“Of the trespassing of dwelling, legal entities´ domicile and establishments open to the public”, is the title of the Chapter II, of the Title X, of the Book II, of the Spanish Penal Code (CP). By its location within the Book II we know that it is a crime that affects to the legal good intimacy, or more concretely the inviolability of the domicile.
In the Chapter II which we are commenting, is regulated the crime of trespassing of either dwellings, legal entities´ domicile or establishments open to the public. This is done through three different articles, which in principle makes it a chapter not very complex, though we are going to increase the complexity of this writing by comparing the crime of trespassing with other crimes regulated in this Code, the crime of illegal occupation of real estate and the crime of burglary into inhabited home.
We have said that this Chapter II is made up of three articles, but we have not said yet what is the object of each of them. In the article 202, we find the crime of trespassing of dwelling; in the article 203, with the crime of trespassing of public or private legal entity´s domicile, professional office or office, or into mercantile establishment or public premises outside of business hours, and; in the article 204, the aggravated subtype of trespassing, when any of the above crimes have been committed by authority or public servant.
After this brief introduction, we are going to see each of the articles mentioned, for later studying the differences between the crime of trespassing, the crime of illegal occupation of real estate and the crime of burglary into inhabited home.
1) The crime of trespassing:
Article 202:
We are going to start with the definition given by the Dictionary of the Royal Academy of the Spanish Language, of the verb “to trespass”, since the trespassing is only a name that describes the action of trespassing. According to the fifth meaning of this verd, to trespass means: “To enter into alien home against the will of its owner.” Now, we know what is the object of the crimes regulated in this chapter, though clearly, we do not know a lot. However, with this definition we already know the most important.
The first of these articles is the article 202, which says:
“Article 202.
1. Who, without living in it, enters into alien dwelling or maintains itself in it against the will of its dweller, will be punished with the punishment of imprisonment from six to two years.
2. If the fact is executed with violence or intimidation the punishment will be of imprisonment from one to four years and fine from six to twelve months.”
The article 202 is formed by two points, a first where we find the basic type of the crime of trespassing of dwelling, and a second, where we find an aggravated subtype, for when the facts described in the first point have been committed with violence or intimidation.
The typical behavior described in the first point, the one that we can consider forms the objective elements of the type, consists in two kinds of actions: 1) To enter into alien dwelling, without living in it, and 2) To maintain itself in it against the will of the dweller, without living in it.
Both behaviors, do not need more explications. The crime of trespassing of dwelling will be consummated, since either the moment a person enters into alien dwelling or maintain itself in it against the will of the dweller.
What do need of more explications is the concept of dwelling and the legal good protected by means of the typification of the above two behaviors.
Let us start with the legal good. This is the right to the inviolability of the domicile, recognized as an independent and autonomous fundamental right in the article 18.2 of the Spanish Constitution (CE). We stress that it is an independent and autonomous fundamental right, since doubtless the right to the inviolability of the domicile directly derives from another fundamental right which is also constitutionally recognized, though in a way more abstract or general, the right to the intimacy of the article 18.1 of the CE. However, there exists an essential difference between both rights at constitutional level, for the right to the inviolability of the domicile, the CE expressly envisages that it can only be legally affected in three cases, by consent of its owner, judicial authorization and flagrant offence, while with respect to the right of intimacy the CE remains silent, having been developed an abundant jurisprudence which has determined the scope of this right. The right to the intimacy may cede in certain cases when besides the legal constitutional interest there exist legal stipulation and it fulfils the principle of proportionality (Spanish Supreme Court´s sentence number 166/2020). The legal stipulation is found in the article 282 LECrim, according to which the police has the capacity and the obligation to find out the public crimes committed in its territory and, the principle of proportionality has been developed by our jurisprudence, as the Spanish Constitutional Court´s sentence number 123/2002 of 20 May recall us, when it proclaims that: “…for checking if a restricting measure of a fundamental right fulfils the judgment of proportionality it is necessary to verify whether it complies these three requisites: a) if the measure agreed may achieve the objective proposed (judgment of suitability); b) if it is necessary in the sense that there is no other means more moderated for achieving the aim proposed with the same efficacy (judgement of necessity); c) whether the measure is balanced for deriving from it more benefits or advantages for the general interests than prejudices upon the goods or values in conflict (judgement of proportionality in strict sense)” (Spanish Provincial Court of Barcelona´s sentence number 5231/2017). To the above, we have to add another requisite, the police has to act moved by motives of urgency, in other words, the general rule is that the judicial police should act under the guarantees of a judicial authorization, though, sometimes it is possible, without the necessity of such authorization, when it has legal support, reasons of urgency concur and the restriction is proportional to the aim followed (Spanish Supreme Court´s sentence number 2368/2021). To conclude, the Spanish Constitutional Court has established the following requisites for regarding as licit an investigating measure which affect to the right to the intimacy “we have been establishing as requisites that give an objective and reasonable constitutional justification to the police interference in the right to the intimacy (art. 18.1 CE), the following: a) the existence of a legal constitutional aim, regarded as such the own public interest of the prevention and investigation of the crime, and, more concretely, the determination of the relevant facts for the criminal procedure; b) that the restricting measure of the right to the intimacy is envisaged in the law (principle of legality); c) that, in case of not having judicial authorization (or consent of the affected), the police has to limit itself to comply with the legal habilitation, taking into account that the law may authorize to the police the practice of inspections and even mild corporal interventions, but always respecting the principle of proportionality, concreted by three demands or conditions: suitability of the measure, necessity of it and judgement of proportionality in strict sense (Spanish Constitutional Court´s sentence number 173/2011).
