Article 509 Spanish Criminal Procedure Act: Incommunicado Detention

Article 509 of the Criminal Procedure Act permits incommunicado detention only exceptionally, by a reasoned decision, and only where one of two circumstances is present: an urgent need to avoid serious consequences endangering a person’s life, liberty or physical integrity, or an urgent need for immediate action by the investigating court to prevent serious harm to the proceedings. It may not exceed five days, extendable by a further five only in terrorism and organised crime cases, and it can never be applied to a person under sixteen.

Wording of Article 509 of the Spanish Criminal Procedure Act

Requirements and procedure

1. One of the two circumstances of paragraph 1, established on the concrete facts and not by reference to the seriousness of the offence alone.
2. A reasoned judicial decision stating why the measure is necessary. The reasons must address the specific danger, not merely recite the statutory formula.
3. Strict necessity in time, with a maximum of five days and an extension of five more only in the cases the article lists.
4. That the person is not under sixteen years of age.

Defence strategy

Sufficiency of the reasons. This measure is the most intense restriction available during detention, and the case law requires reasons proportionate to it. A decision that reproduces the wording of the statute, that rests on the classification of the offence, or that does not identify the specific danger, is challengeable at once. The defence requests the decision immediately and, where it is defective, seeks its revocation and records the objection for the purposes of everything obtained during the period.

The five-day limit and the extension. The extension is available only in the cases of article 384 bis and in offences committed in concert by two or more persons in an organised manner. Where those conditions are absent, an extension is unlawful. The defence computes the period by the hour from the moment of arrest and verifies the date of each decision against the docket.

Access to the material essential to challenge the detention. Even under this regime, article 527(1)(d) preserves access to the elements essential to challenge the lawfulness of the detention. That access is frequently denied in practice on the basis that the proceedings are secret. The defence insists on it in writing, since without it the custody hearing under article 505 cannot be contested effectively.

Medical examinations and the record of the period. Where communication is restricted, article 527(3) requires at least two medical examinations every twenty-four hours. Those reports are the objective record of the detainee’s condition and the defence obtains them in full. Their absence, or their reduction to a single examination, is both a breach in itself and a matter that bears on the validity of any statement made during the period.

• Article 527: rights restricted under the incommunicado regime
• Article 520: rights in police custody
• Detention time limits and habeas corpus
• 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.