Spain welcomes over 85 million visitors every year. Whether you live here as an expatriate, run a business, or are simply on holiday, one scenario can turn your life upside down in an instant: being arrested or detained by Spanish police.
If that happens, the decisions you make in the first few hours will shape the outcome of your entire case. This guide explains exactly what the Spanish legal system requires, what rights protect you, and why having an experienced criminal defense attorney by your side from the very first moment is not a luxury, it is a necessity.
How Detention Works in Spain
Spanish law distinguishes between two situations: a detención (detention) and a prisión provisional (pre-trial custody). Understanding the difference is essential.
Police Detention (Detención)
The police may detain you if they catch you committing an offence, if there is a warrant for your arrest, or if there are reasonable grounds to suspect you have committed a crime. Once detained, the clock starts ticking: Spanish law sets a strict maximum of 72 hours for police detention before you must be brought before a judge.
In practice, most detentions are resolved within 24 to 48 hours. During that window, the police will take your statement, gather evidence, and decide whether to release you or present your case to the investigating judge (Juez de Instrucción).
Pre-Trial Custody (Prisión Provisional)
If the judge determines that there is a flight risk, a risk of evidence destruction, or a risk of reoffending, they may order pre-trial custody. This is a far more serious measure and can last several months, in exceptional cases, up to two or even four years. This is precisely the scenario where the quality of your legal defense in the first hours can make the decisive difference.
Your Fundamental Rights as a Detainee
The Spanish Constitution and the Ley de Enjuiciamiento Criminal (Criminal Procedure Act) grant every detained person, regardless of nationality, the following rights. The police are obliged to inform you of these rights immediately upon detention, in a language you understand.
1. The Right to Know Why You Are Being Detained
You must be informed of the facts you are accused of and the reasons for your detention. This information must be provided promptly and in a language you understand. If you do not speak Spanish, an interpreter must be provided free of charge.
2. The Right to Remain Silent
You are not obligated to make any statement. You have the right to refuse to answer any or all questions, and your silence cannot be used against you. This is one of the most important rights you have, and one of the most frequently misunderstood. Do not make any statement before speaking with your lawyer.
3. The Right to a Lawyer
Every detained person in Spain has the right to legal assistance. You may choose your own lawyer or, if you do not have one, a court-appointed lawyer (abogado de oficio) will be assigned. However, there is a critical difference: a court-appointed lawyer may not specialize in criminal defense, may not speak your language, and will have limited time to dedicate to your case.
Choosing a specialized criminal defense attorney who speaks your language and can be present at the police station within hours is one of the most consequential decisions you will make.
4. The Right to an Interpreter
If you do not speak Spanish fluently, you are entitled to a qualified interpreter at every stage of the proceedings, during police questioning, in court hearings, and when reviewing documents related to your case. This right is guaranteed under both Spanish law and EU Directive 2010/64.
5. The Right to Inform Someone of Your Detention
You may request that a person of your choice, a family member, friend, or your consulate, be notified of your detention. If you are a foreign national, the police must inform your country's consular office, unless you expressly decline.
6. The Right to Medical Assistance
You are entitled to a medical examination by a physician. This is particularly important if you have been injured, if you suffer from a medical condition, or if you wish to document the conditions of your detention.
7. The Right to Access the Case File
Your lawyer has the right to access the essential elements of the case file before your first statement. This allows your defense to be prepared, not improvised.
What Happens in the First 72 Hours: A Step-by-Step Overview
Understanding the process helps you stay calm and make informed decisions.
Hour 0, Detention: You are informed of your rights. The police identify you and may confiscate personal belongings. You are placed in a holding cell.
Hours 1–6, Notification and Legal Assistance: Your chosen lawyer (or a duty lawyer) is notified. Your consulate is informed if applicable. Your lawyer arrives and has a private, confidential meeting with you before any questioning.
Hours 6–48, Police Statement: You give your statement in the presence of your lawyer and an interpreter (if needed). Your lawyer advises you on which questions to answer and which to decline. The statement is recorded and signed.
Hours 48–72, Judicial Decision: If the police do not release you, you are brought before the investigating judge. The judge reviews the evidence and decides: release, conditional release (with or without bail), or pre-trial custody.
Critical Mistakes Foreigners Make When Arrested in Spain
Years of defending international clients have shown us the same patterns. Avoid these errors:
Speaking Without a Lawyer Present
The pressure in a police station is intense. Officers may be friendly, suggest that cooperation will help your case, or imply that refusing to talk makes you look guilty. None of this changes your legal right to remain silent. Anything you say without legal counsel can, and will, be used against you. Wait for your lawyer.
Assuming Your Home Country's Rules Apply
Criminal procedure varies dramatically between countries. The rights you have under UK, US, or German law may not exist in Spain, and vice versa. Spanish criminal procedure has its own rules regarding evidence, pre-trial detention, and plea arrangements. A lawyer trained in Spanish criminal law is indispensable.
Relying Solely on a Court-Appointed Lawyer
Court-appointed lawyers serve an important function, but they are often overworked, may not specialize in your type of case, and almost certainly will not speak your native language. In complex or serious cases, the difference between a generalist and a specialized criminal defense attorney can determine whether you spend weeks in pre-trial custody or walk free the same day.
Signing Documents You Do Not Fully Understand
Never sign a document in Spanish, or any language, that has not been properly translated and explained to you by your lawyer. A signed statement is extremely difficult to retract.
Specific Considerations for Foreign Nationals
As a foreigner, you face additional challenges that Spanish citizens do not:
- Flight risk assessment: Judges are statistically more likely to order pre-trial custody for foreign nationals because the lack of ties to Spain increases the perceived flight risk. A good defense attorney can present evidence to counteract this, employment contracts, family ties, property ownership, or voluntary surrender of your passport.
- Consular assistance: Your consulate can provide a list of local lawyers, contact your family, and ensure your detention conditions meet international standards. However, the consulate cannot intervene in legal proceedings or act as your lawyer.
- European Arrest Warrants: If you are detained in Spain on a European Arrest Warrant issued by another EU member state, specific rules under the Framework Decision 2002/584/JHA apply. The surrender process has strict deadlines and procedural safeguards that require specialized legal knowledge.
- Language barriers in court: Even if you speak conversational Spanish, legal proceedings involve highly technical vocabulary. Always insist on a professional interpreter for court hearings.
When to Contact a Criminal Defense Lawyer
The answer is simple: immediately. Do not wait until you are formally charged. Do not wait until you have given a statement. Do not wait until you are brought before a judge.
The moment you are detained, or the moment you learn that the police want to speak with you, contact a criminal defense attorney. The earlier your lawyer is involved, the more options remain open, and the stronger your defense will be.
Fukuro Legal provides 24/7 emergency legal assistance across Spain. Our criminal defense attorneys are available around the clock, speak English, Spanish, and German, and can be present at the police station when you need them most.
Arrested or facing criminal charges in Spain? Call Fukuro Legal now for immediate, confidential legal assistance, available 24 hours a day, 7 days a week.
