Criminal Law

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Common Offenses

The crime of theft and the crime of robbery are regulated under the Spanish Penal Code and are two of the most common property crimes. Both offenses involve the unlawful appropriation of another’s property, but they differ in the manner and circumstances in which they are committed. Below, these concepts are further developed, including their impact on criminal procedure and the importance of obtaining legal assistance from the outset.

1. Theft according to the Penal Code

The crime of theft is defined in Article 234 of the Penal Code. This article states that theft is committed by anyone who, with intent to gain, unlawfully appropriates another’s movable property without the owner’s consent. The key element in theft is the absence of violence or intimidation. Classification of theft:

Petty theft: When the value of the stolen property does not exceed 400 euros. This type of theft is considered a minor offense, punishable by a fine.
Serious theft: When the value of the stolen property exceeds 400 euros or when the theft is committed under aggravated circumstances (such as theft in an inhabited dwelling, theft of historically valuable items, etc.), it is considered a felony and can be punished with imprisonment from six to 18 months.

2. Robbery according to the Penal Code

The crime of robbery is regulated by Article 237 and subsequent articles of the Penal Code. Unlike theft, robbery involves the unlawful taking of property with violence or intimidation against persons or the use of force against property. This use of violence or intimidation increases the severity of the act, distinguishing it from theft. Classification of robbery:

Robbery with force against property: When the act is committed by using force against property, such as breaking a lock or entering a closed place with criminal intent. It is punishable by imprisonment from one to three years, depending on the circumstances.
Robbery with violence or intimidation against persons: This is the most serious form, as it involves a direct attack on the physical or psychological integrity of the victim. The penalty ranges from two to five years in prison, but it can increase depending on aggravating factors.

3. Impact on Criminal Procedure

The classification of an act as theft or robbery significantly impacts the criminal procedure, affecting both the process and the penalties:

Crime classification: The distinction between theft and robbery is crucial in the legal classification of the act. An act classified as robbery with violence is much more serious than theft, leading to a more complex criminal procedure and harsher penalties.
Preventive measures: In serious crimes such as robbery with violence, it is more likely that the judge will impose restrictive preventive measures, such as pretrial detention, to prevent repeat offenses or ensure the defendant’s presence at trial.
Summary trial or standard procedure: Petty thefts may be handled in more expedited procedures such as summary trials, while serious robberies typically follow a standard procedure, with more phases and procedural safeguards.

4. Importance of Legal Assistance from the Outset

Having legal assistance from the very beginning is crucial for several reasons:

Rights of the accused: The attorney can ensure that the fundamental rights of the accused are respected from the moment of arrest, such as the right to remain silent, the right to be informed of the charges, and the right to an interpreter if necessary.
Defense strategy: The defense of the accused begins immediately. An attorney can advise on whether to make a statement to the police, propose alibis, or request expert and witness evidence from the start.
Negotiation: In some cases, early legal assistance allows for negotiations with the prosecution to reduce charges or penalties by accepting the facts at an early stage of the procedure.
Evidence: An experienced attorney can identify flaws or irregularities in the collection of evidence, which may lead to its exclusion and, in some cases, to acquittal.
Avoiding unnecessary preventive measures: A strong defense can prevent the imposition of restrictive preventive measures, such as pretrial detention, which can severely affect the accused’s freedom during the trial.

The crime of drug trafficking is regulated under the Spanish Penal Code, specifically in Articles 368 to 372. This crime is considered one of the most serious offenses within the realm of crimes against public health due to its significant social impact. However, the severity of this crime can vary depending on the quantity and type of substance involved, as well as other aggravating circumstances. Below is a detailed overview of this offense, its impact on criminal procedure, and the importance of legal assistance from the outset.

1. Drug Trafficking according to the Penal Code

Article 368 of the Penal Code establishes that a person commits the crime of drug trafficking if they, without authorization, cultivate, manufacture, or traffic in toxic drugs, narcotics, or psychotropic substances, or possess them for such purposes, or promote or facilitate the illegal consumption of such substances. Penalties for this crime vary based on the amount of drugs and other factors such as the purity of the substance, membership in criminal organizations, or if the drugs are intended for minors or crowded places.

