What is breaking and entering?

The crime of breaking and entering occurs when a person enters a home without the consent of those living inside and is regulated in the Penal Code.

The severity of the punishment changes according to the circumstances of the case, especially if it is committed by a public official or if the intrusion takes place in a home, business premises, office or company.

What is breaking and entering?

Breaking and entering, protected by article 18 of the Spanish Constitution, guarantees the inviolability of the home, which means that no one can enter it without the consent of the resident or without a court order.

This crime can be committed for different purposes, such as stealing the owner's belongings or carrying out other unlawful acts. According to Article 202 of the Penal Code, it is defined as entering or remaining in another's home against the will of the resident.

The actions that constitute breaking and entering are:

- Entering a home without authorisation.

- Remaining inside the home against the owner's will.

- The seriousness increases if it is carried out with violence or intimidation.

Breaking and entering is considered a serious offence, as the intruder is presumed to have acted with criminal intent. This distinguishes it from housebreaking, which occurs when an empty dwelling is occupied without violence or force on persons.

Penalties for the offence of housebreaking and burglary

The punishments for the offence of breaking and entering vary according to the seriousness of the facts and the circumstances of the case:

1. Basic type of housebreaking.

According to Article 202.1 of the Penal Code, breaking and entering without aggravating circumstances is punishable by imprisonment from 6 months to 2 years.

2. Breaking and entering on the premises of a legal person, office or office premises

Article 203 of the Penal Code provides for the following penalties:

- Article 203.2 PC: Imprisonment of 6 months to 1 year and a fine of 6 to 10 months. If the intruder remains on the premises, an additional fine of 1 to 3 months is added.

- Article 203.3 PC: Imprisonment of 6 months to 3 years when the break-in is committed with intimidation or violence in the domicile of a legal person.

3. Searching committed by a public official

If the offence is committed by an authority or public official without legal authority, Article 204 of the Penal Code stipulates a penalty of absolute disqualification of 6 to 12 years, in addition to the corresponding custodial sentence.

4. Aggravated type of housebreaking and entering

According to Article 202.2 of the Penal Code, if the breaking and entering is committed with intimidation or violence, the penalty increases to imprisonment of 1 to 4 years, accompanied by a fine of 6 to 12 months.

Requirements of the offence of breaking and entering

In order for breaking and entering to be considered a criminal offence, the following requirements must be met:

1. Subject of the offence: The perpetrator must be a natural person. If he/she is an authority or public official, his/her conduct will be punished according to Article 204 of the Criminal Code.

2. Entry without consent: The accused must have entered the home without the permission of its dwellers.

3. Access to the living space: Entry implies a physical penetration of the living space, passing from the outside to the inside, either through the front door or by other means.

4. Remaining against the will of the inhabitant: The offence takes place when the person enters without authorisation or remains in the home against the express will of its inhabitants.

Elements of the offence of housebreaking and entering

The following are the main ingredients of the offence of housebreaking and entering:

1. Protected legal right: What is protected is not the ownership of the property, but the right to intimacy and privacy of the people in their home. The inviolability of personal and family space is guaranteed.

2. The offender: It can be any natural person, regardless of their status or profession.

3. The victim: The legitimate occupant of the dwelling, who may be the owner, tenant, usufructuary or any person who habitually resides in the home.

4. The dwelling: This includes any enclosed space destined for the effective development of the private life of people, such as dwellings, rooms or any place that fulfils this function, regardless of its ownership.

If you are affected by a home invasion, do not hesitate to contact us.