Criminal lawPractical guidesThe right of access to the police report and the “essential elements”: the silent lever of criminal defence in Spain

No defence can challenge what it does not know. That is why the right of access to the case materials, enshrined in Directive 2012/13/EU and transposed into the Spanish Criminal Procedure Act (LECrim) in 2015, has become one of the most effective and least understood levers of Spanish criminal proceedings. Circular 3/2018 of the Public Prosecutor’s Office and the good-practice protocol of the Madrid Bar Association (ICAM) have shaped its practical scope.

Three levels of a single right

The Directive distinguishes three levels: the right to be informed of one’s rights (in writing, in the case of detained persons), the right to know the facts and their legal classification, and the right of access to the case materials. The holder is not only the detained person: any suspect holds it from the first moment and, at the latest, before their first questioning.

At the police station: the essential elements of the police report

The detained person and their lawyer are entitled to access those elements of the file that are essential to challenge the lawfulness of the arrest: when and where it took place, which facts are attributed and what evidence exists. The ICAM protocol guides the lawyer to request a copy of the police report or, at least, to read it, and to have any unjustified refusal recorded in the minutes, as Article 520(6) LECrim allows, considering habeas corpus where appropriate. There are only three exhaustive grounds for refusal: secrecy of the proceedings, protection of the data of protected witnesses and incommunicado detention.

Before the court: the pre-trial detention hearing

Access reaches its greatest intensity when pre-trial detention is requested: Articles 503 and 505 LECrim, read in the reinforced sense of Circular 3/2018, require the defence to have access to the essential elements before the hearing at which the measure is decided. A detention ordered without that access is flawed from the outset and can be appealed on solid grounds. The same applies, with nuances, to persons sought under a European arrest warrant.

Investigated but not arrested: Article 118 LECrim

A person under investigation who has not been arrested retains the same rights of information and access from the moment the facts are attributed to them, without waiting for the summons. Activating them early, by appearing in the proceedings and examining the file before making a statement, is the difference between a strategic statement and a blind one. During the investigation, the parties who have appeared may also obtain copies of decisions and proceedings, except under temporary secrecy.

The strategic reading

In our practice as criminal lawyers in Alicante and Madrid, access to the file is the first battle of almost every case: it conditions the statement, the detention hearing and the whole design of the defence. Documenting every refusal and every limitation is not bureaucracy: it is building, from the first minute, the grounds of the appeal.

The European origin of the right

The right of access to the essential elements of the file is not a Spanish peculiarity. It implements Article 7 of Directive 2012/13/EU on the right to information in criminal proceedings, which requires Member States to ensure that a person who is arrested and detained, or their lawyer, has access to the documents in the possession of the authorities that are essential to challenging effectively the lawfulness of the arrest or detention. Spain transposed it into Article 520.2.d) of the Criminal Procedure Act, and the Constitutional Court, in its judgment 13/2017, held that denying the lawyer access to those elements before the police statement breaches the fundamental rights of the detained person. The European standard is therefore the benchmark when the police argue that the investigation is secret or that the file is incomplete.

Incommunicado detention: the exception

The only situation in which access may lawfully be restricted is incommunicado detention, which a judge may order under Articles 509 and 527 of the Criminal Procedure Act in cases of terrorism or organised crime, for the time strictly necessary and, as a rule, for no more than five days. In that case the detained person may be deprived of choosing their own lawyer, of the private interview with the lawyer and of access to the elements of the file, but the judge must justify each restriction, the person is assisted by a duty lawyer and is examined by forensic doctors. Outside this exception, which is exceptional in practice, any refusal of access is unlawful and must be recorded.

The lawyer’s checklist at the police station

Before the statement, the lawyer asks for the exact time and place of the arrest, the facts and their provisional legal classification, the complaint or report that gave rise to the arrest, the statements of the complainant and witnesses, the records of seizure and of identification and any photographs, recordings or documents on which the arrest is based. If any of them is refused, the lawyer has the refusal and its reasons recorded in the statement and may advise the person to exercise their right to remain silent, since a statement given without knowing the accusation is of little use and may be harmful. The same request is repeated before the investigating judge, where the file is normally complete. Our lawyers attend police stations in Madrid and Alicante and provide this assistance in English and French.

Frequently asked questions

Can the police refuse to show the report to the lawyer?

Only on three exhaustive grounds: secrecy of the proceedings, protection of the data of protected witnesses and incommunicado detention. Any other refusal must be recorded in the minutes and may found a habeas corpus application.

What happens if pre-trial detention is ordered without access to the essential elements?

The order is flawed from the outset; the defence may request the suspension of the hearing and, if the measure is nevertheless adopted, appeal it on solid grounds.

Does the right apply to a person who has not been arrested?

Yes. Under Article 118 LECrim, anyone to whom facts are attributed holds the same rights of information and access from that moment, without waiting to be summoned.

Which European rule guarantees access to the essential elements of the file?

Article 7 of Directive 2012/13/EU on the right to information in criminal proceedings, transposed into Article 520.2.d) of the Spanish Criminal Procedure Act.

Can the police ever refuse access to the file?

Only in incommunicado detention ordered by a judge in cases of terrorism or organised crime, under Articles 509 and 527 of the Criminal Procedure Act. In any other case the refusal is unlawful and should be recorded in the statement.

Related guides

• Arrested in Madrid: the first 24 hours
• 24-hour criminal lawyer in Madrid
• Frequently asked questions on criminal defence in Spain

This article is informative in nature and does not constitute legal advice. For a specific case, consult a lawyer.