In this post I intend to show how you can commit the crime of breaking and entering in the field of urban leases and communities of owners.
If you want you can read the one I wrote about the misdemeanor of property occupation (house not inhabited).
This crime is the criminal protection of the inviolability of the domicile, the dwelling, the dwelling of the person, and of their privacy. The Constitutional Court (ruling 22/1984), interpreting article 18 of the Constitution, says that the domicile is the space in which the individual lives without necessarily being subject to social uses and conventions and exercises his or her most intimate freedom.
Article 202 of the Criminal Code says that whoever enters another person’s abode or stays in it against the will of its inhabitant, will be punished with the prison sentence of 6 months to 2 years. If the act is carried out with violence or intimidation, the penalty will be imprisonment of 1 to 4 years and a fine of 6 to 12 months.
The behavior consists in entering another’s house against the will of the one who lives in it. It is not necessary that the will be expressed. It suffices that it can be deduced from the circumstances (Supreme Court, judgment 1424/2005).
For the Supreme Court (sentence 16-10-1986) the inhabited house or dwelling includes the second residence. House is any place or stay reserved for the person for his residence, rest and satisfaction of domestic life. The different rooms of a flat shared between several tenants are also inhabited houses (sentence of 8-5-1970).
House inhabited are garages in which robberies were made because they were common areas of the building and because the entry into them affected the privacy of the neighbors (Supreme Court, December 2016).
- The landlord of a floor that enters or remains in it against or without the will of the tenant. If 2 or more people live in an apartment and some authorize entry and others do not prevail the will of those who do not authorize.
- The neighbors of a building entering or remaining in a flat against or without the will of the owner or tenant.
- The spouse who enters the common home against the will of the resident after the sentence or provisional measure of separation.
- The tenant who desists from the rent subrogating in him his spouse or domestic partner, and enters or remains in the house against the will of this one.
Local open to the public
Article 203 of the Penal Code punishes with imprisonment from 6 months to 1 year and a fine of 6 to 10 months to the one who enters against the will of its owner in the domicile of a public or private juridical person, professional office or office, or in establishment commercial or local open to the public outside opening hours.
If it remains in it against the will of its owner outside the hours it is open to the public – which implies that it enters open hours to the public -, with a fine of 1 to 3 months. If you use violence or intimidation, the prison sentence is 6 months to 3 years.
The penalty is less than the entry into the home because these properties are not dwelling and privacy is not strictly protected. In the field of urban leases, protected farms are included in rents for different use of housing. There is a certain correspondence between the civil protection of the habitual residence and its criminal protection.
The Supreme Court – sentence 1737/99 -, says that the application of the article should be reduced to those cases in which the entry of an unauthorized entry during opening hours would entail a risk for the personal or family privacy of someone.
There is a crime in entering a hairdressing salon that is not allowed by the owner or by the clients, which violates the hairdresser’s privacy while exercising his office and theirs while receiving their services (Supreme Court, judgment 757/99, 30-11).
A building or premises open to the public is a building with an infrastructure that allows physical access to the public inside and that, for public or private purposes, has access to any person open. And this is without prejudice to the reservation of a right of admission and the existence of an opening time .
Things get complicated when we try to specify concepts.
- Determine what is the legal address of a legal entity is not as easy as it seems, but I will not extend it. You can make an idea reading article 41 of the Civil Code.
- The professional office is the place where a profession is practiced: doctor, lawyer.
- The office is a term that lends itself to a multitude of interpretations. It may or may not be open to the public. It is often equivalent to a professional office.
- The commercial establishment is the property intended for commercial activities. Stores are included. It can be confused with the address of the company, with this one or with its branches – case of banks.
- Local is an ambiguous concept. It includes place destined to use for leisure (cinema, bar, private recreational entity), retail store and mercantile establishment.
- The jurisprudence that interpreted the Law of urban leases of 1964 conceived the business premises as the farm where the basic activity of the company is (Supreme Court, 05-14-1956), and the store as the commercial place where it is sold at retail. minor (Supreme Court, 2-12-1992).