“Of the thefts”, is how is entitled the first chapter of the Title XIII, of the Book II, of the Spanish Penal Code (CP), which has as object the “Crimes against the patrimony and the socioeconomic order”. It is a chapter formed only by three articles, in whose analysis we are going to focus. Consequently, we are going to divide this writing into three points, each one pertaining to each of these articles.
– Article 234:
Before deepening in its analysis, let us see what is exactly the content of the article 234.
“Article 234.
1. Who, for profit, takes the alien movable properties without the consent of their owner will be punished, as convict of theft, with the punishment of imprisonment from six to eighteen months if the amount of the stolen exceeds the 400 euros.
2. Will be imposed the punishment of fine from one to three months if the amount of the stolen does not exceeds the 400 euros, save when any of the circumstances of the article 235 concurs.
Notwithstanding, in the case that the guilty has been executory convicted for at least three crimes comprehended in this Title, although they are of minor character, always that they are of the same nature and that the amount accumulated from the infringements is greater than 400 euros, will be imposed the punishment of the point 1 of this article.
3. The punishments established in the previous points will be imposed in their superior half when in the commission of the fact has been neutralized, eliminated or rendered unusable, the devices of alarm or security installed in the stolen thing.”
Article 234.1:
In the first point of the article 234 we find the basic type of the crime of theft. The objective type of the crime is constituted by the action of, taking “the alien movable properties without the consent of their owner.”
According to the Royal Academy of the Spanish Language´s Dictionary, the verb “to take” means, in its first meaning: “to take or grasp with the hand something.” Normally, in the majority of the thefts this will be their mode of commission, though there may be occasions in which it is used a tool instead of a hand, hence, without doubt we choose the fifteenth meaning of the verb “to take”: “to snatch or steal”. If we keep pulling the thread, to steal means in its first meaning: “To take or retain alien goods against the will of its owner, without intimidation in the persons nor force upon the things.” A definition which in part coincides with the given by the CP for the crime of theft, though it is not mentioned that they should be movable properties, and which adds something new and very interesting, “without intimidation in the persons nor force upon the things.” Because, indeed, these two characteristics differentiates the crime of theft, from the crime of robbery (art. 237 CP). The article 237 CP says:
“Article 237.
Convicts of robbery are those who, for profit, seize the alien movable properties employing force upon the things for accessing or abandoning the place where they are or violence or intimidation in the persons, either for committing the crime, protecting the flight or upon those who come to help the victim or chase them.”
In fact, we are going to be before a robbery only when there exists this “force upon the things” or “violence or intimidation in the persons”, and though the CP does not offer a definition of when we may consider that there exists this “violence or intimidation in the persons” for the crime of robbery, it does offer one for “force upon the things” in its article 238:
“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 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 false keys.
5º Rendering unusable the specific systems of alarm or security.”
The article 238 makes an important delimitation of the boundaries of what we should understand by force upon the things, since out of the cases expressly mentioned in it, and when there has existed no violence either, we are going be before a crime of theft and not of robbery, even when there has been force upon the things. Moreover, the sentence which convicts for a crime of robbery should duly motivate the concurrence of any of the previous circumstances (or violence or intimidation in the persons), otherwise we are going to be again before a crime of theft and not of robbery. The Spanish Provincial Court of Barcelona´s sentence number 3599/2023 says: “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).”
And in a previous paragraph, the same Spanish Provincial Court of Barcelona´s sentence number 3599/2023 says: “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.”
Another question that we have to analyze, is what we should understand by movable property. According to the article 335 of the Spanish Civil Code (CC):
“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.”
With respect to the subjective type of the crime of theft, the article 234 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 its main aim, without being possible to discard another secondary, as incorporating the movable property to the own patrimony for later selling it.
From the fact that, the movable property has been effectively added to the patrimony of the active subject will depend whether the crime of theft 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, though in its case taking as reference the crime of robbery, a “cousin” of the crime of theft, thereby we understand applicable the said by it to the latter: “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, abandoning 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 is the patrimony of the passive subject of the crime.
