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Introduction to the Rights of the Detainee
Law firm specialized in Law Criminal Almería
Rights of the Detainee
What to do if you are detained: know your rights and how to exercise them
Almería
Being detained is one of the most stressful situations a person can experience. In a matter of seconds, uncertainty, fear, and pressure can lead you to make mistakes that later prove very difficult to correct.
That is why it is essential that you know, before it happens, what your rights as a detainee are in Spain and what limits the State security forces and bodies have when acting.
At MCHM Abogados, we are specialists in criminal law and assistance to detainees. We explain clearly and rigorously everything you need to know if you are detained, if a family member is detained, or if you simply want to know the legal framework governing detention in Spain.
🔑 Fundamental Principle
Detention is a precautionary measure of a temporary nature that limits your freedom of movement, but in no way implies a conviction or a presumption of guilt. The presumption of innocence, enshrined in Article 24.2 of the Spanish Constitution, remains intact from the very first moment.
Constitutional and Legal Framework
Article 17 of the Spanish Constitution and the Criminal Prosecution Act
The starting point for all the rights of the detainee is Article 17 of the Spanish Constitution, which enshrines the right to liberty and security.
Article 17 CE (excerpt):
1. Every person has the right to liberty and security. No one may be deprived of their liberty except with the observance of what is established in this article and in the cases and in the manner provided for by law.
2. Preventive detention may not last longer than strictly necessary... and, in any case, within a maximum period of seventy-two hours, the detainee must be released or placed at the disposal of the judicial authority.
3. Every detained person must be informed immediately, and in a way that is understandable to them, of their rights and the reasons for their detention, and may not be compelled to testify. The assistance of a lawyer to the detainee in police and judicial proceedings is guaranteed.
The rights of the detainee are detailed in Article 520 of the Criminal Prosecution Act (LECrim), which establishes the complete catalog of guarantees assisting every detained or imprisoned person.
Your Rights if You Are Detained
Rights that must be communicated to you immediately and in writing
Article 520.2 of the LECrim comprehensively covers the rights that officers must communicate to you at the time of detention. These rights are not discretionary concessions: they are fundamental rights that cannot be suspended except in cases prescribed by law.
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Right to remain silent
You are not obliged to testify or answer any questions put to you. You may state that you will only testify before a judge or in the presence of your lawyer. Your silence cannot be interpreted as an indication of guilt.
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Right not to testify against yourself
You cannot be compelled to testify against yourself or to confess guilt. This right is recognized in Article 24.2 of the Constitution.
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Right to legal assistance
You have the right to appoint a lawyer of your choice and to request their presence to assist you in police and judicial statement proceedings. If you do not appoint a lawyer, one will be appointed ex officio.
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Right to communicate your detention
You have the right to have the family member or person of your choice informed of the fact of your detention and the custody location where you are at any given time.
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Right to an interpreter (foreigners)
If you are a foreigner and do not understand or speak Spanish, you have the right to be assisted free of charge by an interpreter. You also have the right to have your detention communicated to the Consular Office of your country.
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Right to a medical examination
You have the right to be examined by a forensic doctor or legal substitute, to certify your state of health and prevent or report possible mistreatment.
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Right to written information
You must be informed in writing, immediately, in simple and accessible language, of the facts attributed to you and the reasons for your detention. You may keep the written statement of rights in your possession throughout the entire duration of the detention.
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Right to access the proceedings
You have the right to access the elements of the proceedings that are essential to challenge the legality of your detention or deprivation of liberty.
⚠️ Important: If the police do not inform you of these rights at the time of detention, such failure may have relevant procedural consequences for your defense. Inform your lawyer as soon as you have legal assistance.
What to do if you are detained? Practical steps
Act calmly and know your rights at every phase
1. Stay calm
Detention is a stressful situation, but staying calm is essential. Do not offer physical resistance, and do not insult or threaten the officers. Any violent reaction can worsen your situation.
2. Request your lawyer
The first and most important thing is to request the assistance of your lawyer. You have the right to have your lawyer present during all statement proceedings. Do not testify without the presence of your counsel.
3. Exercise your right to remain silent
You are not obliged to testify. You can say: "I invoke my right to remain silent". If you decide to testify, always do so with your lawyer present and after having spoken with them in private.
4. Communicate your detention
Request that your detention be communicated to the person of your choice (family member, friend, colleague). It is important that someone knows where you are and can help manage your defense.
5. Request a medical examination
Ask to be examined by a forensic doctor to record your state of health at the time of detention. This is especially important if you have suffered any injury or mistreatment.
