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“Of the robberies” is how is entitles the Chapter II, of the Title XIII, of the Book II of the Penal Code (CP). Being placed within such Title XIII, we already know that it is a crime against the patrimony and against the socioeconomic order, which are the legal goods protected by the articles which form this Chapter.
The Chapter II that we are to comment is compounded of six articles, which we are going to use as the points into which we are going to divide the present writing. Before commencing, let us see the object of each one of these articles: A) Article 237: In this article we find the description of the basic type of the crime of robbery; B) Article 238: In it are described the circumstances which typified a fact as burglary with force; C) Article 239: With its help we know what the law considers as a lock pick; D) Article 240: This article sets forth the punishment for the crime of burglary with force; E) Article 241: This article says us the punishments for the crime of burglary with force in inhabited houses or establishments open to the public, and besides, it gives an interesting definition of dwelling, and; F) Article 242: With the article 242 the Chapter II ends, but before it sets forth the punishments for a crime of robbery with force or intimidation against individuals.
A) Article 237: Basic type of the crime of robbery.
With the article 237 begins this Chapter II, and as a good beginning, it gives a broad definition of the crime of robbery, for subsequently concreting each one of its more important aspects.
The article 237 says:
“Article 237.
Are convicts of the crime of robbery those who, for profit, take possession of the alien movable property employing force into the things for entering or exiting the place where they are or violence or intimidation in the persons, either on committing the crime, or for protecting their flight, or upon those who came for helping the victim or chasing them.”
Let us start, as always, with the objective elements of the crime, for through them we can analyze the action punished by the Code. According to the article 237, such action consists in taking possession “of the alien movable property employing force into the things for entering or exiting the place where they are or violence or intimidation in the persons, either on committing the crime, or for protecting their flight, or upon those who came for helping the victim or chasing them.”
Hence, the verb which describes the action is “taking possession”, which according to the third meaning of the Dictionary of the Royal Academy of the Spanish Language means: “To become the owner of something, to occupy it, to put it under his power.” That is right, because who steals something, it is with the intention of incorporating the stolen thing to his own patrimony.
However, not anything can be the object of a robbery. Only those things which can be regarded as movable property can be robbery in accordance with the definition of it given by the article 237. The, what is a movable property? In order to solve this doubt, we have to make use of the Spanish Civil Code. According to its article 335:
“Article 335.
Are considered movable properties those susceptible of ownership not comprehended in the previous chapter, and in general all those which can be moved from one point to another without damaging the real property to which they may be united.”
That they are not included in the previous chapter means that, they should not be included in the classification of real property made by the article 334 CC:
“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.”
And the article 337 distinguishes between the fungible movable property and the not fungible movable property, “To the former species pertain those of which cannot be made the adequate use to their nature without their consumption; to the latter species correspond the rest.”
But, it is not enough with the fact of taking possession of a movable property for fulfilling the objective elements of the type. The taking of possession of the movable property has to be done, by means of any of the ways mentioned in the article 237: 1) Employing force upon the things for entering or exiting the place where these stand, or; 2) Employing violence or intimidation in the persons, either when committing the crime for protecting the flight, or upon those who came to help the victim or those who chased him.
There will be violence upon the things, when the robbery is carried out by any of the means mentioned in the article 238. On the contrary, the CP remains silent on the circumstances which should take place for understanding that there has been violence or intimidation in the persons, although in the article 242.3 is imposed a greater punishment when the robbery with violence or intimidation in the persons has been carried out by “using weapons or other equally dangerous means.” This time, we do not have any judicial resolution which may help us, so let us use our dictionary again.
Let us begin with the term “violence”, according to the Dictionary of the Royal Academy of the Spanish Language, “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 Dictionary of the Royal Academy of the Spanish Language defines the words 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.
With respect to the subjective type of the crime of robbery, the article 237 mentions that the taking of the thing has to be carried out by the active subject “for profit”, what demands that it should be done with the intention of incorporating this movable property to the own patrimony. In my opinion, there will exists this intention always that the taking of a movable thing has been carried out without the consent of its owner, for evidently, it is going to be always its main aim.
