Article 490 Spanish Criminal Procedure Act: Citizen’s Arrest

Article 490 of the Criminal Procedure Act lists the seven situations in which any person may make an arrest: a person about to commit an offence at the moment of doing so, an offender caught in the act, and five categories of escapee or absconder. Outside that list a private individual has no power of arrest, and an arrest made outside it exposes the person making it to the offence of unlawful detention under article 163 of the Criminal Code, subject to the lesser offence in its fourth paragraph. The article is therefore of daily importance to security staff, business owners and neighbours.

Wording of Article 490 of the Spanish Criminal Procedure Act

Requirements and procedure

1. One of the seven situations listed, which is an exhaustive list not open to extension by analogy.
2. For the offender caught in the act, actual perception of the commission and immediacy, not suspicion however well founded.
3. Proportionality in the means used, since the power to arrest does not authorise force beyond what is necessary to secure the person.
4. Immediate delivery of the person arrested to the authorities, as required by article 491.

Defence strategy

Whether the offence was being committed in the act. This is the element on which the lawfulness of most private arrests depends. Detaining a person on the basis of a report by a colleague, of a recording viewed afterwards, or of a suspicion arising from behaviour is not an arrest of an offender caught in the act. The defence, whether acting for the person arrested or for the person who arrested, establishes what was actually perceived and when, using the recordings and the accounts of those present.

Acting for security staff and business owners. Where the client made the arrest, the argument is that the situation fell within the list and that the force used and the time elapsed before the police arrived were reasonable. Where it did not, the fallback is article 163.4 of the Criminal Code, which punishes with a fine alone the person who apprehends another in order to hand him over immediately to the authorities. Establishing that the police were called at once is therefore essential.

Consequences for the person arrested. Where the arrest was unlawful, the resistance offered to it loses its criminal character, and any evidence obtained in the course of it, including property found on searching the person, is open to challenge. This is the argument that responds to charges under articles 550 and 556 of the Criminal Code arising from incidents with private security personnel.

Excessive force and injuries. The power to arrest does not authorise disproportionate force. Where injuries were caused to the person arrested, the defence obtains the medical report and the recordings, since a takedown continued after the person ceased to resist gives rise to an offence of bodily harm irrespective of whether the arrest itself was lawful.

• Article 492: police duty to arrest
• Article 163: unlawful detention
• Arrest and police custody rights
• Spanish-language entry

This entry is provided for information only and does not constitute legal advice. The application of any provision depends on the circumstances of the individual case and requires examination of the case file by a qualified lawyer.