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“Of the robbery and theft of use of vehicles” is how is entitled the Chapter IV, of the Title XIII, of the Book II, of the Spanish Penal Code (CP). A chapter compounded of only one article, but whose content has to be completed with the chapters regulating the crimes of theft (art. 234 CP) and robbery (art. 237 CP).
– Article 244:
Let us first read the article 244, for later analyzing its content:
“Article 244.
1. Who subtracts or utilizes without the due authorization an alien motor vehicle or moped, without the intention of appropriating to himself it, will be punished with the punishment of community service from thirty-one to ninety days or fine from two to twelve months, if he directly or indirectly returns it, in a term not greater than forty-eight hours, without in any case, being possible for the punishment to exceed that which would correspond if he definitely appropriated to himself the vehicle.
2. If the fact is committed employing force in the things, the punishment will be applied in its superior half.
3. If the vehicle is not return within the term established above, the fact will be punished as theft or robbery in their respective cases.
4. If the fact is committed with violence or intimidation against the persons, will be imposed, in any case, the punishments of the article 242.”
Let us begin with the first point, where is described the basic type of the crime of robbery and theft of use of vehicles. Now, let us extract from it, the objective elements of the type, or in other words, the typical behavior. This consists in, subtracting or utilizing “without the due authorization an alien motor vehicle or moped, without the intention of appropriating to himself it, will be punished with the punishment of community service from thirty-one to ninety days or fine from two to twelve months, if he directly or indirectly returns it, in a term not greater than forty-eight hours.”
Of the typical behavior, the two verbs which describe the action are either “to subtract” or “to utilize”. According to the Dictionary of the Royal Academy of the Spanish Language (RAE), “to subtract” means: “To theft, to rob fraudulently.” Of course, because we are before a criminal type, which consists in taking an alien good against the will of its owner.
But, the objective elements of the type are also fulfilled if instead of subtracting the good, simply, this is utilized. According to the RAE, “to utilize” means: “To make something to serve for and end”. In other words, to take something for obtaining a benefit from it thanks to its use.
Any of these two actions, should be carried out “without the due authorization”, what implies, as we said before, that the subtraction or use has to be carried out against the will of its owner, or of the person who is making a legitimate use of the good subtracted or utilized.
So far, we could have been describing a crime of theft, however, if we continue reading a little more, we soon find the element which distinguishes the basic type of the crime of use of vehicle, from the crimes of theft or robbery, with which this is related. We are referring to the subjective element of the type, the subtraction or use without the due authorization of the owner of the good, should be done “without the intention of appropriating to himself it”. Because, all theft or robbery should be done with “profit intent”, with the intention of appropriating to oneself an alien good. Later this idea is strengthened adding that, the good should be direct or indirectly returned “in a term not greater than forty-eight hours.”
When the law offers the possibility of committing the facts without profit aim, it is because there should be the possibility of benefitting from a good without the necessity of appropriating to oneself it. Therefore, the good should have some special characteristics. Concretely, the good should be a “motor vehicle or moped”, a good which offers a great benefit in exchange of a temporal use, the possibility of travelling long distances in a short period of time. Hence, that the basic type of the crime of use of vehicle, offers a term of only forty-eight hours for understanding that there exists no profit intent, or like the article 244 says, that there is no “profit intent”.
Within the limit of forty-eight hours, what may be more difficult of interpreting, it is the way in which the vehicle should be returned, for the article 244 offers two possibilities, it can be done either “directly or indirectly”. In my opinion, this “directly or indirectly” means that, the vehicle may be returned by any means which supposes the end of the illicit behavior, for example, abandoning the vehicle, irrespective of whether this is done in the place where it was subtracted or its use began or elsewhere.
It is the turn of the second point of the article 244, in it the punishment envisaged in the first point should be imposed in its superior half, when the subtraction or use is carried out “employing force in the things”. What makes us to use two articles pertaining to the chapter where the robberies are regulated, the article 238, where are enumerated the cases in which there exists force in the things, and the article 239, where are enumerated the types of lock picks that we can find.
Here below, you have both articles:
“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”
“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.”
But, careful, that the subtraction or use of the vehicle has been carried out by employing force in the things does not transform the facts into a robbery.
The facts are transformed into a theft or robbery, when the vehicle is not returned within the term of forty-eight hours established in the first point of the article 244. In order to distinguish between both crimes, we have to attend to the same criterion followed for distinguishing between both in their respective basic types, there will be a robbery and not a theft, when for taking possession of the vehicle there has been “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.” (art. 237 CP).
Here, we see clearly, what we have already said, the legislator has understood that there exists profit intent, this characteristic element of the robbery and theft, when the term of forty-eight hours which exists for returning the vehicle is surpassed.
The more immediate consequence, above all for the convicted, will be that in these cases the punishments which should be imposed will be those envisaged for the crimes of robbery and theft.
In fact, the article 244, in its fourth point, expressly imposed the punishments of the article 242, when the robbery of the vehicle has been committed through violence or intimidation against the persons.
Víctor López Camacho.
Twitter: @victorsuperlope.
More on my website: www.victorlopezcamacho.com