However, we are obliged to emphasize that, both the different scenarios gathered in the CE and the above doctrine have been created by the legislator or developed by the courts, for avoiding the illegal interferences of the public powers in these rights.
Let us continue, because we have talked a lot, but we have not talk yet about the more important, we have not delimited the scope of both rights. According to the Provincial Court of Barcelona´s resolution 3095/2021, the right to the intimacy: “guarantees to the individual an reserved ambit of its life “impeding that thirds, either privates or public powers, decide what are the limits of our private life, being able each person to reserve to itself a space protected from the alien curiosity, whatever may be the content of this space (Spanish Constitutional Court´s sentence numbers 127/2003 of 30 June, 89/2006 of 27 March). The protection of this reserved ambit confers to the person the faculty of demanding from thirds the duty of abstaining of all intromission in the private sphere and the prohibition of making use of the known in this way.”
On the other hand, the right to the inviolability of the domicile, according to the Provincial Court of Oviedo´s sentence number 1593/2021, quoting the Constitutional Court´s sentence 22/2003 of 10 February: “-inviolability- which constitutes an authentic fundamental right of the person, established as guarantee that the ambit of privacy, within the limited space that the own person chooses, results -exempt from- or -immune to- any type of external invasion or aggression of other persons or the public authority, included those which may be committed without physical penetration in it, but by mechanical, electronic or others analogous means.”
Doubtless, this right to the inviolability of the domicile, can only be exercised within the ambit of a domicile. According to the Provincial Court of Madrid´s sentence number 18202/2022: “For dwelling or domicile, for penal purposes, has to be understood the closed place, legally occupied, where the private, personal or family life takes place, even when the occupation is temporal or accidental. It is emphasized in this way the link of the concept of domicile with the protection of spheres of privacy of the person, something which broadens the civil or administrative concept of dwelling for constructing that of domicile from the constitutional point of view, as a tool of protection of the privacy. Will find the protection granted to the domicile those places in which, permanently or transitorily, a person develops spheres of its privacy, far from the encroachment of not authorized thirds (Spanish Supreme Court´s sentences of 24 October 1992, 19 July 1993, 11 July 1996, and 731/2013 of 7 October).”
Following the guidelines marked by the above definition, we have to consider domicile either the usual residence of a person or those temporally or transitorily occupied by it, as a second residence for holydays or even the room of a hotel or hostel. The only requisite that has to be fulfilled is that a person develops there the more intimate aspects of its private life.
So far, we have studied the objective elements of the type, the legal good protected and the concept of domicile. But we have to talk about something more, the subjective elements of the type. We are before a malicious crime, therefore, for carrying it out the active subject should know and want the objective element of the type, in other words, to enter into alien home or to maintain itself in it without the consent of the owner. Furthermore, it will be enough with the fact that the active subject thinks in this possibility as possible, the eventual malice will also suffice to fulfill the demands of the subjective type. Doubtless, it cannot be committed by imprudence. Besides, the legislator has not envisaged that the trespassing of dwelling has to be carried out with a specific intention. The Spanish Provincial Court´s sentence number 18202/2022 says regarding the above: “The type designed by the legislator does not demand a specific subjective element: it is enough with carrying out the objective type knowing that it is entering into an alien domicile without the consent of those who can grant it and without justifying motive which may amend the lack of authorization, for such knowledge necessarily entails the invasion of the space where other persons live without subjection to the uses and social conventions and exercising their most private freedom (Spanish Supreme Court´s sentences number 1048/2000 of 14 June, 1775/2000 of 17 November, 2/2008 of 16 January, 1231/2009 of 25 November, 520/2017 of 6 July).”
Once we have studied the basic type, now we have to turn to the aggravated subtype envisaged in the second point of the article 202. The punishment envisaged in the first point, is increased for the cases in which the trespassing of dwelling has been executed by means of violence or intimidation. The aggravation of the punishment is justified by the greater risk suffered by the physical integrity of the passive subject, besides, this kind of behavior wipes aside any kind of doubt regarding the intention of the active subject.
