Burglary and Theft Defense in Marbella

"False key": a regulatory concept, not a literal one

Article 239 of the Criminal Code does not reserve the notion of a false key to traditional metal instruments. For decades, case law has built an essentially functional concept:

"...la llave no tiene que ser un instrumento metálico o compuesto de un material determinado... pudiendo ser de cualquier material y cualquiera que sea el mecanismo de apertura o cierre, exigiéndose simplemente que sirva para abrir o cerrar tal mecanismo sin producir rotura."

(The court held that a key need not be a metal instrument or made of any specific material — it may be of any material and use any opening or closing mechanism, provided only that it serves to open or close that mechanism without causing breakage.) Article 239 of the Criminal Code itself expressly equates magnetic or punched cards, remote-opening devices, and any other technological instrument of similar effect with keys. Legitimate keys lost by their owner, or obtained by a means constituting a criminal offense, are also treated as false keys. The Plenary Session of the Supreme Court's Second Chamber recently clarified the scope of this second scenario in a case of considerable practical interest: appropriating a key that is not at the perpetrator's disposal, and using it to surreptitiously open a safe, turns that key into a "false" one for the purposes of Article 239.2 of the Criminal Code, with the corresponding classification as burglary rather than mere theft, even though the ruling carried a dissenting opinion arguing for the opposite classification. This notably broad line of case law requires the defense to conduct a very precise analysis of the exact origin and the title of availability of the key, card, or device used in each specific case, since this point marks the exact boundary between burglary and theft.

Neutralizing alarm or security devices (Article 234.3 of the Criminal Code)

Article 234.3 of the Criminal Code imposes the sentence in its upper half, both for theft and for the aggravated subtype of neutralization, when in committing the act the alarm or security devices installed on the items taken have been neutralized, eliminated, or disabled by any means. This aggravating circumstance, frequently applied to thefts from commercial establishments, reflects the greater degree of planning and the greater risk to property security shown by someone who does not merely take advantage of an oversight but instead deploys the means necessary to actively circumvent the protective measures installed. Properly establishing this aggravating circumstance — rather than merely alleging it generically, as the prosecution often does — requires expert or witness evidence confirming that the device was actually neutralized, and not simply that it failed to activate for some other reason unrelated to the suspect's conduct.

Multiple repeat offending in petty theft: a matter under constant reform

The regime governing multiple repeat offending in low-value theft has been the subject of successive legislative reforms, driven by the difficulty of providing a proportionate criminal response to repeated low-value property crime. Following Organic Law 9/2022, Article 234.2 of the Criminal Code provides that, where the offender has been finally convicted of at least three offences of the same nature — falling within the Title governing offences against property, not counting expunged convictions or those that should have been expunged — the new petty theft ceases to be punishable by a fine and is instead punished with the sentence applicable to the basic offence, that is, imprisonment from six to eighteen months. The Supreme Court has clarified that this provision applies according to the seriousness of the new offence and not of the prior convictions, so that a low-value theft committed by a multiple reoffender is governed by this specific regime under Article 234.2 of the Criminal Code, rather than by the more heavily aggravated offence under Article 235.1.7 of the Criminal Code, which is reserved for cases in which the new theft exceeds 400 euros. This matter has recently been reformed again by Organic Law 1/2026, which introduced further adjustments to the mechanism for counting multiple repeat offending, making it necessary to verify in each specific case which version of the provision applies according to the exact date of the facts.