Pre-Trial Detention in Spain: Defence and Time Limits

Pre-trial detention is the most serious precautionary measure that a criminal judge may adopt. It deprives a person of liberty before they have been convicted. For that reason, its imposition requires strict legal requirements, and its duration is limited by law. However, those limits only operate effectively if the defence invokes them and argues them properly.

A poorly challenged pre-trial detention order — or one that is not challenged at all — may last for months without sufficient legal basis.

What is pre-trial detention and what requirements does the law impose?

Pre-trial detention is a precautionary measure involving deprivation of liberty that the judge may order before a final judgment is delivered. Its regulation is found in Articles 502 to 519 of the Spanish Criminal Procedure Act. In order to impose it, Article 503 of the Spanish Criminal Procedure Act requires three cumulative conditions: the offence under investigation must carry a maximum custodial sentence equal to or greater than two years, there must be sufficient indications of guilt, and one of the purposes exhaustively listed by law must be present.

Those legal purposes are fourfold: to prevent the risk of flight of the person under investigation, to prevent the destruction or concealment of evidence, to prevent them from acting against the legal interests of the victim, and to prevent them from committing further criminal offences. The judge must expressly justify which of those purposes exists in each specific case. Therefore, generic or stereotyped reasoning may be challenged for lack of proper reasoning and breach of Article 24.1 of the Spanish Constitution and Article 17 of the Spanish Constitution.

Pre-trial detention is an exceptional and subsidiary measure. Article 502.2 of the Spanish Criminal Procedure Act provides that it may only be adopted where no less restrictive precautionary measures can fulfil the same purposes. Therefore, the defence may propose alternatives: provisional release on bail, an obligation to appear periodically before the court, a prohibition on leaving the country or withdrawal of the passport.

When is pre-trial detention ordered? Common situations

In practice, pre-trial detention is most frequently ordered in three types of situations. The first concerns serious offences involving a risk of flight, especially where the person under investigation has no roots in Spain, holds dual nationality, has significant financial resources or there are indications that they intend to leave the country. In these cases, the judge weighs the person’s ties to Spain in order to assess the real risk of flight.

The second situation concerns the risk of destruction of evidence during the investigation stage. This argument is particularly common in economic crimes, corruption and fraud, where the person under investigation may have access to documents, accounts or computer systems that could be altered or destroyed. However, this purpose loses force once the main investigative measures have been carried out. Therefore, once the evidence has been secured, maintaining pre-trial detention on this ground loses its legal basis.

The third situation is the risk of reoffending. The judge may order pre-trial detention to prevent the person under investigation from committing new offences similar to those attributed to them. However, this ground requires specific and concrete reasoning: the seriousness of the offence or the mere existence of previous convictions is not enough.

Maximum time limits for pre-trial detention

Article 504 of the Spanish Criminal Procedure Act sets the maximum time limits for pre-trial detention. As a general rule, pre-trial detention may not exceed one year if the offence carries a custodial sentence equal to or less than three years, nor two years if the custodial sentence provided for the offence exceeds three years.

However, where circumstances make it foreseeable that the case cannot be tried within those time limits, the judge may order a single extension: up to two further years where the offence carries a custodial sentence of more than three years, or up to six further months where the sentence is equal to or less than three years. Nevertheless, those time limits are not automatic: they require a reasoned judicial decision proving that the purposes that justified the measure still persist.

Therefore, the defence may challenge the extension if those purposes have disappeared or have lost intensity.

How to challenge pre-trial detention: appeals and defence strategy

The pre-trial detention order may be challenged by filing an application for reconsideration before the same court and, subsidiarily, an appeal before the Provincial Court. The time limit for filing the application for reconsideration is three days from notification of the order. Therefore, immediate action from the moment the measure is notified is essential in order not to lose the opportunity to challenge it at that stage.

The strongest arguments for challenging pre-trial detention are the insufficiency of the indications of guilt, the lack of concrete reasoning in the order, the disproportionality between the measure and the purpose pursued, and the existence of alternative measures capable of fulfilling the same purposes with a lesser impact on the liberty of the person under investigation. In addition, if the person has strong roots in Spain — stable employment, family in Spain, a fixed residence — those ties must be documented and presented as a central argument.

At Fechenbach Abogados, David Fechenbach Marcos, ICAM No. 122770, works on opposing criminal precautionary measures from the initial hearing, with particular attention to pre-trial detention orders issued without prior hearing or with insufficient reasoning. The firm operates in Madrid, Ibiza and Cádiz. Review of the measure may also be requested at any time if the circumstances that justified it have changed.

However, challenging the order is not the only route. If the procedural situation evolves favourably — the main investigative measures have been carried out, the risk that justified the measure has disappeared or the personal circumstances of the person under investigation have changed — the defence may request the modification or lifting of pre-trial detention before the investigating judge.

What happens if pre-trial detention is not properly challenged from the outset?

Pre-trial detention that is not challenged at the appropriate procedural moment consolidates its effect. Challenging it later requires proving a change of circumstances, which is more difficult than opposing the first order. In addition, the passage of time tends to favour the judicial tendency to maintain the measure already adopted: courts are more reluctant to lift it when it has been in force for several months than when it has just been ordered.

Moreover, the absence of technical defence at the hearing under Article 505 of the Spanish Criminal Procedure Act — the hearing at which the judge decides on the measure — is one of the most costly mistakes. At that hearing, the public prosecutor requests the measure and the defence may oppose it. If the person under investigation does not have a trusted lawyer at that moment, or if the appointed lawyer does not know the case, the opposition will be generic and ineffective.

In addition, time spent in pre-trial detention directly affects the employment, family and financial life of the person under investigation. Every week of pre-trial detention that could have been avoided has a real and irreversible cost. Therefore, immediate intervention by the defence from the first order has a value that cannot be recovered later.

Contact Fechenbach Abogados

If pre-trial detention has been ordered against you or a family member, Fechenbach Abogados can intervene from that very first moment.

We provide assistance in Madrid, Ibiza and Cádiz. Contact us without obligation at abogados.fechenbach.es.