Success Stories. Acquittal of the offence of unlawful occupation (squatting) against UNICAJA.

Acquittal for the offence of unlawful occupation against UNICAJA.

Financial institutions, through the media, convey to the public a change in awareness and actions in relation to the squatting movement, as well as, in particular, to those families at risk of social exclusion.

Essentially, they seek to convey a new self-regulation and a new way of protecting the most disadvantaged, thereby avoiding injustice and the lack of protection for particularly vulnerable families.

However, not all financial institutions put these principles and intentions into practice. Such was the case with UNICAJA, in criminal proceedings for a minor offence of unlawful occupation (squatting) which, ultimately, the Investigating Court No. 2 of Estepa tried and acquitted the defendants.

In this case, the unfairness of the situation was more than evident. The occupants had been the owners of the same property, which the bank had been awarded in enforcement proceedings.

The defendants had been occupying the property (which had been theirs) since 2014 and had tried to reach an agreement with the bank to recover it, which never came to fruition.

UNICAJA has chosen not to appeal the judgment, which has therefore become final and, as a result, it is very likely it will never become known through legal databases.

For this reason, IN DIEM Abogados makes available to you the judgment of Investigating Court No. 2 of Estepa, dated 13 November 2018, for anyone who may need this precedent. The defence was conducted by our colleague Sara Domínguez Ramos.

Judgment. Reasoning.

The wording of the judgment is as follows:

“SECOND. – The facts reported by UNICAJA BANCO SAU, even though they could theoretically fall within the conduct described in Art. 245.2 of the Criminal Code, cannot, in the present case, give rise to a conviction. There are indications that UNICAJA BANCO SAU knew the identity of the occupants (despite having filed its complaint against unknown occupants of the property), and that, indeed, there were conversations between the parties regarding the possible regularisation of the possessory situation of the property, or its ownership. This is inferred from the statements of the aforementioned witnesses and from the screenshot of the email sent on 24 October 2017 by Mr XXX, which states that a rental application document is attached. Likewise, and applying by analogy (art. 4 LEC) the principle of availability and ease of proof underlying art. 217 of the Civil Procedure Act, the opening in 2014 of a current account in the name of their eldest child and the periodic deposit into it of amounts of €300 may also be understood as an indication of the truthfulness of the defendants’ statements (it would not seem logical to behave in this way with the bank that once dispossessed them of their home, unless UNICAJA BANCO SAU had created certain expectations in the defendants, regardless of the terms in which the bank’s position was conveyed to them or what they, perhaps through autosuggestion, may have understood). We might even be faced with a possible mistake of prohibition under art. 14.3 of the Criminal Code, although this Judge is not in a position to explore this possibility further, as no party raised this exemption and the Court did not submit it for consideration (ex art. 733 LECrim).

Likewise, it should be noted that there was no prior formal demand before the complaint was filed, despite the complainant knowing, as has been maintained, the identity of the occupants. Nor should reference be omitted to the principle of minimum intervention and the consequent nature of Criminal Law as ultima ratio, which requires that the protection of rights such as that affected by the reported facts should preferably be sought through civil proceedings, which remain open to anyone who considers themselves harmed.

Relevant are the considerations set out in the Toledo Provincial Court judgment of 22 February 2017, which states:

“in this criminal jurisdiction, attention must be paid to an interpretation which, in accordance with the basic principles that inform the rule of law, makes it possible to establish the boundary separating the scope of civil possessory protection from the criminal provision; and, in this regard, it is mandatory to consider the existence of a basic principle in criminal law, namely that of minimum intervention, whose consequences, together with the mandatory interpretation of legal rules in accordance with the social reality of the time in which they are to be applied (art. 3.1 of the Civil Code (LA LEY 1/1889)), as well as the existence within the civil sphere of adequate channels for interested parties to resolve their differences, requires, as a logical consequence, a restrictive and strict application of the corresponding criminal rules (Supreme Court judgment of 4 April 1990, which in turn cites those of 7.3 and 30.5.1988 and 10.6.1989); and this is an issue that is correctly resolved in the well-founded appealed decision, which, after analysing the offence in detail, ultimately refers the appellant to the civil jurisdiction.”

