Who Can Carry Out an Arrest and Who Can Be Arrested?

Who Can Carry Out an Arrest and Who Can Be Arrested?

An arrest is a legal act that involves depriving a person of their liberty for a set period of time. This act can be carried out by ordinary citizens as well as police authorities, depending on the circumstances. Arrest is a complex and delicate procedure, as it involves the fundamental rights of the person detained. For this reason, it is important to understand who is authorized to arrest and in which cases.

Arrest by Citizens

Any citizen can carry out an arrest in specific situations. These situations are exceptional and clearly defined by law. A citizen may arrest another person in the following cases:

1. Attempted crime: A citizen may detain someone who is attempting to commit a crime at the moment they are about to execute it. This refers to the immediate preparation phase of the crime, where there is a clear intention to carry it out.
2. In flagrante delicto: This is the most common case in which a citizen can make an arrest. It refers to the situation in which a person is committing a crime at that very moment. For example, if a citizen witnesses a robbery in progress, they have the power to detain the offender.
3. Prison escape: A citizen may also detain someone who has escaped from a penitentiary. This includes individuals who were serving a sentence or awaiting transfer.
4. Escape during preventive detention: If a person is in custody or preventive detention and escapes, any citizen has the authority to detain the fugitive.
5. Judicial rebellion: A citizen may arrest a defendant or convicted person who is in rebellion, meaning they have evaded justice by failing to appear before authorities when required.

In all these cases, the purpose of a citizen’s arrest is to bring the detainee before judicial authorities as soon as possible. It is essential to understand that this ability to arrest is a power, not an obligation. This means that, although a citizen has the right to arrest in these circumstances, they are not legally required to do so. However, if they proceed, they must act cautiously to avoid excessive use of force or committing an unlawful arrest.

Arrest by Police Authorities

Unlike ordinary citizens, police authorities and judicial police officers are obligated to make arrests in the cases mentioned above, as well as in other situations. A police arrest not only aims to bring the detainee before a judge, but also to carry out additional procedures such as identification and taking statements.

Authorities are required to arrest:

1. Defendants for serious crimes: Anyone prosecuted for a crime punishable by more than five years of prison under the Penal Code must be arrested by the authorities.
2. Defendants at risk of flight: In cases where a person is prosecuted for a crime punishable by less than five years, but there are circumstances suggesting they may not appear before the judicial authority, the authorities must proceed with the arrest.

Police arrests have a broader purpose than those carried out by citizens. Beyond bringing the detainee before a judge, they include identification procedures, background checks, and questioning, ensuring the person is treated according to the law and their rights are respected.

Limitations in Arrests for Minor Offenses

By law, as a general rule, no one may be arrested for a minor offense. However, there are exceptions, such as when the person has no known address or fails to provide bail when required. In these cases, authorities may proceed with the arrest to ensure the individual appears before the court.

The Arrest Process

Both citizen and police arrests are subject to strict deadlines and procedures to protect the detainee’s rights.

• Standard detention period: 24 hours, extendable up to 72 hours in special circumstances. During this time, the detainee must either be brought before a judge or released. Failure to comply may constitute unlawful detention.
• Exceptions: In terrorism-related cases, detention may be extended up to five days. In states of alarm, exception, or siege, the period can be extended up to ten days.

Rights of the Detainee

A person under arrest has specific rights designed to protect their physical and moral integrity and to guarantee fair treatment:

1. Right to information: To be informed immediately and in clear language of the reasons for the arrest and their rights.
2. Communication with a relative or trusted person: A family member or trusted person must be informed of the arrest and the place of detention.
3. Interpreter assistance: If the detainee does not understand Spanish, they have the right to an interpreter.
4. Consular communication for foreigners: Foreign detainees have the right to have their consulate informed.
5. Medical examination: The detainee has the right to be examined by a doctor to monitor their health during detention.
6. Visits and correspondence: They may receive visits and correspondence unless exceptionally restricted, such as in terrorism cases.
7. Protection against mistreatment: The arrest must be carried out in the least harmful way possible, avoiding unnecessary force or degrading treatment.
8. Right to defense: The detainee has the right to remain silent, not self-incriminate, and be assisted by a lawyer.

Judicial Procedure After Detention

Once brought before a judge, the court has up to 72 hours to decide:

• Provisional prison if there is risk of flight, repeat offense, or destruction of evidence.
• Provisional release, possibly with conditions such as reporting to court.
• Dismissal if there is insufficient evidence.

Consequences of Illegal Detention

An arrest that does not meet legal requirements may be deemed unlawful. The detainee may seek redress, and the person or authority responsible could face criminal liability. The legal remedy of habeas corpus allows a detainee held unlawfully to request immediate release.

Practical Examples

• Protests: Authorities may arrest individuals committing violent acts or posing a threat to public order.
• Domestic violence: Arrests may occur immediately after a complaint to protect the victim.
• Airports: Individuals with outstanding warrants may be detained when trying to leave the country.
• Drug trafficking: Authorities can detain suspects during operations to dismantle trafficking networks.

Comparison with Other Legal Systems

• United Kingdom: Police can detain suspects for up to 96 hours without charges for serious crimes, longer than Spain’s 72-hour limit.
• France: Detention (“garde à vue”) can last up to 24 hours, extendable by another 24. Rights to legal assistance are similar to those in Spain.

Conclusion

Arrest is a crucial legal mechanism for maintaining public order and justice, but it must be applied carefully to protect detainees’ rights. Both citizens and authorities have defined roles, and strict time limits and procedures exist to prevent abuse. Spain’s legal framework provides strong safeguards to balance security needs with individual freedoms.

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