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“Of the Usurpation” is how is entitled the Chapter V, of the Title XII, of the Book II, of the Spanish Penal Code. Being included within this Title XIII, we are before a crime which affects the legal good patrimony and socioeconomic order, though the jurisprudence coming from the Spanish Courts has simplified it as the legal good possession.
It is a chapter formed by three articles, from the article 245 to the article 257, in which are described three different behaviors of usurpation: In the article 245.1 is typified the usurpation of real property or alien real property right, through the use of violence or intimidation; In the second point of the same article 245, what is punished is the occupation of alien real property, house or building which are not dwelling, without the due authorization or against the will of its owner; In the article 246, is punished the alteration of boundaries or borders, and; Finally, by means of the article 247, is made illicit the behavior of diverting public or private waters from their course.
In order to analyze the content of these three articles, we are going to divide this writing into three points, each one dedicated to one of them.
– Article 245:
Let us first see, the exact content of the article 245:
“Article 245.
1. To whom with violence or intimidation against the persons occupies real property or usurps an alien real property right, will be imposed, besides the punishments in which may incur for the violence exercised, the punishment of imprisonment from one to two years, which will be fixed taking into account the utility obtained and the damage caused.
2. Who occupies, without due authorization, alien real property, house or building which are not dwelling, or maintains himself against the will of its owner, will be punished with the punishment of fine from three to six months.”
In the article 245 are clearly distinguishable two kinds of behavior, that of the first point, which consists in the occupation of real property or usurpation of a real property right, through the use of violence or intimidation, and that of the second point, the simple occupation, without the due authorization, of alien real property, house or building which are not dwelling. Evidently, being the former more punished than the latter, for it is punished with the punishment of imprisonment and not of fine, as consequence of the disvalue added to the action by the use of violence or intimidation.
Art. 245.1:
Let us now center in the first of them, in the so-called by the doctrine violent modality of the crime of usurpation. The objective elements of the type, are constituted by: 1) The violence or intimidation exercised by the active subject upon the passive subject of the crime, and; 2) The occupation of the real property or usurpation of an alien real property right.
Let us begin with the term “violence”, according to the Dictionary of the Royal Academy of the Spanish Language (RAE), “violence” in its second meaning means: “Action and effect of forcing or disturbing oneself.” Let us continue pulling from the thread, according to this dictionary the first meaning of “to force” is: “To apply violent means to things or persons for subduing their resistance.” And if we continue pulling from the thread a little more, the same dictionary defines “violent” as: “That which implies the use of physical or moral force.” If we combine everything which we have seen, for “violence” the legislator has referred to the action of forcing, what implies the use of violent means upon things or persons for subduing their resistance, violent means, which may be of moral or physical character. Then, for violence it has to be understood either the violence upon the persons or upon things? In my opinion, yes, always that this physical or moral violence is aimed to steal movable property pertaining to the passive subject. Then, for violence it has to be understood either the physical or moral violence? In my opinion, the answer is again affirmative, and though the question my looks a little absurd, since we have affirmed this before, I am using it for stressing that in the scenario of moral violence, again in my opinion, we will have entered in the territory of the intimidation.
Centering ourselves now in the use of intimidation, the RAE defines the word intimidation as: “Action and effect of intimidating.” And the verb “to intimidate” as: “To cause or instill fear, to inhibit”. Evidently, the action of causing or instilling fear has to be carried out by moral violence, this is why the boundaries between both actions will not be always very clear, even in some practical examples both concepts will be applicable to the same action.
On the other hand, the violence or intimidation should be aimed at: 1) Occupaying real property, or; 2) Usurping an alien real property right.
The RAE defines “occupation” as: “Action and effect of occupying or occupying yourself.” And “to occupy” means: “To take possession or seize a territory, a place, a building…invading or occupying it.”
But, what goods can be regarded as real property? Those which are real property, are the included in the article 234 of the Civil Code:
“Article 334.
Are regarded as real property:
1º The lands, buildings, roads and constructions of any kind adhered to the floor.
