Article 238 Spanish Criminal Code: Robbery with Force in Things

Article 238 of the Spanish Criminal Code defines robbery with force in things by an exhaustive list of five circumstances: climbing in, breaking a wall, roof, floor, door or window, forcing furniture or containers, the use of false keys and the disabling of alarm systems. If none of the five is present, the conduct is theft under article 234 even where entry was gained without permission. The distinction governs the penalty, and in cases of entry into holiday properties and garages on the Costa Blanca it is the point on which the classification most often turns.

Wording of Article 238 of the Spanish Criminal Code

Elements of the offence

1. The taking of movable property belonging to another with the intention of gain.
2. One of the five circumstances in the list, which is exhaustive: no circumstance may be added by analogy.
3. That the force was used in order to gain access to the property. Force applied after the taking, or in order to escape, does not convert theft into robbery.
4. For false keys, the definition in article 239, which includes picklocks, keys obtained unlawfully and keys that are genuine but used without the holder’s authority.

Defence strategy

None of the five circumstances is present. Entry through an unlocked door, through a window left open, over a low wall that required no climbing, or into a communal garage whose gate was already open involves no force in the statutory sense. The offence is then theft, and where the value taken does not exceed four hundred euros it is a minor offence punished by a fine. The defence establishes the state of the access point from the police photographs and the report of the locksmith, which frequently records no sign of forcing.

Pre-existing damage. A broken lock or a damaged window frame is habitually attributed to the accused when it was already in that condition, which is common in properties that have stood empty for long periods. The defence obtains the maintenance records, the accounts of neighbours and the community of owners, and where possible a technical examination of the mechanism, since the age of a fracture is capable of objective assessment.

Keys and authority to enter. The use of a key that was given for another purpose, retained after a tenancy ended or held by a former partner raises the question whether it is a false key within article 239 and, more fundamentally, whether the entry was consented to. Where there was some authority to hold the key, the case is often better characterised as a civil dispute or, at most, as theft.

Identification and the value taken. In this class of case the evidence is frequently circumstantial: a fingerprint at the access point, a sighting in the area, or possession of the property afterwards. The defence tests each link, including whether the fingerprint could have been left lawfully at another time. In parallel, the valuation of the property taken is contested, because the classification and the penalty depend on it and the figure in the file is ordinarily the complainant’s unverified estimate.

• Article 234: theft
• Article 242: robbery with violence
• Article 202: unlawful entry into a dwelling
• 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.