Preventive detention in Spain

1. What are the legal requirements for preventive detention?

Provisional detention is the most serious precautionary measure provided for by the Spanish legal system, it involves the deprivation of liberty of the person under investigation during the entire or part of the criminal procedure. The art. 502 of the Spanish Criminal Procedure Law establishes that it is an exceptional measure that can only be adopted when it is strictly necessary, and when there is no possibility of imposing less restrictive precautionary measures but liberty deprivation on the person being pursuant to art. 503 of the Spanish Criminal Procedure Law, pre-trial detention could only be ordered if the following requirements are met:

• If it is highly probable presumed that the person under investigation has committed a crime whose sentence is equal to or greater than two years in prison. Exceptionally, a pre-trial detention is allowed in cases in which the alleged commission of crimes with lesser penalties are expected but  the person under investigation has a criminal record that has not been canceled or cannot be canceled as a result of a conviction for the commission of an intentional crime.
• Likewise, it must be rationally inferred that the person under investigation could flee, and therefore, the purpose of the pre-trial detention would be to ensure his physical presence in the procedure. In order to assess whether or not there is a risk of escape, it is usually taken into account: the nature of the act, the severity of the sentence that could be imposed on the person under investigation, and his family, employment and economic situations. If the person under investigation is a foreigner without residence in Spanish territory, the judge could infer that there is a risk of escape. These circumstance have been refined in recent years in the case of citizens of member states of the European Union, by virtue of the fact that it is commonly sustained that the person investigated in these cases would be within the reach or at the disposal of the Spanish authorities through mechanisms of mutual judicial cooperation between member states of the European Union, such as the European Arrest and Surrender Order.
• Preventive detention may also be adopted if it is inferred that the person under investigation may be able to alter, hide or destroy the evidence necessary for his or her trial, or if there is a reasonable risk to the life, physical integrity or other legal assets of the victim.

2. What is the legal procedure for the adoption of preventive detention?

Preventive detention is issued by the judge (in the vast majority of cases it is an investigating judge who is the director of the investigation in the Spanish criminal procedure) once a hearing has been held, which must be held as soon as possible. (in a maximum of 72 hours), once the person under investigation has been arrested and brought to justice. At the aforementioned hearing, in the presence of the person under investigation and his defense attorney, the prosecution and the accusing parties (if any) must request the imposition of preventive detention. The defense will have the opportunity to present arguments in favor of the (provisional) non deprivation of liberty of their defendant, or the imposition of less restrictive precautionary measures. A few hours later, the judicial resolution is usually issued, which must contain the reasons and motives why the judge considers that the person under investigation should be placed in preventive detention. This decision may be reviewed at any stage of the procedure at the request of the defense attorney and may be revoked or replaced by the judge who issued it or by the immediate superior court at the request of the defense by filing the corresponding appeals (reform appeal). and appeal).

3. What is the maximum duration of pretrial detention?

Pre-trial detention in certain circumstances could have a maximum term of up to four years. However, the particularities and maximum limits that we will explain below must be observed:

• In the event that pre-trial detention is adopted to ensure the presence of the person under investigation, to prevent him from acting against the victim and/or to prevent him/her repeating offenses; there are several maximum limits:
  • One (1) year, if the crime whose commission is being investigated had a custodial sentence equal to or less than three (3) years. This maximum limit could be extended for an additional six (6) months, if any circumstance or circumstances arise that could make it foreseeable that the duration of the procedure would exceed one (1) year.
  • Two (2) years, if the crime whose commission is being investigated has a maximum prison sentence of more than three (3) years. As in the previous case, this maximum limit could be extended, this time for up to two (2) additional years if circumstances arise in the procedure that could make it foreseeable that its duration would exceed two (2) years.
  • If the person under investigation is finally sentenced to a prison term and is in pre-trial detention at the time he/she is sentenced, the pre-trial detention may be extended up to the limit of half the sentence imposed in the conviction, provided that the corresponding appeal has been exercised.
• In the event that preventive detention has been agreed to avoid the concealment or alteration of evidence, it may not exceed six (6) months without the possibility of extension.

4. Can preventive detention be replaced by other alternative measures?

Yes, as it has stated before,  there are less restrictive measures that, according to the jurisprudence of the ECHR, should be the first option to be applied by legal operators.

The most used alternative measures are the following:

• The payment of a deposit.
• Periodic appearances (weekly or fortnightly) before the judicial authority.
• Prohibition of residing in a certain place.
• Ban on leaving Spanish territory.

5. Can the fulfillment and execution of alternative measures to pre-trial detention imposed by a judge in Spain be carried out in another member state of the European Union?

In the increasingly close framework of judicial cooperation between member countries of the European Union, there is a full possibility, in accordance with European regulations (which in Spain has been transposed by Law 23/2014 of November 20), that restrictive measures of liberty that are substitutes for pre-trial detention may be served in the territory of another state of the European Union.

Thus, art. 110 of the aforementioned Law 23/2014 of November 20, on mutual recognition of criminal decisions in the European Union, establishes:

“1. The following surveillance measures may be transmitted and executed in another Member State of the European Union or received by the competent Spanish judicial authorities: (…)

1. The obligation to remain in a certain place during the indicated period of time.
2. The obligation to respect the limitations imposed in relation to leaving the territory of the executing State.
3. The obligation to appear on certain dates before a specific authority.
4. The prohibition of approaching certain people related to the crimes allegedly committed.”

The fundamental requirement for this process to be initiated is, as established in art. 112 of the same law is, precisely, that the investigated habitually resides in the Country member where these measures are intended to be executed. In other words, if the person under investigation is a German or Austrian citizen who was prohibited by a judicial measure from leaving Spanish territory and/or prohibited from approaching the complainant, it is perfectly possible that the procedure can be initiated at the request of his or her defense attorney and that the prosecuted can return to his/her country and comply with these restrictive measures there.