From the fact that, the movable property has to be effectively added to the patrimony of the active subject will depend whether the crime of robbery has been consummated or not, for only the accessibility upon the thing will determine its consummation. The Spanish Provincial Court of Madrid ́s sentence number 5477/2023 explains it well to us: “The Spanish Supreme Court ́s sentence number 93/2020 points out the following: “The doctrine of this chamber has long maintained a consolidated criterion regarding the moment in which the crimes of robbery are consummated or perfectionated. The Spanish Supreme Court ́s sentence number 586/2001 of 7 April, quoting numerous precedents, summed up the doctrine of this Chamber as follows “for distinguishing the whole or consummated figure from the semi-whole or attempted in the crime of robbery, it has opter for the criterion of the illatio, which supposes the accessibility upon the thing stolen, which determines the consummation, while it is not achieved yet with the mere contractio, which means the taking of possession of the alien thing, not with the ablatio, which consists in the separation of the thing of the material possession of the offended. The consummation demands the appropriation of the plundered good, which passes to be out of the control and disposal of its legitimate owner, for entering into another control, in which prevail the deciding initiative and autonomy of the taker. There will be consummation when the author has been able to flee with the object, leaving the place within which it was still possible to consider the thing in the ambit of custody of the passive subject. When, regardless the taking of the thing by the subject, it is surprised red-handed, or chased immediately after having committed the fact until catching it, it is not trespassed the characteristic area of the frustration, in accordance with the old Code, and of the attempt according to the actual Code, but it is reached the consummative moment when the active subject has had the free accessibility, even when it has been momentary or brief. Such accessibility is reached if the pursuit is interrupted, and the author of the robbery is out of sight during some time.”
In other words, the relevant for determining the moment of consummation is the achievement of the accessibility upon the stolen good, term which should no be confounded with finally the possibility of effectively using it, in other words, with obtaining a benefit from it, what is placed in the stage of exhaustion. This is why is even talked about the potential, minimal, momentaneous or brief accessibility (among others, Spanish Supreme Court ́s sentences numbers 1502/2003 of 14 November, 213/2007 of 15 March or 1004/2011 of 6 October). Summing up:
a) The consummation is produced when the accessibility upon the object is achieved.
b) Such accessibility is not equal to the free disposal upon the object with the satisfaction of the benefit, for the accessibility should not be confounded with the exhaustion.
c) It is possible either the momentaneous accessibility or of brief duration.
The Second Chamber has also pointed out that, in the cases of stealing in establishments, the accessibility is not achieved until the author does not leave it with the stolen things, for only from
that moment can be understood that has been overcome the controls established by the owner (Spanish Supreme Court ́s sentence number 1122/2003 of 8 September).”
Analyzed the objective and subjective elements of the type, as well as the moment in which the crime is consummated, we have to talk about the legal good protected by the norm, which, as we already know, is the patrimony of the passive subject of the crime.
b) Article 238: Circumstances which typified a fact as burglary with force.
The next article that we find, is the article 238. If in the article 237 us defined the basic type of the crime robbery, in the article 238 is extended its content developing the cases in which legally may be regarded that there has existed a crime of burglary with force.
The article 128 says:
“Article 238.
Convicts of robbery are those who with force upon the things execute the fact when any of the following circumstances concur:
1º Climbing.
2º Breaking of the wall, ceiling, floor, or fracturing of window or door.
3º Breaking of the wardrobes, coffers or another class of furniture or closed or sealed objects, or forcing or their locks or discovering of their keys for stealing their content, either in the place of the robbery or outside of it.
4º Using of lock picks.
5º Rendering unusable the specific systems of alarm or security”
As we can observe, in it, are mentioned five circumstances which when they are met, will suppose the existence of a crime of burglary with force in the things. All of them are very important, for even existing force in the things, if this force does not fit in any of them, we cannot say that we are before a crime of robbery but of theft, indeed, the sentence convicting for a crime of robbery should dully motivates the concurrence of any of them, otherwise, the right to effective judicial protection, being obliged an hypothetical court of appeal to correct the conviction for robbery, for one of theft. The Spanish Provincial Court of Barcelona´s sentence number 3599/2023 says: “II. On account of the above, the facts cannot be considered as a crime of robbery with force of the article 238.2 CP, having not been proved, how the accused get into the interior of the vehicle.”
