In Spain, every detained individual is entitled to fundamental rights that the authorities must respect. These rights are not only guaranteed by the Spanish Constitution and the Penal Code but are also critical to protecting your liberty and dignity. Did you know that having proper legal assistance from the start can make a significant difference in your case?
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Table of Contents
- Concept of Detention in Spain
- Right to be Informed of the Reasons for Detention
- Right to Legal Assistance
- Right to Remain Silent
- Right to Presumption of Innocence
- Right to Communicate with Family or Loved Ones
- Maximum Duration of Detention
- Rights of Minors in Detention
- Protections Against Inhumane or Degrading Treatment
- Habeas Corpus: A Guarantee of Freedom
- Detention Record
- Frequently Asked Questions
Concept of Detention in Spain: What you need to know
Detention in Spain is a legal measure that restricts personal freedom, enforced by law enforcement or through judicial order, to investigate a suspected crime or ensure a person’s appearance in court. Detention is only permitted when there is reasonable suspicion that a crime has been committed, as defined by Article 17 of the Spanish Constitution, which safeguards the right to personal freedom and security.
The detainee’s rights are further regulated in Article 520 of the Spanish Criminal Procedure Law (LECrim):
Detention Protocol in Spain: Key Guidelines
Detention must be conducted in a manner that minimally impacts the detainee’s person, reputation, and property. Authorities are required to respect the constitutional rights to honor, privacy, and image, along with the right to freedom of information.
Additionally, detention should not exceed the time required for investigation. Within a maximum of 72 hours, the detainee must either be released or presented before a judge, ensuring a swift and just legal process.
Read the full law here: Spanish Criminal Procedure Law, Article 520
Article 520
- Detention and provisional imprisonment must be carried out in a manner that causes the least harm to the detainee or prisoner in terms of their person, reputation, and property. Those who authorize the measure, as well as those responsible for executing it and any subsequent transfers, must safeguard the detainee’s constitutional rights to honor, privacy, and image, while respecting the fundamental right to freedom of information.
Preventive detention shall not exceed the time strictly necessary to carry out investigations aimed at clarifying the facts. Within the time limits established by this law, and in any case within a maximum of seventy-two hours, the detainee must be released or brought before a judicial authority.
The police report must include the location and time of the arrest and the time when the detainee was made available to the judicial authority or, where applicable, released.
- Every detained or imprisoned person shall be informed in writing, in simple and accessible language, in a language they understand, and immediately, of the facts attributed to them and the reasons for their deprivation of liberty, as well as of their rights, particularly the following:
a) The right to remain silent, to not make any statement if they so choose, to not answer some or any of the questions asked, or to declare that they will only speak before a judge.
b) The right not to testify against oneself and not to confess guilt.
c) The right to appoint a lawyer, without prejudice to the provisions of paragraph 1(a) of Article 527, and to be assisted by a lawyer without undue delay. If, due to geographical remoteness, the lawyer’s assistance is not immediately available, the detainee shall be granted telephone or video communication with the lawyer, unless such communication is impossible.
d) The right to access elements of the proceedings that are essential to challenge the legality of the detention or deprivation of liberty.
e) The right to have their detention and place of custody immediately communicated, without undue delay, to a family member or person of their choosing. Foreign nationals have the right to have the above information communicated to the consular office of their country.
f) The right to communicate by telephone, without undue delay, with a third party of their choice. This communication will take place in the presence of a police officer or, where applicable, a designated officer by the judge or prosecutor, without prejudice to the provisions of Article 527.
g) The right to be visited by consular authorities of their country, to communicate with them, and to correspond with them.
h) The right to free assistance from an interpreter, when the detainee is a foreigner who does not understand or speak Spanish or the official language of the proceedings in question, or for persons who are deaf or have a hearing impairment, as well as for other individuals with language difficulties.
i) The right to be examined by a forensic doctor or their legal substitute, and in their absence, by a doctor from the institution where they are held, or by any other doctor employed by the State or other public administrations.
j) The right to request free legal aid, the procedure to do so, and the conditions for obtaining it.