2º The trees and plants and fruits, pending fruits, while they are united to the land and for an integrating part of the real property.
3º All that is united to a real property in a fixed way, in a way in which it cannot be separated from it without breaking the matter or deteriorating the object.
4º The statues, reliefs, paintings and other objects of use or ornamentation, placed in buildings or estates by the owner of the real property in a way which reveal the purpose of permanently unite them to the estate.
5º The machines, glasses, tools or utensils destined by the owner of the estate to the industry or exploitation carried out in the building or estate, and which directly concur to satisfy the necessities of the exploitation.
6º The animal nurseries, pigeon loft, beehives, pounds of fishes or similar places for the breeding, when the owner has placed them or conserves them with the purpose of maintaining them united to the estate, and forming part of it in a permanent way.
7º The fertilizers aimed to the cultivation of the estate, which are in the lands where they have to be used.
8º The mines, quarries and slag heaps, while their matter is united to the deposit, and the alive or stagnated waters.
9º The damns and constructions which, even though floating, are aimed by its object and conditions to remain into a fixed point of a river, lake or coast.
10º The administrative concessions of public works and the easements upon real property.” Then, we can conclude that, movable properties are all those which cannot be regarded as real property according of the classification of the article 334 CC, and which have the essential characteristic of being transportable “from one point to another without damaging the real property to which they may be united.” (art. 335 CC).
Besides, the article 336 CC adds to the classification of movable properties, “the incomes or pensions, either for life or hereditary, pertaining to a person or family, always that they do not levy with a real charge a real property, the alienated offices, the contracts about public services and the representative bonds and titles or mortgages.”
Such a long and disparate enumeration of real property, arises in us some questions. Is regarded a crime of usurpation the appropriation of a statue?, and putting a ship, which constitutes dwelling, in a pound of fishes within a state? Yes, when is fulfilled the rest of the requisites established by the article 234, because as we have seen, each of these elements may be regarded as real property susceptible of occupation, though we may think that they can be examples more typical of another crimes, like a crime of robbery or theft, but the latter can only be committed on movable property.
We are going to be before a crime of usurpation too, when the violence or intimidation exercised against the passive subject has as object, the usurpation of an alien real property right. Like before, in this case the RAE defines usurpation as: “Action and effect of usurping”. And “to usurp” as: “To take possession of a property or of a right which legitimately pertains to another, in general with violence.”
This is in line with the said by the own CP, because the action of usurpation should fall upon an alien real property right. A real right, is a right of patrimonial character which allows to its owner, to dispose and enjoy of a good without more limitations than the established by the law. The property is the main real right of a person on a good.
Let us now see, the subjective elements of the type. The author of the crime should have acted with malice, in a way that his intention should be to acquire the possession upon the real property or alien real property right.
That the legal good protected by the norm is the possession has an important consequence. The application of the type, should fall upon behaviors which entail a relevant risk for the possession of the passive subject upon the good or real right affected, therefore being excluded temporal or sporadic occupations, without vocation of permanency or of scarce entity. According to this criterion, are not punishable either the occupation of abandoned or ruinous buildings, nor those in which there exists no possession “socially manifest”. Without prejudice, of the punishment which would deserve the violence effectively exercised upon the passive subject. Because, between the violence which may have existed and the acts of occupation or usurpation will exist a real concurrence of crimes (art. 73 CP), according to which, each of these acts should be punished separately.
Art. 245.2:
Let us now study, the second of the typical behaviors described by the article 245.2. In it, we find what the doctrine has denominated crime of pacific usurpation, for the occupation of the “alien real property, house or building which do not constitute dwelling” is carried out without the necessity of exercising any kind of violence or intimidation against the passive subject, simply, with its occupation without the due authorization.
The Spanish Provincial Court of Valencia´s sentence number 1629/2023 says in relation to this crime: “As the Spanish Supreme Court´s sentence number 1319/2002 of 15 November remembers, a reference in the matter, this type of crime was introduced in our legislation by the Penal Code of 1995 with the aim of punishing the behaviors of the so-called “squatters” (in Spanish “ocupas”).