Let us try to distinguish the violence from the intimidation. By violence has been understood any kind of physical aggression or the use of the force upon the passive subject of the crime, but besides, has to be also understood, the cases in which the violence is exercised upon the things, like when a window or door is forced. The Spanish Provincial Court of Madrid´s sentence number 18202/2022, says: “In the crime of trespassing of dwelling the employment of the violence or intimidation constitutes an aggravated subtype in relation with the basic type. This aggravated subtype comprehends those cases in which the violence or intimidation have been executed for get into or maintaining itself in the dwelling and also comprehends the cases of “vis in re”, always that the material violence upon the things is the means of execution of the trespassing, this happens, for example, when the front door is broken. The violence, therefore, may be exercised either upon the things and upon the persons (Spanish Supreme Court´s sentence number 179/2007 of 7 March, 496/2003 of 1 April, 520/2017 of 6 July.)”
According to the Dictionary of the Royal Academy of the Spanish Language, to intimidate consists in, “to cause or inspire fear.” Therefore, when we talk about intimidation, we are before a psychological aggression rather than a physical. The use of the fear created in the victim, for provoking its submission to the purposes of the aggressor.
Article 203:
Now it is the turn for the article 203, through which is granted protection to the domicile of a public or private legal entity, professional office or office, or mercantile establishment or public premises.
It is an article formed by three articles, each typifying a different behavior. The article 203 says:
“Article 203.
1. Will be punished with the punishment of imprisonment from six months to one year and fine from six to ten months who enters against the will of its owner into the domicile of a public or private legal entity, professional office or office, or mercantile establishment or public premises outside of business hours.
2. Will be punished with the punishment of fine from one to three months who maintains itself against the will of the its owner, outside of business hours, in the domicile of a private or public legal entity, professional office or office, or mercantile establishment or public premises.
3. Will be punished with the punishment of imprisonment from six months to three years, who with violence or intimidation enters or maintains itself against the will of its owner into the domicile of a private or public legal entity, professional office or office, or mercantile establishment or public premises.”
As we can observe, in each of the points is punished a different behavior. In the first, is punished who against the will of its owner enters into the domicile of a public or private legal entity, professional office or office, or mercantile establishment or public premises outside business hours. The typical behavior, aside from the fact of entering into any of the aforementioned places, has two characteristic elements, the entering has to be against the will of its owner and outside the business hours.
What we have just studied, may be regarded as the objective elements of the type. On the other hand, when we refer to its subjective elements, we are before a malicious crime, it supposes that the active subject has to enter into any of the places mentioned, knowing that it is doing it against the will of the owner and outside business hours. The subjective elements of the type will be also fulfilled when there is eventual malice, though we can discard altogether its commission by imprudence.
In the second of the points of the article 203, is mentioned a second typical behavior, to maintain itself against the will of the owner. However, the rest of the elements mentioned in the first point continue, passive subject and places where can be committed the crime, as well as the condition that it has to be outside business hours. It is also a malicious crime, at least, in its eventual modality.
Lastly, in the third point of the article 203 is punished who by means of violence or intimidation enter into or maintains itself against the will of the owner, in any of the establishments mentioned, which are the same of the first and second point. In this case the novelty resides, aside from the fact that the crime should be committed be means of violence or intimidation, in the lack of distinction between the inside or outside business hours of the establishment where can be committed the crime. It is a malicious crime, too.
We have not said anything about the legal good protected by the norm. In principle, it is also the inviolability of the domicile, though we should take into account that the legal concept of domicile may vary, in fact it varies, when we talk about the domicile of a physical person or the domicile of a legal entity. It is not less true, that due to the broadness with which the article 202 mentions the places where can be committed the crime, there will be cases, in which they cannot be even regarded as domiciles of a legal entity, like the simple public premises. None the less, as we have already seen, the right to the inviolability of the domicile derives from the right to the intimacy, hence, we can affirm without any fear to be mistaken that the legal good protected will be always or in any case, the intimacy.
All the above said, we cannot forget that there exists a definition of domicile of a legal entity in the Criminal Procedure Act (LECrim), which at least, can help us to clarify this concept. Though, we have to take into account, that we find this definition in a precept dedicated to measure of investigation, the entering and search of a closed place, hence, having the goal of avoiding illegal interferences in the right to the inviolability of the domicile of legal entities by the public powers, and therefore, it is not directly applicable to the penal ambit, it can be only applied for informing or orienting the penal definition of a legal entity´s domicile.
