Criminal Defense Lawyers in Firearms Possession

Defense in Illegal Firearms Possession (Art. 564 CP)

Criminal Defense Lines

Our defensive approach focuses on attacking the elements of the criminal type:

• Lack of firing capability: If the weapon is rusty, missing parts, or non-functional, there is no crime (or it is an impossible attempt). A ballistic expert report is essential.
• Fleeting or circumstantial possession: Proving the weapon did not belong to the accused but was held momentarily.
• Nullity of the search: If the weapon was found in an illegal police search (without a warrant or probable cause), we will request the nullity of the evidence.

The Line Between a Crime and an Administrative Offence: The Core of the Defence

Not every irregularity involving a weapon amounts to a crime. The defence's first task is to determine whether the conduct falls under the Criminal Code or, instead, under the penalty regime of Organic Law 4/2015 on the protection of public safety. That boundary is decisive: an administrative offence is resolved with a fine and leaves no criminal record, whereas the offence of unlawful possession under Article 564 carries a prison sentence. Overcharging the facts is the error that most often harms the person under investigation.

Many situations typically fall outside criminal law and within the administrative sphere: possession of bladed weapons that are not subject to a regulatory prohibition, carrying officially approved defence sprays without the proper paperwork, or certain minor irregularities in storing or transporting a weapon for which a licence does in fact exist. The classification of each object under the Weapons Regulation (Royal Decree 137/1993) and its precise fit within the criminal definition are technical questions that entirely shape the outcome.

For this reason we analyse from the outset whether the elements of the offence are present or whether the facts should be redirected to the administrative route. Where the correct classification is a penalty under Organic Law 4/2015, we put that argument to the court so that the criminal case is dismissed, without prejudice to any administrative file the authorities may pursue.

The Criminal Procedure and the Competent Court

Weapons possession and trafficking offences follow the ordinary criminal procedure. After the weapon is seized, the investigation is opened before the Investigating Court of the place where the events occurred, which orders the expert examination and carries out the necessary steps. Once the investigation is closed, trial falls, by reason of the penalty, to the Criminal Court (Juzgado de lo Penal) where the maximum sentence does not exceed five years' imprisonment, which is the case for almost all forms of unlawful possession under Article 564.

The most serious figures, such as the deposit of war weapons or explosives, where the penalty may exceed five years for promoters, are tried before the Provincial Court (Audiencia Provincial). One point that often causes confusion should be made clear: these offences do not fall to the National Court (Audiencia Nacional) unless they are linked to terrorist activity. Possession or a weapons deposit, without that connection, is dealt with by the ordinary jurisdiction of the territory where the events took place.

The defence acts in each phase with a distinct aim: during the investigation, to challenge the classification and the expert evidence and to request favourable steps; in the intermediate phase, to seek dismissal or reclassification; and at trial, to set out the definitive evidentiary strategy. Identifying the competent court and the penalty at stake early allows each of these steps to be planned realistically.

Expert Evidence: The Civil Guard Weapons Unit and the Weapon's Operability

In these offences the decisive evidence is usually the technical examination, which falls to the Weapons Intervention Unit of the Civil Guard (Intervención de Armas). The expert report determines the object's classification under the Weapons Regulation, whether or not it is a firearm for criminal purposes and, above all, whether it is capable of firing. This last point, operability, is central: case law requires that the weapon be fit to fire, or at least capable of being made so through an accessible repair, for the offence under Article 564 to be established.

This is why the deactivation of the weapon is a common line of defence. A weapon genuinely deactivated in accordance with the rules, or irreversibly unusable, does not endanger the interest the law protects and may fall outside criminal liability. The same may be assessed for replicas, imitation weapons or inert parts that lack the characteristics of a firearm. The expert report, being technical in nature, can be contested.

We therefore review the Weapons Unit's report, verify the chain of custody of the seized object and, where appropriate, propose an independent expert examination of the weapon's actual operability. Shortcomings in the preservation of the evidence or in the methodology of the report can be decisive for the outcome of the proceedings.

Mitigation, Plea Agreements and Limitation Periods

The Criminal Code itself provides a specific avenue of mitigation in Article 565: the court may reduce the penalty by one degree where, given the circumstances of the act and of the offender, the lack of intention to use the weapons for unlawful purposes is evident. This provision is highly relevant in cases of inherited weapons, unregularised collecting, or possession with no intention of unlawful use. To this are added the general mitigating factors, such as making amends or confession, which may further reduce the criminal response.

Where the facts are established, a well-negotiated plea agreement can place the sentence in its lower range and, since many of these penalties do not exceed two years, open the door to suspension of the prison sentence for a person with no prior record, avoiding actual imprisonment. It is an outcome we always weigh against the alternative of trial, depending on the strength of the evidence.

The limitation regime of Article 131 of the Criminal Code should be borne in mind: offences whose maximum penalty does not exceed five years, such as unlawful possession under Article 564, become time-barred after five years; the deposit of war weapons, carrying a higher penalty, after ten. Finally, the weapon is usually seized and, in the judgment, confiscated, a consequence that is best anticipated and addressed from the start of the proceedings.