Later, the same sentence continues: “…not any employment of force upon the things carried out by the active subject of the crime for accessing the place in which the objects are or abandoning it, will produce the effect of transforming the theft in robbery, but only when concur those precise means which in the referred article 238 are described, having proceeded the legislator, according to the historic tradition of our successive Codes, to select those behaviors which will serve for such aim (typical force).”
Let us now analyze each one of these circumstances. The first that we find is “1º Climbing”. In order to consider the existence of climbing, the Spanish jurisprudence has demanded that during the commission of the crime there has to be certain criminal energy for entering or exiting the place where is the stolen movable thing, in a way that, it is carried out through a place that it is not destined to this. The Spanish Provincial Court of Coruña´s sentence number 656/2023 says: “In words of the Spanish Supreme Court´s sentence number 90/2022 of 7 February 2022, “Regarding whether there concurs climbing or not, we have said in our sentence 595/2016, of 6 July, that “it is restricted the concept of climbing to those cases, in more concordance with the principles of legality and proportionality, in which the entering or exiting using a place not destined to this has demanded “a skill or effort of certain importance, skill or effort present in the strict notion of climbing” (to climb or ascend to a determined place), which is the point of legal reference which has the interpreter. And the fact of having to overcome this height (about three meters and half) supposes a special “criminal energy”, enough for being comparable to a physical strength in strict sense.”
The second is “2º Breaking of the wall, ceiling, floor, or window or door.” For this second scenario, we are going to do the same that we did before, we are going to make use of a dictionary, for filling the gaps left by the lack of jurisprudence. Theoretically we can divide this scenario into two different actions: 1) Breaking of wall, ceiling or floor, or; 2) Fracturing of window or door.
Let us start with the first of them, according to our dictionary, “Breaking” means “Action or effect of breaking or breaking himself.” And “to break”: “to crack or make pieces something”. Thus, the wall, ceiling or floor has to be broken, or it has to be made pieces, for fulfilling the objective elements of the crime of theft.
In the second action, it is talked about “fracturing”, which is defined by the same dictionary as: “Action and effect of fracturing”. And “to fracture”: “to break with violence something.” Something which returns us to the verb “to break”. Then, we can conclude that, regardless of their apparent difference, both actions define the same act, there has to be broken or made pieces the wall, ceiling, floor, window or door, for entering or exiting the place in which is the stolen movable property.
The third scenario which gives rise to the crime of burglary with force is, “3º Breaking of the wardrobes, coffers or another class of furniture or closed or sealed objects, or forcing or their locks or discovering of their keys for stealing their content, either in the place of the robbery or outside of it.” Like before, let us make use of a dictionary. There are three kinds of actions, all of them referring to the same objects, wardrobes, coffers or another class of furniture or closed or sealed objects: 1) Fracturing; 2) Forcing of locks, or; 3) Discovering of their keys. These actions have to be carried out for stealing the content of these closed or sealed objects, irrespective of whether it happens in the place of the robbery or other place.
We already know the meaning of fracturing, it means to break or make pieces. On the other hand, “forcing” is defined by our dictionary as “Action of forcing”. And “to force”: “to make force or physical violence for obtaining something which usually cannot be obtained by the force.” Then, when the CP is referred to the forcing of locks, it is referring to their opening by any means which implies the use of force, without being included in this concept the use of legitimate keys. Lastly, “discovering” in accordance with our dictionary means: “Action and effect of discovering” And “to discover”: “to come into knowledge of something previously ignored.” Consequently, for us “to discover” means to have access to the keys which maintain an object closed for protecting its content, without the consent of its owner.
The fourth scenario is, the “Using of lock picks.” In this occasion, in order to find out what the CP understands for lock picks we need neither a dictionary nor jurisprudence, the own article 239 enumerates them, thus out of the cases expressly mentioned we will not be before a lock pick, nor before a burglary with force.
