Article 234 Spanish Criminal Code: Theft

Article 234 of the Spanish Criminal Code penalises the taking of movable property belonging to another without violence or intimidation and without force. Its practical significance lies in two boundaries: the one that separates it from the minor offence by reference to value, and the one that separates it from robbery by the presence of force.

Wording of Article 234 of the Spanish Criminal Code

Elements of the offence

1. Taking movable property belonging to another, with a transfer of effective control over it.
2. Absence of violence or intimidation against persons and of force against property.
3. Absence of consent on the part of the owner.
4. Intent to gain, understood as a purpose of obtaining any advantage.
5. Valuation of the property, which determines whether the conduct is an offence or a minor offence.

Defence strategy

Challenging the valuation. The figure of 400 euros separates the offence from the minor offence and determines the court and the penalty. Police valuations commonly rest on replacement cost supplied by the complainant, including value added tax. A contradictory valuation report addressing market value and prior depreciation frequently moves the case into the minor-offence category.

Absence of intent to gain. Taking an item in the belief that it is ones own, taking it to return it, or taking it in the course of a dispute over ownership does not satisfy the requirement. The relationship between the parties and any prior claim to the property are the relevant evidence.

Consent and prior permission. Where the complainant had previously permitted use of the item, or where there was an established practice of shared use, consent may be inferred. In shared accommodation, holiday rentals and workplaces this is a frequent and effective line.

Identification of the accused. Attribution based on low-resolution recordings, on presence in the vicinity, or on partial resemblance is insufficient. The original recordings and the identification report should be requested before the retention period expires.

Previous convictions capable of being spent. The repetition provision requires live previous convictions. Calculating the spent-conviction periods under Article 136 from the date each sentence was served frequently shows that a conviction was already capable of being cancelled, which excludes the aggravated form.

Restitution and compensation. Returning the property or paying its value before trial founds the mitigating circumstance under Article 21.5 and, in minor offences, an express pardon by the injured party extinguishes liability altogether. For clients residing abroad this is normally the fastest route to closure.

• Theft and robbery defence
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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.