Provisional Detention

Judges may adopt, always as a preventive measure against the risk of flight or destruction of evidence on the part of the person being prosecuted in a given case, provisional imprisonment for him or her. This action, due to the loss of liberties.

Judges may, always as a preventive measure in the event of the risk of absconding or destruction of evidence by the person being prosecuted in a given case, remand him/her in custody. This action, due to the loss of liberties that it entails without the existence of a firm judicial sentence, has a multitude of requirements and guarantees surrounding it. Here we would like to tell you everything you need to know about it.

What is pre-trial detention?

To find the regulation of pre-trial detention, we must turn to Article 503.1.1 of the Criminal Procedure Act (Ley de Enjuiciamiento Criminal). It is a precautionary measure based on criteria of proportionality and necessity that restricts the right to liberty of the accused. For this, it is a 'sine qua non' requirement that, within the case being prosecuted, there are acts constituting crimes whose penalty, according to the Criminal Code, is two or more years' imprisonment. In the event that the person under investigation has an existing criminal record for the commission of an intentional crime, it can be applied even if these actions carry a sentence of less than 2 years.

Types of pre-trial detention

There are two main types of pre-trial detention:

• Incommunicado pre-trial detention: This is detention that takes place in a state prison, i.e. a prison. It is only applicable in cases where pre-trial detention is ordered to prevent the commission of other crimes, the destruction of evidence, the risk of absconding or the risk that the person under investigation may harm the victim's legal interests. This ground is very common in cases of gender-based violence.
• Mitigated pre-trial detention: this is generally restricted to the home in which the person under investigation lives. Specifically, a series of surveillance measures are established to prevent him from leaving his home. This is usually reserved for cases in which the accused is seriously ill. It is the judge who must sign the permits for the accused to go to court or to the doctor.

What are the requirements for pre-trial detention?

Firstly, pre-trial detention as a precautionary measure in proceedings can only be adopted on the basis of a judicial decision that reflects sufficient grounds. Moreover, it can only be adopted in criminal proceedings as it is not provided for in the Code of Civil Procedure.

Therefore, pre-trial detention can only be imposed by the investigating magistrate or judge of the case, as well as the judge of first instance or the court dealing with the case. Similarly, only they can determine its continuation beyond the initial period and its revocation when appropriate.

The Criminal Procedure Act further provides that the following circumstances must be present in order for the measure of pre-trial detention to be adopted:

• If there is prima facie evidence that the accused has committed the criminal acts that are being tried in the case and that are set out in the committal order. In this regard, the judge must set out all the material that is likely to prove his guilt and make an assessment of it.
• That the imposition of pre-trial detention sentences is indispensable to pursue the legitimate aims of the case.
• Eliminate the risk of the defendant absconding, for which purpose the nature of the offence and the seriousness of the act constituting it must be taken into account, as well as the time remaining until the oral trial, the defendant's family, economic and employment situation and whether there have previously been summons and search warrants issued during the last two years.
• If it is considered that the person under investigation, while at liberty, could alter, destroy or conceal evidence relevant to the case being tried.
• Prevent the person under investigation from having the possibility of harming the legal assets of the person considered as a victim in the case.
• Provisional detention may also be ordered if it is understood that there is a risk that the person under investigation will commit other criminal acts during the prosecution process.

The maximum duration of pre-trial detention

Obviously, a person under investigation cannot be held in pre-trial detention indefinitely, even if all the requirements are met and the circumstances described above are present. This appears in Article 504 of the Criminal Procedure Code.

Specifically, this article defines the following:

• A maximum of one year if the offence under investigation carries a penalty of 3 years or less.
• A maximum of two years if the offence under investigation carries a sentence of more than 3 years.
• If it has been decreed to avoid the alteration, destruction or concealment of evidence, it will be set at a maximum of 6 months.

It should be added, firstly, that pre-trial detention can be maintained until there is a final judicial sentence. By this we mean that, if the sentence declaring the accused not guilty is not final and can therefore be appealed, it is possible that the person under investigation may have to remain in prison. This is not usual, but it can happen.

In addition, the judge who issued the pre-trial detention order has the power to extend this situation for a further 2 years if the offence being prosecuted carries a sentence of more than 3 years. If it is the same or less, it may only be extended for 6 months. These extensions can only be carried out once. Once it has ended without a final judicial sentence, the accused must be released.

The procedure necessary to decree pre-trial detention

As we have already said, the figure of pre-trial detention does not appear in the Civil Procedure Act, so we must turn again to the Criminal Procedure Act to find out how the process should be carried out. Specifically, it appears in articles 539 and 505.

The process, specifically, is as follows:

• Arrest of the accused.
• Bringing the accused before the judge and hearing within 72 hours of his arrest.
• Summons to the parties, the defendant assisted by a criminal lawyer and the Public Prosecutor's Office. Only the Public Prosecutor's Office and the accused, together with his lawyer, must appear.
• Request by the victim's defence or the Public Prosecutor's Office for the adoption of the preventive measure of pre-trial detention.
• Presentation of evidence demonstrating that the circumstances provided for in the Criminal Procedure Act are present and allegations by the defence.
• Decision of the judge to adopt the pre-trial detention measure or, failing that, to impose bail or to grant release.

In the event that the judge considers pre-trial detention to be a necessary measure, the defendant's defence may appeal the measure before the Provincial Court.

In short, pre-trial detention is a precautionary measure that judges can implement in cases of particular gravity and in which there are concrete and well-founded risks. At the end of the day, it represents a serious harm to such an important constitutional right as freedom.