Article 265 of the Spanish Criminal Code: damage to Armed Forces and police property

A wing mirror torn off a patrol car, the window of an official vehicle smashed, the door of a police station forced during a disturbance. At first sight these look like ordinary criminal damage, yet the Spanish Criminal Code gives them a provision of their own when the asset is assigned to the service of the Armed Forces or the State security forces: Article 265 CP, carrying 2 to 4 years in prison and turning on a single figure, 1,000 euros.

If you are accused of damaging police or military property: what Article 265 CP says

Article 265 CP consists of a single paragraph. It punishes whoever destroys, seriously damages or renders unfit for service, even temporarily, military works, establishments or installations, warships, military aircraft, military transport or communication assets, war materiel, supplies or other means or resources assigned to the service of the Armed Forces or the State security forces, with a penalty of two to four years in prison where the damage caused exceeds 1,000 euros.

The provision sits in Title XIII of the Code, on offences against property and the socio-economic order. That matters more than it seems: this is a criminal damage offence with the same structure as the rest, and the only thing separating it from ordinary damage under Article 263 CP is what the damaged asset is used for.

A maximum of four years makes this a less serious penalty under Article 33.3(a) CP, which places there prison of three months up to five years, and therefore a less serious offence under Article 13.2 CP. Its limitation period is the residual five years set by Article 131.1 CP.

Which assets are protected

The article lists first and then closes. After a long enumeration it ends with the clause that actually does the work in court: other means or resources assigned to the service of the Armed Forces or the State security forces. Ownership is not the criterion; the asset's intended use is. Three questions follow, and they are argued in almost every one of these cases:

• Was the asset genuinely assigned to the service? A marked police vehicle is; an officer's private car, even parked outside the station, is not. In that second scenario the correct charge is ordinary criminal damage.
• Has that assignment been proved? It is an element of the offence, not a presumption: official registration, inventory records or service assignment documents.
• Does it cover other public bodies? The provision names the Armed Forces and the State security forces, and no one else. Everything else returns to Article 263 CP, whose paragraph 2.4 already covers damage to publicly or communally owned assets.

The three forms of conduct

• Destroying. The most intense form: the asset ceases to exist as such.
• Seriously damaging. Any impairment is not enough. The qualifier is in the statute and adds a requirement on top of the monetary threshold; it does not replace it.
• Rendering unfit for service, even temporarily. The broadest form and the least invoked. No physical destruction is needed: it is enough that the asset becomes unusable for its function, even for a limited period.

All three require intent. Article 265 CP has no negligent form: damage caused by gross negligence is punished only under Article 267 CP, and only where the amount exceeds 80,000 euros, with a fine of 3 to 9 months and upon a complaint by the injured party.

The 1,000-euro threshold

The clause requiring the damage to exceed 1,000 euros is not an aggravating factor: it is an element of the offence. Below that figure the conduct is not lawful, but it leaves Article 265 CP.

The difference in consequences is considerable. Article 263.1 CP punishes damage to another's property with a fine of 6 to 24 months, having regard to the victim's economic position and the amount of the damage, and with a fine of 1 to 3 months where the damage does not exceed 400 euros. No prison, in other words.

There is a third tier worth keeping in mind. Article 263.2.1 CP raises the penalty to prison of one to three years and a fine of 12 to 24 months where the damage is caused to prevent the free exercise of authority or as a consequence of acts carried out in the exercise of official duties. A good share of the cases charged under Article 265 CP in fact belong there.

This is why the expert valuation stops being a formality: the valuation criterion, the age of the asset and any items unrelated to the alleged act are all open to challenge.

Fire or explosives: Article 266.3 CP

Article 266.3 CP carries prison of four to eight years for whoever causes the damage described in Articles 265, 323 and 560 in any of the circumstances listed in its own paragraph 1: by fire, by causing explosions, by using any other means of comparable destructive power or generating a relevant risk of explosion or of other especially serious damage, or by endangering the life or physical integrity of others.

Article 266.4 CP imposes the upper half of the penalty where an explosion and danger to persons concur, and refers to Article 351 CP in cases of fire. The shift is one of category, not of nuance: a range of four to eight years makes the offence a serious one and moves its limitation period to the ten-year bracket of Article 131.1 CP.

Offences that usually come with it

• Assault on an officer. Where there was also an attack or serious resistance with violence or intimidation, Article 550 CP comes into play, with prison of one to four years and a fine of three to six months if the assault targets an authority, and prison of six months to three years in all other cases.
• Resisting and serious disobedience. Where there is no attack and no sufficient violence, the charge often shifts to Article 556 CP.
• Public disorder. Article 557 CP settles the point in its paragraph 6: its penalties apply without prejudice to those corresponding to the specific acts of bodily harm, threats, coercion or damage carried out.
• Telecommunications and utilities. Article 560.1 CP carries prison of one to five years for damage that interrupts, obstructs or destroys telecommunications lines or installations or postal correspondence, with parallel rules for railway lines and for water, gas or electricity supply.
• Military jurisdiction. Where the facts fall to it, Article 779.1.3 LECrim requires the investigating judge to decline jurisdiction in favour of the competent body.

And where the damaged items are data, programs or electronic documents, the applicable provision is Article 264 CP on computer damage.

Procedure and court

With a range of two to four years, the case follows the abbreviated procedure of Article 757 LECrim, which covers offences carrying a custodial penalty of no more than nine years. Trial falls to the Criminal Section of the Court of First Instance, since Article 14.3 LECrim assigns it cases carrying custodial penalties of up to five years. If the charge is brought under Article 266.3 CP, the trial moves to the Provincial Court under Article 14.4 LECrim.

A fast-track trial is also possible. Article 795.1 LECrim reserves it for offences carrying custodial penalties not exceeding five years, opened on a police report with an arrest or a summons, provided one of the listed circumstances applies: flagrancy, inclusion in its catalogue, or an investigation presumed to be simple.

What the defence looks at

• Assignment to the service. This is what creates the offence. Without proof that the asset was assigned to the service of the Armed Forces or the State security forces, the charge drops to Article 263 CP.
• The valuation of the damage. Competing expert reports, actual invoices and an itemised breakdown. One thousand euros is the border between a fine and a prison sentence.
• The seriousness required. Minor blemishes do not meet the statutory standard, even on official property.
• Intent. What happens during a struggle is not the same as what is sought, and Article 265 CP does not punish negligence.
• Individual responsibility. In group incidents each person's contribution must be proved; presence at the scene is not enough.
• Reparation. Paying the amount into court before trial opens the mitigating circumstance of Article 21.5 CP, which requires repairing the harm or reducing its effects before the trial hearing begins.
• Concurrent charges. Checking that the damage is not counted twice alongside assault or public disorder.

If you are under investigation for damage to police or military property, the figure in the valuation report and the proof of assignment to the service decide the case long before trial. You can call us on +34 91 078 65 74 or read our page on damage offences.