2. Special Considerations for Notorious Importance or Extreme Severity

The Penal Code distinguishes between cases of notorious importance and cases of extreme severity, mainly depending on the quantities of drugs seized.

a) Crime of Notorious Importance

This concept refers to situations where the amount of drugs is significant but not extreme. In these cases, penalties are more severe than for simple offenses but do not reach the levels of extreme severity.

b) Crime of Extreme Severity

A case is considered of extreme severity when the quantities of drugs exceed very high thresholds or when additional aggravating circumstances are present, such as the use of weapons, membership in criminal organizations, or distribution in areas where it can affect minors or vulnerable persons. In such cases, penalties can reach up to 21 years of imprisonment, according to Article 369 bis of the Penal Code.

3. Quantity Thresholds for the Most Common Drugs

The Supreme Court has established certain thresholds to determine when the amount of drugs is considered to be of “notorious importance” or “extreme severity.” Below are these thresholds for the most common drugs: Cocaine:

Notorious importance: From 750 grams.
Extreme severity: More than 7.5 kilograms.

Heroin:

Notorious importance: From 300 grams.
Extreme severity: More than 3 kilograms.

Marijuana (cannabis):

Notorious importance: From 10 kilograms.
Extreme severity: More than 100 kilograms.

Hashish:

Notorious importance: From 2.5 kilograms.
Extreme severity: More than 25 kilograms.

Ecstasy (MDMA):

Notorious importance: From 2,500 pills or 300 grams.
Extreme severity: More than 25,000 pills or 3 kilograms.

4. Impact on Criminal Procedure

The classification of drug trafficking as a crime of notorious importance or extreme severity significantly impacts criminal procedure:

Crime classification: The severity of the crime will determine the type of criminal procedure to follow. Crimes of extreme severity, for instance, may lead to more complex procedures and greater severity in preventive measures.
Preventive measures: In cases of extreme severity, it is likely that the judge will impose measures such as pretrial detention due to the risk of flight or recidivism, given the seriousness of the crime and the severe penalties involved.
Summary trial or standard procedure: Drug trafficking offenses are almost always handled through a standard criminal procedure, due to the complexity of the case and the necessary investigations, especially in large-scale cases.

5. Importance of Legal Assistance from the Outset

Obtaining legal assistance from the beginning is crucial in drug trafficking cases for several reasons:

Protection of rights: A lawyer can ensure that the rights of the accused are respected from the moment of arrest, such as the right to remain silent, the right to be informed of the charges, and the right to an interpreter if necessary.
Analysis of evidence: The defense can challenge the legality of the evidence presented, such as how the drugs were obtained or whether there were irregularities in the seizure process.
Defense strategy: A lawyer specialized in criminal law can develop an appropriate defense strategy, which could include demonstrating that the drugs were not intended for trafficking, challenging the quantity or purity of the substance, or identifying violations of fundamental rights during the process.
Negotiation: In some cases, early legal assistance allows for negotiations with the prosecution to reduce charges or penalties, which is crucial in crimes that can carry long prison sentences.

The offense of bodily harm is regulated under the Spanish Penal Code and refers to acts that harm the physical or mental integrity of a person. The severity of this offense can vary depending on the extent of the injury, the circumstances under which it was inflicted, and the means used. Below is an analysis of how this offense is regulated in the Penal Code, its impact on criminal proceedings, and the importance of obtaining legal assistance from the outset.

1. Offense of Bodily Harm according to the Penal Code

The offense of bodily harm is codified in Articles 147 to 156 ter of the Penal Code. Generally, it is considered an offense of bodily harm when any conduct causes another person harm to their physical or mental health.

a) Basic Bodily Harm

Article 147 establishes that a person commits the offense of bodily harm if they cause another person an injury that impairs their physical or mental health, requiring medical or surgical treatment beyond initial medical assistance. The penalty for this type of harm ranges from three months to three years in prison or a fine of six to twelve months.

b) Aggravated Bodily Harm

Article 148 of the Penal Code increases the penalties if certain circumstances are present, such as the use of weapons, cruelty, or when the victim is especially vulnerable (e.g., minors or people with disabilities), or if the harm occurs within the context of gender-based or domestic violence. In these cases, penalties can range from two to five years in prison.

c) Bodily Harm Resulting in Deformity or Loss of Organs

Article 149 covers cases where bodily harm results in the loss or permanent impairment of a major organ or limb, or causes a severe disfigurement, with penalties ranging from six to twelve years in prison. Article 150 specifies that if the injury causes the loss or impairment of a non-major organ or limb, the penalty will be three to six years in prison.

d) Negligent Bodily Harm

Article 152 addresses bodily harm caused by gross or minor negligence. Penalties vary depending on the severity of the negligence and the consequences of the harm, ranging from three months to three years in prison.