Lastly, the last circumstance mentioned in the article 238, which may give rise to burglary with force in the thins is “disablement of specific systems of alarm or guard.” In order to understand the scope of this scenario, the best we can do is to compare it with the said by the article 234.2 for the crime theft: “The punishments established in the previous points will be imposed in their superior half when in the commission of the facts have been neutralized, eliminated or disabled, by any means, the devices of alarm or security installed in the stolen things.”
If we compare both cases, we can dare to delimit their ambit of application. There will be theft, when the disabled alarm was installed in the stolen object, as is the case, of the clothes which are normally sold in the shops. On the contrary, there will be a robbery, when the disabled alarm is other kind of alarm not installed upon the stolen thing.
C) Article 239: Lock picks.
The article 239 says:
“Article 239.
Will be regarded lock picks:
1. The picklocks and other analogous tools.
2. The legitimate keys lost by the owner or obtained by a means which constitutes a penal infringement.
3. Any others which are not the destined by the owner to open the lock forced by the convict.
For the purpose of this article, are regarded false keys the magnetic or perforated cards, the remote controls or tools for opening at a distance and any other instrument of similar efficacy.”
Let us see each of them. In order to know what is a picklock, let us take again the dictionary. According to this, “picklock” means: “Strong and bent wire from one point, like a hook, with which, lacking a key, can be opened the bolts of the locks.” Little more with can add to the above, only the great skill that have to have those who use it.
The second kind of lock picks according to the article 239 are, “The legitimate keys lost by the owner or obtained by a means which constitutes a penal infringement.” By legitimate keys, we should understand, the specific keys with which has to be opened determined lock. Besides, these legitimate keys can be obtained either because the owner has lost them, or through the commission of other criminal infringement, like stealing them only for a moment for obtaining a copy of them without noticing it their owner.
The third type of lock picks included in the article 239 are, “Any others which are not the destined by the owner to open the lock forced by the convict.” Here the CP seems to be referring to a kind of “jumble” in which fits any kind of object which can be used for opening a lock. Indeed, the legislator, after referring to this sort of jumble, tries to be more specific saying that “For the purpose of this article, are regarded false keys the magnetic or perforated cards, the remote controls or tools for opening at a distance and any other instrument of similar efficacy.”
D) Article 240: Punishment for the crime of burglary with force in the things (which is not carried out in inhabited house or establishments open to the public).
The legislator has opted for this formula, in the article 237 has described in which consists the action that constitutes a crime of robbery, for later developing the different parts which form it. One of these essential parts is always the punishment. In the article 240, we find the punishment associated to a crime of burglary with force in the things, but, only if the burglary with force is not carried out into inhabited house or establishment open to the public, for in these cases we the article applicable is the article 241.
The article 241 says:
“Article 240.
1. The guilty for burglary with force in the things will be punished with the punishment of imprisonment from one to three years.
2. Will be imposed the punishment of imprisonment from two to five years when any of the circumstances envisaged in the article 235 concurs.”
The circumstances envisaged in the article 235 are:
“Article 235.
1. The theft will be punished with the punishment of imprisonment from one to three years:
1º When are stolen things of artistic, historic, cultural or scientific value.
2º When they are things of first necessity and is caused a situation of shortage.
3º When they are conductions, wiring, equips or components of infrastructure of electric supply, of hydrocarbon or of the services of telecommunication, or other things aimed to render services of general interest, and is caused a grave damage to them.
4º When they are agricultural or livestock products, or the tools or means used for their obtention, always that the crime is committed in agricultural or livestock farms and is caused a great damage to them.
5º When they have special gravity, taking into account the value of the effects stolen, or are caused prejudices of special consideration.
6º When it provokes a grave economic situation to the victim or its family or has been carried out abusing of personal circumstances or of its helpless situation, or taking advantage of the production of an accident or the existence of risks or general danger for the community which has weakened the defense of the offended or facilitated the unpunished commission of the crime.
7º When the guilty on committing the crime had been executory convicted at least for three crimes comprehended in this Title, always that they are of the same nature. Either the cancelled criminal records or those which should be cancelled will not be taken into account.
