The criminal process · Navarra & all of Spain
Pre-trial detention: defending liberty
Pre-trial detention is the harshest measure that exists before any conviction — and also an exceptional one, subject to strict requirements. I act immediately: at the hearing, on appeal and at every review.
An exceptional measure, not an advance sentence
Pre-trial detention is governed by articles 502 et seq. of the Spanish Criminal Procedure Act. It may only be ordered where there is strong evidence of an offence plus one of the aims the law allows: preventing flight, preventing destruction of evidence, or protecting against reoffending. The presumption of innocence still rules: liberty is the norm and detention the exception — though in practice you have to fight for it.
It is decided at an urgent hearing (article 505) before the judge, with the prosecutor and the defence present. That hearing, held within the first hours of the case, is one of the most decisive moments of the entire proceedings — which is why you want to arrive with a prepared lawyer, not an improvised one.
How it is fought
- At the hearing: challenging the evidence and the aims invoked, and proposing alternatives.
- Less severe measures: release on bail, periodic court appearances, surrender of passport or a travel ban.
- Appeals against the detention order.
- Review applications when circumstances change: pre-trial detention must be re-examined — it is never final.
- If imprisonment follows: prison visits, preparing the next release application and constant communication with the family.
The law sets strict time limits on pre-trial detention, depending on the offence's penalty and the stage of the proceedings, with extensions requiring an express ruling. Watching those deadlines is part of the defence's job.
Frequently asked questions
Common questions about pre-trial detention
How long can pre-trial detention last in Spain?
It depends on the penalty for the offence under investigation: the law sets maximum terms (generally up to one or two years depending on gravity, extendable in certain cases by express ruling). It must also be reviewed if circumstances change. Time served is later credited against any sentence.
Can the detention order be appealed?
Yes: a reconsideration request before the same judge and an appeal to the Audiencia. And even if those fail, the matter can be raised again later on new grounds — fresh evidence, documented ties, progress of the investigation. Pre-trial detention is never a closed door.
What alternatives exist to pre-trial detention?
Provisional release with or without bail, periodic court appearances, surrender of the passport and travel bans. An essential part of the defence is building and documenting roots — work, family, home — that make those alternatives viable.
Does time in pre-trial detention count towards the sentence?
Yes: it is credited in full against any sentence imposed in the same case (article 58 of the Spanish Criminal Code). And if the proceedings end in acquittal or dismissal, there may be a right to compensation for the detention suffered.
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