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Article 163 Spanish Criminal Code: Unlawful Detention
Quick answerArticle 163 of the Spanish Criminal Code punishes with four to six years of imprisonment anyone who locks up or detains another, depriving them of their freedom of movement. The penalty is reduced by one degree where the detainee is released within the first three days without the purpose having been achieved, and rises to five to eight years where the confinement exceeds fifteen days.
Article 163 of the Spanish Criminal Code punishes the private individual who confines or detains another, depriving that person of liberty. The penalty of four to six years is severe because the offence protects freedom of movement in itself, and no further harm need be caused. The article rewards early release: freeing the person within the first three days, without having achieved the intended purpose, reduces the sentence by one degree. It also contains a much lighter offence in paragraph 4 for the citizen who apprehends someone in order to hand that person over to the authorities outside the cases the law permits.
Also cited as: article 163 Spanish Criminal Code · art. 163 CP · Spanish Penal Code article 163 · artículo 163 del Código Penal.
Wording of Article 163 of the Spanish Criminal Code
1. A private individual who confines or detains another, depriving that person of liberty, shall be punished with imprisonment of four to six years.
2. Where the offender releases the person confined or detained within the first three days of the detention, without having achieved the purpose he had intended, the penalty one degree lower shall be imposed.
3. Imprisonment of five to eight years shall be imposed where the confinement or detention has lasted more than fifteen days.
4. A private individual who, outside the cases permitted by law, apprehends a person in order to present that person immediately to the authorities shall be punished with a fine of three to six months.
Working translation prepared by Société Juridique from the consolidated Spanish text published by the Official State Gazette. It has no official status: the only authoritative version is the Spanish original, available at the Official State Gazette and reproduced verbatim in our Spanish-language entry for this provision. Source: Organic Law 10/1995 of 23 November, the Spanish Criminal Code.
Sentencing range. Imprisonment of four to six years in the basic form, reduced to a bracket of two years to four years less one day where the person is released within three days without the purpose having been achieved, and raised to five to eight years where the deprivation lasted more than fifteen days. Where a ransom or a condition was demanded, article 164 applies with a materially higher penalty. Apprehension in order to hand the person to the authorities carries only a fine of three to six months.
Key facts
| Protected interest | Freedom of movement, understood as the ability to determine one’s own position in space. |
|---|---|
| Classification | Serious offence under paragraphs 1, 2 and 3. Minor offence punishable by fine under paragraph 4. |
| Completion | Instantaneous. The offence is complete as soon as the victim is unable to move freely; no minimum duration is required. |
| Trial court | Provincial Court under paragraphs 1 to 3, the maximum penalty exceeding five years. Investigating Court sitting in the minor-offence trial under paragraph 4. |
| Procedure | Ordinary or abbreviated procedure, depending on the penalty actually sought by the prosecution. |
| Limitation period | Ten years for the basic offence and for the aggravated form under paragraph 3, under Article 131 of the Criminal Code. |
| Suspension of sentence | Ruled out for the basic offence, the minimum penalty exceeding the two-year threshold in Article 80, unless strongly qualified mitigating circumstances or the reduced form in paragraph 2 apply. |
| Common concurrence | With robbery with violence, sexual assault and domestic violence offences, where the deprivation of liberty may be absorbed if it was the necessary means of committing the main offence. |
Elements of the offence
- Deprivation of freedom of movement, whether by confining the person in a place or by detaining that person elsewhere. There is no minimum duration, although a wholly momentary restraint is treated as coercion under article 172.
- Absence of consent. Consent given at the outset and withdrawn converts lawful company into detention from the moment of the withdrawal.
- A perpetrator who is a private individual. Where the perpetrator is a public official acting outside the cases permitted by law, articles 167 and following apply.
- Intent to deprive the person of liberty. Where the restraint was instrumental to another offence and did not exceed what that offence required, it is absorbed by it rather than punished separately.
Defence strategy
Absorption by the principal offence. This argument resolves a great many cases. Where the restraint lasted only as long as was necessary to commit a robbery, a sexual offence or an assault, the deprivation of liberty is inherent in that offence and is not punished separately. The defence measures the duration and the place of the restraint against what the principal offence required, because prosecutors habitually charge unlawful detention in addition to the principal offence in order to increase the aggregate sentence.
