1 - My rights during the investigation

If I am a foreign national, does it affect the investigation?

In general, the status of the party under investigation as a foreign national does not affect the criminal investigation. Foreign nationals enjoy the same rights as a Spanish national under investigation, and are also granted certain specific rights, such as the right to assistance from an interpreter free of charge, where the foreign national does not understand or speak Spanish or the official language in which the proceedings are taking place. Where the foreign national is detained as part of a criminal investigation, they have a right to have their deprivation of liberty and place of detention in which they are held at any time communicated to the consular office of their country, and they also have the right to be visited by the consular authorities of their country and to communicate and correspond with them.

The foreign national status of the party under investigation may be taken into consideration when deciding on their individual situation (pre-trial detention) during the criminal proceedings, and the adoption of other measures that are less restrictive of rights, such as passport seizure or bans on leaving the national territory.

What are the stages of an investigation?

The aim of the criminal investigation is to gather evidence relating to the potential commission of a criminal offence and identify the alleged perpetrators of that crime.

There are two phases here:

  • Police: The police investigate the facts that are known and may constitute an offence. To do this, they contact any individuals presumed to have had some participation in the events, seek material evidence, witnesses, etc.
  • Judicial (pre-trial): If the police find indications of criminal activity and identify the parties alleged to be responsible, they send a criminal police report to the investigating judge, who initiates the corresponding criminal proceedings and, where applicable, takes the action deemed appropriate (questioning of parties under investigation and witnesses, obtaining of documents relevant to the case, entries and searches, substance analysis, etc.)

If no evidence is found that an offence has been committed or if the perpetrator is unknown, the case will be dismissed and closed.

If evidence is found that an offence has been committed, arrangements will be made to continue the proceedings by entering into the ‘intermediate stage’, the purpose of which is to determine whether the investigation is complete and whether it is appropriate to file charges.

After the submission, where applicable, of the relevant bill of indictment and statement of defence, the parties are summoned for the trial.

The Spanish Prosecution Service (Ministerio Fiscal) must be kept informed throughout the criminal investigation, and may request that the investigating judge (Juez de Instrucción) carry out any investigative action that it deems relevant. If it deems that there is insufficient evidence of the commission of a crime or of its perpetrators, it may request that the case be dismissed. However, if it deems that there is sufficient evidence of a crime against a person, it will file the corresponding bill of indictment upon completion of the investigation.

Evidence gathering phase / Power of investigators

The criminal police (Policía Judicial) is responsible for carrying out the investigative procedures required to ascertain whether the law has been broken, gather relevant evidence and identify the perpetrators of the offence. This is carried out under the control of the judge in charge of the pre-trial investigation, who must, in all cases, authorise any investigative procedures that constitute a violation of fundamental rights (entry into and search of a home, intercepting communications, etc.). The Spanish Prosecution Service (Ministerio Fiscal) must be kept informed throughout the criminal investigation, and may request that the investigating judge carry out any investigative action that it deems relevant.

Police custody

As a general rule, detention may not last any longer than is strictly necessary to carry out the investigations seeking to clarify the facts and under no circumstances more than 72 hours, the maximum time following which the detainee must be released or handed over to the judicial authority.

Detention may be ordered by the police, which police officers must do in the cases provided for by law. It may also be ordered by the Spanish Prosecution Service or directly by the investigating judge. In exceptional cases, detention may be carried out by private individuals, who are required to immediately present the detainee to the judicial authority.

Detention must take place in such a way as to cause minimum damage to the detainee’s person, reputation and assets; those who order the detention and those responsible for carrying it out must ensure due respect for the detainee’s constitutional rights to honour, privacy and personal image.

After the police have carried out the investigations seeking to clarify the facts and within the legal time frame of 72 hours, the detainee will be released or handed over to the judicial authority.

Questioning

The party under investigation will be informed of their rights and asked to provide their statement in relation to the facts under investigation. The party under investigation may remain silent and provide no statement if they wish, or may choose not to answer any of the questions asked, or may declare that they will only make their statement before the judge.

The party under investigation is free to appoint a lawyer; if they do not do so, they will be assisted by an officially appointed lawyer. They likewise have the right to meet privately with their lawyer before making their statement.

If the party under investigation is a foreign national and does not understand or speak Spanish or the official language in which the proceedings are taking place, is deaf or has a hearing impairment, or has language difficulties, they have the right to be assisted by an interpreter free of charge.

The party under investigation has the right not to make a statement against themselves.

The party under investigation may also state that they are guilty of all or any of the crimes of which they are charged from the outset. This will not stop the investigation from being continued or a trial from being held. However, depending on the type of sentence and crime, a fast-track trial may be held. In these cases, the lawyer representing the party under investigation may reach an agreement with the Spanish Prosecution Service such that a conviction is issued but with a reduction in sentence.

Pre-trial detention

Pre-trial detention may only be ordered if the investigating judge deems it appropriate, subject to a request by the Spanish Prosecution Service and/or any members of the prosecution.

In any case, the legal requirements for this must be met and the measure must seek to meet a legitimate aim (protecting the victim and/or neutralising the risks of absconding, re-offending, or destroying or concealing evidence).