For its accuracy and detailed study of this penal figure, it deserves to be quoted the Sentence of 15 November 2005 from the First Section of the Provincial Court of Castellon:
“The crime of usurpation of real property, introduced in the new Penal Code, in its no violent modality of the number 2 of the article 245, for giving specific penal covering to the occupation of houses or buildings against the will of their owners or possessors, requires for its commission the following elements: a) The occupation, without violence or intimidation, of real property, a house or building which in this moment does not constitute dwelling of some person, carried out with certain vocation of permanence. B) That the person who has carried out this occupation lacks any legal title which legitimizes this possession, for in the case that initially he was authorized for occupying the real property, although it was temporally or as squatter, the owner of the house or building should exercise the civil actions for recovering the possession; c) That the will of the owner contrary to the occupation has to have been clearly expressed and reflected, either before taking place or after, what is specified in this article when it contemplates the maintaining in the building “against the will of its owner”, which in such case should be express. And d) That malice concurs in the author, which comprehends the knowledge of the alienness of the real property and the absence of authorization or of the manifestation of the opposition of the owner of the building.
In a lot of occasions has arisen the question of the compatibility of the penal type with other means of defense of the property or of the possession established by the civil or labor law, like the eviction as consequence of squatter or for extinction of the labor relationship or interdictal protection. Due to the lack of some sentence from Second Chamber of the Spanish Supreme Court referred to this new criminal type introduced by the article 245.2 of the Penal Code of 1995, different Provincial Courts, in the last years, have carried out an attempt of differentiation which can be summed up in the different points: 1º) Any perturbation of the possession cannot be understood as punishable, even those which are developed under the form of occupation, but only the occupations which suppose a risk for the legal good protected of the possession by the owner (Spanish Provincial Court of Cadiz´s sentence of 6 October 2000 and Spanish Provincial Court of Las Palmas´s sentence of 13 October 2000). According to this, the punishable occupation is only that in which the squatter has the evident intention of exercising possessing rights on the real property occupied (Spanish Provincial Court of Burgos´s sentence of 17 January 2000 and Spanish Provincial Court of Cordoba´s sentence of 9 October 2.000) what can be manifested with the permanence in the occupied house. 2º) According to this criteria are not punishable the occupation of abandoned or ruined building (Spanish Provincial Court of Barcelona´s sentence of 16 January 2003 and Spanish Provincial Court of Huelva of 5 February 2004), or of a plot (Spanish Provincial Court of Madrid´s sentence number 260/2002 of 15 April), nor those in which does not exist a “social manifest” possession (Spanish Provincial Court of Las Palmas´ sentence of 13 October 2000). And 3º) In the same way are not punishable either according to this penal type the temporal, transitory or occasional occupations, like may be the mere entrances for sleeping (Spanish Provincial Court of Malaga´s sentence of 9 October 2.000, in which are quoted in the same way the Spanish Provincial Court of Zaragoza´s sentence of 12 June 1999, Spanish Provincial Court of Gerona´s sentence of 3 May 1999 and Spanish Provincial Court of Segovia of 19 October 1998), or without vocation of permanence (Spanish Provincial Court of Barcelona of 14 May 2003 and Spanish Provincial Court of Valencia´s sentence of 9 May 2001). In the same vein, the Spanish Provincial Court of Granada´s sentence of 29 May 2000 understands that the punishable fact has to consist in the physical occupation of the real property, which causes a continuous dispossession, permanent and stable in the owner. On the contrary, understanding also included occasional occupations, the Spanish Provincial Court of Guipúzcoa´s sentence of 6 June 2.000.)”
The Second Chamber of the Spanish Supreme Court (Spanish Supreme Court´s sentence number 800/2014 and Spanish Supreme Court´s resolution number 557/2015) has pronounced itself on the infringement which is examined, pointing out that the different typical behaviors are located in the crimes against the patrimony, and, specifically protect the real rights on real property.
