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In most deprivation-of-liberty cases the facts are barely disputed: a locked door, a car that did not stop, a back room with a customer inside. What is disputed is what to call it, and the distance between the two possible answers is enormous.
In brief. Coercion under Article 172.1 carries six months to three years or a fine; unlawful detention under Article 163.1 starts at four years. The classification also determines the court (Provincial Court for the basic offence), the limitation period (five versus ten years) and how the pre-trial detention hearing of Article 505 LECrim unfolds. The initial classification tends to drag: the useful work begins on day one.
In most deprivation-of-liberty proceedings that reach this firm, the facts are hardly contested. Nobody denies there was a locked door, a car that did not stop, or a back room with a customer inside. What is disputed is what that is called. And the distance between the two possible answers is enormous: coercion under Article 172.1 carries six months to three years or a fine, while unlawful detention under Article 163.1 starts at four years and, exceeding five years of penalty, is tried by the Provincial Court. Coercion becomes time-barred at five years; unlawful detention at ten.
The provisional classification suggested by the police report tends to drag along: if the investigating judge opens for unlawful detention, reversing it later requires an evidential effort that would have been unnecessary had the defence brief arrived earlier with the chronology properly fixed. Arguing from the outset that the conduct is coercion, with data to support it, is a legitimate and frequently the most realistic strategy.
| Conduct | Article | Penalty framework | Key factor |
|---|---|---|---|
| Coercion | 172.1 | 6 months – 3 years or fine | Brief, instrumental retention without confinement |
| Unlawful detention (basic) | 163.1 | 4 – 6 years | Effective confinement; tried by the Provincial Court |
| Release within 3 days | 163.2 | Penalty one degree lower | Voluntary release without achieving the object |
| Over 15 days | 163.3 | 5 – 8 years | The computation becomes the trial’s core |
| Citizen’s arrest exceeded | 163.4 | Attenuated penalty | Arts. 490-491 LECrim cases and immediate handover |
| Kidnapping | 164 | 6 – 10 years | Any condition demanded for release |
| Aggravations | 165-166 | Penalty one degree higher | Simulated authority, minors, disappearance |
| Authority or officer | 167 | Penalty + absolute disqualification | Acting outside legally permitted cases |
Penalty ranges are indicative and set out the ordinary framework; the sentence actually imposed depends on the circumstances of each case.
The Criminal Code sets no minimum duration: unlawful detention is complete the moment liberty is deprived and continues while it lasts, though the courts demand a minimum relevance, redirecting fleeting or purely instrumental deprivations to coercion or absorbing them in another offence. Time appears expressly at two points: the one-degree reduction for release within three days without achieving the object, and the elevation beyond fifteen days. The useful material is almost always the same: establishment cameras, the exact time of the police call, the route of the vehicle and the express requests to stop; all of it is lost quickly if nobody requests it.
At the Article 505 LECrim hearing on pre-trial detention, arriving with documentation of local ties prepared, the chronology that reduces the apparent gravity, and demanding access to the essential elements of the file before taking any position, changes outcomes; constitutional doctrine clearly supports that access. And a frank word: in a share of these cases the realistic objective is not acquittal but the correct classification, which turns years of prison into a suspendable penalty.
Those accused after a dispute, a retention in premises or a vehicle episode: the classification as the realistic battlefield.
Shops and security guards after retaining a suspected thief: the Articles 490-491 LECrim cover and its limits.
Persons deprived of liberty: private prosecution sustaining its own classification where the prosecutor sees only coercion.
Detainees who signed papers they did not understand: rights information in a comprehensible language and challenge of derived statements.
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