Spain's Organic Law 1/2026: What Changes in the Criminal Code

On 10 April 2026, Spain's Organic Law 1/2026 on multi-recidivism, published in the Official State Gazette (ref. BOE-A-2026-7966), came into force. It is the most relevant criminal-law reform of the year and directly affects thousands of ongoing and future proceedings, especially in the area of property crimes. As criminal defence lawyers, we analyse what changes, what implications it has for the defence and how it affects investigated or convicted persons.

Context: Why this Reform?

Since the 2015 reform of the Criminal Code (LO 1/2015), thefts and frauds not exceeding 400 euros were treated as misdemeanours punishable only with a fine. The practical consequence was that certain repeat offenders accumulated dozens of misdemeanour convictions without ever facing prison, generating a public-safety problem and a perception of impunity.

LO 1/2026 does not reverse the 2015 philosophy (single low-value thefts are not criminalised), but introduces a mechanism of progressive aggravation for persistent recidivists. It also takes the opportunity to toughen the criminal response to specific phenomena: mobile-phone snatching, theft on agricultural holdings and electricity fraud linked to drug trafficking.

1. Misdemeanour Theft and Recidivism (Art. 234.2 CP)

Previous situation: Theft of goods worth 400€ or less was always a misdemeanour, punished with a fine of 1 to 3 months, regardless of how many times it had been committed before.

What changes with LO 1/2026:

• Misdemeanour theft (value of 400€ or less) remains a misdemeanour with a fine as a general rule.
• Exception by multi-recidivism: if the offender has at least three prior enforceable (final) convictions for offences of the same nature under the same Title (theft, robbery, fraud, misappropriation), and at least one is for a misdemeanour, the act is upgraded to a less serious offence, punished with 6 to 18 months' imprisonment.
• This is a new subsection in Article 234, which breaks the general misdemeanour rule for multi-recidivists.

Literal wording of Article 234.2 CP (consolidated Spanish Criminal Code after Organic Law 1/2026; our translation):

The reference to paragraph 1 means 6 to 18 months' imprisonment. Two further nuances of the current text: Article 234.3 CP imposes the penalty in its upper half where the alarm or security devices on the stolen goods were neutralised, removed or disabled; and if the three prior convictions were for less serious or serious offences under the same Title, the aggravated theft of Article 235.1.7 CP applies, with 1 to 3 years' imprisonment.

Hypothetical numerical example: a person with three final convictions for theft —two for misdemeanour theft, punished with fines, and one under Article 234.1 CP— steals goods worth 200€ from a supermarket. Before the reform, this was a misdemeanour punishable with a fine of 1 to 3 months. Under the current Article 234.2 CP, the sentencing range becomes 6 to 18 months' imprisonment; and if the alarm device was neutralised to take the goods, the penalty moves to 12 to 18 months (upper half). With that record, moreover, suspension of the sentence under Article 80 CP may be denied, as explained below.

2. New Aggravated Type: Mobile-Phone Theft (Art. 235.1.10 CP)

One of the most significant innovations. LO 1/2026 introduces in Article 235.1.10 CP a specific aggravated type of theft (when there is no force on things nor violence or intimidation against persons) for the snatching of:

• Mobile phones and other portable electronic devices.
• Devices containing the holder's personal data.

The aggravation is justified by the double harm: the economic value of the device and potential access to sensitive data (banking, health, intimate).

Literal wording of Article 235.1.10 CP (our translation):

Express exclusion: devices that are for sale, in storage or on display in commercial establishments fall outside the aggravated type. Stealing a phone from a shop display is not aggravated theft under Article 235.1.10 CP: it is punished under the general rules according to value (a fine if it does not exceed 400€; 6 to 18 months' imprisonment if it does). The provision protects the device in use, carrying its holder's digital life, and also covers tablets, laptops and mass-storage devices capable of containing personal data.

Penalty: 1 to 3 years' imprisonment (compared with 6-18 months for basic theft), regardless of the economic value of the device. And where two or more circumstances of Article 235.1 CP concur —for instance, phone theft plus the multi-recidivism of subparagraph 7— the penalty is imposed in its upper half: 2 to 3 years (Art. 235.2 CP).

3. Misdemeanour Fraud and Recidivism (Arts. 248 and 250)

The reform applies an identical scheme to fraud:

• Fraud below 400€ remains a misdemeanour (fine).
• If the offender has been convicted by final judgment of at least three offences of the same nature, under the same chapter, and at least one of them is a misdemeanour, the penalty rises to 6 months to 3 years' imprisonment, that of basic fraud (Art. 248 CP, third paragraph). Cancelled records, or records that should have been cancelled, do not count here either.

This is particularly relevant for low-value cyberfraud (fraudulent online purchases, low-intensity phishing) that had been accumulating massively.

