Breaking and Entering
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Breaking and Entering
Court: First Instance Court
Accusation: Criminal Trespassing
The crime of Breaking and Entering
Breaking and Entering Lawyer
Breaking and entering is a crime typified in article 202 of the Penal Code, whose protected legal right is privacy in relation to the home, that is to say, the right of the individual to have the privacy of his or her home respected.
Two typical conducts of breaking and entering are distinguished:
The entry without consent into another’s dwelling, the person responsible being aware of this violation of another’s home.
The maintenance of the accused inside the home of another, against the will of the owner, in this situation there being a consensual entry into the home.
This is an intentional crime, since the accused is aware that he is committing a crime and violating the privacy rights of the victim. In the first because there is an unlawful entry, and in the second because, despite the fact that the entry was not unlawful, the person responsible remains in the home despite the opposition of the inhabitant.
Concept of dwelling
The concept of dwelling is key to understand this crime. It is defined as the bounded place where the person resides and can exercise his freedom, excluding himself from the uses and social conventions, and develop his private life.
The use of the dwelling must be legitimate and current, and may be permanent or eventual. Therefore, this crime would also affect second residences, regardless of whether they were inhabited or not at the time.
The active subject in a breaking and entering
The active subject in this crime is the person who breaks into someone else’s house, who can be any person.
In the case of an authority or public official, it would be considered as a special type of this crime. For this to occur it is necessary that the authority or public officials enter the dwelling unlawfully, not being considered as a crime when the law gives them coverage to enter for a flagrant crime or court order.
It is also not considered a trespassing when they enter the dwelling due to a legal cause for a crime.
Entering without permission but without intent to commit a felony or larceny is still considered a crime. In other words, anyone who enters or inhabits a building, structure, or another type of space without permission but does not intend to commit a crime can be charged with breaking and entering.
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The protection of the dwelling
The purpose of this crime is to protect the dwelling and the owner’s own privacy, although in order to punish this crime it is not necessary that the privacy is violated, but the breaking and entering takes place when any of the punishable conducts we have commented above occurs.
In the event that the defendant breaks into someone else’s house with the purpose of committing another crime, such as robbery, the breaking and entering will be considered as a means to commit this crime.
The non-residence requirement
One of the obvious requirements of this crime is that the person responsible for the break-in cannot be the owner of the dwelling. Despite this, there are two situations in which it may not be so clear:
When a dweller is unwilling to share the dwelling with other residents. This could be the case when it is necessary for a resident to stay away from the dwelling because he/she has committed a crime, such as domestic violence. A resident cannot evict another resident from his or her dwelling, but in that exceptional case a restraining order would be issued.
When a resident is unwilling to allow a person to enter his or her home, but another is. In this circumstance, due to the inviolable nature of the dwelling, the opinion of the inhabitant who wants to prevent the entry of such person prevails.
Inviolability of the home
The inviolability of the home is a basic right of all natural and legal persons, and is enshrined in Article 18 of the Spanish Constitution. According to this right, the home is inviolable and no entry or search may be carried out without the consent of the owner or under judicial resolution, except in the case of flagrante delicto.
If this offense is violated, it is a crime of breaking and entering. In the case of legal entities, the protection of the home is more limited since the right to dignity is not as evident in them as in natural persons.
Punishment for Breaking and Entering
As Breaking and Entering specialist lawyers, we have a deep knowledge of the law.
In the case of the basic type, the accused will be punished with a prison sentence of 6 months to two years.
If violence or intimidation has been used for the entry or maintenance in the dwelling, the penalty imposed will be from one to four years of imprisonment, together with a fine of six to twelve months.
In the event that the victim of the breaking and entering is a public or private legal entity, professional office or office, or in a commercial establishment or premises open to the public, the penalties shall be as follows:
When access is gained to the dwelling of a legal person without the consent of the owner, imprisonment of six months to one year and a fine of six to ten months.
When the accused remains in the dwelling against the will of the inhabitant, the penalty shall be a fine of one to three months.
If these conducts were carried out with violence or intimidation, the sentence will be from six months to three years of imprisonment.
If the accused of breaking and entering turns out to be the authority or a public official, they will be absolutely disqualified from six to twelve years, and the penalties will be imposed in the upper half of the sentence.
Differences between breaking and entering and trespassing
Explained by our lawyers who specialize in home invasion and burglary
These two crimes are very similar and are very often confused nowadays. The main difference lies in the fact that, in the case of burglary, the occupation is always carried out on a property or dwelling that does not constitute the dwelling of any person at that moment. The concept of dwelling is key to understand this difference.
Trespassing takes place in the dwelling where the victim resides, while usurpation takes place in a dwelling where the victim does not currently reside.
Therefore, usurpation is a more minor crime than breaking and entering. Expert criminal defense lawyer at Esteban Abogados Penalistas will study your case and recommend the best strategy to follow.
The crime of trespassing
Our home invasion lawyers have extensive experience as specialists in the field.
The crime of usurpation is included in Article 245 of the Penal Code. It is a crime with great social relevance nowadays, more commonly known as occupation.
It punishes those who occupy another’s property, dwelling or building that does not constitute a dwelling, without the owner’s authorization, and also those who stay in these places against the owner’s will. It carries a penalty of one to three months’ fine.
The second punishable conduct consists of occupying a property or usurping another’s real property right, using violence or intimidation. For this modality, the penalty imposed is from one to two years of imprisonment, depending on the damage caused and the utility of the crime.
If you need professional advice on the crime of breaking and entering, our Criminal Lawyers in Barcelona will advise you on the steps and procedures to be carried out at all times.