Another important detail we are obliged to comment, before ending with the commentary of the first point of the article 234, is that, what we have considered as the basic type of the crime of theft is only applicable when “the amount of the stolen exceeds the 400 euros”, for only in those cases the punishment imposed will be from six to eighteen months of imprisonment. When the article 234 is referred to the amount of the stolen, it is referring to the total amount, to the stolen as a whole, the important is that the value of the objects stolen during the same action has to be greater than the threshold marked by the law. But, in which terms should be computed that the value of the stolen objects surpasses the 400 euros? The question arises, because there has been polemic in our courts, above all, regarding whether it should be understood included the VAT (Value Added Tax) or not. It seems that the jurisprudence of the Spanish Supreme Court is pacific, by which the VAT is included in the final value of the stolen objects. The Spanish Provincial Court of Barcelona´s sentence number 3907/2023 says: “However, the Chamber coincides with the appellants in considering consolidated criterion in the Jurisprudence and followed by this Chamber, that the determination of the value of the stolen in the crime of theft when they are articles coming from an establishment open to the public, is determined by the price of sale to the public which is indicated in their labelling, and which includes costs of production and distribution of the good, benefits obtained by those taking part in the chain of production, and the taxes and duties which direct or indirectly levy the amount resulting from the sum of the previous concepts and which in the territory of the peninsula (and the Balearic Islands) is the Value Added Tax (VAT). In this sense, the Spanish Supreme Court´s sentence number 327/17 of 9 May, points out the following: the value of the stolen in establishments open to the public is the price of sale to the public which should be interpreted as the amount that should be paid for its acquisition, an amount which is usually exhibited in the labelling of the goods, which comprehends, the costs of production and distribution of the good, the benefits of those who intervene in the chain of production and the takes and duties which have direct or indirectly levied it, including the Value Added Tax (VAT) in the territory of its application (peninsula and Balearic Islands), the Canary General Indirect Tax (IGIG), in the Canary Islands and the tax upon the Production, the Services and the Importations (IPSI) in the cities of Ceuta and Melilla.”
Article 234.2:
The article 234.2 continues, and in its second point we find what we can denominate an attenuated subtype of the crime of theft, of the basic type of its first point.
As we can observe, the punishment of imprisonment from six to eighteen months passes to be of fine from one to three months, when the value of the stolen does not exceed the 400 euros. Nevertheless, the own article 234 imposes two exceptions to this general rule: 1) The punishment will be of imprisonment from one to three years, when any of the circumstances of the article 235 is met, and; 2) When “the guilty has been executory convicted for at least three crimes comprehended in this Title, although they are of minor character, always that they are of the same nature and that the amount accumulated from the infringements is greater than 400 euros, will be imposed the punishment of the point 1 of this article.”, in other words, from six to eighteen years of imprisonment.
Remember that, “Minor offences are those infringements which the law punishes with minor punishment” (art. 13.3 CP), and minor punishments are those enumerated in the article 33.4 CP, among which we find the fine of up to three months (art. 33.4.g CP).
Another important aspect which we should take into account is that, one of these aggravating factors envisaged in the article 235 is, “7º When on committing the crime the guilty has been executory convicted at least for three crimes comprehended in this Title, always that they are of the same nature. Criminal records either cancelled or which should be cancelled will not be taken into account.” Which is really similar to the envisaged in the own second point of the article 234, though, logically, without being identical as consequence of an important difference, the article 235 will be applied when the guilty has been executory convicted for at least three crimes comprehended in this Title, which can never be minor offences, in other words, the three crimes should be at least less serious offences, without having been cancelled either.
Remember that, the criminal records are cancellable according to the rules of the article 136 CP, which in its two first points says:
“Article 136.
1. The convicted who have extinguished their criminal liability has the right to obtain from the Ministry of Justice, ex officio or at the request of party, the cancellation of their criminal records, when the following terms have elapsed without committing another crime:
a) Six months for the minor offences.
b) Two years for the punishments which do not exceed the twelve months and the imposed by imprudent crimes.
c) Three years for the rest of less serious punishments of less than two three years.
d) Five years for the rest of the less serious offences which are equal or superior to three years.
e) Ten years for the serious punishments.
2. The terms to which is referred the previous paragraph will be computed from the next day to that in which was extinguished the punishment, but if that took place during the conditional remission, the term, once obtained the definitive remission, will be computed taking it back to the next day to that in which would have been fulfilled the punishment if this benefit had not been enjoyed. In this case, will be taken as initial date for computing the duration of the punishment the following day to the granting of the suspension.”
Article 234.3:
Lastly, in the third point of the article 234.3 we find another aggravated subtype, this time, the punishments envisaged both in the first and the second point of the article 234 will be imposed in its superior half “when in the commission of the fact has been neutralized, eliminated or rendered unusable, the devices of alarm or security installed in the stolen thing.”
If we compare the said by this point with the fifth motive of the article 238, in which, as we already know, we find the different circumstances which make a fact a robbery and not a theft, there arises some confusion. The aforementioned fifth cause of the article 238 says: “Rendering unusable the specific systems of alarm or security.”
It is true that I do not have any practice example which may sustain my words, but in my opinion the difference between both precepts lays in the type of alarm used, if we are before the rendering unusable of an alarm placed upon the thing stolen, like those which we can find attached to clothes into a shop, we are before a crime of theft, contrariwise, if we are before the rendering unusable of another kind of alarm, we will be before a crime of robbery.
– Article 235:
The next article of which we have to talk about is the article 235, which says:
“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.”
Always that concurs any of the nine circumstances mentioned in the first point of the article 235, the punishment for the crime of theft will be of imprisonment from one to three years, even when the value of the stolen does not exceed the 400 euros (art. 234.2 CP), what can be regarded as an excessive increase of the punishment, if we compare it with the imposed in the first and second point of the article 234.