Once we have made this clarification, the article 554.4 LECrim defines the domicile of the imputed legal entities as: “the physical space which constitutes the center of direction of them, it can be either its registered office or a dependent establishment, or those other places in which are kept documents of is day to day life which are reserved from the knowledge of thirds.” This definition softens the concept of domicile applied to a physical person, because the right to the intimacy (art. 18 CE) from which derives the right to the inviolability of the domicile (art. 18.2 CE), is not affected with the same intensity in the case of the legal entities. Regarding the above, the Spanish High Court´s sentence number 5345/2021 says: “the extension of the right to the inviolability of the domicile of the legal entities, has no to be the same, that the right to the inviolability of the domicile of the physical persons, for with respect to the latter the domicile constitutionally protected, as dwelling or room of the person, has an intimate link with its ambit of intimacy, since it is not only protected a physical space, but what emanates also from its person and its privates sphere, this is not the case with the legal entities, which have less protection, and therefore, a minor intensity of the control carried out by the Judge about the legality of the measure of entering and search requested, as consequence of a less intense interference in the rights of freedom of the citizens (Spanish Constitutional Court 69/1999 of 26 April). The essential core in the right in the case of the legal entities, is constituted by different ambits of the dwelling, as being the center of direction of the legal entities or the place where they kept their documents, which have also protection, precisely for this lack of relation with the personal and familiar sphere, only applicable to the physical persons.”
Later, the same sentence adds: “The article 554.4º limits itself to respect the reasonable expectancy of privacy of the entity, materialized in this physical ambit in which it acts confident that its actuation is not being surveilled by thirds and whose protection is regarded essential for allowing the development of the aims for which was created.”
Article 204:
Lastly, we have to mention the article 204. It says:
“Article 204:
The authority or public servant who, outside the cases allowed by the Law and without existing legal cause for crime, commits any of the facts described in the last two articles, will be punished with the punishment envisaged respectively in them, in its superior half, and absolute disqualification from six to twelve years.”
It is a special improper crime, since it can be only committed by an authority or public servant, and besides, it is an aggravated subtype, for it increases the punishments envisaged for any of the above two crimes.
We already know the objective type for what we have studied in the above articles. The same we case say about the subjective type and the legal good protected.
However, we do have something interesting to tell in relation with this article. We have already mentioned some things, for example, that in relation with the right to the inviolability of the domicile, there exist three scenarios expressly recognized by the CE, that when they take place, impede that we talk about an infringement of this right, they are: judicial authorization, consent of the dweller and flagrant crime. The three scenarios, being clearly aimed at impeding illegal interferences of the public powers in this right. Moreover, in the LECrim, something which we have already studied too, there exists a measure of investigation named the entering and searching of closed place.
Let us begin with the requisite of judicial authorization. Being a resolution, which is going to affect negatively to a fundamental right, it has to have the form of “auto” (art. 141 LECrim and art. 558 LECrim). Regarding the above, the Spanish High Court´s sentence number 5345/2021 says: “As the Spanish Supreme Court´s sentence number 167/2020 of 19 May recalls, with regard to the motivation of the authorizing “auto”: “The judicial authorization demanded by the article 18.2 CE is something more than a formal requisite. A judge, as protector of the fundamental rights, should make an assessment about the proportionality and necessity of the measure requested and the necessity of the measure requested to him and the aptitude of the evidences which support this request. Only when the Examining Magistrate verifies the presence of reasonable evidences that through this measure will be found tools or effects of the crime which may serve for its solving and verification (art. 546 LECrim) and there are no other alternative ways less damaging for achieving the same goal, will be legitimated. (Spanish Supreme Court´s sentence number 860/2012 of 5 November)”.
From the above definition we obtain two consequences. The first, the entering and searching can only be authorized when there are evidences of being there the prosecuted, or proofs of the crimes investigated, the authorizing scenario of the resolution is the contemplated in the article 546 LECrim. And second, once the judge verifies that there exist such evidences it has to motivate its decision taking into account three requisites, the suitability of the measure, its necessity and its proportionality. The Spanish Supreme Court´s sentence number 2653/2021 says: “The suspicion based in objective circumstances that it could have been committed, or it is being committed or will be committed the crime or crimes investigated: it is about the suitability of the measure with respect to the goal wanted; the strong suspicion that can be found proofs or may be these been destroyed, as well as the inexistence or the difficulty of obtaining such proofs following other alternative means less onerous: its necessity for achieving the aim wanted; and, lastly, that there is a real and certain danger that legal goods of constitutional rank will be damaged if this entering and searching is not authorized, which is what at the end support and sum up the proclamation of the constitutional interest in the prosecution of the crimes, for the only limits which can be imposed to the fundamental right to the inviolability of the domicile are those which may derive of their coexistence with the rest of the fundamental rights and good constitutionally protected upon its limits. This is the judgement of proportionality in strict sense (Spanish Supreme Court´s sentence number 239/1999 and 136/2000).”