Reclassification to coercion. Where the restraint was brief, where the person could have left but chose not to, or where the obstruction was to a particular movement rather than to freedom of movement as such, the correct provision is coercion under article 172, punished with imprisonment of six months to three years or a fine. Blocking a doorway during an argument, holding a car door closed and preventing someone from leaving a room for a few minutes are the recurring situations, and the distinction rests on the duration and on the effectiveness of the restraint.
The reduction for release within three days. Paragraph 2 is a statutory reduction of one degree, and it applies whenever the release was voluntary and the purpose was not achieved. It is frequently overlooked in the indictment. Establishing the exact hour of the release, and that it was the accused’s own decision rather than the consequence of police intervention, is a matter of documentary precision that changes the bracket and therefore the possibility of suspension.
The citizen’s arrest in paragraph 4. Where the accused held a person in order to hand that person to the police, whether after a theft in a shop or an incident in a bar, paragraph 4 applies and the penalty is a fine alone. Where the requirements of the citizen’s arrest permitted by the procedural legislation are actually satisfied, no offence is committed at all. Security staff and business owners are the usual defendants in this class of case, and the argument turns on the immediacy with which the authorities were called.
Case law
Supreme Court judgment 376/2017 of 24 May, Second Chamber (ECLI:ES:TS:2017:2048). The Court upheld a conviction for coercion and rejected the classification as unlawful detention, in a ruling that sets out the criteria separating the two offences.
The settled dividing line. The distinction does not depend on duration alone. Three interlocking elements operate: purpose, since unlawful detention seeks to deprive the victim of freedom of movement in a stable way whereas coercion seeks to compel a specific act or omission; intensity, since detention cancels the ability to move at all, as against the partial restriction typical of coercion; and intent, which in detention involves the will to exercise dominion over the person rather than a momentary imposition.
Instantaneous completion. Case law holds the offence complete as soon as the victim is unable to determine their own movements, a matter of moments being enough. Brevity does not exclude the offence, though it is relevant to sentencing and to the reduced form in paragraph 2.
Defence in this area
If you or your company are facing proceedings in this area, the firm provides defence and prosecution in Alicante and Madrid, with 24-hour assistance to detained persons.
Are you under investigation or facing charges in Spain? Société Juridique acts for foreign nationals throughout Spain, with offices in Alicante and Madrid and a 24-hour custody line. +34 669 30 21 13 or enquire online.
- Unlawful detention and kidnapping: defence service
- Article 172: coercion
- Spanish Criminal Code by article
- Spanish-language entry
This entry is provided for information only and does not constitute legal advice. The application of any provision depends on the circumstances of the individual case and requires examination of the case file by a qualified lawyer.
Last reviewed: 21 September 2026.
Frequently asked questions
What penalty does Article 163 of the Spanish Criminal Code carry?
Four to six years of imprisonment for the basic offence. The penalty is reduced by one degree where the offender releases the detainee within the first three days without having achieved the purpose, and rises to five to eight years where the deprivation of liberty exceeds fifteen days.
How long must the confinement last for the offence to exist?
No minimum duration is required. Case law treats the offence as complete as soon as the victim is unable to move freely, a matter of moments being enough. Brevity affects sentencing and may open the reduced form, but it does not exclude the offence.
What is the difference from the offence of coercion?
Unlawful detention seeks to deprive the victim of freedom of movement in a stable way and cancels the ability to move; coercion seeks to compel a specific act or omission through a partial restriction. The dividing line looks at purpose, intensity and intent, as Supreme Court judgment 376/2017 of 24 May sets out.
Can the detention be absorbed into another offence?
Yes. Where the deprivation of liberty is the necessary means of committing robbery with violence, sexual assault or another offence, and goes no further than that commission requires, it is absorbed. If it continues beyond what was necessary, the offences concur.
Can the sentence be suspended?
Not for the basic offence, because the minimum penalty of four years exceeds the two-year threshold in Article 80 of the Criminal Code. Suspension is available only where strongly qualified mitigating circumstances or the reduced form for early release apply.
When does the offence become time-barred?
After ten years under Article 131 of the Criminal Code, the maximum penalty being imprisonment of more than five years.
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