Sanctions due to usurpation and home violation

1. Introduction: From the common language to the law language

Last December, Prevent defined two private property right violations assured in Article 33 of the Spanish Constitution: usurpation and home violation. They warned: "occupation is not in the Spanish Criminal Code". However, "occupation" is the word used by "common citizens".

Why has this happened if it is not a legal concept?

Simple, in the popular way of thinking, occupy is a basic verb, if you also think about housing, the clear meaning of the verbal language is joined with an image unbeatable: "abandoned and empty property is filled by people" ... who don't have the mandatory title of ownership over the property.

Then, the new social perception of the Real Estate product emerges: it is "occupied" from the point of view of those who do not live in it it is an "alien" space (if we talk about who holds the property, he/she will want to recover it and they have the right to do so), while those who live in it as "squatters" claim it as theirs or demand a "housing alternative" to leave.

2. The Law must never be ambiguous

We thank Editorial Sepin for putting the intellectual seed necessary to develop our article. Today, we return to the concepts of usurpation and home violation in addition, we explain Theory of Law.

What is the reason why the Legislator must formulate the crimes exactly at the same time that judges argue the sentences with solvency and apply the penalties in strict accordance with the Law?

The fact of punishing a crime entails a prejudice for the one who violates the law. Let us be clear, if breaking the law were innocuous, the criminal conduct would go unpunished. However, any crime or criminal offence must be punished:

1. Be typified in the Criminal Code. 

2. Be defined without any ambiguity.

3. Make clear the penalties that correspond to it, and, as has been said, do so in strict accordance with the law.

If the third condition is not accomplished, the punishment may become impossible or, will have to be deferred until a higher court confirms the the punishment suitability in law and determines how has to be the crime future interpretation in sentences. All of this is aimed at avoiding arbitrariness.

What are the precise sanctions for the crimes we are talking about?

Prevent advanced the type of sanction corresponding to usurpation (a fine) and home invasion (prison). However, it was not specified:

As it is established in Article 245.2 of the Criminal Code, the usurpation of housing is punished with: a fine of three to six months.

As established in Article 202.1 of the Criminal Code, the crime of breaking and entering is punished with two penalty intervals depending on whether or not violence and intimidation are involved: without them, the penalties are from six months to two years of deprivation of liberty. On the contrary, with the appearance of violence or intimidation the crime is punished with four years 

As common sense dictates, exercising intimidation and violence towards a victim is an aggravating circumstance that increases the penalty for the offender.

4. Final thought: the profound meaning of law 

4.1. What is the sense of the different qualification and punishment of the crimes?

It seeks to ensure that committing the most damaging crimes will represent a greater penalty for the offender and that it discourages him/her from committing illicit behaviors. 

4.2. What would happen if there were no aggravating factors?

It is clear that one of the functions of the law is to punish, but the judge must not forget that another is to educate about which behaviors are most undesirable. Without aggravating factors, the law would be confused, ineffective (because it will be too severe or, on the contrary, too lenient, depending on the crime which is judged), and unfair. 

4.3. What would happen if all the penalties were very severe?

Intuition tells us that high penalties frighten criminals, because of their duration, from committing criminal offenses. It seems correct but it is wrong. Thus, numerous studies show that the severity of the penalty does not stop all criminals (although this type of deterrence works better for minor crimes) the gradation of penalties is more effective.

Let's see why this is like this?

1. Someone who has made the decision to commit a serious crime does not feel deterred by the severity of the penalty.

2.  In a very punitive system, the option of escaping conviction would be even more atractive.

3. The accused, perceiving the arbitrariness of the punishment, may be more cruel than when the penalties are "rationally" adjusted according to the gravity of the crime for which they are convicted.

4. The most severe systems lead to overcrowded prisons, too often, this does not succeed in reducing the number of offences or the seriousness of the offences.

In conclusion, it is worth remembering that another function of the law is to reintegrate into society those who have served their sentences.

Understanding the law helps you protect yourself better and promotes social cohesion.

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