💡 What you should NOT do
- Do not sign anything without the presence and advice of your lawyer.
- Do not testify without the presence of your lawyer.
- Do not accept charges or self-incriminate under pressure.
- Do not resist authority or insult officers.
- Do not destroy or hide evidence.
Statement at the Police Station
How it unfolds and what you need to know
Once at the police station, the officers must inform you again of the facts for which you have been detained and of your rights, formalizing the procedure.
Key aspects:
- Your lawyer must be present during your statement. If you have not appointed one, a court-appointed lawyer will be assigned to you.
- You have the right to interview with your lawyer in private before testifying.
- You can refuse to testify or answer specific questions.
- If you decide to testify, everything you say will be recorded and can be used against you.
- The statement is taken in the presence of your lawyer, who can ask to include any clarifications deemed appropriate.
⚠️ Lawyer's Advice
Do not testify without the presence of your lawyer. Wait until your counsel arrives at the police station. Your lawyer will advise you on whether it is advisable to testify or exercise your right to remain silent, and will help you formulate your answers so they do not harm you.
Bringing before the Court: The On-Duty Court
The maximum 72-hour period and what happens before the judge
Preventive detention cannot last longer than 72 hours. Within this period, the detainee must be released or placed at the disposal of the judicial authority (On-Duty Court).
What happens in the On-Duty Court?
- The detainee is presented before the On-Duty Judge, who must decide on their personal situation.
- The judge must hear the detainee and their lawyer.
- The judge may agree to:
- Release (with or without precautionary measures).
- Provisional detention (if legal requirements are met).
- If the detainee is held on a weekend, holiday, or at night, the On-Duty Court operates 24 hours a day, 7 days a week.
🔑 Key Deadlines
- Maximum 72 hours from detention to bringing before the court.
- If this period is not respected, the detention is illegal and you can request a habeas corpus.
Habeas Corpus: The remedy against illegal detentions
A fundamental protection mechanism
Article 17.4 of the Spanish Constitution establishes that the law shall regulate a habeas corpus procedure to bring any illegally detained person immediately before a judicial authority.
Habeas corpus is a quick and summary remedy that allows you to:
- Challenge the legality of the detention.
- Request immediate release if the detention is illegal.
- Report violations of rights during the detention.
⚡ When does habeas corpus apply?
- When detention has been carried out without legal requirements.
- When the maximum period of 72 hours has been exceeded without judicial placement.
- When the fundamental rights of the detainee have been violated.
Specific Rights of Foreign Detainees
Additional guarantees for individuals of other nationalities
Foreign nationals detained in Spain enjoy the same rights as Spanish citizens, in addition to a series of specific guarantees:
- Right to a free interpreter: If you do not understand or speak Spanish, you have the right to be assisted free of charge by an interpreter.
- Right to consular communication: You have the right to have your detention communicated to the Consular Office of your country.
- Right to consular visits: You can be visited by the consular authorities of your country and communicate with them.
- If you hold two or more nationalities, you can choose which consular authorities should be informed.
These rights are not a concession: they are fundamental guarantees recognized by the Constitution and international treaties.
Frequently Asked Questions about Detention
We answer the most common doubts
Can I refuse to testify at the police station?
Yes. You have the right to remain silent and not to testify against yourself. You can state that "you invoke your right to remain silent". Your silence cannot be interpreted as an indication of guilt.
Can I call a family member if I am detained?
Yes. You have the right to have your detention communicated to the family member or person you designate. You also have the right to communicate by telephone, without undue delay, with a third party of your choice.
How long can I be detained without seeing a judge?
The maximum period is 72 hours. After this period, the detainee must be released or placed at the disposal of the judicial authority. If this period is exceeded, the detention is illegal.
What do I do if I believe my detention is illegal?
You can request the habeas corpus remedy so that a judge reviews the legality of your detention and, where appropriate, orders your immediate release.
Can I testify before the judge without having testified at the police station?
Yes. You can state that "you will only testify before the judge". This is a right you have and it can be strategic for your defense.
If I am a foreigner, do I have the same rights?
Yes. All rights of the detainee apply regardless of your nationality. In addition, you have specific rights such as a free interpreter and communication with your consulate.
Do you need legal assistance in the event of detention?
At MCHM Abogados we have a team of criminal lawyers specialized in assistance to detainees. We accompany you from the very first moment, ensuring that your rights are respected and defending your interests at the police station and before the On-Duty Court.
Do not testify without advice. Contact us now.
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