Additionally, the detainee shall be informed of the maximum legal duration of detention until they are brought before a judicial authority and the procedure by which they can challenge the legality of their detention.
When a declaration of rights is not available in a language understood by the detainee, they shall be informed of their rights through an interpreter as soon as possible. In this case, the written declaration of rights in a language they understand shall be provided to them subsequently and without undue delay.
In all cases, the detainee shall be allowed to keep the written declaration of rights in their possession for the entire duration of the detention.
2 bis. The information referred to in the previous paragraph shall be provided in a comprehensible language accessible to the recipient. To this end, the information shall be adapted to their age, maturity, disability, and any other personal circumstances that may limit their capacity to understand the scope of the information provided.
- If the detainee is a foreigner, the fact of their detention and place of custody shall be communicated to the consul of their country, and they shall be allowed to communicate with the consular authority. If the detainee has two or more nationalities, they may choose which consular authorities to notify of their detention and with whom they wish to communicate.
- If the detainee is a minor, they shall be placed under the custody of the Juvenile Sections of the Prosecutor’s Office, and the fact of the detention and the place of custody shall be communicated to those who hold parental authority, guardianship, or custody as soon as the minor status is confirmed.
In the event of a conflict of interest with those holding parental authority, guardianship, or custody, a legal guardian will be appointed to whom the fact and location of the detention will be communicated.
If the detainee has a legally modified capacity, the information provided in paragraph 2 of this article shall be communicated to those holding guardianship or actual custody, with notice given to the Public Prosecutor’s Office.
If the detainee is a minor or a person with a legally modified capacity and is a foreigner, the fact of the detention shall be officially notified to the Consul of their country.
- The detainee shall freely appoint a lawyer, and if they fail to do so, they shall be assisted by a public defender. No authority or officer shall make any recommendations regarding the lawyer to be appointed beyond informing the detainee of their right.
The authority in custody of the detainee shall immediately inform the Bar Association of the name of the lawyer appointed by the detainee to assist them for the purposes of localization and professional assignment, or if applicable, they shall inform the Bar Association of the request for the appointment of a public defender.
If the detainee has not appointed a lawyer, or the appointed lawyer refuses the assignment or cannot be found, the Bar Association shall immediately appoint a lawyer from the public defender list.
The appointed lawyer shall attend the detention center as quickly as possible, always within the maximum period of three hours from receiving the assignment. If the lawyer does not attend within this period, the Bar Association shall appoint a new public defender who must attend as soon as possible, always within the indicated period, without prejudice to the disciplinary responsibility that may be incurred by the absent lawyer.
- The lawyer’s assistance shall include:
a) Requesting, where necessary, that the detainee or prisoner be informed of the rights established in paragraph 2 and that a medical examination be conducted, if needed, as indicated in subparagraph (i).
b) Participating in the detainee’s declaration proceedings, in any identification procedures they are subject to, and in the reconstruction of events in which they participate. The lawyer may request the judge or officer conducting the procedure to take any further statements or clarifications they deem necessary once the procedure has concluded, as well as to record in the official record any incidents that occurred during the process.
c) Informing the detainee of the consequences of agreeing to or refusing to participate in the investigative procedures requested.
If the detainee refuses to provide samples through a buccal swab, in accordance with the provisions of Organic Law 10/2007, of October 8, regulating the police database of identifiers obtained from DNA, the investigating judge, at the request of the Judicial Police or the Public Prosecutor’s Office, may enforce the procedure using the minimum necessary coercive measures, which must be proportionate to the circumstances of the case and respectful of the detainee’s dignity.
d) Holding a confidential interview with the detainee, even before they make a statement to the police, the prosecutor, or the judicial authority, without prejudice to the provisions of Article 527.
- Communications between the accused and their lawyer shall be confidential, subject to the same terms and exceptions outlined in paragraph 4 of Article 118.