The same sentence later continues: “Likewise, and due that the appreciation of the connection between the justifying cause of the measure – the investigation of the crime- with the persons which can be affected by the restriction of the fundamental right constitute the logical requisite of the proportionality of it, it is essential that the judicial resolution has also left proof of the circumstances which may support the existence of such connection (Spanish Constitutional Court´s sentences 49/1999 of 5 April; 166/1999 of 27 September; 171/1999 of 27 september and 8/2000 of 17 January.”
With regard to the flagrant crime, in order to have a definition, we can use the given by the own article 795.1.1º LECrim: “In this sense, it is regarded flagrant crime the one which is being committed or has just been committed when the criminal is surprised in the act. Will be understood by surprised in the act not only the criminal that has been detained at the moment of being committing the crime, but also the immediately detained or followed after committing it, if the pursuit lasts or is not suspended while the criminal is not out of the reach of those who chase it.
Will be also regarded criminal in fraganti who is surprised immediately after having committed the crime with effects, tools, or proofs which allow to presuppose its participation in it.”
And with regard to the consent, the Spanish Supreme Court´s sentence number 2093/2021 says: “1. It has to be given by a capable person, this is, of legal age and without any restriction upon its capacity to act.
2. It has to be consciously and freely given, this supposes: a) that it is not invalidated by error, violence or intimidation of any class; b) that it is not conditioned by any peripheral circumstance, as promises of any police actuation, of whatever sign; c) that the consent is granted for a subject of which has knowledge who grants it, without being possible to take advantage of it for different aims and d) that if who will give the consent is detained, cannot give validly this consent but only with the assistance of a lawyer, since the article 520 of the procedural law demands the assistance of a lawyer for the valid manifestation of any person deprived of freedom.
3. Its granting should be express. Though the Spanish Criminal Procedure Law in its article 551 authorizes the tacit consent, it has to be restrictively interpreted, for the consent has to be reflected in an unequivocal way through own acts neither of opposition nor collaboration, for the doubt about the tacit consent should be solved in the sense more favorable to the not intromission in the space covered by the fundamental rights of the person.
4. The authorization has to be granted by the owner of the domicile, ownership which may derive from any civil title, without being necessary the dominical ownership. In this sense, the Constitutional Court (STC 54/2015, of 16 March) has proclaimed that in the cases in which there are various dwellers at the domicile which should be searched, it is enough with the consent of one of them for the practice of the measure of investigation of entering and search, for the coexistence presupposes a reciprocal relation of confidence, what implies to accept that that with whom we coexist may carry out acts with respect the common domicile, of which is co-owner, which should assume the rest of the persons who live in it. Nevertheless, as exception, the Court recognizes to each dweller a faculty of exclusion when the co-dwellers have opposite interests (STS 209/2007), in whose cases the police will need the authorization of the investigated dweller.
5. With regard to the entering in the domicile of legal entities, it has to be authorized by the representative of the organ of administration or by who has enough powers for this, without having to take the decision according to the rules for the adoption of agreements.”
I have told you all this, because doubtless when the police do not fulfill any of the above three requisites, it will be committing some of the crimes mentioned in the article 202 or 203, depending upon the facts. Furthermore, another important consequence, for the cases in which the entering into the domicile is carried out without complying any of these requisites of the article 18.2 CE, is that the evidences obtained cannot be used as proofs during a trial. This is the result of the application of the article 11.1 of the Organic Law of the Judicial Branch (LOPJ), which says that: “Will not have effect the proofs obtained, direct or indirectly, infringing fundamental rights or freedoms.” This article has materialized in the law, the so-called doctrine of the “fruit of the poisonous tree”, which is as procedural rule. Regarding it, the Spanish Spanish Supreme Court´s sentence number 2932/2020 says: “This doctrine comes from the American jurisprudence which, in general terms, proclaimed that the proofs obtained by the public powers infringing procedural rights recognized in the Federal Constitution, cannot be used in the deciding phase of the penal procedures for accrediting guilty or innocence of the citizens whose rights were infringed.”
Our Constitutional Court has also developed it, but with a different name, it talks about the denominated “connection of unlawfulness” but also denominated “probation of assessment”. The Spanish Supreme Court´s sentence number 588/2021 explains to us: “It supposes the establishment or determination of a legal link between one proof and another, in a way that, declared the nullity of the former, it is produced in the latter a connection which impedes that it may be taken into consideration by the ruling Court for destroying the presumption of innocence of the accused.”
