Can I go to prison without being convicted?

Pre-Trial Detention and Its Defense

Pre-trial detention, also known as preventive detention, is what is referred to as a precautionary measure. These can only be imposed by a Judge or Magistrate, at the request of an authority (Police, Public Prosecutor, or Private Prosecution), with the aim of preventing harm, concealing evidence, avoiding flight of the accused, among other reasons.

Requirements for Pre-Trial Detention

The requirements for pre-trial detention are found in Article 503 of the Spanish Criminal Procedure Act (LECrim), and can be summarized as follows:

I) The acts under investigation must potentially constitute a crime punishable by imprisonment of two years or more. Alternatively, even if the sentence is lower, detention may be justified if the accused has unexpired or non-expungable criminal records.

II) The investigation must yield sufficient grounds to believe that the person under investigation is responsible for the alleged acts.

III) The pre-trial detention must serve at least one of the following purposes:

• Prevent the accused from fleeing and ensure their appearance at trial. This is assessed based on the facts, the seriousness of the potential penalty, and the accused’s work, family, and economic circumstances.
• Prevent the concealment, alteration, or destruction of crucial evidence needed for the trial. There must be a specific and well-founded risk.
• Prevent the accused from harming the victim. If the victim has a close personal relationship with the accused, pre-trial detention may be ordered regardless of the severity of the potential penalty.

Key Points for Defending Against Pre-Trial Detention Orders

The most recent guidelines on pre-trial detention stem from the Constitutional Court Ruling (STC) 4/2023, dated February 20, building on the legal precedent set in STC 180/2020.

Highlights from the Constitutional Court Decision:

1. The rights to information and access to evidence are fundamental for any person under investigation or trial.
2. These rights are heightened for individuals in detention or pre-trial custody, as specified in Article 520.2 of the LECrim, to safeguard liberty and defense rights.
3. Failure to uphold these safeguards violates the right to personal liberty under Article 17.1 of the Spanish Constitution, and such a violation is considered serious and contrary to constitutional and procedural principles.
4. Access to key information to challenge the legality of detention or imprisonment is central to the right to information and the integrity of the legal process.
5. The link between access and information is at the heart of the right to a defense, especially when liberty is at stake.
6. Investigative secrecy may, in certain cases, restrict these rights to protect the integrity of the investigation or other fundamental rights.
7. However, this secrecy must not prevent knowledge of the accusations or the justification for detention, nor limit access to essential information needed to challenge the detention.
8. Such access must be guaranteed before the first police interrogation in case of arrest, and before the hearing where pre-trial detention is decided.
9. Equal footing between defense and prosecution is essential and requires full and prior access to relevant information.
10. Equality of arms is undermined if the defense lawyer does not have access to crucial documents to challenge the detention — a point reinforced by various European Court of Human Rights rulings.
11. What constitutes essential material for reviewing the legality of detention will be assessed case-by-case, focusing on what is strictly necessary to question whether the restriction of liberty was lawful.

Key Points

Legal Basis:

Regulated in Articles 502 to 519 of the Spanish Criminal Procedure Act (LECrim).

Main Objectives:

1. Prevent the suspect’s flight.
2. Prevent tampering with or destruction of evidence.
3. Reduce the risk of criminal recidivism.
4. Protect the victim’s legal rights and interests.

Requirements (per Article 503 of LECrim):

1. Existence of legitimate objectives (as stated above).
2. Evidence indicating a crime punishable by at least two years of imprisonment.
3. Strong evidence of the suspect’s involvement.
4. Indications of criminal intent to prevent future offenses.

Duration:

• Pre-trial detention is temporary and strictly limited to its purpose.
• Cannot exceed 1 year for crimes punishable by up to 3 years.
• Cannot exceed 2 years for crimes punishable by more than 3 years.
• Extensions are possible in exceptional cases, but always within legal limits.

Types of Detention:

1. Ordinary: In a prison facility, with communication allowed.
2. Incommunicado: Exceptional, maximum of 5 days (extendable by 3 more in serious cases).
3. Mitigated: At home or in a specialized facility for health or rehabilitation reasons.

Rights of the Accused:

• Retain their civil, social, economic, political, and cultural rights.
• Submit requests and complaints.
• Preserve their privacy and dignity.
• Access penitentiary benefits..
• Have their integrity, health, and life protected by the prison administration.

Conclusion

Pre-trial detention is a serious precautionary measure that restricts liberty before a final conviction. It must be applied cautiously, in strict compliance with legal requirements, and always respecting the fundamental rights of the accused. Case law emphasizes its exceptional nature and the need for proper justification for its imposition or extension.

At Brandi Abogados, we have extensive experience in successfully handling these situations. We are experts in criminal law. Don’t hesitate to contact us.