Table of contents
1. Giving a statement if arrested in spain
Have you received news that your son/brother (or any other close relative) has been arrested in Spain? There are a number of factors that can make this stressful situation even more complex:
- The main one, you do not understand the language.
- Your close relative / the person who contacts you in order to let you know that he/she has been arrested does not provide you with enough information.
- You do not know anything about Spanish Law.
- Therefore, you do not know the consequences of the arrest, the legal proceedings involved or the rights that your family member has during the arrest and the subsequent declaration in the police station
- You do not know how to find a lawyer in Spain who can represent your family member.
We have had many desperate calls from clients who have contacted us for the reasons above. Many lawyers deal with criminal matters, but not all of them are used to dealing with clients who are under these circumstances.
First of all, when a person is arrested by the police in Spain, they will ask him/her to appoint a private lawyer.
If the arrested person does not know any lawyer (often the case), the Spanish State will appoint a legal aid lawyer to assist him/her.
However, it is difficult to know if the lawyer is used to working with non-Spanish clients or if they have a good command of English. It may be that this professional does not speak English at all!
Note: once arrested, the detained person will be given an opportunity to contact a friend or family member. Often it is that person who contacts Advocate Abroad on behalf of the detained person.
2. The procedure
While the person under arrest has the right to be assisted by an interpreter during their formal declaration in case he/she does not speak Spanish, it could be that the interpreter is not present during the moments before the formal statement is taken, which is the most important moment to prepare the defence of the arrested person.
Plainly speaking, it is advisable to communicate that you do not wish to make a statement – this is a right that an arrested person has in Spain when placed under arrest and sometimes this can be the best line of defence.
A private criminal defence lawyer in Spain only needs the Court reference number (Diligencias Urgentes/previas) in order to go to the Court and review the paperwork, which will contain the evidence and charges against the arrested person.
It is clearly preferable in such situations that an English-speaking lawyer can keep the arrested person - and their family - updated during the entire process - explaining the situation to them, as well as highlighting differences between the Spanish criminal process and the equivalent process in Common Law.
3. Specialist criminal lawyers in spain
We are highly specialized in assisting English-speaking clients who have been taken to the police station on Spain as well as representation in Criminal proceedings in Court. We operate across all touristic areas of Spain.
Sometimes, the best option for the client is to negotiate with the prosecutor and reach an agreement with him; in this case the penalty could be reduced considerably, with a high possibility of avoiding a term of imprisonment, being relegated to a release on license, conditional on not getting involved in criminal activity for a period of two years. This can happen with several offences such as Drug Trafficking.
4. Cases of drunk and disorderly
A typical situation that we see in our law firm is where a man is arrested in Spain as a result of a noisy argument in the street, often when he and/or his partner are under the influence of alcohol. Obviously, they were shouting at each other outside. In this case, a neighbour could contact the police, thinking that it is a domestic violence matter and even possibly the police (if this happens in the street) may consider it to be so.
If the police suspect that an individual is mistreating their partner (domestic violence), he will be automatically arrested by the police and, even in if the wife or partner declares that there was no violence, it is probable that the prosecutor (who acts in the name of the Government) continues with the prosecution.
At the very least, the man will be arrested and taken to the cells of the police station and, subsequently, he will appear in Court before the Judge. In this case it is important to advise the wife/partner, as well as the arrested person.
During a statement in Criminal proceedings in Spain (either in the police station or in the courts), each word and expression is highly important. That is why it is essential for the lawyer who assists the arrested to speak fluent English and to understand the British idiosyncrasies and culture.
Furthermore, according to our experience, not all lawyers explain all of the details that should be available to the person who has been arrested.
For instance, there is a recent precedent from the Spanish Supreme Court considering the declaration before the police not to be so important and confirming that the declaration before the Judge (in the Courts) takes precedence.
This means that in case there are contradictions between the police and the Court declaration, the last one will be taking into account. These “details” make the difference between lawyers successfully obtaining the immediate release of their client and those who do not.