The article. 11.1 LOPJ talks about two kinds of proofs, the proof direct or indirectly obtained. The proofs directly obtained are those obtained as direct consequence of the infringement of the fundamental right. The Spanish Supreme Court´s sentence number 588/2021 gives us a couple of examples: “For example, in the case that has been declared the infringement of the right to the secret of the communications, directly cannot be assessed the content of such tapping, in other words, the own conversations which have been intercepted through a no constitutional procedure. In the case that the infringed is the inviolability of the domicile, cannot be assessed the evidence obtained through that illegal source.”
What we understand by indirect proof is more complicated. According to the Spanish Supreme Court´s sentence number 588/2021, they are: “the proofs obtained through the use of sources of information, thus, such illicit proofs cannot serve as source of information for approving a proving activity derived from the first, connected by inferences with the latter.”
Nevertheless, this doctrine of the “fruit of the poisonous tree” has been modulated by the doctrine of the “inevitable discovery”. The same Spanish Supreme Court´s sentence number 588/2021 says: “In other words, when the experience indicates that the circumstances would have necessarily carried to the same result, it is not possible to causally link the second proof to the former, for in those cases will lack the so-called, in the terminology of the Constitutional Court, “connection of unlawfulness”, which, in reality presupposes, in all the cases, a causal connection. Therefore, there where the proof has been obtained in any case, without the necessity to use of former proof, there will lack the connection of unlawfulness, in other words, the causal relation of the first with the second. With another words: all result which has been produced though one of the conditions has not taken place, is not the result of this condition.”
2) The differences between the crime of trespassing, the crime of illegal occupation of real estate and the crime of burglary into inhabited home:
We are before crimes between which there exist big differences, but also big similarities. Of them we are going to talk in this point.
We are going to start comparing the crime of trespassing with the crime of illegal occupation of real state. The first is to read the article where is regulated the latter:
“Article 245.
1. Who through violence or intimidation in the persons occupies real state or misappropriate a real state right of alien ownership, will be punished with, besides the punishments that may be imposed for the violence exercised, the punishment of imprisonment from one to two years, which will be set taking into account the utility obtained and the damage caused.
2. Who occupies, without the due authorization, an alien building or home which is not a dwelling, or maintains itself against the will of the owner, will be punished with the punishment of fine from three to six months.”
The first difference, one easy for the position of each article within the CP, is that both crimes are protecting different legal goods. We said that the crime of trespassing, punishes the behavior which attempts against the legal good inviolability of the domicile, a more concrete manifestation of a more general right, the right to the intimacy. On the contrary, in the crime of illegal occupation of real state the legal good protected is the possession. The Provincial Court of Bilbao´s resolution number 11667/2022 says: “To point out that the legal good protected by the crime of illegal occupation is the possession, in other words, a specific relation of the owner or legitimate possessor upon the thing, a situation of fact consisting in the domain upon the thing, derived of its condition of such in it. The possession constitutes a factual situation, which is protected by the legal order with a specific protection, the so-called “interdictal” protection proclaimed from the article 441 to the 446 of the Civil Code. To this protection of civil character, the legislator of 1995 has added the penal protection, defined as crime in the behavior of the art. 245.2 CP, on understanding that was necessary to regulate the behavior which has been extended under the name of “squatter communities” (in Spanish Okupas) and with the object of endowing a greater protection, not only civil, but also penal, to the right of property and even to the possession of real state.”
Another essential difference is that, the crime of illegal occupation of real state is aimed at real state which cannot be regarded as dwelling or domicile, otherwise we will be before a crime of trespassing of dwelling.
The next article that we are going to compere is the crime of burglary into inhabited home. The article 241 says:
“Article 241.
1. The theft in inhabited house, building or public premises, or in any of their rooms, will be punished with a punishment of imprisonment from two to five years. If the facts have been committed in public premises, or in any of their rooms, outside business hours, will be imposed a punishment of imprisonment from one to five years.
2. Will be regarded inhabited home all shelter which constitutes dwelling of one or more persons, though accidentally they are absent when the theft takes place.
3. Will be regarded rooms of inhabited home or building or public premises, their courtyards, garages and the rest of departments or closed spaces and adjoining to the building and in interior communication with it, and with which they form a physical unit.
4. Will be imposed a punishment of imprisonment from two to six years when the facts to which are referred the above articles have special gravity, taking into account the form of commission of the crime and the prejudices occasioned and, in any case, when any of the circumstances envisaged in the article 235 concurs.”
The crime of burglary into inhabited home, building or public premise is an aggravated subtype of the basic type of burglary, this is why it is more punished than the latter. The reason for this greater punishment is, the risk which the physical integrity of the victim suffers with this kind of behavior, since they can be present during the theft and try to impede it.
With regard to the legal good protected, it is again the possession, but this time the legal good is intermingled with another, the right to the inviolability of the domicile.