2. Impact on Criminal Procedure

The classification of bodily harm and the surrounding circumstances significantly affect the criminal procedure:

Classification of the offense: Depending on the severity of the harm (basic, aggravated, resulting in deformity, or due to negligence), the offense will be treated differently in the criminal justice system, affecting the possible penalties and the type of procedure to follow.
Preventive measures: In cases of serious bodily harm, especially when there is a risk of repeat offenses or when the harm occurs in contexts of gender-based or domestic violence, the judge may impose preventive measures such as pretrial detention, restraining orders, or communication bans.
Summary trial or standard procedure: Less serious cases of bodily harm may be handled through summary trials, while more serious injuries, which carry higher penalties, usually follow a standard criminal procedure, which is longer and more complex.

3. Importance of Legal Assistance from the Outset

Obtaining legal assistance from the beginning is crucial in bodily harm cases for several reasons:

Rights of the accused: A lawyer can ensure that the fundamental rights of the accused are respected from the moment of arrest, including the right to remain silent, the right to be informed of the charges, and the right to receive legal counsel.
Defense strategy: An effective defense may focus on demonstrating the absence of intent to cause harm, provocation by the victim, or the existence of necessity or self-defense.
Analysis of evidence: An expert lawyer can challenge evidence that was obtained illegally or is insufficient to prove intent or the severity of the injuries. They can also request additional expert evidence to assess the actual extent of the harm.
Negotiation: Early legal assistance allows for negotiation with the prosecution or the opposing party, seeking agreements that can reduce the sentence or even avoid conviction, possibly through the payment of a fine or reparations for the harm caused.
Avoiding unnecessary preventive measures: A lawyer can argue against the imposition of preventive measures such as pretrial detention, presenting less burdensome alternatives for the accused.

The crime of gender-based violence is regulated under the Spanish Penal Code and refers to violent or intimidating behavior directed against a woman by her partner or ex-partner with the aim of maintaining power and control over her. This crime is particularly serious and carries severe penalties due to its discriminatory nature and the subjugation based on gender. Below is an analysis of how this crime is regulated, its impact on criminal procedure, and the importance of obtaining legal assistance from the outset.

1. Gender-Based Violence according to the Penal Code

The concept of gender-based violence is incorporated into various provisions of the Penal Code, and its handling is reinforced by Organic Law 1/2004 on Comprehensive Protection Measures against Gender-Based Violence.

a) Physical and Psychological Aggression

Article 153 of the Penal Code establishes that a person commits the crime of gender-based violence when they cause harm without causing injury, or inflict psychological harm on their partner or ex-partner (if the victim is a woman), provided the victim is or has been their spouse or is or has been in a similar emotional relationship, even without cohabitation. The penalty for this crime includes imprisonment for six months to one year or community service for 31 to 80 days, in addition to the deprivation of the right to bear arms and disqualification from exercising parental authority, guardianship, custody, or foster care for a period of one to five years.

b) Bodily Harm

If the injuries caused are more serious, such as those defined in Articles 147 and 148 of the Penal Code (basic and aggravated injuries), and they occur in a context of gender-based violence, the penalties are increased. Additionally, accessory penalties such as restraining orders and communication bans with the victim are applied.

c) Threats and Coercion

Article 171 of the Penal Code penalizes minor threats in the context of gender-based violence, punishing them with imprisonment for six months to one year if the threats involve harm that constitutes a crime. If the threats are minor, the penalty is imprisonment for six months to one year or community service for 31 to 80 days. Minor coercion in the context of gender-based violence is also punished under Article 172 of the Penal Code, with penalties of imprisonment for six months to one year or community service for 31 to 80 days.

d) Gender-Based Violence in Organic Law 1/2004

Organic Law 1/2004 reinforces the protection of victims of gender-based violence, establishing a comprehensive legal framework that includes protective measures, legal assistance, and the possibility of applying immediate precautionary measures. Additionally, the law grants victims specific rights, such as the right to receive information, social assistance, and to be treated with special sensitivity throughout the judicial process.

2. Impact on Criminal Procedure

The classification of a crime as gender-based violence has a profound impact on the criminal procedure:

Precautionary Measures: Judges often impose strict precautionary measures in cases of gender-based violence, such as pretrial detention, restraining orders, bans on communication with the victim, and the removal of parental rights in cases involving minors.
Summary Trial: Given the urgent and sensitive nature of these cases, many gender-based violence offenses are processed through summary trials, allowing judicial decisions to be made within a very short time after the complaint.
Specialized Courts: Spain has specialized courts for violence against women, which exclusively handle these cases, ensuring greater specialization and sensitivity in dealing with both victims and defendants.
Aggravated Penalties: Penalties in cases of gender-based violence are typically more severe than in other criminal contexts, due to the consideration of gender-based violence as a specific aggravating factor.

