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LIFE IN SPAIN

What is the law on self-defence in the home in Spain?

It's the worst case scenario, but what is the law on self-defence in the home in Spain and how does it compare to other countries?

What is the law on self-defence in the home in Spain?
Photo: Pixabay.

Every few years, whether in Spain or elsewhere in the world, there seems to be a controversial court case involving a property owner defending themselves against an intruder. But it’s an open and shut case, you might think? If someone comes onto my property, I can defend myself however I see fit, right?

Well, not exactly. 

What constitutes reasonable force, or a justifiable response, and what is considered proportional; these are all concepts under the law that are subjective, circumstantial, and must be proven before a court. 

It’s a situation nobody ever dreams of finding themselves in, but how can you defend yourself in your home in Spain? What is the law, and how do self-defence laws differ from other countries?

Spanish law

In Spain there are two main legal codes: the Código Penal, which covers criminal law (in non-legalese this basically means offences and punishments), and the Ley de Enjuiciamiento Criminal, or, the criminal procedure code. 

In Spanish criminal law, self-defence is covered by Article 20.4 of the Código Penal, which outlines legal exemptions from criminal responsibility in situations where people defend themselves or their property (or defend others or their property), if each of the below criteria has been fulfilled:

  1. The defender must be responding to unlawful aggression that threatens grave personal danger of imminent injury that is considered unlawful aggression in the eyes of the law. 

  2. That the methods used to prevent or combat that unlawful aggression were rationally necessary.

  3. A lack of “sufficient” provocation by the defender.

READ MORE: The secret language used by burglars to break into homes in Spain

Complicated Spanish legalese aside, simply put a person is exonerated of criminal responsibility, including any compensation claims, if their self-defence was against unlawful violence; that there was a justifiable need to use the means employed – in other words, if the method, whether with a weapon or not, was justified; and that the aggression was unprovoked by the property owner.

Crucially, Article 20.4 states that illegal entry into private property constitutes unlawful violence. That is to say, if someone enters your home illegally you have the right, legally speaking, to defend yourself if the situation meets all the other criteria.

You must, however, must prove they have met these requisites to be exonerated.

Guns for self-defence in Spain

Contrary to popular belief, there are guns in Spain. In 2017 the Geneva Small Arms Survey estimated that Spain was home to as many as 780,000 illegally owned firearms, but that number could be higher.

That’s nothing compared to the United States, of course, but there are also ways to legally obtain a gun in Spain. This is most often for hunting and shooting, but few know that there is also a special license for obtaining a firearm for reasons of self-defence.

READ MORE: What’s the law on guns in Spain?

There are believed to be as many as 8,000 Spaniards with special permission to carry guns for self-defence – those declared “at risk” and issued with a ‘B license’ by Spanish police.

Applicants must prove they are at risk or fear for their life, and it is believed that the majority of these special B license holdees are high-profile public figures like politicians or football players, or those who might come into contact with criminals, such as gun-sellers, judges or magistrates, and former police and military personnel. The weapons must be concealed. 

There has been debate in recent years over the use of firearms for self-protection in Spain, with notable cases of gun owners jailed for shooting in self-defence, including a man in his 80s who was sent to jail after shooting an assailant who broke into his home in Tenerife and attacked his wife. 

READ ALSO Far-right Vox party wants to loosen Spain’s gun laws

It has been a recurring populist talking point of far-right party Vox, with leader Santiago Abascal calling for the loosening of gun control in Spain. 

International comparison

USA

With the proliferation of guns in the United States, it is perhaps the country most associated with self-defence in the home controversies – often referred to as ‘standing your ground.’ But what’s the law?

The American system rests on the common law principle of what is known as the “castle doctrine”. This enshrines the right to use reasonable force, including deadly force, to defend against intruders in the home. The law varies slightly depending on the state legislature, with some employing a ‘duty to retreat’ clause as a deescalation tactic, but the ‘castle doctrine’ remains a fundamental basis to all.

Like in Spain, the right to legal self-defence in the home is dependent on several criteria, of which all must be met:

  1. The home owner or renter genuinely believed they were facing an unlawful attack on them or their property.
  2. They believed the force used or threatened was “necessary to prevent or terminate the interference.”
  3. That the belief, even if mistaken, was ‘objectively reasonable’.
  4. That the attack was happening at that moment or was imminent.

United Kingdom

According to the GOV.uk website, the UK law on self-defence in the home rests on a loose understanding of using ‘reasonable force’ to protect yourself if a crime occurs inside your home.