The article 242 has a particularity, in it, concretely in its second point, is described what should be regarded as inhabited home. Furthermore, in its third point, is extended its protection to courtyards, garages and storage room which fulfil the requisites mentioned in it. A third point, which coincides with the Non-jurisdictional Full Bench Resolution of the Second Chamber of the Supreme Court of 15 December 2016: “The storage rooms and garages located in building of horizontal property, where are also integrated homes, will have the consideration of rooms of dwelling, always that they have the following circumstances: a) Contiguity, in other words, immediate or direct proximity with the dwelling; which obviously can be either horizontal or vertical; b) Enclosing, what is equivalent to a closed room, though it is not necessary that it has a ceiling or wall; c) Internal communicability between the inhabited house and the room; in other words, there should be between them an internal door, corridor, stair, lift or passage which unites the room where is committed the theft with the rest of the building as a way of access between them; d) Physical union, taking into account the body of the building.”
Here we have to emphasize that the above definition of domicile, the dwelling more its rooms, does not coincide with the constitutional definition of domicile in order to understand that the police is legally authorized for carrying out a searching. In short, the police will not need a judicial authorization, a consent or a flagrant crime for searching, for example, a storage room or garage.
We have also the doubt of whether the definition of domicile given by the article 241 is also applicable to the dwelling of the article 202. In principle, it is evident that this definition is for the crime burglary into inhabited home, and the same happens with the Non-jurisdictional Full Bench Resolution of the Second Chamber of the Supreme Court of 15 December 2016. Notwithstanding, since in both case is protected the same legal good, inviolability of the domicile, and with it the intimacy derived from it, and that in both cases they are a “penal domicile”, there should exist no impediment for applying the definition of domicile of the article 241 to the crime of trespassing of dwelling. The more immediate consequence would be, that the garages and storage rooms would be also protected by the crime of trespassing of dwelling.
Let us talk now about the accusatory principle. Broadly speaking, this principle means that there should exist a correlation between the accusation and the sentence, in a way that an accused cannot be convicted for facts which have not been duly discussed during the oral trial. This principle, in practice implies, that there should exist a correlation between the definitive writings of accusation and the sentence. Though later the jurisprudence has qualified this principle, nuances which have been materialized in the article 789.3 of the LECrim, which impedes that a judge or court imposes greater punishment than the requested by the accusation, or convicts for a different crime when it entails a diversity of the legal good protected or substantial mutation of the fact tried. Therefore, we should understand that, this correlation between the definitive writings of accusation and the sentence has not have to be absolute, being the judge or court able to include nuances, and even convict for another crime always that the limits imposed by the article 789.3 are respected, legal good protected and substantial identity of the fact tried.
What we have just seen in relation with the principle accusatory, if it is applied to the crime of trespassing of a dwelling, of burglary into inhabited home and of illegal occupation of real state, supposes that, the tried for a crime of burglary into inhabited home may be convicted by a court for a crime of trespassing of dwelling or for a crime of illegal occupation of real state, and vice versa, even when has not been discussed in any moment during the criminal procedure, mainly during the practice of the proof in the oral trial, whether there exist evidences of any of these crimes. Chiefly, because between the crime of burglary into inhabited home, the crime of trespassing of dwelling and the crime of illegal occupation of real state, there exist such identity, for the facts tried will be the same, that cannot be appreciated an infringement of the right of defense of the accused.
The Provincial Court of Barcelona´s sentence number 8939/2022, first gives a long explanation regarding what has been understood by the jurisprudence of the Spanish Supreme Court about the accusatory principle, for example saying: “The Supreme Court has declared about the matter here discussed that “the accusatory system that form part of the penal procedure demands that there should exist the due correlation between the accusation and the sentence in a way that the defense of the accused has the opportunity of alleging, proposing proof and practicing it during the debates, having known previously that of what is accused, and without being possible that the sentence surprises it convicting it for something of what was not previously accused and with respect to which cannot be carried out the strategy demanded by the law as guarantee of the procedural position of the accused”, thereby “the accusation has to be precise and clear with respect to the fact and the crime and the sentence has to respect the accusation without introducing any new element of which was not a previous opportunity of defense” (Spanish Supreme Court´s sentence of 7 December 1996); and that “the establishment of the facts constitutes the key of the vault of all the accusatory system of which the right to be informed of the accusation is only a consequence (Spanish Supreme Court´s sentence of 15 July 1991), “the basic fact of the accusation are substantial and immutable elements and the sentence has to respect them, without introducing any new element of which was not a previous opportunity of defense” (Spanish Supreme Court´s sentence of 8 February 1994, 5 February 1994 and 14 February 1995). In short, as the Spanish Supreme Court´s sentence of 26 February 1994 points out: “a) That without being previously requested by the accusation cannot be introduced an element “against accused” of any kind; b) That the right to be informed of the accusation demands its entire knowledge; c) That the accused has the right to know in time the scope and the content of the accusation in order to not suffer a complete defenselessness, y; d) That the object of the procedure cannot be changed by the court in a way that is shaped a different crime or a criminal circumstance different of those which were the object of the procedural debate and about which there is no opportunity of being informed the accused for defending itself against it.”
