Article 503 Spanish Criminal Procedure Act: Requirements for pre-trial detention

Article 503 of the Spanish Criminal Procedure Act sets out the conditions for pre-trial detention: an offence carrying a maximum sentence of two years or more, sufficient grounds to believe the person under investigation criminally responsible, and the pursuit of one of the legitimate purposes listed, namely risk of flight, risk of destruction of evidence and risk of repetition. For a foreign national the risk of flight is the argument the prosecution will press hardest.

Wording of Article 503 of the Spanish Criminal Procedure Act

Requirements and procedure

1. An offence punishable by a maximum sentence of two years or more, or less where there are unspent previous convictions.
2. Sufficient grounds to believe the person under investigation criminally responsible.
3. Pursuit of one of the three listed objects: securing attendance, preserving evidence or preventing repetition.
4. An express prohibition on punitive purposes or on anticipating the sentence.
5. Proportionality, necessity and subsidiarity in relation to less intrusive measures.

Defence strategy

Ties to Spain against the risk of flight. This is the decisive battleground for foreign clients. Risk of flight must be assessed by reference to the nature of the offence, the sentence in prospect, family, employment and financial circumstances, and the proximity of trial. Documentary evidence of a settled address, employment, family responsibilities and social integration dismantles the presumption. Foreign nationality alone is not a lawful ground.

Gravity of the sentence is not enough. Spanish constitutional case law prohibits founding detention exclusively on the gravity of the offence. Reasoning confined to the sentence in prospect, without any weighing of personal circumstances, is appealable with good prospects of success.

Less intrusive alternatives. Periodic reporting to the court, surrender of the passport, a monetary security, a prohibition on leaving Spanish territory and electronic monitoring are all available alternatives. Offering a concrete and workable package at the hearing under Article 505 is what makes disproportionality arguable.

Risk of destruction of evidence has a short life. That purpose falls away once the investigation is advanced, the searches have been carried out and the evidence secured. Reliance on it at a late stage of proceedings is unsustainable.

Requirements of the risk of repetition. Paragraph 2 requires that the facts arise from concerted action or from membership of an organisation, or that previous convictions support the prognosis. A generic assertion of dangerousness will not do.

Periodic review. The measure is reviewable at any time. New material, the completion of favourable investigative steps and the mere passage of time all alter the necessity assessment and found successive applications for release, which should be made systematically.

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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.