Article 492 Spanish Criminal Procedure Act: The Police Duty to Arrest

Article 492 of the Criminal Procedure Act sets out when a police officer is obliged to make an arrest. Beyond the situations of article 490, the obligation extends to a person charged with an offence carrying a penalty above a certain level, to a person charged with a lesser offence whose record or circumstances suggest he will not appear when summoned, and to a person not yet charged where two conditions coincide: reasonable grounds to believe that an act presenting the features of an offence exists, and reasonable grounds to believe that the person had a part in it. The fourth situation is the legal basis of the ordinary street arrest, and its two conditions are what the defence tests.

Wording of Article 492 of the Spanish Criminal Procedure Act

Requirements and procedure

1. For the fourth situation, rationally sufficient grounds to believe that an act with the features of an offence exists. A generic suspicion or an anonymous report is insufficient.
2. Rationally sufficient grounds to believe that the person arrested took part in that act, which requires something connecting that individual to it.
3. For the third situation, an assessment of the risk of non-appearance based on the record or on the circumstances, and the possibility of avoiding the arrest by providing security on the spot.
4. Proportionality: the arrest must be necessary, so where identification and a summons suffice, the arrest is not justified.

Defence strategy

Absence of grounds connecting the person to the act. The two conditions of the fourth situation are cumulative and must exist at the moment of the arrest, not be supplied by what the arrest produced. Arrests founded on presence in an area, on a generic description, on nervousness or on a previous record are challenged on this basis, and the defence obtains the incident report, the radio log and the officers’ own account of what they knew before acting.

Consequences of an unlawful arrest. Where the arrest was unlawful, the material obtained as a consequence, including a search of the person, statements made afterwards and identifications carried out in custody, is open to exclusion. The objection must be raised at the earliest stage, and where the person is still detained, habeas corpus under the organic law on that procedure is the immediate remedy.

Security in lieu of arrest. The exception in the third situation is routinely overlooked: a person charged with a lesser offence who offers sufficient security on the spot need not be arrested. In practice this translates into the production of identification, of proof of a fixed address in Spain and of an undertaking to appear, and raising it at the moment of the intervention occasionally avoids the detention altogether.

Proportionality and the alternative of a summons. For minor offences and for identified persons with a fixed address, the ordinary course is a summons, not an arrest. Where a client was detained for hours in respect of an offence that would be tried as a minor offence, the defence documents the disproportion, which bears both on the lawfulness of the detention and on any subsequent claim for its irregularity.

• Article 490: citizen’s arrest
• Article 520: rights in police custody
• Detention time limits and habeas corpus
• 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.