Police Arrest in Spain: Rights You Have from the First Moment

Police Arrest in Spain: Rights You Have from the First Moment

Your rights upon police arrest do not begin when your lawyer walks through the door. They exist from the instant the police deprive you of your liberty. Knowing them may be the difference between a solid defence and a statement that irreversibly compromises your position. For this reason, understanding what you can do — and what you are not obliged to do — is information every person should have before they ever need it.

What Is Police Detention?

Detention is a precautionary measure involving deprivation of liberty. The police resort to it when there are rational indications that a person has participated in a criminal act. In other cases, a judge issues the order directly. Not every police stop constitutes a formal arrest in the strict legal sense. However, when liberty is effectively restricted, the legal system immediately activates a set of non-waivable guarantees.

The Legal Framework: Spanish Constitution and LECrim

Article 17.1 of the Spanish Constitution recognises the right to liberty. Article 17.2 sets the maximum period of preventive detention at 72 hours. After that period, the detainee must be released or brought before a judge. The development of these rights appears in Article 520 of the Spanish Code of Criminal Procedure (LECrim), which exhaustively lists the guarantees applicable from the moment of arrest.

These guarantees include the right to be informed of the facts attributed to you. They also include the right to remain silent, the right not to incriminate yourself, the right to appoint a lawyer of your choice, and the right to be examined by a forensic physician. None of these rights may be suspended by the police during custody.

When and How Arrests Typically Occur

Police detention can arise in very different circumstances. In some cases, a person is arrested in flagrante delicto — that is, in the act of committing an offence or immediately afterwards. In other situations, the police execute a judicial arrest warrant or act on the basis of a prior investigation. The starting position conditions the defence strategy. Nevertheless, the detainee’s rights are identical in every case.

A common scenario is arrest on suspicion of an offence against property, against persons, or relating to drug trafficking. Detentions arising from complaints of domestic or intimate partner violence are also frequent. These cases are subject to a specific police operational protocol. Furthermore, the detainee may be brought before the duty court within a matter of hours, which makes immediate legal assistance especially critical.

Foreign nationals arrested in Spain enjoy additional protections. Article 520.2 LECrim recognises their right to interpreter assistance and their right to have the relevant consulate notified of the arrest. Consequently, the language barrier cannot be used as a pretext for limiting the exercise of rights.

The Police Statement: Your Moment of Greatest Risk

The statement made to the police is the point at which the greatest damage to your own defence can be done. Many people believe that explaining what happened will help them. However, any contradiction between what is said at the police station and what is later said before the judge can be used by the prosecution. The detainee has the right not to make any statement at all. Moreover, if they choose to speak, they are only required to provide their identity details. The presence of a lawyer before any statement is therefore not optional: it is a constitutional guarantee.

How to Exercise Your Right to Legal Assistance

The right to appoint a lawyer of your own choosing is one of the most significant rights under Article 520 LECrim. The detainee may nominate a trusted lawyer before any procedural step begins. If they cannot do so, the police will appoint a duty solicitor from the on-call rota. However, this appointment does not prevent the detainee or their family from contacting a private lawyer at any point to take over the defence.

What Your Lawyer Does During Detention

The lawyer’s role during detention is not confined to being present at the formal statement. First, the lawyer is entitled to consult privately with the detainee before any police action takes place. Then, they advise on the detainee’s rights and guide them on whether to make a statement or exercise the right to silence. In addition, the lawyer verifies that the conditions of custody comply with the law. If they identify any irregularities, they may formally raise an objection for the record.

At Fechenbach Abogados, David Fechenbach Marcos (ICAM no. 122770) handles police detention cases from the earliest hours of the proceedings. The firm operates in Madrid, Ibiza and Cádiz, and provides assistance in Spanish, German and English. If you need a criminal defence lawyer in Madrid or at any of the firm’s other offices, representation can be coordinated immediately.

Legal representation during detention is not a privilege. It is a right that the system recognises precisely because the police phase is the most decisive for the remainder of the process.

What Happens if Your Rights Are Violated?

A breach of the rights set out in Article 520 LECrim is not a minor incident. On the contrary, it has direct procedural consequences. If a detainee makes a statement without having been informed of their rights, that statement may be declared null and void. Similarly, any evidence obtained as a result of that flawed procedure may be excluded from the proceedings entirely. This follows from the doctrine on the nullity of improperly obtained statements.

Failing to have your own lawyer present at arrest may therefore cause the defence to lose nullity arguments of significant strategic value. A lawyer present from the outset can document any irregularity, formally object to it on the record, and subsequently raise it as a ground of nullity before the investigating judge.

Unlawful Detention and Habeas Corpus

The 72-hour limit under Article 17.2 of the Constitution is absolute. If the police fail to bring the detainee before a judge within that period, the detention becomes unlawful. In such cases, habeas corpus — governed by Organic Law 6/1984 — is the mechanism for requesting the judge to order immediate release. Without legal assistance, that remedy is unlikely to be activated in time.

Contact Fechenbach Abogados

If you or a family member have been arrested, or if there is a risk that an arrest may occur, Fechenbach Abogados can intervene from the very first moment. We advise clients in Madrid, Ibiza and Cádiz, in Spanish, German and English. Contact us with no obligation at fechenbach.es.