Article 242 Spanish Criminal Code: Robbery with Violence or Intimidation

Article 242 of the Spanish Criminal Code punishes robbery accompanied by violence or intimidation against persons. The basic penalty is imprisonment of two to five years, which rises to three years and six months where the robbery is committed in an inhabited house or in premises open to the public, and is imposed in the upper half where weapons or other equally dangerous means are used. Paragraph 4 contains the provision that decides most cases in practice: where the violence or intimidation used was of lesser significance, the court may reduce the penalty by one degree, which brings a suspended sentence within reach.

Wording of Article 242 of the Spanish Criminal Code

Elements of the offence

1. The taking of movable property belonging to another with the intention of gain, which is the common basis of theft and robbery.
2. Violence against a person, or intimidation understood as the announcement of an immediate harm. Force applied only to an object, such as breaking a window or a lock, is robbery with force in things under article 237 and following, not this offence.
3. A connection between the violence or intimidation and the taking. Violence used after the taking is complete, in order to escape, brings paragraph 3 into play.
4. For paragraph 3, a weapon or other equally dangerous means. The dangerousness is assessed objectively, so a simulated or manifestly harmless object does not satisfy the requirement.

Defence strategy

The lesser significance of the violence. Paragraph 4 is the most important instrument available to the defence in this class of case, and it is applied far less often than the facts warrant. A push, a snatch from the hand, a brief grip on the arm or a verbal demand without any display of force are habitually charged as full robbery when they fall squarely within the reduction. The submission is built on the medical evidence, which typically shows no injury at all, on the recordings from the premises and on the duration of the encounter, and it converts a sentence that must be served into one that can be suspended.

Reclassification to theft. Where the property was taken by surprise rather than by force, as in the removal of a telephone from a table or a bag from the back of a chair, the offence is theft under article 234 and not robbery, and the difference in penalty is substantial. The line is drawn by whether force was applied to the person or only to the object, and it is established through the recordings and the victim’s own first description of the movement, which is frequently more accurate than the characterisation adopted later in the file.

Identification. In street robberies in tourist areas the identification is often the weakest element: a description given at night, a photographic identification conducted without the safeguards, an identity parade held after the complainant has seen the accused in custody, or an attribution based only on clothing. The defence obtains the complete record of how the identification was made and, where the safeguards were not observed, challenges its use as evidence rather than merely its weight.

Restitution, intoxication and the agreed disposition. Where the property has been recovered or its value returned, and where the offence was committed under the influence of a serious addiction, two mitigating circumstances operate together and, combined with the reduction in paragraph 4 and the reduction for a plea, ordinarily produce a suspended sentence conditional on treatment. For a foreign defendant this is the outcome that avoids both imprisonment and the practical consequences that a custodial sentence carries for residence.

• Article 234: theft
• Article 147: bodily harm
• Spanish Criminal Code by article
• Spanish-language entry

This entry is provided for information only and does not constitute legal advice. The application of any provision depends on the circumstances of the individual case and requires examination of the case file by a qualified lawyer.