Criminal Lawyers in Robbery with Force against Things (Art. 238 CP)

What Is Robbery with Force: Types, Penalties and Defense (Arts. 237-241 CP)

Robbery with force on things, regulated in Arts. 237 to 241 of the Spanish Criminal Code, is a property offence simultaneously protecting two legal interests: the individual property of the victim and the inviolability of protection mechanisms that the legal order recognizes to property. Consolidated Supreme Court case-law has clarified that force on things is a taxative technical-legal concept: it is not enough any deployment of physical energy on objects, but only the modalities expressly enumerated in Art. 238 CP (scaling, wall breaking, fracture, use of false keys and disabling of security systems).

The commission modalities of Art. 238 CP are five. Scaling consists of accessing the location through a way not intended for that purpose (high windows, facades, tall walls), requiring skill and significant physical effort: jurisprudence rejects "fictitious" scaling when the window is at ground level. Breaking of wall, ceiling or floor, or fracture of door or window includes the classic burglary tunnel, mechanical forcing of locks and breaking of glass. Fracture of cabinets, chests or closed or sealed objects is the so-called interior fracture, applicable when, already inside the premises, showcases, safes or furniture are broken to access the loot. The use of false keys is a broad concept encompassing lock picks, lost or stolen legitimate keys, keys duplicated without authorization, remote controls and unlawfully obtained magnetic cards. Finally, the disabling of specific alarm or guard systems includes everything from cable cutting to the use of frequency jammers.

The foreseen penalties scale according to aggravating circumstances. The basic type of Art. 240.1 CP carries prison from one to three years. The aggravating factor of inhabited house of Art. 241.1 raises the penalty to prison from two to five years, applying the broad concept of inhabited house that comprises every dependency functionally connected with the dwelling (communicated garage, interior patio, storage room with portal access). The specific aggravating factors of Art. 235 CP (applicable by referral when they fall on objects of special scientific, artistic, historical or cultural value; especially serious removal due to value or the victim's situation of need; or robbery in establishments open to the public outside opening hours) further raise the penalty. The possession of instruments specifically intended for the commission of robberies, such as professional lock picks or bumping keys, constitutes the autonomous offence of Art. 400 CP with prison from six months to three years.

The technical defense is articulated on four axes consolidated by jurisprudence. First, the reclassification to theft of Art. 234 CP: when the absence of typical force of Art. 238 is accredited (open door, ground-level window, absence of forcing marks on the lock, alarm effectively turned off before entry), the act is subsumed in the milder type of theft, with significant penalty reduction (from 1-3 years to 6-18 months). Second, the challenge to the aggravating factor of inhabited house of Art. 241.1: when the affected property is a storage room or garage physically independent of the dwelling and without functional connection to it, jurisprudence admits the non-application of the aggravating factor. Third, the absence of appropriative intent: mere presence at the location without intention to seize others' goods, or error about ownership, eliminate the subjective element. Fourth, the negotiation of plea with damage repair, an ideal route to access the suspension of the sentence of Art. 80 CP when the client lacks criminal record and the penalty does not exceed two years.

In current forensic practice we observe a growing sophistication both in commission modalities and in evidentiary means. The emergence of techniques such as bumping (opening locks through modified keys), the use of electronic jammers to nullify centralized locks and coordinated robberies through instant messaging has been answered by jurisprudence with expansive interpretations of the concept of typical force. Provincial Courts have consolidated criteria on the proof of fracture through technical lock expert opinion, the assessment of scaling according to the required physical effort and the individualization of conduct in groups. At Alonso Sala, with over fifteen years of experience in property offences, we articulate the defense from the first proceeding through technical lock expert opinion, reconstruction of the access mode, challenge of aggravating factors and negotiation of pleas oriented to maximum penalty reduction and avoidance of effective imprisonment.

1. Entry by Climbing (Escalamiento)

Entering through a route not intended for access (windows, skylights, balconies). It requires "criminal energy" and the overcoming of obstacles.Defence: If the window was at ground level and open, there is no climbing, and the act would be theft.

2. Breaking Through a Wall, Ceiling or Floor (Butrón)

Or the breaking of a door or window. This is the most classic form. It covers smashing glass, levering locks open and boring through walls. It is essential that the breaking is the means of entry.

3. Breaking Open Cabinets or Furniture (Interior Breaking)

Breaking, forcing or discovering the combination of closed or sealed furniture (safes, display cases), or forcing them open to remove their contents. This applies even where the whole item (the safe) is taken away and forced open elsewhere.

4. Use of False Keys

A broad concept that includes:

• Lock picks and similar tools.
• Legitimate keys lost by the owner or of which the owner has been unlawfully deprived.
• Other keys not intended for that lock.
• Magnetic cards, remote controls or other remote opening devices.

5. Disabling Alarm Systems

Cutting cables, using signal jammers, covering sensors or any other manipulation intended to neutralise the security of the premises.