Article 563 Spanish Criminal Code: Possession of Prohibited Weapons

Article 563 of the Spanish Criminal Code punishes with imprisonment of one to three years the possession of prohibited weapons and of weapons resulting from the substantial modification of the manufacturing characteristics of regulated weapons. The article is short and it is applied more often than foreign residents expect, because the Spanish catalogue of prohibited weapons includes items that are lawfully sold elsewhere: certain knives, electric defence devices, sprays outside the approved specifications and blank-firing pistols that have been altered. The requirement of substantial modification is the defence’s principal instrument.

Wording of Article 563 of the Spanish Criminal Code

Elements of the offence

1. An item included in the catalogue of prohibited weapons in the firearms regulations, or a regulated weapon whose manufacturing characteristics have been substantially modified.
2. Possession, understood as availability and control, which does not require the weapon to be carried.
3. For the second modality, that the modification is substantial, that is that it alters the essential characteristics of the weapon and increases its dangerousness.
4. Knowledge of the nature of the object. The offence is intentional, which is where the position of a foreign resident is frequently strongest.

Defence strategy

The item is not a prohibited weapon. The catalogue is technical and closed. Knives whose blade and mechanism fall outside the prohibited description, defence sprays complying with the approved specification, collector’s items and tools whose primary purpose is not aggression are outside the article. The defence obtains a technical report on the specific item, since police classifications made at the scene are frequently based on appearance rather than on the regulatory description.

Absence of substantial modification. For altered weapons the modification must be substantial. Cosmetic changes, worn markings, repairs and modifications that do not restore firing capability do not satisfy the requirement. A ballistic examination is commissioned, because the question whether a blank-firing weapon has been rendered capable of firing projectiles is determined by measurement and not by inspection.

Knowledge of the nature of the object. Foreign residents and visitors frequently possess items purchased lawfully in their own country, or inherited, without any awareness that Spanish law prohibits them. Where the item was bought openly with an invoice, carried in luggage through an airport, or displayed in the home, the defence advances article 14 on mistake, which excludes liability where the mistake is unavoidable and reduces the penalty by one or two degrees where it is avoidable.

Possession and availability. Possession requires control. A weapon found in a shared dwelling, in a vehicle used by several persons, in premises open to others or among the effects of a deceased relative is not necessarily in the accused’s possession. The defence establishes who had access and who exercised control, since the offence cannot rest on the mere presence of the item in a place connected with the accused.

• Article 148: aggravated bodily harm
• Article 14: mistake of fact and of law
• 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.