8º When are used minors under eighteen years of age for committing the crime.
9º When the guilty take part in the facts as members of a criminal group or organization which has as object the commission of crimes comprehended in this Title, always that they are of the same nature.
2. The punishment pointed out in the previous point will be imposed in its superior half when two or more of the circumstances envisaged in it concur.”
What is not enough clear, is whether in the scenario of the article 240 is also applicable the envisaged in the second point of the article 235, in other words, the imposition of the corresponding punishment in its superior half when concur two or more of the circumstances envisaged in it. Though, in my opinion, there is no problem for its application in the crime of burglary with force in the things of the article 240, in any case it would be still proportional to the gravity of the crime.
In this type of burglary with force into the things, the legal good protected by the norm is the patrimony or private property.
E) Article 241: Punishments for burglaries with force into the things in inhabited houses or establishments open to the public.
The article 241 says:
“Article 241.
1. The burglary committed in inhabited house, building or establishments open to the public, or in any of their rooms, will be punished with the punishment of imprisonment from two to five years.
If the facts were committed in an establishment open to the public, or in any of its rooms, outside business hours, will be imposed a punishment of imprisonment from one to five years.
2. Will be regarded inhabited house all shelter which constitutes the dwelling of one or more persons, though accidentally are absent when the burglary takes place.
3. Will be regarded rooms of inhabited house or building or establishment open to the public, its courtyard, garages and the rest of the departments or closed places and adjacent to the building and in interior communication with it, and with which it forms a physical unit.
4. Will be imposed a punishment from two to six years of imprisonment when the facts to which are referred the above points has a special gravity, taking into account the way of commission of the crime or the prejudices occasioned and, in any case, when concurs any of the circumstances mentioned in the article 235.”
The first thing we realize when we read the article 241 CP is that, there exists an increase of the punishment with respect the crime of burglary with force in the things of the article 240, though if the burglary with force in the things is committed in an establishment open to the public outside business hours, the minimum threshold of the punishment diminishes with respect the envisaged in the first paragraph, of the first point, of the article 241. This increase in the punishment has a motive, for the legal goods protected by both articles are different. While the envisaged in the article 240, limits itself to protect the legal good property, the envisaged in the article 241 have broader implications, the legal good private property is still protected, but other legal goods are protected too, which in their case reach the status of fundamental rights for being gathered in the article 18 of the Spanish Constitution, the right to the intimacy and the right to the inviolability of the domicile.
Important, though the article 241 does not mention it, we are still within the ambit of burglary with force in the things, without existing violence or intimidation in the persons.
The first point of the article 241, talks about the inhabited house, building or establishments open to the public, but among these three, it gives importance, above all, to one of them, to the inhabited house, which has its own point, the second, where it is defined. This second point says: “Will be regarded inhabited house all shelter which constitutes the dwelling of one or more persons, though accidentally are absent when the burglary takes place.” Fine, we have a definition, but you will agree with me that this is not complete, ¿what is a shelter which constitutes a dwelling?, ¿why does not this second point, then, add a definition of dwelling? Let us try to answer the first question, because for the second we do not have any answer.
According to the Spanish Provincial Court of Madrid´s sentence number 18202/2022: “By dwelling or domicile, for penal purposes, has to be understood the closed place, legitimately occupied, where takes place the private, individual or family life, though the occupation is temporal or accidental. It is stressed in this way the connection of the concept of domicile with the protection of the spheres of privacy of the individual, what drives to broad the legal civil or administrative concept of the dwelling for building the concept of domicile from the constitutional point of view, as an instrument of protection of the privacy. Will have the protection granted to the domicile those places in which, permanently or temporally, the individual develops spheres of its privacy, far from the encroachment of no authorized thirds (Spanish Supreme Court´s sentence of 24 October 1992, 19 July 1993, 731/2013, 7 October…).”