5. Assault in spain
The penalties for assault in Spain range from a fine to imprisonment and depends on the severity of the injury, the vulnerability of the victim (if the victim is a minor, disabled or elderly person, etc.) and the means used to cause the injury (if the aggressor used weapons or possesses a special skill such as being a karate black belt, for example).
In addition to the penalty imposed on the person who committed the crime, the victim has the right to be compensated (civil liability) for any damages that may have been caused. The amount of this compensation will depend on the injuries that have occurred and the time required for healing or the consequences that have arisen. Civil liability also includes repairing the damage by paying the corresponding amount if glasses, mobile phones, clothing, etc. have been broken when the victim was injured.
The severity of the penalty (fine or imprisonment) depends on the type of medical assistance that the victim must receive to achieve healing. If the victim only has to go to the doctor once, it is considered a misdemeanour assault or DELITO LEVE DE LESIONES. and if the victim requires medical treatment, we will be facing a felony assault or DELITO DE LESIONES, with more severe penalties.
Therefore, it will be a felony assault if the injury requires medical treatment, that is when the victim has to go to the doctor more than once. For example, the victim is admitted to the hospital or has to undergo surgery or has to receive stitches or an arm or leg is in plaster or he/she is receiving physiotherapy treatment. On the other hand it will be a misdemeanour, if the victim only goes to the doctor once for a first cure or has no apparent visible injury.
To make the calculation of the fine, the economic capacity of the accused / aggressor will be taken into account, his/her income from work or from others. The fine that can be imposed on an entrepreneur whose company has a profit of 10,000 euros per month is not the same as the one that can be imposed on a worker who only has a pay-cheque of € 1,000 per month. To determine the financial capacity of the accused, only the income, not the family or other charges of the person, are taken into account.
To make the calculation of compensation or civil liability to be paid to the victim, the severity of the injury, the days it has taken to return to full health (receive medical discharge) and the consequences that those injuries have left in the victim will be taken into account. The forensic doctor (doctor from the court) makes a report after studying the medical documentation provided by the victim and the doctor provides a report with the basis for calculating compensation for the injuries based on tables that are set-out in law.
For more information, including for victims of assaults, please see crime of assault.
6. Sexual assault
There are two major aspects to this crime – those who have suffered an attack, and those who have been accused of committing the offence.
Of course, this is – rightly – a highly emotive offence in our society and is therefore treated in a unique way. As with all alleged offences, there is a presumption of innocence and a right to a trial. This can often be a traumatic experience for any victim of such a crime.
If you are a Victim of a sexual assault, it is highly recommended to immediately call an ambulance or visit the nearest hospital, if needed and, obviously, to call immediately the police or visit the closest police station in order to file a report.
Once the report is made, you will be called to make a statement to the police and, usually the next day, before a Court. When making such a statement you have the right to be assisted by a translator, if you don't speak Spanish. You should request one if they are not initially provided.
You have the right to be party in the proceeding against the defendant. In order to do that you have to appoint a lawyer and a procurador (an agent of the court required to be present in legal proceedings).
You can claim compensation against the defendant within the criminal proceedings.
If someone has reported you as the author of a sexual assault, according to the seriousness and the credibility of the report you may be arrested by the police.
Once you are arrested, you will make a statement to the police and, usually the day after, before the Court.
You will be assisted by a lawyer, in case you don't appoint any lawyer you will be randomly assigned a public lawyer. Please note that is highly probable that the public lawyer will not be able to speak English, as most lawyers in Spain do not speak English.
In any case, this is not necessarily a problem since you always have the right to appoint a private lawyer, at any stage in the proceedings.
Furthermore, you always have the right to be assisted by a translator, if you don't speak Spanish.
After arrest the Court will probably release you, unless the situation is considered to be particularly serious. So, you may be released with charges (passport withdrawn, required to confirm an address for notifications by the Court) and the proceedings will then usually take place.
