Criminal Law in Marbella: Common Offences

Road traffic offences: drink-driving, speeding and driving without a licence

Road safety offences (Articles 379 to 385 ter of the Criminal Code) are, in terms of case volume, the most common entry point into criminal proceedings for people with no prior record. Article 379.2 of the Criminal Code punishes driving under the influence of alcohol or drugs, distinguishing two ways of proving the offence: the objectively measured rate — above 0.60 mg/l in exhaled air or 1.2 g/l in blood, which alone is sufficient — and influence proven by other evidence when the rate is lower. The Supreme Court itself has clarified the structure of the offence:

"...son dos los elementos que caracterizan el tipo delictivo: uno, objetivo... y otro, subjetivo, la influencia en la conducción."

Alongside drink-driving, this chapter also covers the punishable speeding offence under Article 379.1 of the Criminal Code (60 km/h over the regulatory limit in urban areas, or 80 km/h on interurban roads), reckless driving under Article 380 of the Criminal Code, refusal to submit to detection tests under Article 383 of the Criminal Code — an independent offence since 2007, regardless of whether there are outward signs of intoxication — and driving without ever having obtained a licence or after the total loss of licence points under Article 384 of the Criminal Code. Our defence focuses on the technical scrutiny of the police report and the testing procedure — calibration and margins of error of the breathalyser, the mandatory double measurement, and the wording of the outward signs noted by officers — and, where appropriate, on a plea agreement that preserves the driving licence by substituting the prison sentence with community service.

Sexual assault and abuse offences

Organic Law 10/2022 on the comprehensive guarantee of sexual freedom completely transformed this area of law: it abolished the distinction between sexual abuse and sexual assault — which had depended on whether violence or intimidation was present — and unified both offences under Article 178 of the Criminal Code, shifting the focus of the offence to the absence of consent:

"...solo se entenderá que hay consentimiento cuando se haya manifestado libremente mediante actos que... expresen de manera clara la voluntad de la persona."

This reform has substantially widened the sentencing range — from one to four years for the basic offence, from four to twelve years where there is carnal access under Article 179 of the Criminal Code, and up to fifteen years in the aggravated forms under Article 180 of the Criminal Code — and has generated extensive case law on proof of consent, on the retroactive application of the more favourable law to acts committed before September 2022, and on the boundary with related offences such as street sexual harassment under Article 173.4 of the Criminal Code. Defence in this area calls for an extremely rigorous analysis of the victim's statement — typically the central piece of evidence for the prosecution under case law on its evidentiary weight — of the full context of the relationship between the parties, and of any psychological expert evidence, together with a study of the correct legal classification where the facts could fit a lesser offence.

Bodily harm, threats and coercion offences

The Criminal Code grades bodily harm offences (Articles 147 to 156) according to whether the injury requires medical or surgical treatment — a distinction that determines whether the conduct amounts to a minor offence or a less serious offence — and provides for aggravated forms where weapons or dangerous means are used, or where the result is the loss of a major organ or limb, sterility, or serious disfigurement. Threats (Articles 169 to 171) and coercion (Articles 172 to 172 ter) protect, respectively, freedom of decision and freedom of action against announcements of future harm or the violent imposition of unwanted conduct. The Supreme Court has clarified that these offences protect autonomous legal interests and are not automatically absorbed by related offences — such as physical mistreatment — when they have their own independent substance. Our defence carefully examines the classification as a minor or less serious offence — which has a direct bearing on the sentence and the applicable procedure — the presence of justifying or mitigating circumstances such as self-defence or a state of passion, and the possible route of criminal mediation and reparation of harm where the case allows it.

Gender-based and domestic violence offences

Article 153 of the Criminal Code punishes physical mistreatment or psychological harm caused by a person who is or has been the victim's spouse or partner (gender-based violence, Article 153.1) or by a person who causes it within the family or cohabiting circle defined in Article 173.2 of the Criminal Code (domestic violence, Article 153.2), with aggravated penalties — including the mandatory deprivation of the right to possess weapons — and with the additional aggravation under Article 153.3 when the acts are committed in the presence of minors. Where the violence is repeated over time, creating a climate of domination, the offence of habitual mistreatment under Article 173.2 of the Criminal Code applies, the nature of which has been outlined by the Supreme Court:

"...la habitualidad no es un problema aritmético... responde más a un clima de dominación e intimidación... y desprecio sistemático."

This is one of the firm's most highly specialised procedural areas, both in the defence of the person under investigation — where we carry out a rigorous analysis of the evidence, typically centred on the victim's statement, and of any possible mutual aggression, the legal classification of which has been the subject of specific doctrine from the Plenary of the Second Chamber of the Supreme Court — and in comprehensive assistance to the victim in obtaining a protection order under Article 544 ter of the Criminal Procedure Act and in bringing a private prosecution.

Burglary, robbery and theft

The Criminal Code distinguishes three offences built on the same core conduct — taking another person's movable property for profit — depending on the means used to commit it. Theft (Articles 234 to 236) punishes the taking of property without force or violence. Burglary, or theft with force upon things (Articles 237 to 241), requires the offender to use one of the means exhaustively listed in Article 238 of the Criminal Code — scaling, breaking a door or window, use of false keys, among others — a closed list (numerus clausus) that case law interprets strictly:

"...no es suficiente la utilización de cualquier clase de fuerza, sino que ha de usarse alguno de los medios comisivos que se especifican en el artículo 238."

Robbery with violence or intimidation against persons (Article 242) is the most serious form, carrying sentences of up to five years' imprisonment, aggravated when weapons or other dangerous means are used. Our defence systematically works on the correct legal classification of the facts — theft versus burglary, depending on whether one of the means listed in Article 238 of the Criminal Code is genuinely present — the valuation of the stolen property through expert evidence, and the route of reparation of harm under Article 21.5 of the Criminal Code, which is frequently decisive in obtaining a suspendable sentence in minor offences.

Offences against life: homicide and murder

Homicide under Article 138 of the Criminal Code punishes anyone who intentionally kills another person, with a sentence of ten to fifteen years' imprisonment. Murder under Article 139 of the Criminal Code raises the classification — and the sentence, up to reviewable life imprisonment in the aggravated cases under Article 140 of the Criminal Code — where one of four circumstances is present: alevosía (a Spanish aggravating circumstance similar to treachery, where the offender acts in a way that eliminates the victim's possibility of defence), payment or reward, particular cruelty, or commission of the act to facilitate another offence or avoid its discovery. Alevosía — the circumstance most frequently invoked by the prosecution — requires a rigorous technical analysis of its elements:

"...que el autor ejecute los hechos empleando medios, modos o formas... objetivamente adecuados para asegurar el resultado, eliminando las posibilidades de defensa."

The boundary between homicide and murder — which can amount to a difference of several years' imprisonment, or even a shift to reviewable life imprisonment — is often decided through a minute analysis of the sequence of the attack: whether the victim's defencelessness existed from the very start of the attack, whether it arose at a later point during the attack, or whether, on the contrary, there was a prior confrontation on equal terms incompatible with alevosía. In these proceedings, usually heard before the Tribunal del Jurado (Jury Court), our defence focuses on the rigorous scrutiny of forensic expert evidence, the technical reconstruction of how the events unfolded, and the correct framing of the questions put to the jury's verdict.