In this vein, in the indicated Spanish Supreme Court´s sentence number 800/2014 exposes that “the specific criminal modality of pacific usurpation, introduced in the Penal Code of 1995 in the second number of the article 245, requires for its commission the following elements: a) The occupation, without violence or intimidation, of real property, house or building which in this moment does not constitute the dwelling of any person, carried out with certain vocation of permanence. b) That this possessing perturbation may be penally typified as occupation, since the interpretation of the typical action should be carried out from the perspective of the legal good protected and of the principle of proportionality which are part of the penal system (Art. 49.3º of the Charter of Fundamental Rights of the European Union). From both perspectives the occupation of real property penally typified is the one which entails a risk relevant for the possession of the passive subject on the real property affected, that is what endows with harmfulness and typical meaning the behavior, thereby the occasional or sporadic occupations, without vocation of permanence or of scarce intensity, are alien to the ambit of application of the type. C) That the person who occupies lacks of legal title which legitimizes this possession, for in the case of having been authorized for occupying the real property, though temporally or as a squatter, the action cannot be regarded as criminal, and the owner should exercise the proper civil actions for recovering the possession. D) That the will contrary to the occupation has been expressed and reflected by the owner of the real property, either before or after it, what is specified by this article when it contemplates that the permanence in the building “against the will of its owner”, will which should be express. E) There should be malice in the author, which comprehends the knowledge of the alienness of the real property and the absence of authorization, along the will of affecting the legal good protected by the crime, in other words, the effective perturbation of the possession of the owner of the occupied real property.”
Likewise, and regarding the necessity of whether to go or not previously to other authorities, expressly the Spanish Supreme Court´s sentence number 800/2014 affirms regarding the Public Administration that the lack of use of the faculties of auto-protection does not decriminalize the behavior (“…The fact that the Public Administration has faculties of auto-protection is not relevant for decriminalizing a behavior which has the necessary characters for its typification according to one of the types expressly mentioned in the Penal Code…”). Therefore, it is not possible to include an element not envisaged in the penal regulation with respect to the private individuals, like is the necessity of going first to the civil order. Likewise, we can make applicable these considerations to the administrative ambit. From a subjective perspective, for the Second Chamber of the Spanish Supreme Court (Spanish Supreme Court´s sentence number 800/2014) what is demanded by the application of the type is the concurrence of malice, in other words, the knowledge of the alienness of the real property and the lack of authorization of the owner for its occupation; along the will of affecting the legal good protected by the crime, in other words, the effective perturbation of the possession of the owner of the real property occupied.”
I think that after the above excerpt, little more I can add. However, there are other related matters of which we should talk about, for example, the exculpatory or attenuating circumstance of state of necessity (art. 20 and art. 21 of the CP), used by many people as a way of justifying the occupation of a house, in fact, as we have already seen, there are cases which are unpunishable, like the occupation of precarious or crumbling houses, this is because the legal good protected by the norm, the possession, has to fulfill a legal function (art. 33 of the Spanish Constitution), hence that some sectors of the population has been specially critics with the second point of the article 245, for there is a broad part of the population who does not have the means for obtaining a house, in contrast with a little number of lucky individuals who have more than one and who only in rare occasions are able to fulfill this requisite of social function which guarantees their possession on them. The Spanish Provincial Court of Alicante´s sentence number 4268/2020 says: “The behavior which consists in the pacific occupation of real property (art. 245.2 CP) was introduced into our penal Law with the current Penal Code, not without having provoked an important political-criminal polemic. For some, it was the criminalization of a behavior illegal, but without enough relevance for constituting a penal illicit, and against which the legal order already had enough means, either civil or administrative (for example, the “administrative eviction”). For others, even more critics, with the criminalization the legislator tried to end the behaviors of occupation of real property by persons pertaining to the so-called “squatter movement” (in Spanish “movimiento okupa”), who, through the pacific occupation of empty or abandoned real property, tried to attract attention on the scarce application, in the practice, of the social function of the property established by the article 33 CE, when this is constituted on real property, being an obstacle for the full effectivity of the constitutional right to a decent and adequate house.”