With the above definition we have filled most of the gaps left by the one given by the CP. It is in this dwelling, where the individuals will exercise their right to the intimacy, which according to the Spanish Provincial Court of Barcelona´s resolution number 3095/2021, the right to the intimacy: “guarantees to the individual a reserved ambit of its life “impeding that thirds, either particulars or public powers, decide what are the limits of our private life, being able each person to reserve a space protected from the alien curiosity, whatsoever may be the content of this space” (Spanish Constitutional Court´s sentences number 127/2003 of 30 June, 89/2006 of 27 March). The protection of this reserved ambit grants to the person the power of demanding from thirds the duty of abstaining of any encroachment in the private sphere and the prohibition of making use of the known thanks to this.”
And more concretely, their right to the inviolability of the domicile, which according to the Spanish Provincial Court of Oviedo´s sentence number 1593/2021, quoting the Spanish Constitutional Court´s sentence number 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 limit space which the own person chooses, results -exempt from- or -immune to- any type of exterior invasion or aggression of other persons or of the public authority, included those which can be carried out without the physical encroachment of it, but by means of mechanical, electrical or other analogous means.”
Notwithstanding all the above, careful. Because, though the definition given by the Spanish Provincial Court of Madrid´s sentence number 18202/2022 fills most of the gaps left by the CP, the latter in reality has a broader concept of dwelling than the former, since the CP considers dwelling, for the purpose of a crime of burglary with force in the things, or even edifice or establishment open to the public “its courtyard, garages and the rest of the departments or closed places and adjacent to the building and in interior communication with it, and with which it forms a physical unit.” (art. 241.3 CP). Being a distinction much more relevant than what it may seem, for the Spanish Jurisprudence has considered that the judicial police does not need judicial authorization, flagrant crime or owner´s consent (art. 18.2 of the Spanish Constitution) for entering into a courtyard, garages or junk roomincluded in the article 241.3. However, again, careful, because the we have myriad practical examples and to generalize at this level could be dangerous.
Lastly, in the fourth point of the article 241 we find an aggravated subtype of the crime of burglary with force into inhabited house, building or establishment open to the public. The punishment in these cases will be of imprisonment from two to six years, if the facts has a special gravity “attending to the form of commission of the crime or the prejudices occasioned and, in any case, when any of the circumstances mentioned in the article 235 concurs.”
Here, we have the same doubt that we had with the second point of the article 240, ¿should the punishment be imposed in its superior half when concur two or more circumstances of the mentioned in the article 235? Again, in my opinion, the correct answer is yes, for, in this way, we maintain a coherent and joint interpretation of both precepts.
F) Article 242: Punishments for crimes of robbery with force or intimidation against individuals.
The modular regulation made by the CP of the crime of robbery, ends with the article 242, where are established the punishments for when the robbery is committed with violence or intimidation against the persons.
The article 242 says:
“Article 242.
1. The guilty of robbery with violence or intimidation against the persons will be punished with the punishment of imprisonment from two to five years, without prejudice of what may correspond to the acts of physical violence carried out.
2. When the robbery is committed in inhabited house, building or establishment open to the public or in any of their rooms, will be imposed the punishment of imprisonment from three years and six months to five years.
3. The punishments envisaged in the previous points will be imposed in their superior half when the delinquent makes use of weapons or other means equally dangerous, either when committing the crime or for protecting the flight, and when he attacks those who come in help of the victim or those who chase him.
4. Attending to the minor entity of the violence or intimidation exercised and assessing besides the rest of the circumstances of the fact, may be imposed the punishment inferior in degree to the envisaged in the previous points.”
Beginning with the first point, we can observe that the punishment of robbery with violence or intimidation against the persons and for burglary with force in inhabited house, building or establishment open to the public is the same (imprisonment from one to five years), except when the robbery has been committed outside business hours (imprisonment from one to five years). All change when the robbery combines elements of both modalities, if this is committed with violence and intimidation against the persons and, besides, it is carried out in inhabited house, building or establishment open to the public, there is an increase in the punishment, being from three years and six months to five years of imprisonment. Here, we may have two doubts, how is punished a robbery with violence or intimidation against the persons in which there has not been force upon the things but which has been committed in inhabited house, building or establishment open to the public?, and, a robbery with violence or intimidation against the persons in which there has been force upon the things and which has been committed in inhabited house, building or establishment open to the public? The answer to the former question is easy because we have just seen it, the article 242.2 CP should be the applied. The answer to the latter question is more complicated, but the result will be the same, the article 242.2 should be applied again, though here for a different motive, as consequence of the application of the rules established in the article 8 of the CP for the concurrence of norms.
