Have you been arrested? Act safely and protect your rights
Preventive detention by the State Security Forces and Bodies constitutes a personal precautionary measure by which a person's right to freedom is temporarily limited.
In Spain, this measure is governed by the Royal Decree of September 14, 1882 which approves the Criminal Procedure Law and Instruction no. 1/2024 of the Secretary of State for Security, which approves the “Comprehensive Procedure for Police Detention”.
It is important to note that the art. 520. 1 LECRIM requires that The detention is carried out in a way that causes the least possible damage to the detainee or prisoner in his person, reputation and assets.
This is to protect your fundamental rights, such as honor, privacy, self-image and data protection.
What happens when they stop me?
When a person is arrested, will be transferred to a police station where your personal belongings will be confiscated and you will be informed clearly and in writing about your rights and the reason for your arrest, if you have not been informed beforehand.
You will be offered the possibility to choose a lawyer or one will be assigned to you if you do not do so, and to inform someone of his arrest.
It will be explained to you that detention cannot exceed 72 hours (extendable for 48 hours in cases in which the detainee is presumed to be part of or related to armed gangs, terrorists or rebels) and who will be released or brought to justice at the end of this period, as well as the habeas corpus procedure.
Presence of the lawyer
Once the lawyer is present, The detainee may meet with him privately before his statement is taken in his presence.
It is important to note that the detainee is not required to declare.
After taking the statement, the detainee will be able to speak privately with his lawyer again.
Transfer to cell
The following will be taken: fingerprints and photos of the detainee to create a police record and then he will be transferred to a cell until appearing before the Judge or Court, usually the Court on Duty, once the police report has been drawn up.
The report is a document in which the agents describe the events that led to the arrest, any complaints or other investigations carried out.
Decision of the judge or court
The Judge or Court will take a statement from the detainee and will decide on his release within a maximum period of another 72 hours.
Normally, release is granted unless the charges are serious and there is a risk of flight, in which case provisional detention may be ordered as a precautionary measure until the trial.
Rights of the detainee
The rights of the detainee are included in art. 520. 2 LECRIM and they are:
- Right to remain silent, not to testify, to choose which questions to answer, or to testify only before a Judge.
- Right not to testify against oneself and not to confess guilt.
- Right to choose a lawyer and to be assisted by him without undue delay.
- Right to know and review relevant information related to your detention to challenge the legality of your detention before the competent authority.
- Right to inform a family member or any other person about your situation. Foreigners have the right to contact the Consulate of their country.
- Right to call anyone you want by phone, in the presence of authorities.
- Right to an interpreter if you do not understand the official language.
- Right to be visited by consular authorities and maintain correspondence with them.
- Right to be examined by a forensic doctor or other health professional.
- Right to request free legal assistance and know the procedure to obtain it.
El art. 527 LECRIM establishes that in situations where there is an urgent need to avoid serious consequences that may endanger the life, liberty or physical integrity of a person, or when it is necessary to act quickly to avoid seriously compromising the criminal process, certain rights of the detainee may be restricted.
In these exceptional cases, the detainee may be deprived of the right to choose a trusted lawyer, communicate with anyone except the judicial authority, the Public Prosecutor's Office and the Forensic Doctor, meet privately with his lawyer, and access himself or through his lawyer to information related to his detention, except that which is essential to challenge it.
Habeas corpus
In situations where you feel unjustly detained for a crime you have not committed, the Organic Law 6/1984, of May 24, establishes the procedure of habeas corpus to safeguard their fundamental rights.
This legal instrument allows you to request a Judge to verify whether your detention has been carried out in accordance with the rules and respecting your fundamental rights.
The Investigating Judge of the place where you are detained is the competent authority to respond to your request, and subsidiarily, it is also the place where the arrest occurred or where the latest news about their whereabouts was received.
They can request habeas corpus: the detained person, his or her spouse or partner, ascendants, descendants, siblings, legal representative, Public Prosecutor's Office and Ombudsman.
The process starts through a writing or appearance without the need for a lawyer or attorney, in which they must be included: personal data of the applicant and the detainee, the place of detention and other relevant circumstances, as well as the reason for the request.
The competent judge will decide whether to admit or deny the request after consulting the Public Prosecutor's Office. Against this decision there is no appeal.
Before issuing a final resolution within 24 hours, the Judge will listen to both the detainee and the person who made the arrest and will evaluate the evidence presented.
If you think the evidence supports your arguments, may order your immediate release or bring you to judicial custody if the legally established time has elapsed..
Otherwise, it could remain under prison but with all legal guarantees corresponding.
Contradiction of art. 520 and 496 LECRIM
The LECRIM establishes different deadlines for the detention of a person, which can cause confusion.
According to art. 520 LECRIM, the detainee must be released or brought to justice within a maximum of 72 hours.
Furthermore, the art. 496 LECRIM establish a 24-hour period to release the detainee or before a Judge.
These discrepancies in the Law are due to legislative changes that have introduced new procedures and constitutional rights.
However, the Spanish Constitution, in its art. 17, is clear in establishing thatPreventive detention cannot exceed the time necessary to investigate the facts, setting a maximum limit of 72 hours for detention.
Therefore, we can conclude that The maximum period of detention is that established in the constitutional text, that is, 72 hours, because it is the supreme norm of our legal system and prevails over any other legal provision.
Detention of minors
When it comes to a younger, It is important take into account the established deadlines awarded by the Organic Law 5 / 2000, criminal responsibility of the minor.
According to this law, the maximum period of detention for a less is 24 hours.
Once this time has elapsed, The minor must be released or placed at the disposal of the Public Prosecutor's Office.
The Public Prosecutor's Office then has a additional period of 48 hours to decide whether the minor will be released or brought to justice.
Crime of illegal detention
The agent who does not respect the temporal, formal and material limits of preventive detention may be the author of the crime of illegal detention of art. 163, 167, 529, 530, 531, 532 or 533 CP.
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