- Nevertheless, the detainee or prisoner may waive the mandatory assistance of a lawyer if their detention is for acts that may only be classified as traffic-related offenses, provided that they have been clearly and sufficiently informed in simple and comprehensible language about the content of this right and the consequences of the waiver. The detainee may revoke their waiver at any time.
Right to be Informed of the Reasons for Detention
The Right to Be Informed: A Fundamental Guarantee in Detention
One of the first and most crucial rights of any detainee is the right to be informed of the reasons for their detention. As established in Article 520 of the Criminal Procedure Law, police or judicial authorities are obligated to clearly and comprehensibly explain the charges and the reasons for the deprivation of liberty, ensuring transparency and protection of the detainee’s legal rights from the outset.
Right to Legal Assistance
Legal Assistance: A Fundamental Right for Detainees in Spain
In Spain, every individual detained has the right to immediate legal assistance from the moment their liberty is restricted. This vital right is safeguarded by Article 17.3 of the Spanish Constitution and Article 520.2 of the Criminal Procedure Law.
Detainees have the option to choose a lawyer of their preference, or if they do not have one, the state will appoint a public defender. This right is essential to guarantee fair treatment and ensure the detainee receives a proper legal defense throughout the process.
The Article 520.2 of the Criminal Procedure Law:
- The detainee shall freely appoint a lawyer, and if they fail to do so, they shall be assisted by a public defender. No authority or officer shall make any recommendations regarding the lawyer to be appointed beyond informing the detainee of their right.
The authority in custody of the detainee shall immediately inform the Bar Association of the name of the lawyer appointed by the detainee to assist them for the purposes of localization and professional assignment, or if applicable, they shall inform the Bar Association of the request for the appointment of a public defender.
If the detainee has not appointed a lawyer, or the appointed lawyer refuses the assignment or cannot be found, the Bar Association shall immediately appoint a lawyer from the public defender list.
The appointed lawyer shall attend the detention center as quickly as possible, always within the maximum period of three hours from receiving the assignment. If the lawyer does not attend within this period, the Bar Association shall appoint a new public defender who must attend as soon as possible, always within the indicated period, without prejudice to the disciplinary responsibility that may be incurred by the absent lawyer.
- The lawyer’s assistance shall include:
a) Requesting, where necessary, that the detainee or prisoner be informed of the rights established in paragraph 2 and that a medical examination be conducted, if needed, as indicated in subparagraph (i).
b) Participating in the detainee’s declaration proceedings, in any identification procedures they are subject to, and in the reconstruction of events in which they participate. The lawyer may request the judge or officer conducting the procedure to take any further statements or clarifications they deem necessary once the procedure has concluded, as well as to record in the official record any incidents that occurred during the process.
c) Informing the detainee of the consequences of agreeing to or refusing to participate in the investigative procedures requested.
If the detainee refuses to provide samples through a buccal swab, in accordance with the provisions of Organic Law 10/2007, of October 8, regulating the police database of identifiers obtained from DNA, the investigating judge, at the request of the Judicial Police or the Public Prosecutor’s Office, may enforce the procedure using the minimum necessary coercive measures, which must be proportionate to the circumstances of the case and respectful of the detainee’s dignity.
d) Holding a confidential interview with the detainee, even before they make a statement to the police, the prosecutor, or the judicial authority, without prejudice to the provisions of Article 527.
- Communications between the accused and their lawyer shall be confidential, subject to the same terms and exceptions outlined in paragraph 4 of Article 118.
- Nevertheless, the detainee or prisoner may waive the mandatory assistance of a lawyer if their detention is for acts that may only be classified as traffic-related offenses, provided that they have been clearly and sufficiently informed in simple and comprehensible language about the content of this right and the consequences of the waiver. The detainee may revoke their waiver at any time.
Right to Remain Silent
The Right to Remain Silent: Protecting Detainees in Spain
Detainees in Spain have the right to remain silent or, if they choose, to only provide statements before a judge. This crucial right, outlined in Article 24 of the Spanish Constitution, ensures that authorities cannot compel the detainee to answer questions or self-incriminate. It serves as a fundamental protection during detention, safeguarding the individual’s legal integrity.
