Being under arrest in Spain. Other precautionary measures

1. Under arrest

An individual can be arrested either before a criminal proceeding is initiated, during prosecution or once it is completed.

1.1. How long may the arrest last?

The detained must either be released or brought before a Judge within 24 hours from the arrest.

If you are detained in custody you may be held in a police cell for up to 72 hours, then you must either be released or brought before a Judge.

1.2. Who may arrest the offender? under which circumstances?

It is the police’s duty to arrest the person who is under any of the circumstances described below:

  • Should the offender intend to commit an offence.
  • When the citizen sees suspicious activity, or knows that a crime is being committed.
  • Where a search order is issued against the defendant for contempt.
  • Where the convicted is escaped from prison.
  • Where an European Arrest Warrant or extradition has been issued against such person.

A private citizen may also arrest the offender in the above cases under certain circumstances.

The Spanish Constitution prohibits arbitrary arrest.

1.3. Your rights as a detained person

If you are detained, be aware that you must be informed in a language that you understand and in detail of the nature and cause of the accusation against you.

Your rights as a detained person are guaranteed under Article 17 of the Spanish Constitution:

  • You have the right to remain silent and not plead guilty of the offence you are charged with.
  • You may appoint a private Lawyer and have that Lawyer during questioning. If you do not appoint a lawyer or cannot afford him, one will be assigned by the court.
  • An interpreter must assist you if you cannot understand or speak Spanish.
  • You have the right to be examined by the Court Doctor.
  • The Consulate office of your home country in Spain must be informed about your arrest.

The judge may determine in specific cases no communication with the detained person, and thus he cannot inform his family about his arrest, the Lawyer will be then assigned ex officio.

These are only general guidelines and not definitive statements of the law, all questions about the law’s applications to individual cases shall be directed to a Spanish lawyer.

2. Preventive custody

2.1. Adoptive provisional imprisonment

Provisional confinement may only be adopted at the request of the Public Prosecutor or the defense solicitor during the criminal proceeding, in order to guarantee its correct prosecution.

This measure is adopted either whether there exist valid reasons to consider that the defendant has committed the crime, which must be punishable by a term of imprisonment that exceeds 9 years, or the Judge considers it necessary, provided the antecedents of the accused or other relevant circumstances of the case.

The court decision establishing the provisional imprisonment or its extension may be appealed.

In order to make easy the crime investigation, one can be forbidden from visiting the prisoner for a maximum period of 5 days.

2.2. How long may provisional prison last?

Maximum period during which an accused person can be held in prison could exceed of 24 months, where the alleged offence is punishable by a term of imprisonment that could exceed of 9 years.

The defendant may be confined for 12 months, where alleged offence is punishable by a term of 9 years or less.

However, these periods may be adjourned under specific circumstances.

3. Provisional release

Accused persons may be released on bail, they will have to report the Court on a regular basis and cannot leave the country. If the accused fails to give the bail, he will be imprisoned.

The accused could also be provisionally released under certain conditions: he may be forbidden to approach or communicate with certain persons ;

3.1. What a bail consists of?

The bail is a deposit of money that the person charged with a crime must give to assure the court that he will be available when necessary for the trial of the case at the time and date specified.

In the event the amount of money required by the court as such bail is not available to the defendant, he may get someone to post bail for him. If he cannot do that, then he could obtain a bond either from a private individual or a bonding company in the required amount.

3.2. When may the prisoners be released on bail?

Prisoners may be released on bail where the crime is punishable by a term that exceeds 3 years imprisonment and provisional imprisonment may not be applicable for the case. Where the term does not exceed 3 years, the conditional release of the accused may be accorded without bail.

An application of the Public Prosecutor or any of the prosecutor parties is required to modify the conditions for release, or to get provisonal freedom for a person.

Notwithstanding, the court may decide the accused conditional release on the basis of either the nature (seriousness) of the crime, the prosecuted antecedents or on those circumstances that could avoid the accused being prosecuted.

The judge may also modify the conditions under which the accused has been released.

3.3. Deprivation of the accused driving licence

The Judge may determine provisional deprivation of the accused driving license, in case he had been charged with a crime related to driving motor vehicles.

3.4. If the defendant does not appear to trial when summoned

If the defendant does not appear when he is summoned, bail is immediately forfeited. In the event another person posted the bail for him, the bondsman will be given 10 days to bring the accused to trial, otherwise bail will be forfeited.

If the bail is forfeited, the bondsman or his descendants could claim the bail refund to the prosecuted.

4. Getting legal help

Our lawyers provide solid legal advice and help regarding any criminal proceedings in Spain:

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