Police Arrest, Detention, and Habeas Corpus in Spain

Posted on Dec 2, 2024 in Law & Jurisprudence

Police Arrest

It is the obligation of all police officers to detain a person involved in the criminal process for the time required to carry out the relevant proceedings. Unlike detention by private individuals, this is a legal obligation. Under Article 492 LECrim, the authority or police officer is obliged to arrest any person found in any of the cases of Article 490 LECrim. As for misdemeanors, arrests will not be made unless the person has no known address or does not offer sufficient security, at the discretion of Article 490 LECrim. Article 490 LECrim refers to three concepts: in flagrante delicto, flight, and rebellion. Flagrante delicto means one who is committing or has just committed a crime. Flight refers to that which occurs in the penal institution where the individual is serving time, according to LECrim. Rebellion must take into account the provisions of Sections 512 and 513 LECrim.

Detention

According to Rule 17.2 of the Spanish Constitution (CE), preventive detention cannot last longer than strictly necessary to carry out investigations aimed at establishing the facts, and in any event no later than 72 hours. After this period, the detainee must be released or brought before a court. This period shall not be exhausted if the prosecution or investigation concludes just before.

Guarantees of Detention

Article 520 LECrim provides several guarantees for the detainee. Article 520.1 LECrim states that arrest and detention shall be carried out in the manner least detrimental to the detainee or prisoner. According to Article 520.2 LECrim, any person arrested shall be informed in a way they understand about the facts of the accusation, the reasons for their deprivation of liberty, and their rights, which include:

  • Right to remain silent, not answering questions or stating they will only declare before a judge.
  • Right not to incriminate oneself.
  • Right to appoint counsel to assist in police and court proceedings. If the detainee does not appoint a lawyer, one will be appointed for them.
  • Right to contact a relative to inform them of the detention and location.
  • Right to an interpreter.
  • Right to be examined by a forensic doctor.

According to Article 520.3 LECrim, when a minor or incapacitated person is arrested, the authority in whose custody they are must notify those with parental authority and, failing that, the Public Prosecutor (Mº Prosecutor). According to Article 520.4 LECrim, officials must refrain from making recommendations on the choice of counsel, communicating to the Bar Association who will appoint an ex officio lawyer. According to Article 520.5 LECrim, the person may waive the right to an attorney when their detention is for a traffic safety crime; however, Article 767 LECrim states that legal aid is required from the moment of arrest. The police must immediately seek the Bar Association’s designation of counsel. Under Article 520.6 LECrim, legal advice includes informing the detainee of their rights and the right to meet privately with their lawyer.

Habeas Corpus

Habeas Corpus is an effective remedy against possible unlawful detention. This procedure guarantees the immediate availability of anyone illegally held to the court. This process has several characteristics:

  • Agility: summary judicial proceedings that are extraordinarily fast, concluding within 24 hours.
  • Simplicity and lack of formalities: manifested in the possibility of a verbal-general appearance.

This implies that no person can escape judicial control of the legality of arrests. Several persons can initiate the Habeas Corpus procedure: the inmate, spouse, ancestors, descendants, siblings, the Public Prosecutor, and the Ombudsman.

People illegally detained include:

  • Those detained by the authority without legal grounds.
  • Those illegally detained in any establishment, for a period longer than that allowed by law.

Jurisdiction over this resource lies with the examining magistrate of the place where the person is deprived of liberty or where the detention was made. It can be initiated automatically by the competent court. The application must contain the applicant’s name, the location of detention, and the reasons for requesting Habeas Corpus. It is ideally done in manuscript form by the applicant. Once the application is promoted, the judge reviews the requirements and then transfers it to the Public Prosecutor, issuing an order that either refuses or accepts the application. This ruling cannot be appealed. If the judge considers the merits of the Habeas Corpus to be valid, they will allow the evidence provided by the parties and dictate a resolution within 24 hours, either filing the action, declaring the deprivation of liberty in accordance with the law, or ordering the immediate release or presentation of the person to justice.

Juvenile Detention and Treatment

Detention of Minors

Authorities involved in the arrest of a child must practice it in the least damaging way possible. They are obliged to report in clear and understandable language, immediately informing the child of the facts alleged against them, the reasons for their arrest, and their rights, especially those listed in Article 520 LECrim. The authorities must immediately notify the child’s representatives, the Public Prosecutor, and the consular authority (in the case of a foreigner) of the arrest and place of custody. The minor’s statement must be taken in the presence of counsel and a parent or guardian. In the absence of the latter, the Public Prosecutor will assist with the statement. While in detention facilities, juveniles should be kept in appropriate units, separated from older detainees, staying for the shortest time needed, and at most 24 hours, before being given to their parents or legal authority. Unless absolutely necessary, they should not be confined in prison. Searches of juvenile detainees will be conducted only when strictly necessary. When a child is arrested, their fingerprints and facial photograph are taken and submitted to the Public Prosecutor. If it is necessary to conduct an identification parade, it may only be carried out with the permission of the Public Prosecutor or the juvenile judge, and always in the least burdensome way for the child. The identity of minors involved in police proceedings should not be provided to the media.

Actions Regarding Children

  • Detention in a closed regime: The minor resides in a facility where training, educational, work, and leisure activities are undertaken.
  • Confinement in a semi-open regime: The minor resides in the center, but activities are carried out outside.
  • Internment in an open regime: Active in the center’s environment, subject to the same program and procedure.
  • Therapeutic internment: Intended for individuals with mental abnormalities.
  • Outpatient treatment: Required to attend medical centers according to a physician’s schedule, following guidelines for the treatment of the anomaly.
  • Assistance at a day center: The child resides at home and attends a center for activities.
  • Permanent weekend stays: Stays at home or another facility between Friday afternoon and Sunday night.
  • Probation: Monitoring the individual’s activity to verify attendance at educational institutions.
  • Living with another family or group: The judge determines the time spent living with selected individuals to guide the socialization process.
  • Community service: Unpaid activities for the benefit of the community.
  • Socio-educational measures: Aimed at facilitating social development.
  • Censure: A rebuke by the juvenile judge, addressing the minor to understand the seriousness of the facts and consequences.
  • Suspension: From driving motorcycles or motor vehicles, hunting license, or use of weapons.