Therefore, if there are two types of possessory protection, civil and criminal, not every disturbance of possession can be subsumed under the criminal provision. Essential and general protection is provided by possessory actions to recover possession, or by eviction in cases of occupation of the property on a precarious basis, without enabling title. Criminal intervention, inspired by the principles of proportionality and minimum intervention and as an extreme “ratio”, can only be reserved, within the terms of the criminal provision, for the most serious cases, that is, for cases in which the disturbance of possession is of greater significance.

In the case at hand, it is clear that criminal unlawful occupation, constituting an offence, is a priori unsustainable, in the absence of the aforementioned requirements, since in any event we might be faced with a possible dispossession or disturbance, and this appellate body has doubts as to the relationship that should prevail regarding the subject matter of the dispute, because the lack of a formal demand or notification to the possible occupant must precede the commencement of the criminal proceedings, which means it cannot be raised within them, as has occurred here. (…)

In short, from the facts that have been the subject of the prosecution, in addition to suffering from defects that constitute absolutely necessary requirements for their viability in criminal proceedings, there is no offence or criminal infringement whatsoever, since the prosecution and conviction for the offence of unlawful occupation do not meet the characteristics that extensive case law considers necessary for subsumption under art. 245.2 of the Criminal Code (LA LEY 3996/1995), without prejudice to the fact that the typical conduct set out in that provision is currently a minor offence following the reform by Organic Law 1/2015 (LA LEY 4993/2015), as follows from that provision in relation to art. 13.4 of the Criminal Code (LA LEY 3996/1995) and the first transitional provision of the aforementioned Organic Law. It should not be forgotten that the facts described in the complaint and the request for eviction contained in the plea are protected under civil legislation, through the procedures (also civil) set out in art. 250.1.2ª (LA LEY 58/2000) and 7ª of the Civil Procedure Act. Thus, numerous Provincial Courts have held that the legal interest protected by art. 245.2 of the Criminal Code (LA LEY 3996/1995) is possession understood as a right exercised immediately over the property

even if only on an eventual basis; that is, real possession, which is not present in this case, where the holder of the right is a bank which, as such, does not possess, in the sense explained above, of using and enjoying it. In this regard, lower-court case law has stated that not every disturbance of possession can be considered punishable, even those carried out in the form of occupation, but only occupations that pose a risk to the protected legal interest of possession by the holder (judgments of the Provincial Courts of Cádiz, Section 8, 6.11.2000; Las Palmas, Section 1, 13.10.2000). Accordingly, punishable occupation would only be that

in which the occupant has the clear intention of exercising possessory rights over the occupied property (Provincial Court of Burgos, Section 1, 17.1.2000; Córdoba, Section 1, 9.10.2000), which can be evidenced by remaining in the occupied dwelling. Under this criterion, occupations of abandoned properties would not be punishable, nor those in which there is no “socially manifest” possession (Provincial Court of Las Palmas, judgment cited); the same spirit can be seen in the judgment of the Provincial Court of Madrid, Section 5, of 9.10.2000. For its part, the Provincial Court of Madrid, in a judgment of 20 February 2004, points to the need for the act to cause a significant disturbance to the peaceful possession of the occupied property, which leads to excluding from the offence those cases in which possession over the occupied property is not effectively exercised. The same Court, in a judgment of 11 May 2006, holds that “the possession protected in criminal law is that which is effectively used and enjoyed, not only because possession that is not effectively enjoyed already has protection in civil law through the exercise of the corresponding possessory and reivindicatory actions, but also because criminal law, in our view, should not protect possession that is not exercised by obtaining an individual benefit (…). The repeated criminal offence is not a risk offence, but one of harm to the protected legal interest, as we have already delimited, protecting criminally the possessor who effectively uses and enjoys the property “.

All of the above, as has been stated, requires this Judge to issue an acquittal.”

IN DIEM’s objective: A more JUST society

IN DIEM’s objective is a more JUST society, more SUPPORTIVE and RESPONSIBLE towards the most disadvantaged. In this case, the bank’s social responsibility should have been made a reality with a family that lost its home as a result of the economic crisis and occupied it solely due to lack of means and the impossibility of reaching a viable agreement with the bank to recover it. At IN DIEM, we hope that these situations—once and for all—will not happen again.

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