But let us continue with the exculpatory or attenuating circumstance of state of necessity. It has been alleged by a lot of people in the cases of pacific occupation of real property, but as far as I have seen in the examples of jurisprudence that I have read it has not been applied, though there are other strange examples in which it has been used. After the above excerpt, the Spanish Provincial Court of Alicante´s sentence number 4268/2020 continues: “The application of the state of necessity, either as wholly exculpatory or partial is possible, in principle, as in all the crimes in which are not gathered specific rules of justification, being able to succeed in a lot of cases, since in this case the legal goods which should be pondered are, on the one hand, the right to the property or the normal use of the real property right usurped and, on the other, the social function of the property, the constitutional right to a decent house and, in some cases, the own physical and moral integrity, as well as the health of the occupiers.
The minor jurisprudence has estimated, in some cases, if not the concurrence of the state of necessity, the scarce harmfulness derived from some behaviors of pacific occupation of real property, for acquitting its occupiers. Thus, for example, applying to a behavior formally included within the type of the article 245.2 CP the doctrine of the so-called ius usus innocui, based on being allowed to a third to make anything that does not harm the owner of a good, but using also reasoning belonging to the state of necessity, as for example, the consideration of the lack of other legitimate means for solving a conflict between the right to a house and the physical integrity of the accused, and the formal preservation of the right to the property of the building occupied, of public ownership -concretely of the IVIMA – Spanish Provincial Court of Santa Cruz de Tenerife´s sentence of 24 October 2017).
The right to property (art. 33.1 and 2 CE), is limited by a social function which is inherent to itself, hence it is difficult to consider illicit the exploitation not authorized, but not expressly forbidden either, of some utility of which is possible an alien thing, always that it does not impide or limit the exercise of his faculties by the owner or by the owner of a real right constituted on it (Spanish Provincial Court of Madrid´s sentence of 18 September 2006). Some jurisprudence has carried out a teleologic restriction of the type of the article 245.2 CP, basing itself either in objective or subjective aspects. Thus, for example, it is alluded to a right of possession socially manifest which justifies the “extra of unlawfulness” bestowed by the penal protection against the civil of the possession through the possessory interdictions; as well as the ius innocui, which is present during temporal exploitations and subjectively characterized by the lack of definitive reply to the right of legitime possession.”
Let us see what the Spanish Provincial Court of Valencia´s sentence number 1629/2023 concretely says about this exculpatory or attenuating circumstance: “The state of necessity is being considered as a situation in which exists, for determined good, the danger of a grave harm which only can be avoided by the sacrifice of alien legal goods. In general, the state of necessity is always an extreme and exceptional situation, which should be pondered by the judges in each case (Spanish Supreme Court´s sentence of 20/5/1999 and 24/1/2000). The appreciation of the exculpatory or attenuating circumstance needs that the carrying out of the typical behavior should be the only way of saving a legal good (Spanish Supreme Court´s sentence of 2/10/2002); on the contrary, when the conflict between legal goods can be resolved through another less harmful means, there will lack the necessity, and with this the possibility of applying the exculpatory or attenuating circumstance.”
Later, the same resolution continues: “The Spanish Supreme Court´s resolution of 8/9/2016 points out: “From the plane of the exculpatory or attenuating circumstance alleged of state of necessity, reiterated and numerous precedents of this Second Chamber have established that the essence of this exculpatory or attenuating circumstance of state of necessity, either complete or incomplete, lies in the existence of a conflict between different goods or public interests, in a way that is necessary to carry out the harm that the crime supposes -harming the legal good protected by the crime- with the aim of avoiding the harm that threats the agent, being necessary, besides, that does not exist another reasonable and feasible remedy for avoiding the latter, which should be grave, real and current.
