Criminal Law Cases: Burglary, Theft, and Usurpation
PEC 5: Case Studies in Criminal Law
1st Course: Burglary
Case A: Theft of Musical Equipment
Fernando stole musical equipment from three cars parked on Carrer de la Renclusa in Tarragona at 11:45 PM on February 20. He broke the car windows with an iron bar to access the equipment. This constitutes burglary under articles 237 and 238 of the Penal Code (CP).
Fernando appropriated the musical equipment by breaking and entering, using a crowbar to access the cars (Art. 238.2 CP).
Case B: Theft of a Car
In a similar incident, Fernando broke the window of a car parked on Carrer de la Renclusa, Tarragona at 11:45 PM on February 20, and stole a car stereo. This raises a paradox. While breaking a car window to steal an object is burglary, stealing the car itself is theft (Art. 234 CP), along with criminal damage (Art. 263 CP) for breaking the window and the car stereo.
The force used was to take the car, not to access a place where things are kept (Art. 237 CP). The force required for theft doesn’t have the same meaning as in everyday language. Force used to obtain the thing itself is relevant to burglary (e.g., STS of November 16, 1993), but damage caused may also be considered (Articles 263 ff. and 625 CP).
However, some courts disagree. The Balearic Islands High Court of Justice (SAP), Section One, in its February 7, 2000 ruling (17/2000), stated that breaking into a car is not considered force in this context.
Case C: Theft of Use
Fernando stole a car and returned it within a few hours to the same location. This constitutes theft of use (Art. 244.1 CP) due to the short duration and lack of intent to permanently deprive the owner.
The lack of typical force means it’s not robbery, and the penalty shouldn’t be increased as per the second paragraph of Art. 244.1 CP. The “bridge” technique is used to take the item, not to enter a place where it is located.
2nd Course: Usurpation and Robbery
Case A: Peaceful Occupation
Martha, Anna, and Judith, members of a squatting movement, peacefully occupied a vacant building in Barcelona’s Eixample district intending to rehabilitate it into a socio-cultural center. This could be considered the crime of peaceful occupation (Art. 245.2 CP).
Their belief in a constitutional right to housing might be considered a mitigating factor. However, knowledge of the property’s ownership and lack of permission are key. Lack of this knowledge could constitute a mistake of fact (Articles 14.1 and 2 CP), but proving this is difficult (SAP Madrid, Section 1, October 2, 2008).
Case B: Robbery with Intimidation
The owner confronted Martha, Anna, and Judith, demanding they leave or pay rent. When they refused, he used an unloaded gun to intimidate them and steal a laptop and other items (approx. €500). This is robbery with intimidation (Art. 242 CP).
Although the gun was unloaded, the intimidation was sufficient (Art. 242 CP) because the victims were unaware it was harmless. The crime of usurpation (Art. 245.2 CP) also applies.
Theory: Theft, Robbery, and Extortion
A. Qualified Theft and Robbery
Article 235 CP outlines aggravated theft subtypes based on:
- The nature or value of the stolen item: Cultural, artistic, historical, or scientific items (235.1 CP); essential goods or public services causing serious disruption (235.2 CP); items of significant value or causing substantial damage (235.3 CP).
- The victim’s situation: If the theft causes dire economic hardship for the victim or their family, or exploits the victim’s circumstances (235.4 CP).
Article 241 CP outlines aggravated burglary subtypes:
- If any of the circumstances in Article 235 apply (aggravated robbery), the penalty is 2-5 years imprisonment.
- If committed in an inhabited house, building, or public place, the penalty is also 2-5 years imprisonment. “Inhabited dwelling” includes any dwelling occupied by one or more people, even if temporarily absent. “Dependencies” includes patios, garages, and other adjacent areas forming a physical unit.
B. Extortion vs. Theft and Conditional Threats
Extortion (Art. 243 CP) and robbery (Art. 242 CP) are similar but distinct. Both involve violence or intimidation to obtain an economic benefit. However, extortion focuses on obtaining an economic benefit through forcing a legal transaction, while robbery involves the direct seizure of property. Extortion also resembles conditional threats or blackmail (Art. 171.2 CP), but the primary objective of blackmail is against freedom, not economic gain.
The imminence of the threat, and the forcefulness of the violence or intimidation, determine whether it constitutes robbery.