But, what is really interesting of the first and second point of the article 242, is the way in which are related the acts of physical violence with those of robbery, saying “without prejudice of what may correspond to the acts of physical violence carried out.” Therefore, we have to understand that regardless of the medial nature which may have these acts of physical violence, with respect to the crime of robbery, there will exist always a real concurrence of crimes of the article 73, being necessary to punish both crimes independently. The Spanish Provincial Court of Barcelona´s sentence number 3842/2023 says: “In other words, despite their medial nature, the robbery and the injuries should be punished through the real concurrence of crimes of the article 73 CP.”
Reached this point, we are obliged to talk about the “reckless crime”. Said like this, it sounds a little strange, so let us try to find first an example. Imagine that a thief wants to steal a purse and for doing it, he assumes that he will need to pull with strength from it for grasping it from the woman who carries it. Furthermore, the thief assumes that the pulling may cause some damage to the woman, like a bruise in her shoulder or maybe damages derived from a mild fall to the ground. However, when the thief finally steals the purse the damages suffered by the woman are graver than the previously thought by him, because when the woman falls to the ground, she breaks her hip. In these cases, the thief will respond of a crime of robbery with violence or intimidation against the persons (art. 242 CP), and besides, of two crimes of injuries, one malicious for the damages previously foreseen (art. 147 CP), and another culpable (article 152 CP), for the damages which were impossible to foresee, basically the braking of her hip. Among these three crimes, there will exist a relation of real concurrence of crimes of the article 73 CP.
After this example, let us see what our courts have said regarding it. The Spanish Provincial Court of Barcelona´s sentence number 3842/2023 says: “In general, it is stressed that in the reckless crime there is a kind of “mixture of malice and guiltiness”, in other words, we are before a basic fact which is intentional, foreseen and accepted, and another fact consequence which, escaping the foreseen by the agent, though foreseeable (unconscious guiltiness) or foreseen but not accepted (conscious guiltiness), ends imposing itself, without missing, the precise causal connection…it obliges to punish as malicious crime only until the intention reaches, and as guiltiness until the duty of avoiding the foreseeable damage reaches.”
On the other hand, the third point of the article 242 CP obliges to impose the punishments envisaged in its first and second point “when the delinquent makes use of weapons or other means equally dangerous, either when committing the crime or for protecting the flight, and when he attacks those who come in help of the victim or those who chase him.”
The Spanish Provincial Court of Madrid´s sentence number 5417/2023 says in relation with the weapons and other means equally dangerous: “The jurisprudence has considered weapons -or other means equally dangerous the firearms, knives, daggers, penknife, screwdriver, axes, sticks (Spanish Supreme Court´s sentence number 183/1998 of 13 February). Penknives even when they are of little size, since by its own acquires the consideration of dangerous tool all machine capable of pricking or punching.
The doctrine of the Supreme Court has defined the concept of dangerous means in relation with their possibility of increasing or boosting the aggressive capacity of the author, risk for the assault, diminishing his capacity of opposition or defense.”
Besides, we have to take into account that will be enough with the exhibition of the weapon or equally dangerous object for applying the aggravated subtype of the article 242.3 CP. The same sentence says: “Due to the fact that the third point of the CP “use of weapons or other means equally dangerous, either when committing the crime or for protecting the flight, and when he attacks those who come in help of the victim or those who chase him.” It is understood “by use of weapons” not only the direct employment, shot, prick, but also its exhibition or its combined use, for the risk that it entails (Spanish Supreme Court´s sentence numbers 353/2014 of 8 May; 120/2010 of 27 January).”
Finally, the article 242.4 includes an attenuated subtype, being possible to impose the punishment inferior in degree to those envisaged in the first and second point, attending to “the minor entity of the violence or intimidation exercised and assessing besides the rest of the circumstances of the fact.”
