Article 505 Spanish Criminal Procedure Act: The Custody Hearing on Pre-Trial Detention

Article 505 of the Criminal Procedure Act governs the hearing at which pre-trial detention is decided. Its architecture matters to anyone arrested in Spain: the court cannot order detention on its own initiative, so if neither the prosecutor nor a private accuser applies for it, release is mandatory. The hearing must be held within seventy-two hours of the arrested person being brought before the court, the defence has a right of access to the material essential to challenge the deprivation of liberty, and evidence may be proposed and taken at the hearing itself. For a foreign national this is the single most important stage of the early proceedings.

Wording of Article 505 of the Spanish Criminal Procedure Act

Requirements and procedure

1. An application by the Public Prosecution Service or by a private accuser. Without such an application the court must order immediate release, whatever its own view of the case.
2. A hearing held within seventy-two hours of the person being placed at the disposal of the court, with the accused, the defence lawyer, the prosecutor and any other party present.
3. Access by the defence to the elements of the file that are essential in order to challenge the deprivation of liberty, which is a right and not a concession.
4. The opportunity to make submissions and to propose evidence that can be taken at the hearing or within the seventy-two hour period, including documents and witnesses.

Defence strategy

Using the right of access to the file. The article guarantees access to the material essential to contest the detention, and in practice that material is often produced only on request and in incomplete form. The defence asks for it in writing at the outset of the hearing and, where it is refused or curtailed, records the objection, because the refusal is a ground of appeal and, in a subsequent application for review, evidence that the initial decision rested on material the defence never saw.

Presenting evidence at the hearing itself. Paragraph 3 permits evidence to be proposed and taken at the hearing or within the seventy-two hours. This is where a case for release is won: a certificate of registration at a Spanish address, an employment contract, evidence of children at school in Spain, the surrender of a passport and the offer of regular reporting to a police station convert an abstract flight risk into a documented connection with the jurisdiction. For non-resident foreign nationals the equivalent material is a tenancy, a family member willing to give an undertaking and evidence of a fixed address abroad with an offer of appearance.

The absence of an application by any party. Paragraph 4 is categorical: if neither the prosecutor nor a private accuser applies for detention or bail, release is mandatory. Where the prosecutor’s position is unclear, the defence invites the court to record it expressly, because a hearing that concludes without any formal application must end in release.

Alternatives to detention and subsequent review. The defence prepares a concrete alternative rather than a general plea: bail in a stated amount with the source of the funds documented, surrender of the passport, a prohibition on leaving the country, electronic monitoring where it is available, and periodic reporting. Where detention is nevertheless ordered, the decision is appealable and may be reviewed at any time on a change of circumstances, so the material that was not available at the first hearing is assembled immediately for the application that follows.

• Bail and pre-trial detention in Spain
• Article 503: requirements for pre-trial detention
• Article 520: rights in police custody
• 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.