Dani Alves and remand in custody

Since January 20, 2022 the former player of Futbol Club Barcelona Daniel Alves da Silva, has been in prison by order of a court in Barcelona, accused of an alleged crime of rape. Today, February 21, it has been announced that the Provincial Court of Barcelona has denied his release. Why did this happen? Is it normal?

Provisional Detention or Preventive Detention

We are going to take advantage of the matter to talk about what in law is called provisional detention or also pre-trial detention. This legal institution means that, in certain cases, a person can be imprisoned without having been convicted, simply as a precautionary measure, pending trial.

Since in the Spanish criminal system the presumption of innocence prevails (that "everyone is innocent unless proven guilty") it is normal that, if a crime is committed, it is not necessary to go to prison until a final sentence has been passed, but as always, there are exceptions to the general rule, and therefore there are cases in which a person can be sent to prison before having been convicted.

As we have said that pre-trial detention is an extraordinary case, it can only be adopted in extremely exceptional cases, always ordered by a motivated judicial resolution, and for this it is necessary that several requirements are met:

• That a crime has been committed that carries a penalty of more than two years imprisonment. In the case of Dani Alves, as he is accused of a crime of sexual assault with penetration punishable by 4 to 12 years, the adoption of the measure can be justified.
• That there are indications (more than suspicions) that the person to be imprisoned is the author of the facts (what is called rational indications of criminality). In this case the victim directly accuses the soccer player and it seems that there are cameras, witnesses and fingerprints that corroborate his statement.WARNING! This does not mean that he is guilty of the facts, because it has to be a Court who, after evaluating ALL the evidence, decides whether he is guilty or innocent, but they are indications that he could have committed them.
• That with pre-trial detention certain risks are avoided, such as (it is sufficient that some of them concur):
  • Risk of leakage. In the case at hand, this risk seems very high, since Alves is a person with great economic capacity and he is not Spanish, and he is not even a national of a European Union country, so he could easily go to his country (Brazil) and it would be impossible to bring him back, since countries do not usually extradite their nationals.
  • Risk of destruction of evidence. In this case it is not very likely, since the Mossos d'Esquadra already have all the evidence collected, but in other more complicated cases it could be that the perpetrator wanted to destroy the evidence that had not yet been discovered.
  • Risk of action being taken against the victim. We do not consider that this is the case in this particular case, but in cases of violent crimes, it may happen that imprisonment is adopted to protect the victim, so that she is not coerced to modify her statement, or so that she does not go to court.
  • Risk of repeated offenses. This is not the case, either, but pretrial detention may be justified to prevent further offenses when dealing with repeat offenders.

So, as we can see, as several of the above requirements were met, it was possible to adopt the measure of pre-trial detention against Dani Alves, but the measure can only be adopted if any party involved in the proceedings requests it. In this case, both accusations requested it (both the prosecutor and the private prosecution); the judge considered that it was justified and for this reason ordered it.

The measure adopted was the most serious: imprisonment without bail. It would have been possible to set a bail (economic amount) to tie the footballer to the procedure, which means that, after payment of this, he would be released, but, if the accused did not appear later, when his presence was necessary (either for the trial or for any notification, or even to enter prison once the sentence is final), it would be forfeited and would be awarded to the State.

The amount of the bail will depend on the seriousness of the facts, the risk of absconding and the economic possibilities of the person under investigation.

Duration of Provisional Detention

And how long can a person be in jail without trial?

Spanish procedural law states that, once adopted, pre-trial detention will last for the time necessary to achieve the purposes for which it is intended, i.e., if one of the purposes was to prevent the destruction of evidence and the evidence is guaranteed, the person under investigation must be released immediately.

Otherwise, the same law sets maximum deadlines:

• 1 year if the maximum penalty foreseen for the crime is equal to or less than 3 years.
• 2 years for sentences of more than 3 years (these terms may be extended once, for 6 months in the first case and for 2 years in the second).

Modification of Provisional Imprisonment

How can the pre-trial detention be modified, and what do I do to be released?

As it is an exceptional measure, the Law allows it to be modified at any time when the purposes are deemed to be fulfilled.

It can be done ex officio by the judge or at the request of any of the parties.

If it is requested and the petition is rejected, it is possible to go to the higher court: the Provincial Court through an appeal.

In the Alves case, ehe examining magistrate denied the first request for release and his defense filed an appeal against that decision. This appeal has also been rejected because, according to the order of the Court of Appeals to which we are referring, in addition to the fact that there are serious indications that Dani Alves committed the crime with which he is charged, he has not been released. There is a very high flight risk derived from, as we have already mentioned, his economic potential and the fact that he is of Brazilian nationality, which leads us to fear that, if he were to go to his country, the trial might never take place.

However, this does not mean that Alves will be in prison until the time of the trial, because, for example, if during the pre-trial phase evidence were to appear to show that he does not have the implication that he is currently presumed to have or if it were demonstrated that there is no possibility of fleeing our country, he could be released or bail could be set at an amount that could really make one think that its loss would tie the footballer to the proceedings (and in this case it would be very high).

José Soler Martín - Lawyer