3. Importance of Legal Assistance from the Outset

Obtaining legal assistance from the beginning is crucial in cases of gender-based violence, both for the victim and the accused: For the Victim:

- Immediate Protection: A lawyer can request urgent precautionary measures, such as restraining orders and protective measures, to ensure the victim’s safety from the outset.
- Comprehensive Advice: The victim can receive advice on all their rights, including those related to protection, social assistance, and the possibility of seeking compensation.
- Support throughout the Process: A lawyer can accompany the victim throughout the process, ensuring that their rights are respected and that they are treated appropriately and respectfully.

For the Accused:

- Defense of Rights: A lawyer can ensure that the accused’s rights are respected, including the right to a fair defense and access to an impartial trial.
- Defense Strategy: Legal assistance allows for the development of an appropriate defense strategy, which may include demonstrating a lack of evidence, provocation by the victim, or refuting the victim’s version of events.
- Preventing Unnecessary Precautionary Measures: A lawyer can argue against the imposition of precautionary measures such as pretrial detention or restraining orders, presenting less burdensome alternatives for the accused.

The offense of driving under the influence of alcohol or narcotic substances (commonly known as CIBA) is regulated under the Spanish Penal Code and refers to the act of driving a motor vehicle or moped while under the influence of alcohol or drugs, which poses a serious danger to both the driver and others. This offense is taken very seriously due to the risks it poses to road safety. Below is a detailed overview of how this offense is regulated, its impact on criminal proceedings, and the importance of obtaining legal assistance from the outset.

1. Driving Under the Influence of Alcohol or Narcotic Substances according to the Penal Code

The offense of driving under the influence of alcohol or drugs is regulated in Article 379 of the Penal Code.

a) Driving Under the Influence of Alcohol

Article 379.2 states that a person commits an offense if they drive a motor vehicle or moped with a breath alcohol level above 0.60 mg/l, or a blood alcohol level above 1.2 g/l. Driving under the influence of alcohol can also be considered an offense when, without reaching these levels, the driver’s psychophysical abilities are evidently impaired. The penalty for this offense is imprisonment for three to six months, or a fine of six to twelve months, or community service for 31 to 90 days. Additionally, the offender will be disqualified from driving motor vehicles and mopeds for a period of one to four years.

b) Driving Under the Influence of Narcotic Substances

Article 379.2 also criminalizes driving under the influence of toxic drugs, narcotic substances, or psychotropic substances, without specifying a minimum amount. The driver is considered under the influence of these substances when their ability to drive is clearly diminished by drug use. The penalties are the same as for driving under the influence of alcohol: imprisonment for three to six months, or a fine of six to twelve months, or community service for 31 to 90 days, along with disqualification from driving for a period of one to four years.

c) Aggravating Factors and Special Circumstances

Article 380 provides for harsher penalties if driving under the influence of alcohol or drugs is carried out recklessly, meaning in a way that endangers the life or physical integrity of others. In this case, the penalties can increase to imprisonment for two to five years, a fine of twelve to twenty-four months, and disqualification from driving for a period of six to ten years. Additionally, if the driver refuses to submit to alcohol or drug tests, they may be convicted under Article 383 and face imprisonment for six months to one year and disqualification from driving for a period of one to four years.

2. Impact on Criminal Procedure

The CIBA offense significantly impacts criminal proceedings due to the circumstances under which it is typically detected (usually during traffic stops or following accidents) and the potential serious consequences.

Classification of the offense: The severity of the CIBA offense will depend on specific circumstances, such as the blood alcohol level or the evident influence of drugs. Aggravating factors, such as reckless driving or refusal to submit to tests, will also affect the classification and penalties.
Precautionary measures: In these cases, it is common for precautionary measures such as the provisional withdrawal of the driving license to be adopted, especially if the accused has prior offenses or if there is a significant risk to road safety.
Summary trial: Many CIBA cases are processed through summary trials due to the clear and direct evidence (such as the results of alcohol or drug tests). This allows for a quick resolution of the case, but it also limits the time available to prepare an adequate defense.