Of these elements deserve to be underlined two concepts which form the kernel of this circumstance: the proportionality and the necessity. Regarding the proportionality of the harm caused has been established that if the harm which is tried to be avoided is of superior or the same entity that the gravity which entails the crime committed for avoiding it, and there is no other remedy humanly acceptable, the exculpatory circumstance should be wholly applied; if this comparative balance is inclined in favor of the criminal action and are appreciated in the agent powerful necessities, the circumstance should be partially accepted (attenuating circumstance); but if this comparison reveals a great difference, can be never applicable in any of its modalities. Concerning the element of “necessity”, we have already pointed out that the appreciation of this circumstance demands that the harm which is being tried to be avoided should be real, grave and current or imminent, and also the verification that the agent has exhausted all the alternative licit means for avoiding this harm before making use of the criminal path, in a way that, not succeeding them, there is no other possibility humanly reasonable that the crime, for to no one can be demanded the heroism or the martyrium in this ambit.”
Let us now see a couple of examples, that in my opinion are curious for how they have been solved in favor of the accused. In the first, it is acquitted for not having been provided by the accusation a proof which confirms its ownership on the real property:
Spanish Provincial Court of Alicante´s sentence number 1738/2020: “And in that sense the appellant has reason, for, indeed without properly knowing, by enough proof, who is or are the owners of the real property, cannot be affirmed that the possession of the appellant was “without the due authorization”; an authorization which only could come from who would have just title for granting it (the authorization), and being unknown in the present procedure who had this title, and thereby not being fulfilled this concrete element of the type which consists in the lack of due authorization, what is not equivalent to the fact that the accused does not provided another proof of his possession than his leasing contract, for are the accusations (in this case the Public Prosecutor) to who corresponds to propose proofs which destroy the presumption of innocence, this is why the lack of proof regarding the ownership of the real property, impedes, for the exposed, to destroy such fundamental right.”
And in the second, the accused is acquitted for being appreciated by the court “error of type” (art. 14.1 CP), though in its surmountable modality:
Spanish Provincial Court of Madrid´s sentence number 10912/2023: “It is reflected in the sentence that the reported cannot be regarded, currently, possessor in good faith, since she knows, at least from the reception of the subpoena, that she does not have a legitimate title for continuing in the house and she never has one for entering into it, though this does not imply, necessarily, a conviction for a crime of usurpation. It does not imply either, that her situation possessing the house is protected by a title.
In reference to the replies of the legal order to these situations, it is explained the legal reply for this type of scenarios, and that it cannot be automatic demanding a resolution for each specific case.
It is regarded in the case as probable, that the reported was “deceived” for who had the appearance of being the representant of the owner of the house, who announced himself as worker of the real state agency, showed the house which he opened with the keys he had changed, and who gave a document, with the appearance of a leasing contract for which he charged an amount in cash. This is why, it is understood possible to think that the reported incurred in an error on the fulfilment of the elements of the type, and on the illicitness of her behavior, which is not an error of type unsurmountable, but there is no regulation for the crime of usurpation for imprudence which allows the imposition of a punishment diminished.
…
With this, for having doubts on the concurrence of the elements of the type in the behavior of the reported Ms. Celia and not concurring in the behavior of Ms. Elsa, for the Judge, for application of the procedure principles, has to be resolved in favor of the absolution of the reported, as manifestation of the principle in dubio pro reo.”
– Article 246:
The article 246 says:
“Article 246.
1. Who alters the boundaries or borders of towns or states or any other class of signs or boundary stones destined to set the limits of properties or demarcations of adjoining lands, either public or private, will be punished with the punishment of fine from three to eighteen months.
2. If the utility obtained does not exceed the 400 euros, will be imposed the punishment of fine from one to three months.”
We are before a crime of usurpation, in this case through the alteration of the boundaries or borders which set the limits of properties or demarcations. Therefore, the typical behavior will consist in altering the limits of properties or demarcations by means of a change in the position of such boundaries or borders. The RAE defines “to alter” as: “To change the essence or form of something.” According to the Spanish Provincial Court of Santander´s sentence number 408/2023: “The Spanish Supreme Court points out in its sentence of 31 May 1993, that except when the usurpation has been of the whole or an important part of the state, it is a requisite of this crime the alteration of boundaries or borders, or what is the same, the alteration of the milestones or boundary stones or other materials with which are marked the visible or physic limits which serve for the identification of the states.”