This means you can protect yourself, including using an object as a weapon, and prevent an intruder from escaping, for example by tackling them to the ground

Legally speaking, there’s no concrete definition of ‘reasonable force’ actually entails. It is all very subjective and depends on the circumstances of the particular incident. Contrary to popular belief, you do not have to wait to be attacked before defending yourself in your home.

You do risk being prosecuted however, if you continue the attack after you’re no longer in danger – if the intruder was unconscious, for example – or if you lay a trap for someone. 

France

Article 122-5 of France’s Penal Code states “a person who, faced with an unjustified attack on themselves or a third person, simultaneously commits an act necessary to legitimate defence, shall incur no criminal liability except where the means employed are disproportionate to the seriousness of the attack.”

Like in most countries, in France self-defence is legal only if it occurs simultaneously to the attack, is proportionate to the force used, and the threat is unjustified.

Simply put, similarly to the Spanish system, the behaviour of the home owner must be proportionate to the threat. For example, reacting to verbal abuse by shooting someone would be considered disproportionate and likely to risk prosecution.

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LABOUR RIGHTS

‘A long way to go’: Spain’s domestics fight to end discrimination

For years, Aracely Sánchez went to work without counting her hours, always fearful she could lose her job from one day to the next.

'A long way to go': Spain's domestics fight to end discrimination

“They would always ask me to do more and more and more, as if I were a machine,” she told AFP of her employers at a house in Madrid.

Within a collective of domestic workers, this 39-year-old Mexican has been trying to assert her basic rights to have time off every week, to be paid for working overtime and to have unemployment cover.

But given the precarious nature of this type of work in Spain, it is a challenge.

“There are employers who are very humane and who respect us, but there are many who try to take advantage of the situation,” she explained.

“They say: if the job doesn’t suit you, there are plenty more where you came from.”

According to the Workers Commission union (CCOO), nearly 600,000 women serve as domestic staff in Spain where taking them on for housework, cooking or childcare is widespread.

Of that number, nearly 200,000 are undeclared, working in the black economy without an employment contract.

“Many of them come from Latin America and they don’t have papers and find themselves in a very vulnerable situation,” said Mari Cruz Vicente, the CCOO’s head of activism and employment.

‘Exposing violations’

Following a ruling by the EU’s Court of Justice (CJEU) and pressure from the unions, the government of Prime Minister Pedro Sánchez adopted a reform this month aiming at ending the “discrimination” suffered by these workers.

READ ALSO: The new rules for hiring a domestic worker in Spain

Under the changes, dubbed by the government as “settling a historic debt”, domestic workers are now entitled to claim unemployment benefits and cannot be dismissed without justification.

They will also be covered by healthcare “protection” and be able to access training to improve their “professional opportunities” and job conditions.

“This is a very important step forward,” said Vicente, while stressing the need to step up efforts to register those who are working without a contract and don’t benefit from the reform.

“This reform was very necessary,” said Constanza Cisneros of the Jeanneth Beltrán observatory which specialises in domestic workers’ rights.

“Spain was very behind. Every day we have people coming to us whose rights have been violated. We have to end such practices now,” she said.

“Such situations have to be exposed.”

SPAIN-DOMESTIC-WORKERS

Around 200,000 domestic workers who are working in the black economy without an employment contract will not benefit from Spain’s new labour reform. (Photo by Ezequiel BECERRA / AFP)

‘Not seen as people’

Mexican home help Sánchez has often experienced such abuses in more than two decades of employment.

In 2001, she arrived in Madrid to take up full-time employment caring for an elderly person for €350 a month.

She then spent the next 15 years working in short-term jobs, almost always without a contract, despite the fact she had a valid residency permit.

“When I said I wanted a contract, they never called me back. They didn’t want to pay contributions,” she said, describing her work as “undervalued” with domestic staff seen as “labourers” and not “as people”.

Amalia Caballero, a domestic worker from Ecuador, has had a very similar experience.

“We often finish very late, or they change our hours at the last minute assuming we’ll just fall in line. But we also have a life that we need to sort out,” said Caballero, 60.

She also talks about the “humiliations” often endured by those who live with their employers.

“One time, one of my bosses asked me why I showered every day. It was clear he thought (the hot water) was costing him too much money,” she told AFP.

But will such attitudes change with the reform?

“There’s still a long way to go,” she sighed, saying many domestic staff “have completed their studies” back home and even hold a degree.

“People need to recognise that,” she said.

Cisneros agreed.

“Our work needs to command greater respect, not least because it’s so necessary. Without staff to pick up the children, run the household and look after elderly people, what would families do?”

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