Pre-trial detention (prisión provisional) is the most severe precautionary measure in criminal proceedings, since it deprives of liberty a person who has not yet been convicted. For this reason, its adoption is subject to strict requirements, and the defence at that moment is decisive.
What it is and when it applies (Articles 502 et seq. LECrim)
It is the provisional imprisonment of the suspect while the case is being processed. It is only possible where there is evidence of an offence carrying a certain penalty and one of its statutory purposes is present.
The purposes that justify it
Preventing the risk of flight, the destruction or concealment of evidence, the risk of reoffending or protecting the victim. It must be proportionate and the last resort.
The hearing under art. 505
Before it is ordered, a hearing is held at which the defence may object and propose alternatives. It is a critical moment: having a well-prepared lawyer can make the difference between imprisonment and release.
Less onerous alternatives
The judge may order less restrictive measures: provisional release with or without bail, periodic appearances apud acta, surrender of the passport or a ban on leaving the country.
Duration and credit
Pre-trial detention has maximum limits depending on the penalty for the offence. The time served is credited against any sentence subsequently imposed.
How to appeal
The order imposing it may be challenged (application for reconsideration and appeal), and a review of the measure may be requested if circumstances change. The defence must be alert to every opportunity.
Frequently asked questions
How long can it last? It depends on the seriousness of the offence, with statutory caps and possible extensions. Is it deducted from the sentence? Yes, it is credited. Can I apply for release later? Yes, if circumstances change.
Are you in this situation? Do not make any statement or take decisions without legal advice. At Société Juridique we are available for emergencies 24 hours a day: 669 30 21 13.
Informative guide; it does not constitute legal advice.
Francisco Javier Martín Porras
Abogado penalista, socio de Société de Conseil Juridique et Expert y creador de la metodología LIWARD®. Dirige la defensa en procedimientos penales de alta complejidad, combinando estrategia procesal con análisis pericial y forense. Conozca al equipo →
