Sometimes foreigners in Spain are involved in criminal proceedings or on the verge of being in criminal trouble. Obviously, they are not familiar with our criminal procedure. If you or a close relative are criminal trouble, you must read this article.
Criminal proceedings begin when the person is detained and driven to the Police Station. There, the detainee will be under arrest up to he is brought to the Court.
Although the time of arrest cannot exceed 72 hours, a recent judgement coming from Constitutional Court held that the Police is not allowed to retain the detainee beyond the time absolutely necessary. So it is usual the detainee is taken to Court in a short period of 24 hours from the detention.
Statement at the Police Station
After having done all mandatory identification protocol, the detainee is instructed on his fundamental rights, helped by an interpreter whether the suspect does not speak Spanish. Among those rights, it is worth mentioning the following ones:
- Right to be examined by Doctor or medical services at hospital. It is highly advisable to ask for this examination, particularly if the detainee shows signs of violence or injuries.
- Right to advise your nearest Consulate about the fact of your detention. Unless you consider you are mistreated or victim of police brutality, this is an ineffective right, that usually does not produce any benefit for the detainee.
- Right to call one person so as to inform on the fact of the detention. The detainee never makes this call, but the Police. He only provides the name and telephone number of such a person that will be called by the Police.
- Right to appoint a lawyer; otherwise will be appointed at State’s expenses. In contrast to Common Law, according to our legal system, you are not allowed to defend yourself. If you do not remember your lawyer’s telephone number, provide at least his/her professional details. Police will try to find him from its database
if such a lawyer practises law in the local area. It is worth being mentioned, that the appointed lawyer must appear to the detention center within the following 8 hours from the police call. Since the detainee usually has not got the information about a lawyer at hand, sometimes it is the detainee’s family who calls a lawyer. If the person who calls the lawyer is in the Police Station, it is recommendable to advise the Police not to appoint a lawyer at State’s expenses and wait for that specific lawyer. Otherwise, they will begin the interrogation.
Must the detainee state at the Police Station?
As in all Western countries, the statement before the Police is a fundamental right, not an obligation. We recommend clients not to state at the Police Station due to an important reason: the lawyer at the Police does not know the details of the alleged crime. Lawyers only know the kind of crime and less more; they cannot access to the police file yet, so it is difficult to draw a strategy to be developed in further stage of the proceedings. Take into account that everything you say at that moment will condition your future position. Lawyer’s mission at that stage mainly consists in avoiding any police misconduct towards the client.
Since the Police is aware of the lawyers’ usual recommendation, they will try to convince you to state there. Sometimes, they use the trick of good cop, bad cop. First, a cop advise angrily you to keep detained until next day; secondly another cop -the good one- will try to convince you to state so as to avoid the detention. In light of this situation, the detainee often surrenders to the pressure and, finally, states. You could have a private interview with your lawyer but shortly after your statement, not before.
Before the Court
Usually the same day of police detention or the next day morning, the detainee will be driven to the Court. Most of detainees can be released without bail, after the statement before the judge takes place but under the obligation to appear in Court on the day of the trial and whenever the Court considers. At this stage, your lawyer could see your file (police report) before you state and talk to you, unless the file exceptionally is declared as secret. He can advise you to state or not to do it, and on what could be the best strategy to afford your case. Exceptionally, magistrates can grant bail or decide the person charged with the offence to keep in custody in prison.
Summary cases (delitos menos graves) handles over 80-90 per cent of all criminal matters. Sometimes magistrates can pass a sentence the same day of your first appearance at Court, even though the enforcement will not be immediate.
Public Defender or Private Lawyer?
In Spain, a lawyer purporting to be Public defender must pass some exams and justify an experience period of several years (2 or 5 depending on the kind of proceedings). Conversely, Private Lawyer has only to meet a minimum requirements to practise law. Despite that, Public Defenders have an undeserved bad name. I was Public Defender for 10 years and can confirm that most of Public Defenders develop his/her work at a very high level of professional excellence even though have often to deal with several detainees the same day and appear before the judge many times in that frantic morning. For these reasons, Private Lawyer can deploy his/her professional services in a less hostile environment and concentrate on his/her unique client.
At any case, if you can’t afford the Private Defender’s fee, do not worry because you will have a free, highly trained professional at your disposal.
Is it mandatory to appear at the trial?
Unless the alleged criminal offence could be sentenced to more of two years’ imprisonment, you have not the obligation to appear in Court, but proceedings will continue in absence and you will be try anyway, for which it does not use to be the best decision you can make.
Article by Antonio Rodríguez Pedro Bernal
Antonio Pedro Rodríguez Bernal is an experienced attorney in the criminal jurisdiction. He has sucessfully defended clients in crimes concerning alleged manslaughter and murder, against public health (drug trafficking), against property (theft, undue appropriations), against sexual freedom, crimes against the Spanish Historical Heritage, driving under the influence (DUI), theft, domestic violence, economic crimes, smuggling and in all kinds of crimes and misdemeanours, both before the first instance criminal courts, provincial hearings, jury courts and the Supreme Court. Ha has intervened and intervenes in cases with big media impact.
He speaks Spanish as his mother tongue, English and French as his working languages, and Hungarian.