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Pretrial detention or provisional detention is a precautionary measure of a personal nature (taken against a person) that exists in all the criminal systems of the world and involves the imprisonment of a person suspected of having committed a crime but who has not yet been sentenced to a final judgment.
This is an exceptional measure, since the general rule in Spanish criminal proceedings is provisional liberty, but it may be adopted by the examining magistrate in certain cases and always for the minimum time necessary to ensure the purposes for which it is intended.
It is the "ultima ratio" of the penal system, which means that if there are other measures that can be adopted and that can lead to the same result, those measures must be adopted, and not prison, since prison is the most serious of all the measures that can be adopted, since it implies the deprivation of freedom of movement without a final sentence or declaration of guilt.
IN WHICH CASES IS THIS MEASURE ADOPTED?
It is important to make clear that the Spanish criminal justice system is a system of "justice rogada", which means that this measure cannot be adopted if there is no prior request to the judge by any of the accusing parties (in this case it could be the Public Prosecutor's Office or the private prosecutor).
As we have already said, pre-trial detention is very serious, and therefore our penal system does not authorize its adoption in any case, but only when it pursues the achievement of any of the following purposes:
- Avoid risk of absconding (ensure the presence of the investigated person in court)
- Preventing the disappearance or destruction of evidence
- To prevent the person under investigation from acting against the victim's legal assets.
- To avoid the repetition of the crime (although this last purpose does not justify the measure on its own, but only when the first two are also present).
Then, if these purposes concur , can it be decreed for any crime? The answer is NO, since the Criminal Procedure Law, which is the law that regulates the Spanish criminal process, only allows it when in addition to being necessary for the purposes to which we have referred, the crime that is considered committed has a penalty equal to or greater than two years of imprisonment (or less but the investigated has a criminal record that cannot be canceled).
This is to avoid that a person suffers preventive imprisonment for a possible sentence that he/she will not serve because the "conditional suspension of the sentence" (which we will refer to in another post) could be applicable to him/her.
Thus, the alleged perpetrator of a misdemeanor (because none of them carries a prison sentence of more than two years) cannot be remanded in custody.
It is also a prerequisite for the adoption of this measure that there are indications or suspicions that the person to be imprisoned is the perpetrator of the facts.
HOW LONG CAN I STAY IN JAIL ON REMAND?
Article 504 of the Criminal Procedure Law states that pre-trial detention shall last for the time necessary to achieve any of the indicated purposes and for as long as the reasons that justified its adoption subsist. This means, for example, that if one of the reasons that justified the measure was to avoid the destruction of evidence and the evidence has already been collected during the investigation, the measure must cease immediately.
In addition and independently of the above, maximum terms of duration are established:
- If the measure was taken to avoid destruction of evidence: 6 months.
- Whether it was adopted to ensure the risk of flight or action against legal assets of the victim:
- 1 year if the maximum penalty foreseen for the crime is equal to or less than 3 years.
- 2 years for sentences longer than 3 years.
(These periods may be extended only once, for 6 more months in the first case and for 2 more years in the second, if the case has not been tried before the end of the period).
- If the sentence has been passed but is not final because an appeal has been filed, up to half of the sentence imposed in the sentence.
The expiration of these deadlines (if no extension has been requested by the prosecuting parties) will result in immediate release.
In any case, the defendant has the right to request his provisional release as many times as he wishes during the proceedings if he considers that the circumstances that were taken into account to adopt the imprisonment have changed.
The time spent in pretrial detention will be subtracted from the time of imprisonment to which the subject is sentenced in the case of a final sentence.
WHAT OTHER MEASURES ARE AVAILABLE TO AVOID IMPRISONMENT?
Since pretrial detention is an exceptional measure, the examining magistrate must evaluate other measures that are less restrictive of the right to liberty, and therefore may opt for others that are lighter, such as:
- The imposition of a pecuniary bond.
- The attachment of a tracking device (bracelet).
- Withdrawal of passport and prohibition to leave the territory.
- Appearances "apud acta" before the court on days to be determined (signatures on the 1st and 15th of each month).
- House arrest.
