Criminal lawPractical guidesThe pre-trial detention hearing under Article 505 LECrim and access to the evidence

The pre-trial detention hearing must be suspended if the defence has not been given access to the essential elements of the file.

The case

The Spanish Constitutional Court granted constitutional protection because the hearing under Article 505 of the Criminal Procedure Act (LECrim) was not suspended to give the defence access to the essential elements of the proceedings, despite an express complaint, and because the detention order was served without the evidence on which it rested. The Court found a breach of personal liberty (Article 17(1) of the Constitution) and of the right of defence (Article 24(2)).

The detention hearing

Article 505 LECrim governs the hearing at which pre-trial detention is decided. It is the key moment of the defence against the measure. The judgment makes clear that, if the defence has not been able to access the essential elements, the proper course is to suspend the hearing until that is remedied, not to hold it blind.

Two keys: if you do not have access to the evidence, you may ask for the Article 505 hearing to be suspended; and the detention order must set out the evidence on which it relies.

What it means for your defence

This decision gives the defence a concrete and very practical tool for the detention hearing: requesting its suspension when the essential elements have not been provided. It must be raised at the time, with confidence and on the record, because the viability of a later appeal depends on it. Preparing that hearing, anticipating the request for access, knowing the case law and reacting to a refusal, is where the experience of a good criminal lawyer shows.

A practical note

Prepare the Article 505 hearing by anticipating the request for access to the essential elements; if they have not been provided, request the suspension of the hearing. Reacting at the time, with confidence and on the record, is what opens the door to an effective appeal.

How to defend your procedural guarantees

In matters of procedural guarantees, the decisive events usually take place in the first hours and the first written submissions. The defence must ensure respect for the right to information, access to the essential elements of the file, legal assistance and the reasoning of any measure affecting liberty. When one of these rights is breached, regret is not enough: it must be recorded at the time and the appropriate appeal must be framed. The case law of the Constitutional Court and the Supreme Court provides a solid body to challenge actions that depart from the guarantees. Identifying the defect, documenting it and fitting it into the applicable doctrine is what turns a complaint into a nullity or an effective reduction.

Source: Constitutional Court judgment 30/2023 of 17 April, ECLI:ES:TC:2023:30.

What the judge must find in order to order detention

The hearing under Article 505 is not a formality: pre-trial detention may be ordered only if the requirements of Article 503 of the Criminal Procedure Act are met. There must be an offence punishable with imprisonment of two years or more, or less where the person has unexpired criminal records; there must be sufficient grounds to believe that the person is criminally responsible; and detention must pursue one of the purposes recognised by law, namely preventing the risk of flight, preventing the concealment, alteration or destruction of evidence, preventing the person from acting against the victim’s legal interests or, in specific cases, preventing reoffending. The judge must also consider that no less burdensome measure would serve the same purpose, and must give reasons for each of these findings in the decision.

The defence’s task: alternatives to prison

Because detention is exceptional, the lawyer’s work at the hearing is to show that a lesser measure is sufficient. The Criminal Procedure Act allows release on bail, periodic appearances before the court, the withdrawal of the passport, the prohibition on leaving Spain and, where the victim needs protection, restraining and no-contact orders. The strength of these alternatives depends on documentation: a fixed address, employment or income, family responsibilities, the absence of criminal records and, for foreign residents, proof of stable residence and ties in Spain. All of it must be gathered in the hours before the hearing, often through the family, which is why the lawyer’s contact with relatives during the police custody is so important.

Time limits and review

Pre-trial detention is subject to maximum periods set by Article 504 of the Criminal Procedure Act according to the penalty attached to the offence, which may be extended only by a reasoned decision, and it must end when the reasons that justified it disappear. The detained person may ask for its review at any time when circumstances change, and the decision ordering it may be appealed. Where the essential elements were withheld at the hearing, that irregularity is the first ground of appeal, because the person could not contest the evidence on which the request was based.

Frequently asked questions

What is the Article 505 hearing?

The hearing at which the court decides on pre-trial detention, after hearing the prosecution, the private accusation and the defence.

Can I ask for it to be suspended?

Yes, if you have not had access to the essential elements of the proceedings needed to defend yourself, as the Constitutional Court held in judgment 30/2023.

Must the detention order give reasons?

Yes: it must set out the evidence and the purposes of the measure. An order without that reasoning can be challenged.

What requirements does Article 503 set for pre-trial detention?

An offence punishable with imprisonment of two years or more (or less if the person has unexpired records), sufficient grounds of criminal responsibility and one of the legal purposes: preventing flight, the destruction of evidence, harm to the victim or reoffending.

What alternatives to pre-trial detention can the defence propose?

Release on bail, periodic appearances before the court, the withdrawal of the passport, a prohibition on leaving Spain and, where the victim needs protection, restraining and no-contact orders.

Related guides

• Access to the police report and the essential elements
• Arrested in Madrid: the first 24 hours
• 24-hour criminal lawyer in Madrid

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