Among all these circumstances, the one which more jurisprudence has generated is the seventh, for in it is not detailed, as it is made in the second point of the article 234, the gravity of the crimes for which has to be executory convicted the convict, for giving rise to an aggravation of the punishment. In this sense, the answer of the Spanish Supreme Court has been clear, the hyperaggravation of the article 235.7º of the CP, only will have effect “When on committing the crime the guilty had been convicted at least for three crimes comprehended in this Title”, which are of grave or less grave character, notwithstanding the above, careful! Because the crime which can give rise to the application of this hyperaggravation, once fulfilled the above requisite, can be a minor offence. The Spanish Provincial Court of Oviedo´s sentence number 1607/2023 says: “In this sense the Spanish Supreme Court´s sentence number 738/18 of February 2019, exposes the following: If the legislator departs from the previous general principle according to which the scarce entity of unlawfulness which have the minor offences impedes them to work for incrementing the convictions in the rest of the crimes, it does not look coherent to forsake this concept of recidivism which is formulated in the general part of the Code for aggravating the punishment of a minor offence till the point of transforming it into a hyperaggravated penal type (art. 235.1.7º), without first applying the basic penal type envisaged in the article 234.1 CP.
This interpretation drives us to consider that what does not work in the grave crimes as mere aggravating factor does work in the minor offences in a hyperaggraveted way, incrementing the punishment of fine till a possible privation of liberty of three years of imprisonment.
And the Spanish Supreme Court´s sentence number 738/18 continues saying the following: Against this can be opposed that the art. 235.1.7º affirms that the multireicidivism is referred to crimes “comprehended in this Titlte”, without distinguishing between minor offences and less grave crimes. However, this generic way of expressing itself by the legislator, united to the literal interpretation of it, generates, leaving aside other effects, a great inequality assigning the same punitive framework to the accused who commits a minor offence and the accused who commits a less grave crime when both have criminal records for three minor offences.
Besides, that linguistic interpretation literalized to its upmost is also used as a generic superaggravating factor in the article 66.1.5º CP (“comprehended in the same title”), which was established in the legal reform of September 2003. However, it is not applicable in the cases of convictions for minor offences of the same nature for activating the application of this aggravating factor of recidivism, since they are excluded in the second point of the precept of the rules established in the first point when they are minor offences, and due to the fact that they have to be put into relation with the article 66 and the article 22.8ª of the same legal text.
In this way, the interpretation of the article 235.1.7º of the Penal Code is more in line with the legal concept of recidivism and with the punitive consequences which the multirecidivism entails and which are established in the Genal Part of the Penal Code, it is that while the Legislator does not expressly point it out it is not applicable the envisaged in it for the behavior constitutive of a minor offence.
Regarding this, the Spanish Supreme Court´s sentence number 738/18 says: It is evident, that it corresponds to the legislator to establish the amount of the punishments in each of the criminal types since it has the legitimacy for fixing the guidelines of the criminal policy in our country.
(…) However, within the punitive framework established by the legislator, the courts, taking into account the wording of the norm and the constitutional principles which should mainly guide the meaning of the penal precepts, have to choose, when there are interpretations in conflict, the one which reconciles in a major degree the constitutional principles and values with the descriptions and connotations arising from the legal text, either from a dimension of each precept or from the Code as a whole. Especially when there arise internal contradictions either textual or axiological, as it was exposed in the preceding basis.
By a conclusive way the Spanish Supreme Court´s sentence number 481/2017 affirms that on acknowledging the own legislator the scarce degree of unlawfulness of the minor offence due to the punishment of fine assigned to it, its hyperqualified aggravation upon the only support of another minor offences already convicted places us in a ground very close to the infringement of the principle of proportionality of the punishments and even close to the infringement of the non bis in idem. To this has to be added the making unilateral in which may be incurred in order to the operativity of the ends of the punishment, on centering the new hyperaggravated punishment in the aim of the positive general prevention (to diminish the social alarm and generate the confidence in the validity of the norm), emptying the content the aim of the special prevention, at the same time that it substantially weakens the efficacy of the principle of guiltiness as brake to the punitive excesses when it is put into relation with the concrete unlawfulness of the fact tried.”
– Article 236:
The article 236 says:
“Article 236.
1. Will be punished with the punishment of fine from three to twelve months who, being the owner of a movable property or acting with the consent of it, steals it from who has it in its legitimate power, with prejudice of it or a third.
2. If the value of the stolen thing does not exceed the 400 euros, will be imposed the punishment of fine from one to three months.”
To interpret the article 236 necessitates of an exercise of imagination. It places us in the situation, in which, who being the owner of a movable property, or having its consent, steals it from who is making a legitimate use of it. This can be the case of a simple renting, as for example, of a motorcycle, or a games console, or any other movable property that you can imagine.
Víctor López Camacho
Twitter: @victorsuperlope.
More on my website: www.victorlopezcamacho.com