Criminal Lawyers in Simple Trespass Defense

Simple trespass to a dwelling typified in Article 202.1 of the Spanish Criminal Code is one of the classic offences of Spanish criminal law and materialises protection of the fundamental right to inviolability of the dwelling recognised in Article 18.2 of the Constitution. The protected legal interest is domiciliary privacy, understood as the physical space where private life unfolds and the dweller's personality is expressed. The typical conduct covers two alternative modalities: entry without consent into another's dwelling and remaining there against the dweller's will (this last modality treated autonomously in a separate page). Consolidated Supreme Court case-law and Constitutional Court case-law have refined a robust doctrinal body on the concept of dwelling, consent and limits of police intrusions without judicial authorisation.

Concept of Dwelling

The concept of dwelling is the central normative element and its delimitation conditions all typicality. Case-law has clarified that a dwelling is any enclosed space where one or more persons develop their private life, regardless of the use title (ownership, rental, precarious) or the permanent or temporary nature of occupation. Dwellings include the habitual residence, a second residence even if used occasionally, a hotel room during the hosting contract, an inhabited motorhome, a vessel fitted as a residence, a camping tent in use and even, under nuanced case-law, the shanty or precarious dwelling when it houses private life. Not dwellings are the common areas of buildings (entrance halls, stairs, garages without direct communication), commercial or industrial premises (protected by the qualified type of trespass to legal persons' premises under Art. 203 CP) and uninhabited properties (whose invasion may constitute peaceful usurpation under Art. 245.2 CP). The habitual nature of occupation does not require continuous presence: the functional link between the space and the development of intimate life suffices.

Elements of the Offence

The elements of the type that must be proven are three: another's dwelling, lack of consent of the dweller and intent. Consent may be express or tacit, must come from the dweller or co-holder of the inviolability and may be revoked at any time; case-law admits consent from any adult co-holder but the express opposition of any other co-holder prevails. Intent requires awareness and will to enter without consent; invincible mistake about ownership or the inhabited nature of the property excludes typicality (Art. 14.1 CP). The basic penalty is 6 months to 2 years' prison, suspendable under Arts. 80-87 CP when the accused has no relevant prior record. There are three notable aggravating circumstances: the modality with violence or intimidation (Art. 202.2 CP) raises the penalty to 1-4 years' prison and 6-12 months' fine; attempt (Art. 16 CP) is punished with the penalty reduced by one or two degrees; and concurrence with robbery (Arts. 237 and 241 CP), injuries (Arts. 147 ff. CP) or other offences leads to real or instrumental concurrence with notable impact on the final penalty.

Defence Strategy

The technical defence rests on four recurring axes. First, consent of the dweller: tacit through repeated visits, express by prior invitation, granted by legitimated co-holder, presumed by consolidated tolerance. Second, mistake about the foreign or inhabited nature of the dwelling: invincible if it concerns elements of the type (Art. 14.1 CP) or vincible if only its prohibition (Art. 14.3 CP), with the corresponding mitigating effect. Third, absence of a dwelling proper: uninhabited properties, commercial premises, common spaces or places that do not integrate private life. Fourth, justifying causes: state of necessity (Art. 20.5 CP) faced with serious risk to persons inside (fire, medical emergency, assault), fulfilment of duty or legitimate exercise of right (Art. 20.7 CP), or presumed consent in aid scenarios. The evidentiary strategy includes documentary evidence on ownership and use, testimonial evidence from cohabitants and neighbours, expert evidence on signs of forced entry or their absence, lawful CCTV recordings and evidence of prior consent.

Current Forensic Practice

In current forensic practice, simple trespass frequently intertwines with neighbour conflicts, affective breakups, inheritance disputes and unauthorised entries in the context of terminated employment relationships or the sharing economy. It is a semi-public offence: requires denunciation or complaint by the aggrieved party or their legal representative (Art. 201 CP), only prosecutable ex officio when an aggravated modality applies. Organic Law 1/2025 on Justice Service Efficiency and Act 1/2025 on Procedural Efficiency have modified deadlines and procedures, while Royal Decree-Law 6/2025 has impacted the rapid trial procedure where many flagrant trespass cases are channelled. At Alonso Sala, we defend persons accused of simple trespass, developing a strategy that combines immediate legal assistance to prevent self-incriminating statements, exhaustive analysis of the type in its objective and subjective elements, challenge to police diligences when defects appear, and articulation of concurrence defence when trespass appears alongside other offences. Our goal is to maximise the probabilities of dismissal, stay of proceedings, acquittal or sentence suspension, avoiding the collateral damage of a criminal record on the client's personal and professional trajectory.