The Spanish Provincial Court´s sentence number 6635/2023 says in relation with the attenuated subtype: “The criterion of the jurisprudence of the Second Chamber of the Supreme Court with respect the terms in which has to be interpreted the attenuating clause that contains the article 242.4 CP (“Attending to the minor entity of the violence or intimidation exercised and assessing besides the rest of the circumstances of the fact, may be imposed the punishment inferior in degree to the envisaged in the previous points”), is the following:
1º “Minor entity of the violence or intimidation”, main criterion, without doubt, as is deduced from the expression “besides” which heads the reference to the other criterion, and which, on the other hand, is more concrete and makes reference, to the legal good protected in this class of robberies (persons and patrimony), to the more relevant of them: the freedom and integrity of the person.
2º “Besides the rest of the circumstances of the fact”, element of less importance than the first, but essential for the application of the precept, in a way that the only consideration of the entity of the violence or intimidation does not allow to apply the decrease in degree here envisaged. The other circumstances of the fact have to be examined, undetermined in the own norm and, therefore, of very different conditions:
a) The place where the robbery is committed: it is not the same to commit it on the street upon a pedestrian than in a commercial establishment and cannot be equal either the robbery in a little shop than the robbery in a bank.
b) In relation with the active subject, we have to consider if it was only one person or there was a group of coauthors, as well as, in its case, the way of acting of this group and if this was more or less organized.
c) The number of persons robbed and their condition in relation with their economic situation and the greater or lesser possibilities of defending themselves.
d) The value of the stolen, in a way that has to be excluded its application when the value reaches certain amount which, cannot be determined in a concrete number, for it should vary according such circumstances before indicated or any others which may confer to the fact more or less unlawfulness. For it is a plurioffensive type against the person and the property, in a way that has to be assessed both conditions when considering this attenuated subtype, being necessary to specially take care of this principle of proportionality (Spanish Supreme Court number 259/2017 of 29 March).
All these criterions (told us the Spanish Supreme Court´s sentence number 34/2017 of 26 January) have to be taken into account jointly, with the end of being able to globally asses the objective gravity of the occurred, for determining if the basic punishment to be imposed (that of the article 242.1) is proportional to this gravity or has to be understood more adequate the decrease in degree which envisages the 242.4. Because the norm “is oriented to the better adaptation of the punishment to the circumstances of the concrete case, trying to avoid a disproportionate punishment for acts that deserved the typification of robbery with violence or intimidation and not of theft, have a scarce coercive element against the victim and move away in a substantive way of the ordinary harmfulness that these attacks entail for the individual freedom of the passive subject or its physical integrity (Spanish Supreme Court´s sentences 447/2020 of 16 September, 1605 of 20 October and 643/2019 of 20 December).
This objective dimension, referred to the existence of a minor unlawfulness of the fact considered in itself, has made to our jurisprudence to recognize:
a) The possibility of applying the article 242.2 in cases in which concur the aggravating factor of recidivism (art. 22.8º CP).
b) Also, to the cases in which concur some of the circumstances of specific aggravation envisaged in the paragraph second and third of the article 242, on understanding that before the absence of an accentuated dangerousness of the facts, is also shown disproportionate the punishment initially envisaged for the burglary with force in inhabited house, or in building or establishment open to the public, or in cases of weapons or other dangerous means.
The Supreme Court has excluded the application of the attenuated subtype in cases in which, among other concurring elements, the action has been developed through grave threats, as threats of death in solitary places; reiterated threats; threats with weapons; plurality of robbers; or surrounding and searching of the victim; besides an scenario of violence and damaging aggression; not damaging aggression; shaking of the victim; illegal detention or cases of concurrence with sexual aggression.
On the contrary if the attenuating factor has been appreciated, in cases of pulling of scarce violence, with absence of damaging risk; little threats; mild straggles after stealing; pushing; simple verbal intimidation; or physical grasping of short duration.”
Víctor López Camacho.
Twitter: @victorsuperlope.
More on my website: www.victorlopezcamacho.com