The Prosecutor’s Office publishes an instruction to urgently expel squatters
The State Attorney General’s Office has published an instruction this Tuesday (LAW 671/2020) to unify criteria and act “with the greatest urgency” in cases of property occupation. A “social reality” that generates “an undeniable sense of insecurity in citizens,” says the text.
The document, the first instruction of the year by the Public Ministry, clarifies to the prosecutors that, in the case of occupation of the first and second residence, the route to be used must be that of breaking and entering . This path allows the judge to urge the expulsion of the intruders as an urgent precaution within 72 hours.
The State Attorney General, Dolores Delgado, establishes what criteria prosecutors must follow to request this urgent expulsion of the squatters. It also establishes the rules to collect the mandatory information from the complainant that allows claiming the urgent measure in court.
The purpose of the instruction is for prosecutors to “reinforce their intervention in defense of the rights of the victims and those harmed by these crimes, resorting with the greatest immediacy to the legal tools available in our legal system, capable of restoring the legitimate right of the complainant and avoid the persistence over time of criminal conduct while the corresponding procedure is being processed “.
The instruction distinguishes two cases of squatting to request express expulsion: the trespassing and the peaceful usurpation of real estate . The raid, as provided for in article 202 of the Penal Code (LAW 3996/1995), occurs only with respect to residence, that is, first and second residences. It should be a place where the owner develops his private life and intimacy, if not habitually, at least with some frequency.
If the house is uninhabited , prosecutors can resort to the crime of peaceful usurpation of property. It is included in article 245.2 of the Penal Code (LAW 3996/1995) and in this case it is a minor offense that carries a fine.
In this case, the request for urgent removal is tied to reinforced requirements. If the dwelling is not inhabited and it is not expected that it will be, “the concurrence of other circumstances that advise the adoption of the precautionary measure must be addressed,” although which ones are not specified.
The option of the civil route and the opinion of Vicente Magro
The instruction of the Prosecutor’s Office grants a clear preference criterion for criminal over civil and Law 5/2018. An opinion already advanced by Vicente Magro, magistrate of the Second Chamber of the Supreme Court, in the pages of this newspaper ( Crime of occupation (art. 245.2 CP) or trespassing (art. 202 CP)? Civil measures or measures criminal injunctions of expulsion? ).
In the article in question, the magistrate considered that the home invasion was the appropriate solution to resolve the cases of occupation of first and second residences. Magro highlighted important ideas, such as that the concept of “dwelling” for criminal purposes is not identified with the administrative notion of “housing”; that the individual can occupy a dwelling “permanently or temporarily” to make it a dwelling place; or that the constitutional concept of domicile should be extended to the first and second residence:
The conclusions of Vicente Magro
1. You can resort to the crime of trespassing in art. 202 CP to denounce an illegal occupation of a property suitable to be inhabited, with furniture and essential services registered, such as electricity, water or gas where the individual develops his life permanently or temporarily.
2.- Faced with an illegal occupation in these cases the complaint is enabled through art. 202 CP (LAW 3996/1995) (LAW 3996/1995) and, therefore, the adoption of the precautionary measure by the investigating judge for the immediate expulsion of the occupants before 72 hours.
3.- It is not necessary in these cases to resort to the civil procedure of Law 5/2018 (LAW 9487/2018), nor that of art. 245.2 CP (LAW 3996/1995) (LAW 3996/1995), which remain for the cases of occupation of permanently uninhabited properties, without furniture and without electricity, water, or gas services, which show their permanent unemployment. This is the concept that requires going to the aforementioned routes.
4.- The concept of dwelling for criminal purposes is not identified with the administrative notion of housing
5.- The protection provided to the home will be found in those places in which, permanently or temporarily, the individual develops spheres of privacy, away from the interference of unauthorized third parties.
6.- The concept underlying article 18.2 of the EC (LAW 2500/1978) (LAW 2500/1978) must be understood in a broad and flexible way as it tries to defend the areas in which private life takes place of people.
7.- The concept of domicile is broader than that derived from a mere administrative or tax finding regarding the place where residence is established for that purpose, to constitute the closed place that a person dedicates to the development of all or some aspects of your privacy
8.- The constitutional concept of domicile extends to the first and second homes, as a space in which its inhabitant can develop aspects of their intimacy and privacy.