Article 235 CP: Aggravated Theft 2026 · Penalties of 1 to 3 Years
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listIn this article
lightbulbKey Takeaways
- check_circlePenalty: 1 to 3 years
- check_circleRepeat offending
- check_circleGoods over €50,000
- check_circleNew: mobile phones (2026)
Article 235 of the Criminal Code governs the aggravated forms of the offence of theft. Unlike the basic offence (Art. 234), which is usually punished with a fine or minor penalties where the amount is below €400, the aggravated form imposes penalties of 1 to 3 years in prison regardless of the value, where certain circumstances are present.
Grounds for Applying Art. 235 CP
After Organic Law 1/2026, the law sets out ten specific situations for applying this aggravated penalty:
- Essential goods: where the theft causes a situation of shortage (e.g. critical infrastructure).
- Historical heritage: goods of artistic, historical, cultural or scientific value.
- Particular seriousness: due to the value of the goods (case law places this above €50,000) or the harm caused.
- Abuse of personal circumstances: taking advantage of the victim's vulnerability.
- Qualified repeat offending (No. 7): having at least three prior enforceable convictions for less serious or serious offences of the same nature under the same Title.
- Mobile phones (No. 10, since April 2026): mobile phones and other communication or mass-storage devices capable of containing personal data, except those on sale, in storage or on display in commercial premises.
Minor or Serious Theft? The Reoffending Trap
Theft not exceeding €400 is traditionally a minor offence, punished only with a fine. HOWEVER, since Organic Law 1/2026 the gateway to prison is Art. 234.2 CP itself: where the offender has at least three prior enforceable convictions for offences of the same nature under the same Title — it being enough that one of them is a minor offence — the new minor theft is punished with the penalty of the basic offence, 6 to 18 months' imprisonment. And where the three prior convictions were for less serious or serious offences of the same nature, the qualified repeat-offending rule of Art. 235.1.7 CP applies, carrying 1 to 3 years' imprisonment. In both cases, records that have been cancelled — or that should have been — are excluded: checking them is the first task of the defence.
What Changed in April 2026
Organic Law 1/2026 of 8 April, in force since 10 April 2026, directly reformed this provision and its surroundings:
- New paragraph 10: theft of mobile phones and of any other mobile communication or mass-storage device capable of containing personal data is punished with 1 to 3 years' imprisonment, regardless of the device's value. The provision expressly excludes devices on sale, in storage or on display in commercial premises: the lawmaker is targeting the theft of phones from their users, not shoplifting.
- Repeat offending in minor theft (Art. 234.2 CP): three enforceable convictions for offences of the same nature — at least one of them a minor offence — raise minor theft to 6-18 months' imprisonment, without any need to rely on Art. 235.
- Municipal prosecution: town councils and other local authorities are now entitled to bring criminal proceedings for theft offences, adding a potential prosecuting party in cases of repeated theft in commercial areas.
Remember also that under Art. 235.2 CP, where two or more of the circumstances of paragraph 1 are present, the penalty must be imposed in its upper half (2 to 3 years' imprisonment): a qualified repeat offender stealing a mobile phone may already fall within that range.
Criminal Defence Strategies
As criminal lawyers experienced in offences against property, our task is to disprove the presence of these aggravating factors:
- Challenging the expert report: disputing the economic or historical value of the items through our own experts.
- Absence of systemic harm: proving that the theft caused no real shortage and did not affect essential services.
- Analysis of the criminal record: checking whether the convictions for repeat offending are capable of being cancelled or do not meet the Supreme Court's requirements.
Securing the downgrade to the basic offence (Art. 234) is the difference between going to prison and a fine or a suspended sentence.
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Frequently asked questions
What is aggravated theft under article 235 CP?expand_more
It is the aggravated form of theft, punished with imprisonment of 1 to 3 years whatever the amount. It applies when circumstances are present such as the historical or artistic value of the property, its being an essential good, special gravity due to the value, qualified multi-recidivism or, since Organic Law 1/2026, the stolen item being a mobile phone or another device containing personal data (except those on sale or on display in shops).
How does it differ from article 234?expand_more
Article 234 is basic theft, whose penalty depends on the amount (a fine or imprisonment of 6 to 18 months). Article 235 raises the penalty to 1-3 years because of the nature of the property or the circumstances of the act, regardless of its economic value.
From what value is theft considered of special gravity?expand_more
Supreme Court case law places special gravity based on value at around 50,000 euros, the threshold above which theft may be classified as aggravated under art. 235 CP.
How is aggravated theft defended?expand_more
By disputing whether the aggravating circumstance applies (the real value of the property, its nature or its origin), reclassifying the facts under the basic offence of article 234 and challenging the expert valuation when the value of the object has been overestimated.
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