At the end it reaches the conclusion that: “Therefore, it is obliged to conclude that the crime requested by the Public Prosecution (burglary into inhabited home) and the one which is the object of the conviction (trespassing of dwelling) share the factual objective data, this is, alienness of the place of commission, identity of this (home) and absence of the consent in the entering.
Notwithstanding all the above, we have to be careful because there is always confused courts, the Spanish Provincial Court of Madrid´s sentence number 12499/2022 says: “In the present case, the own appellant recognizes that the legal good protected is different, since the crime of illegal occupation of real state attempts against the right to property while the crime of trespassing attempts against the right to the domicile and the personal intimacy. Located in different titles of the Penal Code, the first in the Title XIII, relative to the “Crimes against the patrimony and the socioeconomic order”, while the second is located in the Title X relative to the “Crimes against the intimacy, the right to the own image and inviolability of the domicile.”
In this case, the first instance court, on the basis of the above precept quoted (it refers to the article 789.3) cannot convict for the crime of trespassing of dwelling since it entails a diversity of the legal good protected.”
In my opinion, this court makes a great mistake, for the important is not the legal good protected by each of the norms, but the respect to the substantial identity of the facts related in the definitive writings of accusation by the sentence.
We have almost finished, but we have to talk first about another kind of relation between the crime of trespassing of dwelling and the crime of burglary into inhabited home.
As we have already seen, the crime of burglary into inhabited home is an aggravated subtype of the basic type of burglary, for the fact of putting into risk the physical integrity of those who live in this home. Then, when there is a conviction for a crime of burglary into inhabited home, implicitly there is also a conviction for a trespassing of dwelling, which is only the means for committing the theft. In short, a subject cannot be convicted for the same facts for a crime of trespassing of dwelling and for a crime of burglary into inhabited home, for otherwise the principle ne bis in idem would be infringed. The Spanish Provincial Court of Gijon´s sentence number 1841/2021 says: “Hence, the aggravating factor of the burglaries relative to the commission of the fact into inhabited home impedes, for application of the principle “ne bis in idem”, the conviction also for a crime of trespassing of dwelling, since this aggravated types are, as the Spanish Supreme Court´s sentence of 12 December 2005 establishes, “a consequence of the specific aggravation in the legal sphere of the concurrence of simultaneous damage of the legal goods of the person, property and intimacy, being in reality a complex type in which there exist elements of the two types, burglary and trespassing of dwelling.”
On the contrary, the same will not happen if, instead of a crime of burglary, a crime of theft were committed, a crime which does not have an aggravated subtype in the CP for the cases in which this theft has been committed into inhabited home or public premises. For example, imagine the scenario in which a person leaves open the door of its home, and another enters to steal its belongings. There is no burglary, because none of the requisites of the article 238 are met. But, there is a theft and a trespassing of dwelling, between which there exist medial concurrence of crimes of the article 77.3 CP, for the trespassing of dwelling is means for committing the theft. The Spanish Provincial Court of Gijon´s sentence 1841/2021 says: “We have to punish for the crime of trespassing of dwelling too, when someone enters into alien home for committing a crime of theft. If there exists no complex crime which comprehends within it the attack to both legal goods, patrimony and intimacy, the penal types have to be applied separately, united only by the concurrence in which one of them is the tool for committing the other, in other words, through what we call the medial concurrence of crimes of the article 77.3 CP.
It has been expressly recognized by the Spanish Supreme Court in its sentence of 23 March 2002 which establishes the following: “Having been discarded the concurrence of a crime of burglary, the truth is that remains the data that the facts took place within the home of the person who reported the facts, a circumstance which was introduced in the writing of qualification of the Public Prosecution, therefore, the accused have had the opportunity of defending herself from this accusation. Consequently, we consider that there is no infringement of the accusatory principle, if we declare that the facts constitute a crime of trespassing of dwelling of the article 202.1 of the CP…We are not before a factual or legal question which has been introduced surprisingly in the trial, since in the Public Prosecution´s qualification of the crime there was a reference to the entering into the home, and was also requested the application of the specific aggravation of having committed the theft in the dwelling of the offended. In other words, the object of the procedure was perfectly delimited, being, therefore, the reply which in this moment we defend, in line with the initial approach of the accusation and with the debate of the oral trial. Besides, there exists an undebatable homogeneity between the trespassing of home and the aggravating factor of dwelling in the crime burglary.”
Víctor López Camacho.
Twitter: @victorsuperlope.
More on my website: www.victorlopezcamacho.com.