when any of the following circumstances concur:

1. On the one hand, if it is committed in an inhabited house, building or premises open to the public or in any of its dependencies, the penalty will be imprisonment of 3 years and 6 months to 5 years.
2. On the other hand, the penalty is imposed in its upper half when the perpetrator uses weapons or other dangerous means, either when committing the crime or to protect the escape, as well as when he attacks those who come to the aid of the victim or the persons who pursue him.

Privileged subtype

Finally, art. 242.4 of the Criminal Code allows the Judge to apply the lower penalty in degree in attention to the lesser entity of the violence or intimidation exercised, assessing the rest of the circumstances of the criminal act, such as the value of the stolen objects, the place where the crime is committed, whether it is a group or individual action, the number of people assaulted…. (STS no. 34/2017, of January 26).

Theft and theft of use of vehicles

The crime of theft and theft of use of vehicles is regulated in art. 244 of the Penal Code, and is characterized by the theft and use, without authorization, of another’s motor vehicle or moped, provided that there is no intention to appropriate it. The penalty associated with these acts is community service of 31 to 90 days or a fine of 2 to 12 months, provided that the perpetrator returns the vehicle within a period not exceeding 48 hours, without the penalty being equal to or greater than that which would apply if the vehicle were definitively appropriated. If the restitution of the vehicle does not take place within the indicated term, the facts must be punished as theft or robbery.

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

• That there is a subtraction or use of another’s motor vehicle or moped, without the consent of the owner.
• That there is no intention of appropriation.
• The vehicle must be returned within 48 hours.
• No violence or intimidation of persons has been used (art. 244.4 of the Penal Code).

Finally, the penalty must be applied in its upper half if the perpetrator uses force on things, the penalty is applied in its upper half (art. 244.3 of the Penal Code).