A sensu contrario, the Spanish Provincial Court of Pontevedra´s sentence number 1373/2022 says: “In this case were not removed or altered existing boundary stones, but the behavior denounced consists in placing into a track of service, four boundary stones and two small chests which impede (depending on the dimensions of the vehicle) or hinder, to the informant -and other proprietaries- the access to the state through this path.
As the Examining Magistrate concludes this behavior does not fit in the crime of usurpation for it does not consist in an active behavior of moving, pulling up, changing or any other similar action the signs or boundary stones which would have been placed for fulfilling a function of delimiting the properties.”
The crime of alteration of boundaries or borders, is a malicious crime, therefore, it has to be committed knowing that alien property is being usurped and with the intention of obtaining an economic benefit from it. Later the same Spanish Provincial Court of Santander´s sentence number 408/2023 adds: “Being this penal type of tendency and result, it is demanded the guiltiness of the agent with malicious intention and the aim of obtaining an unjust benefit for incrementing his own land and diminishing the alien, which supposes the seizing of the property with the aim of defrauding, what excludes the commission by imprudence, infringement which is not committed by the mere objectivity of the alteration of the limits of a public path, if it is not accompanied of the desire of a illegal economic benefit.”
According to the Spanish Provincial Court of Santander´s sentence number 408/2023, we can resume the elements which form part of this criminal type, as follows: “It is requires for this crime the concurrence of two essential elements:
a) For being a crime of tendency, the guiltiness of the active subject integrated by a malicious intention – of an unjust benefit which seeks an increase in the own land and a decrease in the alien, since the alteration is not produced by the mere objectivity of the alteration of the boundaries if it is not accompanied of the desire of an illegal enriching.
b) The presence of the unlawfulness or penal illicitness, determined by the necessary alienness of the land usurped, for undoubtedly pertaining to a person different of the author; alienness which should be reflected in the sentence, since the mere doubt, in the penal order, excludes any penal liability, where the illicit of this nature, as is known, has to be fully accredited, much further than any doubt, which if it existed, it should benefit the accused.”
Finally, the difference between the less grave crime and the misdemeanor is marked by the limit of 400 euros, like, for example, in the crime of theft.
– Article 247:
The article 247 says:
“Article 247.
1. Who, without being authorized, diverts the waters of public or private use of their course, or from an artificial or natural reservoir, will be punished with the punishment of fine from three to six months.
2. If the utility reported does not exceed the 400 euros, will be imposed the punishment of fine from one to three months.”
With the article 247 ends this Chapter V, this is the last modality of usurpation. In this case, the typical behavior consists in diverting waters of public or private use, but like in the cases studied above, it is also demanded the concurrence of malice in the active subject, in other words, the knowledge of the alienness of the good which is being usurped and the intention of obtaining an economic benefit from it.
The said by the article 247 has to be connected with the Water Law approved by the Legislative Royal Decree 1/01 of 20 July. The Spanish Provincial Court of Alicante´s sentence number 2566/2014, says: “The fact tried is not a crime of the article 247. Such precept contemplates a very specific scenario which is connected with the article 2 of the Water Law. The type is referred to the diverting of “waters of public or private use of their course…” For “course” should be understood the moving of water which travels through a course, like the rivers, streams or even the irrigation channels (article 2 of the Water Law). The water which travels through these spaces is a public good as is established by the article 1 of the Water Law, but its use may be public or privative in the cases that this norm contemplates, hence the wording of the article 247 CP. Therefore, never the water which travels through pipes of domestic use can be included in the ambit of the type, but it does fit in the frauds of the article 255 CP.”
Víctor López Camacho
Twitter: @victorsuperlope
More on my website: www.victorlopezcamacho.com