3. Importance of Legal Assistance from the Outset

Legal assistance from the beginning is crucial in CIBA cases for several reasons:

Protection of rights: A lawyer can ensure that all the accused’s rights are respected, including the right to an adequate defense and the right to be accurately informed of the charges.
Challenging evidence: Alcohol and drug tests must be conducted according to strict legal procedures. A lawyer can challenge the validity of these tests if they were not conducted properly, which could lead to acquittal or reduced penalties.
Negotiation: In some cases, early legal assistance allows for negotiation with the prosecution to reach agreements that can reduce penalties, such as accepting a fine instead of imprisonment or community service.
Minimizing consequences: An experienced lawyer can present arguments to minimize sanctions, such as conditional suspension of the sentence, especially if it is a first offense or if the accused has favorable personal circumstances.
Advising on alternative measures: The lawyer can also advise on the possibility of accessing detoxification or road safety education programs, which can positively influence the criminal process and the judge’s final decision.

The crime of fraud is one of the most significant property crimes in the Spanish Penal Code and refers to situations where a person unlawfully gains financial benefit at the expense of another through deception. This crime has various forms and can vary in severity depending on the circumstances of the case and the amount defrauded. Below is a detailed overview of how this crime is regulated, its impact on criminal proceedings, and the importance of obtaining legal assistance from the outset.

1. Crime of Fraud according to the Penal Code

The crime of fraud is codified in Article 248 and subsequent articles of the Spanish Penal Code.

a) Definition of the Crime of Fraud

Article 248.1 establishes that a person commits fraud when, with the intent of financial gain, they use sufficient deception to cause another person to make an error, thereby inducing them to perform an act of disposition to their own or another’s detriment. The deception must be substantial, meaning it is sufficiently significant to mislead a person of average intelligence.

b) Types of Fraud

Article 248.2 of the Penal Code describes several specific types of fraud, including:

Simulation of false facts: Misleading someone by simulating false facts.
Manipulation of data or computer programs: This includes actions such as phishing or any other form of fraud carried out through technological means.
Use of checks or credit cards without funds: When a payment is made knowing that there are insufficient funds or when a credit card is used fraudulently.

c) Aggravated Fraud

Article 250 establishes the circumstances that aggravate the penalty for the crime of fraud. These circumstances include:

Fraud involving essential goods, housing, or other items of special value.
Fraud causing financial damage exceeding 50,000 euros or affecting a large number of people.
Fraud committed by an organization or criminal group.
Fraud involving cultural assets or that is particularly serious due to the victim’s financial situation.

Penalties for aggravated fraud can range from one to six years in prison and a fine of six to twelve months.

d) Petty Fraud

When the defrauded amount does not exceed 400 euros, the fraud is considered petty and is punishable by a fine of one to three months, according to Article 249.

2. Impact on Criminal Procedure

The classification of the crime of fraud significantly influences criminal proceedings, as it affects both the severity of the penalties and the nature of the process.

Classification of the crime: The severity of the fraud depends on the amount defrauded and the aggravating circumstances. Lower-value frauds may be dealt with through faster procedures, while aggravated frauds usually require a more complex ordinary procedure.
Precautionary measures: In cases of large-scale fraud or when there is a risk of flight, judges may impose precautionary measures such as pretrial detention, passport withdrawal, or a prohibition on leaving the country.
Summary trial or ordinary process: Petty frauds or those without complexity can be processed through summary trials. However, larger-scale frauds typically follow an ordinary criminal procedure, with more phases and procedural guarantees.
Investigation: In more complex fraud cases, the investigative phase can be extensive and may require the involvement of accounting experts or technology specialists, especially if the fraud involves data manipulation or technological fraud.

3. Importance of Legal Assistance from the Outset

Obtaining legal assistance from the beginning is essential in fraud cases for several reasons:

Protection of rights: A lawyer can ensure that all the accused’s rights are respected from the investigative phase, including the right to remain silent, to be fully informed of the charges, and to prepare an adequate defense.
Analysis of the deception: The defense in a fraud case focuses on questioning the existence of deception, its sufficiency to induce error, and the causal relationship with the harm suffered. An experienced lawyer can argue that there was insufficient deception or that the act of disposition was not a direct consequence of it.
Challenging evidence: It is crucial to challenge any evidence obtained illegally or that does not meet the necessary requirements to prove the deception or harm. This can include reviewing documents, electronic records, or testimonies.
Negotiation: In some cases, early legal assistance allows for negotiations with the prosecution or the private accuser to reduce penalties, accept economic compensation for the victim, or avoid imprisonment through the application of alternative measures.
Minimizing consequences: A lawyer can work to reduce the impact of a conviction by requesting the suspension of the sentence or negotiating the return of defrauded assets as a mitigating factor.