Article 163 Spanish Criminal Code: Unlawful Detention

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.

Wording of Article 163 of the Spanish Criminal Code

Elements of the offence

1. 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.
2. Absence of consent. Consent given at the outset and withdrawn converts lawful company into detention from the moment of the withdrawal.
3. 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.
4. 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.

• 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.