Illegal Detention vs Kidnapping: What You Need to Know

Someone holds you against your will. You cannot leave. Under Spanish law, this could be classified as either illegal detention (detención ilegal) or kidnapping (secuestro), and the distinction carries serious consequences. The difference between these two charges can mean several additional years in prison.

This article explains what separates these two offenses under the Spanish Penal Code, what penalties apply, and what to do if you face either charge.

What Is Illegal Detention Under Spanish Law?

Illegal detention is defined in Article 163 of the Spanish Penal Code (Código Penal). It consists of depriving a person of their freedom of movement without any legal justification. This does not require locking someone in a room. Blocking an exit, holding someone inside a vehicle, or preventing them from leaving a location is enough.

Elements of the Offense

• Deprivation of liberty: the victim cannot move freely.
• No legal basis: there is no court order, flagrant offense, or other lawful reason justifying the restriction.
• Intent: the perpetrator acts deliberately and consciously.

Penalties

Article 163 establishes a prison sentence of 4 to 6 years as the standard penalty. Certain circumstances modify this:

• If the detention lasts more than 15 days, the penalty increases to 5 to 8 years.
• If the perpetrator voluntarily releases the victim within the first 3 days without achieving their objective, the penalty is reduced by one degree.
• If the detention is committed by a public authority or official outside the cases permitted by law, penalties are aggravated under Article 167.

Practical Example

A landlord locks a tenant inside an apartment during a dispute over rent. The landlord does not demand anything in return. They simply prevent the tenant from leaving. This constitutes illegal detention.

What Is Kidnapping Under Spanish Law?

Kidnapping is regulated in Article 164 of the Spanish Penal Code. It is essentially a qualified form of illegal detention distinguished by one critical element: the perpetrator demands that a condition be met before releasing the victim. That condition can be financial (a ransom), but it can also take other forms: demanding that someone perform an action, sign a document, make a decision, or refrain from doing something.

Elements of the Offense

• All elements of illegal detention (deprivation of liberty, no legal basis, intent).
• A condition for release: the perpetrator makes the victim's freedom contingent on the fulfillment of a specific demand.

Penalties

Article 164 imposes a prison sentence of 6 to 10 years. The penalty is significantly higher than for illegal detention precisely because of the extortionate nature of the demand. The aggravating circumstances applicable to illegal detention also apply to kidnapping.

Practical Example

A group holds a business owner in a warehouse and calls the family demanding 50,000 euros for their release. The deprivation of liberty is the means; the financial demand is the condition. This is kidnapping.

The Key Difference: The Condition

The dividing line is straightforward: if the perpetrator holds the victim without demanding anything, it is illegal detention. If the perpetrator conditions the release on the fulfillment of a demand, it is kidnapping.

This distinction is critical for defense strategy. A criminal defense lawyer can argue that no real condition existed, that the alleged demand did not qualify as such, or that the facts better fit the base offense. That reclassification can mean several fewer years in prison.

Aggravating Circumstances

Article 165: Specific Aggravating Factors

The penalty is imposed in its upper half when:

• The victim is a minor or a person with a disability.
• The perpetrator is a public official acting outside their authority.
• The perpetrator impersonates a public authority to commit the offense.

Article 166: Disappearance of the Victim

If the perpetrator fails to account for the whereabouts of the victim:

• 10 to 15 years in cases of illegal detention.
• 15 to 20 years in cases of kidnapping.

Illegal Detention vs Kidnapping vs Other Offenses

Coercion (Article 172 CP)

Coercion involves preventing someone from doing something or forcing them to act against their will, but without a sustained deprivation of freedom of movement. A brief restriction of movement linked to an isolated threat may constitute coercion rather than illegal detention.

Threats (Articles 169-171 CP)

Threats involve announcing future harm. If someone demands money under threat of causing harm but without physically holding the victim, this constitutes conditional threats, not kidnapping.

Human Trafficking (Article 177 bis CP)

Trafficking involves the recruitment, transport, or harboring of persons for purposes of exploitation. Although it includes deprivation of liberty, it is an autonomous offense with its own specific elements and penalties.

What to Do If You Face These Charges in Spain

1. Exercise your right to remain silent. Do not make any statements to the police without your lawyer present. Anything you say can be used against you.
2. Contact a criminal defense lawyer immediately. At Fukuro Legal, we provide 24/7 assistance and speak English, Spanish, and German.
3. Do not accept charge classifications without legal advice. The difference between illegal detention and kidnapping can mean several additional years in prison.
4. Preserve all relevant evidence: communications, witnesses, recordings, any element that supports your version of events.

Conclusion

Illegal detention and kidnapping share a core element: the deprivation of another person's liberty. What separates them is the condition. When the perpetrator demands something in exchange for the victim's release, the offense becomes kidnapping and the penalties increase substantially.

• Illegal detention (Art. 163 CP): deprivation of liberty without legal cause. Penalty: 4 to 6 years.
• Kidnapping (Art. 164 CP): adds a condition for release. Penalty: 6 to 10 years.
• Aggravating factors (minor victim, public official, disappearance): penalties up to 20 years.
• The correct classification of the offense is essential for an effective defense.

If you are facing charges for illegal detention or kidnapping in Spain, you need a criminal lawyer with experience in offenses against personal liberty. At Fukuro Legal, we defend your rights from the first minute.