Rights on arrest in Spain: time limits, lawyer and what to do

An arrest (detención) is an extremely tense situation, both for the person arrested and for their family. Decisions taken within a few hours can shape the rest of the proceedings. It is worth knowing that an arrest is subject to strict limits, and that the law and the Constitution grant the arrested person a set of rights and safeguards that must be respected from the outset.

What does being under arrest mean?

An arrest is a provisional, short-term deprivation of liberty. It is usually carried out by the police where there are indications that a person has taken part in an alleged offence. From that moment, the arrested person becomes a person under investigation and all the safeguards of the right to a defence apply.

Being under arrest does not mean you have been convicted, or that you will be sent to prison. It is a provisional measure that must end shortly, either with release or with the person being brought before a judge.

How long can an arrest last?

The Spanish Constitution (CE) sets the rule in article 17.2: preventive detention may last no longer than the time strictly necessary to carry out the enquiries needed to clarify the facts. In any event, within a maximum of 72 hours, the arrested person must be released or brought before a judicial authority. The Criminal Procedure Act (Ley de Enjuiciamiento Criminal, LECrim) restates this rule in article 520.1.

Two limits therefore apply at the same time:

• A relative limit: the time strictly necessary for the police enquiries. If they finish earlier, the arrest must end, even if the 72 hours have not run out.
• An ordinary maximum limit: in any event, within 72 hours the person must be released or brought before a judge, save for the exceptional extensions provided by law and subject to judicial authorisation. Time runs from the moment the person is actually deprived of liberty, not from arrival at the police station.

The 72 hours are therefore a maximum, not a period the police may use freely. The police report (atestado) must record the place and time of the arrest, and of the release or of being brought before the court (article 520.1 LECrim).

Only in very specific cases, such as terrorism offences, does the law allow a limited extension of this period with judicial authorisation.

What rights does an arrested person have?

Article 17.3 CE provides that every arrested person must be informed immediately, and in a way they can understand, of their rights and of the reasons for the arrest, and may not be compelled to give a statement. It also guarantees the assistance of a lawyer during police and judicial proceedings.

The LECrim develops these safeguards. Article 520.2 provides that every arrested person must be informed in writing, in plain and accessible language, in a language they understand and immediately, of the acts attributed to them and the reasons for the deprivation of liberty, as well as of their rights, and in particular of the following:

• a) The right to remain silent and not give a statement, not to answer any or all of the questions put to them, or to state that they will give a statement only before the judge.
• b) The right not to give evidence against themselves and not to confess guilt.
• c) The right to appoint a lawyer, without prejudice to article 527.1(a), and to be assisted by that lawyer without undue delay. Where geographical distance makes immediate assistance impossible, the arrested person must be given a telephone or video call with the lawyer, unless that is impossible.
• d) The right to access the elements of the case file that are essential to challenge the lawfulness of the arrest or deprivation of liberty.
• e) The right to have a relative or person of their choosing informed, without undue delay, of the deprivation of liberty and of the place of custody at any given time. Foreign nationals have the right to have this notified to the consular office of their country.
• f) The right to make a telephone call, without undue delay, to a third party of their choosing. The call takes place in the presence of a police officer or of the officer designated by the judge or prosecutor, without prejudice to article 527.
• g) The right to be visited by the consular authorities of their country, and to communicate and correspond with them.
• h) The right to free assistance from an interpreter, for foreign nationals who do not understand or speak Spanish or the official language of the proceedings, for deaf or hearing-impaired persons, and for other people with speech difficulties.
• i) The right to be examined by the forensic doctor or their legal substitute and, failing that, by the doctor of the institution where they are held, or by any other doctor employed by the State or another public administration.
• j) The right to apply for free legal aid, and information on how to do so and the conditions for obtaining it.

The arrested person must also be told the maximum length of the arrest and how to challenge its lawfulness. They are entitled to keep the written statement of rights for as long as they remain under arrest.

Do I have to answer questions at the police station?

No. An arrested person may remain silent, answer only certain questions, or state that they will give a statement only before the judge (article 520.2.a LECrim). Exercising this right is legitimate and cannot be used against them as an indication of guilt.

If you decide to give a statement, you will always do so with a lawyer present. Beforehand, you are entitled to speak with your lawyer in private, even before being questioned by the police, the prosecutor or the judge (article 520.6.d LECrim). It is advisable to take legal advice before giving a statement or making any declaration.

Which lawyer assists me?

The arrested person may freely appoint a lawyer of their choosing. If they do not, a duty lawyer will be assigned. No authority or officer may recommend a particular lawyer. Once the Bar Association has been notified, the lawyer must attend the arrested person in person as promptly as possible (article 520.5 LECrim). Communications between the arrested person and their lawyer are strictly confidential (article 520.7 LECrim).

In exceptional and serious cases, the judge may order that the arrested person be held incommunicado by reasoned decision. Some of these rights may then be restricted, such as the choice of a lawyer or the private meeting with them (article 527 LECrim).

What is *habeas corpus*?

It is an urgent procedure for a judge to review the lawfulness of an arrest immediately (article 17.4 CE). It applies, among other cases, where (article 1 of Organic Act 6/1984 on habeas corpus):

• The arrest was made without the legal grounds being met.
• It continues beyond the permitted period.
• The rights of the arrested person are not respected.

It may be applied for by the arrested person, their spouse or partner, their descendants, ascendants or siblings, their lawyer, the Public Prosecutor and the Ombudsman (article 3 of Organic Act 6/1984). No lawyer or court representative is needed to apply (article 4), and, once the procedure has been opened, the judge must carry out the steps and give a decision within the statutory 24 hours (article 7).

What happens when the arrest ends?

Once the police enquiries are complete, there are two possibilities:

• Release, usually with an obligation to appear before the court when summoned.
• Being brought before the duty judge. If the facts fall within the offences tried that way, the case may continue as a fast-track trial.

In the second case, if the Public Prosecutor or a prosecuting party asks for pre-trial detention or release on bail, the judge must hold a hearing, with a lawyer present, within 72 hours of the person being brought before the court. If no party asks for it, the judge must order the immediate release of the arrested person (article 505 LECrim). As a general rule, pre-trial detention is an exceptional measure.

What the family can do

• Ask where the arrested person is being held. They have the right to have their arrest and place of custody notified to a person of their choosing.
• Contact a lawyer, giving them the full name of the arrested person and where they are held.
• Gather documents that may be useful before the judge, such as proof of address, an employment contract or family responsibilities, especially if pre-trial detention may be sought.