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Bail and Pre-Trial Detention · Alicante · Madrid · All Spain
Bail and Pre-Trial Detention in Spain
Pre-trial detention in Spain is a precautionary measure, not a punishment, and it has to be justified against strict statutory requirements.
Those requirements are where the argument is won.
In brief. How Spanish courts decide pre-trial detention, how to defeat the flight risk argument and what alternatives to custody can be offered.
At a glance
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When a court can order pre-trial detention
Articles 502 to 508 of the Criminal Procedure Act allow provisional detention only where four conditions are met at once: the offence carries a penalty of two years or more, or the person has a criminal record; there are sufficient grounds to believe the person is criminally responsible; the measure is requested by the prosecution or a private prosecutor, since the judge cannot order it of its own motion; and it pursues one of the legitimate purposes listed in the Act.
Those purposes are exhaustive: securing the presence of the defendant where there is a risk of flight, preventing the concealment or destruction of evidence, preventing action against the legal interests of the victim, and preventing the repetition of offences. Detention cannot be ordered to punish, to reassure public opinion or to pressure a defendant into confessing, and where the reasoning in the order does not identify a genuine purpose the order is appealable.
Defence
The flight risk argument, and how to defeat it
For a foreign national the prosecution argument is almost always flight risk, supported by the fact that the person has ties abroad. The counterweight is evidence, produced at the first hearing rather than promised for later: proof of a registered address in Spain, the municipal registration certificate, a tenancy or property deed, employment or business activity, family members resident in Spain, school registration for children, and a willingness to surrender the passport.
The alternatives to detention in article 530 and following can then be offered as a package: surrender of the passport, periodic appearance at the court or at a police station, a prohibition on leaving national territory, and a financial security. The amount of any bail must be set by reference to the nature of the offence, the personal and financial circumstances of the defendant and the purpose pursued, and a figure fixed without that analysis can be reduced on appeal.
Defence
Duration, review and compensation
Provisional detention has statutory limits. Where it is ordered to prevent flight or the repetition of offences, the limit is one year for offences punishable by up to three years and two years for more serious offences, extendable by a further period where the case is complex and a conviction is likely. Where the purpose is to protect evidence, the limit is six months.
Detention must be reviewed whenever the circumstances change, and there is no reason to wait for the statutory review date. A new address, a job offer, a family situation, the completion of the evidence that was said to be at risk, or the mere passage of time weakening the flight argument are all grounds for a fresh application. Where a person is finally acquitted or the case is dismissed, article 294 of the Judiciary Act allows a claim for compensation for the time spent in custody.
Framework
Pre-trial detention is an exceptional measure
Pre-trial detention (prisión provisional) is governed by articles 502 and following of the Criminal Procedure Act. It is an exceptional measure that a judge may order only where there are sufficient indications of the offence and one of the strictly defined aims is present: to avoid a risk of flight, to prevent the alteration of evidence, or to guard against the risk of reoffending.
The decision is taken at the hearing provided for in article 505, held shortly after arrest, at which the defence can be heard. What is argued at that hearing frequently determines whether the accused awaits trial in liberty or in custody.
Alternatives
Alternatives to custody
The law favours the least restrictive measure capable of securing the aims of the proceedings. Alternatives to custody include release on bail (fianza), the withdrawal of the passport, a prohibition on leaving the country, and the obligation to report periodically to the court.
We build the case for these alternatives around the accused’s personal circumstances, ties to the area and any guarantees that can be offered, so that the court has a concrete and credible basis for ordering liberty rather than detention.
Time limits
Duration, review and appeal
Pre-trial detention is subject to maximum periods that vary with the seriousness of the offence, and it may only be extended under the conditions set by law. It is not a settled state: its revocation or replacement by a lighter measure can be sought at any time as circumstances change.
We also pursue the appeals available against a detention order, and we monitor the running of the statutory limits so that no period of custody continues beyond what the law permits.
Strategy
How we fight for provisional liberty
From the first hours we gather the material that supports release: proof of residence and employment, family ties, and the offer of guarantees that neutralise any risk of flight. Where the file allows, we also challenge the strength of the indications relied on for detention.
For clients who are foreign nationals, we address directly the concern that ties abroad imply a flight risk, presenting the practical arrangements that keep the accused answerable to the court while at liberty.
Assessment
How the court assesses the risk of flight
In deciding whether to order pre-trial detention, the court weighs the risk that the accused will not appear. It considers the seriousness of the possible penalty, the strength of the ties to the area, such as residence, family and employment, and the practical means the accused would have to leave.
A well-prepared appearance addresses each of these factors with evidence, rather than assertion, which is what allows a judge to be satisfied that liberty under conditions is sufficient.
Non-residents
Pre-trial detention and non-residents
For foreign nationals, the concern that ties abroad indicate a flight risk is often the central obstacle to release. It can be met with concrete measures: surrender of the passport, an address for service in Spain, periodic reporting and, where relevant, the framework of European cooperation that keeps the accused answerable.
We build this framework so that the court has a credible alternative to custody, rather than defaulting to detention simply because the accused lives abroad.
Credit
Time in custody and its effect on the sentence
Time spent in pre-trial detention is not lost: it is credited against any custodial sentence ultimately imposed (abono de prisión preventiva). Understanding this is important when weighing strategy, although it never justifies unnecessary custody.
We keep the running of any detention under constant review, so that the credit is correctly applied and so that no period of custody continues beyond what the law allows.
Related
Related pages
FAQ
What clients ask us most
How quickly is the decision taken
At the hearing held within seventy-two hours of arrest. That hearing is where the outcome is decided, so the supporting documents about ties to Spain need to be gathered immediately, in parallel with the arrest itself.
Can bail be paid by a third party or a company
Yes. Security can be provided by a third party, in cash, by bank guarantee or by charge over property, and the court will accept a guarantee from a company where it is properly documented.
Will time in pre-trial detention count towards a sentence
Yes. It is deducted in full from any prison sentence imposed, and where the sentence is of a different nature it is offset under article 58 and following of the Criminal Code.
Can I leave Spain while the case is pending
Only if the court allows it. Where a prohibition on leaving the territory is in force, travel requires prior judicial authorisation, which can be requested and is often granted for documented work or family reasons.
Speak to a criminal lawyer
The earlier we see the file, the more can be done with it.
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