1. Minor Crimes
When a person is arrested in Spain for the commission of a minor crime, being assisted by a lawyer is not mandatory, it is optional, although it is always recommended when a foreigner is involved. Therefore, you do not have the right to a public defender (unless you expressly request it and the court considers it necessary for your defence). The penalty in such cases will never be imprisonment, but rather a fine or a community sentence or, potentially, house arrest.
This commonly affects tourists from the UK, France, and Greece who may face minor infractions while visiting popular destinations like Barcelona, Alicante, Tenerife, or Ibiza. In such cases, providing a utility bill from your home country can help establish your normal residence outside of Spain.
In this case, the person can leave the country, as the law does not allow a person who is from outside of Spain to be persecuted for the commission of a minor crime. A European arrest warrant cannot be issued.
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2. Returning to Spain
However, as soon as that person tries to enter Spain again, he will have a search and capture order in the national territory, in Spain, and therefore he will be arrested, he will spend the night arrested in the police station closest to the border police station or border guard where the person entered Spain, and he will be taken to the nearest court the next day, after spending the night in prison. Once at the court, that person will be summoned to hold the trial in the appropriate court.
To prevent this from happening, before leaving the country, you must appoint a solicitor to handle your defence and receive notifications on your behalf. Your lawyer will inform you of the date of the trial, which may take months or even more than a year, but in any case, you will be informed with enough time in advance to allow you to travel to Spain and attend the trial.
In certain cases, you may not be obliged to appear at the trial, and you could let your lawyer go to trial on your behalf and later send you the Court decision, for example, the payment of a fine, which you can pay from your country, in certain bank branches.
After the trial, you must await the sentence to be handed down or appoint a lawyer to be notified of the sentence. Otherwise, you will not be able to receive the notification of the sentence, and you will not be able to comply with it and when you try to return to Spain you could be arrested, as mentioned above and taken the next day to the nearest court, after spending the night in prison, where they will give you the summons to hold the trial in the appropriate court.
3. Arrested and released to wait for trial
If a foreigner is arrested in Spain for a crime, other than a minor crime, he will always need a lawyer, if he does not appoint a lawyer, one will be appointed by the court. Several outcomes are possible:
The person is set free from the police station, without going to the court, and awaiting trial.
In this case, the Court has not been able to issue any resolution prohibiting him from leaving the country. So, you can go to your country, but before leaving the country you must appoint a lawyer and a procurador who will be in charge of your defence and representation and who will receive the notifications on your behalf.
Your lawyer will inform you of the date of the trial, which may take months or even more than a year, but in any case, you will be informed with enough time in advance to allow you to travel to Spain and attend the trial (see video here about what happens if you miss the trial).
In certain cases, you may not need to go to trial, as you could let your lawyer go to trial on your behalf and send you later the resolution with the sentence, whenever it is possible that the sentence is the payment of a fine, which you can pay from your country, at certain bank branches.
If you are in this situation, and you leave the country without appointing a lawyer, the following could happen:
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That the requirements for a European arrest warrant, or an international arrest warrant, are fulfilled. Then you will be arrested in the country where you are and taken to prison in Spain awaiting trial.
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If the requirements for a European arrest warrant, or an international arrest warrant, are NOT fulfilled. When you try to enter Spain again, you will have a search and capture order in the national territory, in Spain, and therefore you will be arrested, you will spend the night arrested in the police station closest to the border police station or border guard where you have entered Spain and will be taken to court the next day in the nearest court, where either you will be summoned to hold the trial in the appropriate court, and you will be released or remain in prison until holding the trial.
The person is taken from the police station directly to Court, and later the judge sets the person free, awaiting trial. In this case, there are two possible outcomes:
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The Court can issue a resolution that forbids you from leaving the country, however, this does not usually happen and is something exceptional.
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The court does not issue a resolution that forbids you from leaving the country. This is the most normal thing to happen. Once released, you can go to your country, but before leaving the country you must appoint a lawyer and a prosecutor who is in charge of your defence and receives the notifications on your behalf, as we have explained previously in point 1 of this heading and for the same reasons.
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In such cases, the judge may set bail (fianza in Spanish) as a condition of release. Bail amounts vary significantly based on the severity of the alleged offense and the defendant's ties to Spain. For foreign nationals from countries like the UK, France, or Greece, bail amounts may be higher due to flight risk concerns
4. Arrested and judged while waiting for the resolution
You can leave the country, provided that during the procedure a resolution has not been issued that removes your passport and prevents you from travelling abroad. In any case, before travelling, you must appoint a lawyer and a procurador to receive notifications on your behalf, that is, to receive the Court's decision and inform you of its content so that you can comply with it or appeal to a higher court. You may need to provide proof of your foreign residence, such as a current utility bill from your home country.
Otherwise, you will have an arrest warrant issued in Spain to ensure that you receive the formal notification of the Court judgment and to request compliance. In which case, you will be arrested when you return to Spain to require compliance. If the crime meets certain requirements, an international arrest warrant may be issued.
If the sentence for the crime was the payment of a fine, and it is not carried out, that is, the fine is not paid, that non-payment of a fine is converted to a prison sentence.
5. Arrested, judged and sentence handed down
In this case, you can leave the country, although you must first comply with the penalty imposed in the sentence. Otherwise, you will have an arrest warrant for failure to comply with the sentence and on your return to Spain you could be arrested to demand compliance with the sentence.
If the crime meets certain requirements and the penalty is imprisonment, an international arrest warrant may be issued, and you may face an extradition request from the Spanish authorities.