For these reasons, it is really important to always maintain communications with your lawyer, even if you have been released, otherwise your chances of receiving a guilty verdict will be much higher, as you won't be able to be defended properly in the legal proceedings.
9. Returning to spain after a conviction
A question that frequently arises is whether a person charged with a criminal offence in Spain may return. Quite often there will have been a great deal of confusion surrounding the proceedings and their outcome. They may even have managed to have missed a court date in Spain. We deal with this scenario in the article: Arrested in Spain - Can I go Back?
10. Types of criminal proceedings in spain
Juicios rápidos (fast trials) are proceedings that seek to accelerate the judicial process and work of the courts in certain types of criminal proceedings, in certain specific circumstances.
A fast trial (juicio rápido) can be completed in only a few hours in special courts known as ‘Juzgados de Guardia’ (Police Courts), which are a form of Magistrates’ Court (Juzgado de Instrucción). The Public Prosecutor speaks first with both lawyers trying to reach an agreement between the parties, the victim and the accused.
The agreement can be reached if the defense pleads guilty, confirming the facts are true and accepting the penalty requested by the public or/and private prosecutors in which case the Judge would proceed to issue a Judgment in the terms of the agreement.
The case is then finished and the decision cannot be appealed. This agreement has one important advantage, the accused will see the penalty reduced by one-third (ie any fines or prison time decreed are reduced by one-third), also the costs of the proceedings are reduced, as the lawyer doesn’t have to make verbal or written submissions to court, a procurador is not needed and everything is finalised in a few hours.
The most common JUICIOS RAPIDOS are those secondary to domestic or gender violence or cases of drink driving in Spain or without a driving license, but also it can be others (assaults, coercion, threats…)
If, on the contrary, the accused doesn’t acknowledge the facts, the proceedings will transform into PROCEDIMIENTO ABREVIADO (abbreviated procedure). It is also possible - in certain circumstances – that the criminal proceedings begin with this procedure.
11. Procedimiento abreviado
A Procedimiento Abreviado is a longer and more complex set of proceedings. It can take at least one year, usually more.
The proceedings start in the Court in charge of the investigation of the crimes or Magistrates’ Court (Juzgado de Instrucción). Both parties, victim and accused, will go to Court to present their statements (defence and prosecution). Then the Court will carry-out the investigation and the parties will present the evidence they wish.
After the investigation stage is completed, if the Magistrates’ Court (Juzgado de Instrucción) decide that it seems clear that a crime has been committed, the file is passed to a higher court (Juzgado de lo Penal) then the public prosecutor, the victim and the accused will prepare a submission to the Juzgado de lo Penal. These submissions must be signed by a procurador and a lawyer.
From this point on, a procurador is required by law to be present for the accused and also for the victim, should the victim want to be represented in the proceedings by a lawyer; if not, the public prosecutors will act as the lawyer for the victim.
After that, the particular court that receives the file sets a day for the trial. During the trial any public prosecutor or private accuser, along with the accused, must appear in person before the judge in a formal court and lawyers will have to prepare submissions taking into account the evidence and the jurisprudence, and also question the victim, the accused and other witnesses or experts.
At any time, before the trial the accused can make an agreement with the public prosecutor. Any such agreement should be accepted by the victim. The agreement can be reached if the defence pleads guilty, confirming the facts are true and accepting the penalty requested by the public prosecutor. If an agreement is reached the Judge would proceed to issue a Judgment in terms of the agreement, then the case is completed and the decision cannot be appealed.
In both types of proceedings - JUICIO RAPIDO AND PROCEDIMIENTO ABREVIADO it is compulsory for the accused to have a lawyer. Should the accused not name a lawyer and a procurador, the court will ask to the local Law Society to name a lawyer and a procurador to represent them.
Extradition proceedings in Spain are managed exclusively by the Audiencia Nacional which is the Spanish national Court.