4. Theft on Agricultural and Livestock Holdings (Art. 235)

The reform simplifies criminal protection of primary-sector holdings:

• Current wording (Art. 235.1.4 CP): the aggravated type applies to the theft of “agricultural or livestock products, or the instruments or means used to obtain them”, provided the offence is committed on agricultural or livestock holdings and the stolen value exceeds 400€ (1 to 3 years' imprisonment).
• The aggravation is thus objectified around the place of commission and the value of the goods, without requiring proof of additional harm to the holding.

The goal is to protect a sector particularly vulnerable to repeated looting (copper theft, machinery, crops, livestock).

5. Electricity Fraud and "Petaqueo" (Arts. 255 and 568)

Two relevant developments in energy and instrumental matters:

Electricity fraud linked to drug trafficking (Art. 255.3):

• Electricity fraud —whatever its amount— committed in order to supply power to facilities used for the conduct of Article 368 CP (cultivation, production or trafficking of drugs), such as marijuana plantations or drug labs, is now specifically punished.
• Penalty (Art. 255.3 CP): 6 to 18 months' imprisonment or a 12 to 24 months' fine, compared with the 3 to 12 months' fine for ordinary utility fraud.
• This allows illegal hook-ups feeding such facilities to be punished autonomously, without needing to prove participation in the drug offence itself.

"Petaqueo" (Art. 568.2):

• The unauthorised possession, storage, transport or supply of flammable substances is punished under Article 568 CP; where the flammable substance is a liquid fuel (gasoline, diesel), the penalty is 3 to 5 years' imprisonment, with the option of a penalty one degree lower for less serious conduct (Art. 568.2 CP).
• It is a direct response to maritime drug trafficking in the Strait of Gibraltar and the Andalusian coast and to the refuelling of drug-running speedboats from the shore.

6. Reform of the Recidivism Aggravator (Art. 22.8ª)

The reform modifies the general rule on recidivism with a fundamental technical adjustment:

• General rule maintained: Misdemeanour offences do NOT count for the recidivism aggravator.
• New exception: Article 22.8 CP excludes misdemeanour records from the count “except as provided for the types aggravated by multi-recidivism of minor offences”, such as Articles 234.2 and 248 CP.

7. Suspension of Sentence: New Obstacle (Art. 80.2.1ª)

Another change of great practical significance:

• Before: Misdemeanour convictions did not count for denying the suspension of a prison sentence.
• Now: If previous misdemeanour convictions integrate an aggravated type by multi-recidivism, they do count to bar suspension.

This means a multi-recidivist sentenced to 12 months' imprisonment may not obtain suspension, effectively entering prison.

8. Procedural Reforms (Criminal Procedure Act)

LO 1/2026 does not only modify the Criminal Code. It also reforms the Criminal Procedure Act:

New precautionary measures (Art. 544 bis):

• Article 544 bis allows the court to impose, as a precautionary measure, the prohibition on residing in or going to a certain place, neighbourhood, municipality, province or other local entity, or autonomous community, where strictly necessary to protect the victim or prevent reoffending.
• Breach of the measure may trigger the hearing of Article 505 and, where appropriate, pre-trial detention or another more restrictive measure.
• These measures can be imposed at the early stages of investigation, without waiting for trial.

Standing for Municipalities (Art. 105.3):

• Article 105.3 expressly recognises local entities as having standing to bring criminal action for the theft offences of Chapter I of Title XIII of Book II of the Criminal Code (CP).
• In practice, municipalities can appear as prosecution in cases of repeated thefts within their territory, without requiring the Public Prosecutor to do so.

9. Implications for Defence Strategy

As criminal-defence lawyers, LO 1/2026 requires rethinking several habitual strategies:

1. Urgent review of criminal record:

If your client has two previous convictions for theft or fraud, a third act—even a 20€ theft—may carry imprisonment. Requesting the criminal-record certificate before any plea bargain is essential.

2. Challenge previous convictions:

• Are they cancelled? A conviction already expunged from the Central Register of Convicts should not count.
• Are they "of the same nature"? For theft, the law requires prior convictions for offences within the same Title of the Criminal Code (CP); for fraud, within the same chapter. An assault conviction does not count for the theft threshold.
• Were they issued with full guarantees? Many misdemeanour convictions are issued in absence of the accused. If there was procedural defect, nullity can be requested.

3. Avoid "automatic" plea bargains:

It is no longer advisable to accept the first offer from the Public Prosecutor in misdemeanour offences. A conviction accepted for convenience may be the third antecedent that, months later, leads the client to prison.

4. Application of the law in time:

• LO 1/2026 has no retroactive effects against the defendant (Art. 2.1 CP).
• It only applies to facts committed from 10 April 2026 onwards.
• Previous convictions before that date do count as antecedents, but the new fact must be after entry into force.

10. Before and After: Summary Table