Sin categoríaThe rights of detainees in Spain: legal assistance, time limits and habeas corpus

Being arrested is one of the most distressing situations a person can experience. In those first moments, knowing which safeguards protect the person in police custody makes the difference between an arrest that respects the law and a violation of rights that can affect the entire subsequent procedure. The Spanish Constitution and the Criminal Procedure Act (LECrim) recognise for every detained person a catalogue of non-waivable rights that operate from the very instant of the deprivation of liberty.

What an arrest is and when it is lawful

Arrest is a personal precautionary measure entailing the temporary deprivation of liberty of a person against whom there are rational indications of having taken part in a criminal act. It is neither a conviction nor a declaration of guilt: it is an instrument of the criminal process subject to strict limits. To be lawful, the arrest must rest on objective indications, respect the principle of proportionality and last only the time strictly necessary for the enquiries aimed at clarifying the facts. Both the police and, in certain cases, private individuals may carry out an arrest, but the regime of safeguards is activated in every case. The detained person does not lose their status as innocent: the presumption of innocence accompanies them throughout the proceedings and only a final judgment can rebut it.

The catalogue of rights under Article 520 LECrim

Article 520 of the LECrim is the cornerstone of the detainee’s safeguards. Among the rights it recognises are the right to be informed, immediately and comprehensibly, of the facts attributed and the reasons for the arrest; the right to remain silent, not testifying if they do not wish to; the right not to testify against themselves and not to confess guilt; and the right to appoint a lawyer and to be assisted by one without unjustified delay. To these are added the right to have the arrest and the place of custody communicated to a relative or person of their choice, the right to be assisted free of charge by an interpreter when they do not understand the language, the right to be examined by a forensic doctor, and the right of access to the elements of the proceedings essential to challenge the lawfulness of the arrest.

Essential rights of the detainee: to be informed of the reasons and the facts, to remain silent, not to testify against oneself, assistance of a lawyer, communication of the arrest to a relative, an interpreter if needed, medical examination and access to the essential elements of the case.

The maximum period of detention: 72 hours

One of the most important limits is temporal. Preventive detention may not last longer than strictly necessary and, in any event, within the maximum period of seventy-two hours the detainee must be released or brought before the judicial authority. This limit, enshrined in the Constitution, is a safeguard against prolonged deprivations of liberty without judicial control. Once that period elapses without bringing the detainee before the judge, the detention becomes unlawful. The period runs from the actual moment of the deprivation of liberty, not from arrival at the police station, a nuance relevant for the defence.

The right to the assistance of a lawyer

Legal assistance is probably the most decisive safeguard. The detainee has the right to be assisted by a lawyer of their choice or, if they do not appoint one, by a court-appointed lawyer, free of charge if they lack means. The lawyer may confer privately with the detainee even before they make any statement, and must be present during the taking of statements and identification procedures. This presence is not a formality: it guarantees that the person understands their rights and that the statement is given freely and without coercion.

The habeas corpus procedure

When a person considers that they are being detained unlawfully, the legal system provides a fast and specific mechanism: the habeas corpus procedure, governed by Organic Law 6/1984. Its purpose is to bring any unlawfully detained person immediately before a judge, so that the judge examines the lawfulness of the detention and orders, where appropriate, their release. It is a summary and preferential procedure that may be initiated by the detainee themselves, their relatives, the Public Prosecutor or the Ombudsman.

What to do if these rights are violated

The violation of a detainee’s rights is not without consequences. Statements or evidence obtained in breach of essential safeguards can be declared null and expelled from the proceedings, in accordance with the doctrine on unlawful evidence. That is why it is fundamental to have legal assistance as soon as possible: a lawyer can document the irregularities, request the medical examination, initiate habeas corpus and prepare the defence strategy from the first moment. Knowing these rights, and exercising them, is the best protection in such a delicate moment.

Related: 24-hour lawyer for detainees, detainee rights FAQ and our guide to the Spanish Criminal Procedure Act.