Arrest and Police Custody in Spain: Your Rights · Alicante · Madrid · All Spain
What you do in the first hours after a detention in Spain shapes everything that follows.
This is what the law actually gives you, and what to do with it.
In brief. Your rights during a detention in Spain: the 72 hour limit, article 520, silence, interpreter, consulate and habeas corpus. Available 24 hours.
At a glance
Article 17.2 of the Spanish Constitution sets a maximum of seventy-two hours of police custody. Within that period you must either be released or brought before a judge. In terrorism cases the period can be extended by a further forty-eight hours with judicial authorisation.
During custody the police will carry out identification, a search, and where relevant medical examination, fingerprinting and DNA sampling. The statement to the police normally takes place in the presence of your lawyer, and the file is then sent to the investigating court. If you are brought before the court, that hearing decides on release, on precautionary measures, and where requested on pre-trial detention.
Custody can end in release without charge, release with an obligation to appear, or a transfer to prison. Which of those happens depends heavily on what is argued in the first appearance.
Where a detention is unlawful, exceeds the legal limit or is carried out without respecting these rights, Organic Act 6/1984 provides the habeas corpus procedure. It is fast, it can be started by the detained person, a relative or the lawyer, and the judge must resolve it within twenty-four hours by bringing the detained person before the court.
Beyond that remedy, breaches of the rules on custody can have consequences inside the criminal case. A statement taken without a lawyer, without a real interpreter, or after coercion is challengeable, and evidence obtained through an unlawful search can be excluded under article 11.1 of the Judiciary Act. Documenting these breaches at the time, rather than complaining about them months later, is what makes them useful.
The deprivation of liberty is governed in Spain by article 17 of the Constitution and by articles 489 and following of the Criminal Procedure Act. Police detention may last no longer than strictly necessary and, in any event, no longer than seventy-two hours, after which the person must be released or brought before a judge. Only in terrorism offences may the period be extended, with judicial authorisation.
These are not formalities: a detention that exceeds the permitted time, or that continues once its purpose is exhausted, is unlawful and can be challenged.
A person under arrest has the right to be informed of the facts attributed to them and the reasons for the detention, to remain silent and not to incriminate themselves, to the assistance of a lawyer during questioning and identification procedures, and to a free interpreter where they do not understand Spanish.
They are also entitled to notify a relative and, if a foreign national, the consular authorities of their country, and to be examined by a forensic doctor. Ensuring these rights are respected from the first moment is a core part of our work.
Where a detention appears unlawful or is prolonged beyond the permitted limits, the habeas corpus procedure under Organic Law 6/1984 allows the person to be brought immediately before a judge to examine the legality of the deprivation of liberty.
It is one of the first remedies we assess where there are irregularities in the arrest record or in the observance of the detainee’s rights.
We intervene urgently to assist at the police station, to verify that the time limits and rights are respected, and to prepare the strategy for the appearance before the investigating judge, at which the question of liberty or a precautionary measure is decided.
We examine the regularity of the arrest record, the evidence gathered and any statements made, because procedural defects at this stage can affect the entire case that follows.
A person under arrest is not obliged to make a statement on the facts, and the exercise of the right to silence cannot be used as evidence of guilt. Whether, when and what to declare is a strategic decision that should be taken with a lawyer, never under pressure at the police station.
We advise on this decision in each case, because a statement made without full knowledge of the file can constrain the defence for the remainder of the proceedings.
Different rules apply to a pat-down search, the search of a vehicle and the entry and search of a home. The search of a dwelling, in particular, generally requires the consent of the occupant or a reasoned judicial warrant, save in cases of flagrancy.
We examine the legality of any search closely, since evidence obtained through an unlawful entry may be excluded together with what derives from it.
Release from police custody does not mean the matter is over. The person usually continues as a formal suspect (investigado), subject to the ongoing investigation and, in some cases, to precautionary measures such as reporting obligations.
We explain clearly what the status of investigado entails and what the next steps in the proceedings will be, so that the client is prepared rather than taken by surprise.
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Criminal defence in English before the courts of Alicante, Madrid and the whole of Spain. If the arrest took place on the Costa Blanca, our page on criminal defence in Benidorm explains how the local courts handle these cases. Tell us what has happened and we will tell you what the real exposure is.
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