Right to Presumption of Innocence
Presumption of Innocence: A Pillar of Justice in Spain
In Spain, the principle of presumption of innocence is a fundamental cornerstone of the judicial system. This means that every detainee is considered innocent until proven guilty through a fair and transparent judicial process. This critical right is enshrined in Article 24 of the Spanish Constitution, ensuring the protection of individuals’ rights throughout legal proceedings.
Right to Communicate with Family or Loved Ones
Right to Communication: Keeping Detainees Connected
Detainees in Spain have the right to communicate with a family member or trusted individual to inform them of their situation. This important right is regulated under Article 520.6 of the Criminal Procedure Law, ensuring that detainees can stay connected and receive support during their detention.
Maximum Duration of Detention
Maximum Detention Period in Spain: 72-Hour Limit
In Spain, the maximum period for detention without trial is strictly limited to 72 hours. If the authorities fail to present the detainee before a judge within this timeframe, they are legally required to release them. This time limit is established in Article 17 of the Spanish Constitution, ensuring a swift judicial process and protection of individual rights.
Rights of Minors in Detention
Special Rights for Minors in Detention
Minors (under 18 years of age) in Spain have special rights when detained. In addition to the general rights afforded to all detainees, minors benefit from additional protections under Organic Law 5/2000 on the Penal Responsibility of Minors, ensuring their treatment is appropriate for their age and circumstances during the legal process.
Protections Against Inhumane or Degrading Treatment
Right to Dignity and Respect in Detention
All detainees have the right to be treated with respect and dignity, free from any form of inhumane or degrading treatment. This fundamental right is safeguarded by Article 15 of the Spanish Constitution and the European Convention on Human Rights, ensuring that detainees are protected from abuse throughout the legal process.
Habeas Corpus: A Guarantee of Freedom
Habeas Corpus: Safeguarding Against Unlawful Detention
Habeas corpus is a legal procedure that enables anyone unlawfully detained to request an immediate judicial review of their detention. Governed by the Habeas Corpus Act, this process ensures that no individual is unjustly deprived of their liberty, providing a crucial check on the legality of detention.
Detention Record
Detainee Logbook: Ensuring Accountability in Detention
All detentions must be officially recorded in a detainee logbook, documenting crucial details such as the reason for detention, location, and time. This record acts as a safeguard against arbitrary or abusive detentions, ensuring transparency and accountability throughout the detention process.
Frequently Asked Questions
Frequently Asked Questions
1. What happens if I am not informed of my rights when detained?
If you are not informed of your rights, it will be considered a procedural violation, which can have legal consequences, such as the nullification of the proceedings.
2. Can I choose the lawyer who will represent me during detention?
Yes, you can choose a lawyer you trust. If you do not have one, the state will appoint a public defender.
3. What happens if I am a foreigner and do not speak Spanish?
You have the right to an interpreter to assist you throughout the entire process, from detention to trial.
4. Is it legal for me to be interrogated without the presence of a lawyer?
No, every detainee has the right to have their lawyer present during any police or judicial interrogation.
5. Can I refuse to make a statement to the police?
Yes, you have the right to remain silent and not to make any self-incriminating statements.
6. What can I do if I believe I have been mistreated during detention?
You can file a complaint in court and request an investigation. You may also exercise your right to habeas corpus.
Sources:
Spanish Constitution: Guarantees the right to personal freedom and security, as well as the presumption of innocence. See Articles 17 and 24.
Criminal Procedure Act (LECrim): Regulates the right to be informed of the reasons for detention, legal assistance, and the maximum duration of detention. See Article 520.
Organic Law on the Criminal Responsibility of Minors: Establishes the rights of detained minors.
Organic Law 5/2000 on the Criminal Responsibility of Minors
European Convention on Human Rights: Protects against inhuman or degrading treatment. See Article 3.
Organic Law on Habeas Corpus: Regulates the immediate review procedure of detention. See Organic Law 6/1984.
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