What are my rights during the investigation?

Any person accused of a punishable offence may exercise their right to a defence that will appear in the proceedings once notified of their existence, for which purpose information will be provided in comprehensible and accessible language regarding the following rights:

  1. The right to be informed of the actions of which they are accused and any relevant change in the subject of the investigation and charges.
  2. The right to examine the proceedings in good time so as to safeguard the right to a defence and, in any case, prior to a statement being taken.
  3. The right to act in the criminal proceedings to exercise their right to a defence in accordance with the law.
  4. The right to freely appoint a lawyer (with the exceptions listed in the Spanish Criminal Procedural Law).
  5. The right to request legal assistance free of charge, the procedure for doing so and the conditions for obtaining that assistance.
  6. The right to translation and interpreting, free of charge, in accordance with the Spanish Criminal Procedural Law.
  7. The right to remain silent and to provide no statement if they do not wish to do so, and not to answer any of the questions asked.
  8. The right not to make a statement against themselves and not to incriminate themselves.

What is my right to an interpreter and translations?

Any person under investigation will be immediately informed, in writing, in straightforward, accessible terms and in a language that they understand, of the acts of which they are accused, as well as their rights, in particular the right to free assistance from an interpreter, in the case of a foreign national who does not understand or speak Spanish or the official language in which the proceedings are taking place, or of deaf people or people with a hearing impairment, as well as any other people with language difficulties.

During the investigation stage, this right takes the shape of the right to be assisted by an interpreter who uses a language that the person under investigation understands, throughout any proceedings during which their presence is necessary, including questioning by the police or Spanish Prosecution Service and all court hearings, and the right to use an interpreter in conversations with their lawyer which are directly related to their subsequent questioning or the taking of their statement, or which are necessary for the lodging of an appeal or for other procedural applications.

What are my rights to information and access to the case-file?

In general, you have the right to be informed of the actions of which you are accused and any relevant change in the subject of the investigation and charges. You also have the right to examine the proceedings in good time so as to safeguard the right to a defence and, in any case, prior to a statement being taken, with the legally established exceptions.

In the event that you have been detained, you will also be informed of the reasons for your detention and your rights (specifically, the right to access the parts of the proceedings that are essential for contesting the legality of the detention or deprivation of freedom).

What is my right of access to a lawyer and to have a third party informed of my situation?

You have the right to freely appoint a lawyer (with the exceptions given in the Spanish Criminal Procedural Law) and to be assisted by that lawyer without undue delay. The right to a defence includes the legal assistance of a lawyer, who you are free to appoint, or, if you do not do so, an officially appointed lawyer, with whom you may communicate and meet privately, including before providing your statement to the police, the Spanish Prosecution Service or the judicial authority (with the exceptions laid down in the Law) and who will be present for all your statements, as well as any acknowledgement, witness confrontation and event reconstruction procedures.

In the event that you are detained, you have the right to have a family member or person of your choice informed, without undue delay, of your deprivation of liberty and the place in which you are being held at any time. Foreign nationals will have the right to have the above circumstances notified to the consular office of their country.

You will likewise have the right to communicate, by telephone, without undue delay, with a third party of your choice; foreign nationals will have the right to be visited by the consular authorities of their country, and to communicate and correspond with them.

What is my right to legal aid?

You have the right to receive free legal assistance if you are a Spanish national or foreign citizen legally residing in Spain, and prove you have insufficient resources for the lawsuit, under the terms laid down in law.

The right to legal assistance free of charge includes the waiver on the fees of the solicitors and lawyers where their intervention is mandatory under law and where, even when this is not mandatory, the judge or court expressly requires this to guarantee the equal treatment of the parties in the proceedings. The aid of a lawyer is granted to the detainee, or prisoner who has not appointed a lawyer, for any police action that is not the result of ongoing judicial proceedings or in their first appearance before a judicial body, including an appearance made via judicial assistance. In the case of victims of gender-based violence, terrorism and human trafficking, as well as minors or people with an intellectual disability or a mental illness, the free legal assistance will include free advice and guidance immediately prior to filing the complaint.

v. What is important to know regarding:

Presumption of innocence

The presumption of innocence is the right of any party under investigation or accused in criminal proceedings to be treated as though they are innocent until a final judgment establishes their conviction.

The presumption of innocence has two aspects: as a rule regarding treatment and as a rule regarding judgement. As a rule regarding treatment, it states that the party under investigation must be treated as though they are innocent unless a conviction by final judgment proves otherwise. As a rule regarding judgement, the presumption of innocence produces its effects upon evaluation of the evidence as, in criminal proceedings, the judge must start from an assumption that the party under investigation is innocent, such that, in the event that the prosecution does not fully prove its charge against the party under investigation, their temporarily asserted innocence shall become final.

Right to remain silent and not to incriminate oneself

The right of the party under investigation to remain silent and not to incriminate themselves is a fundamental right of which they may avail themselves, without suffering any negative consequences as a result.

The accused’s silence cannot replace the lack of sufficient prosecution evidence. That is to say that, irrespective of their statement, the prosecution must prove the existence of proof of the commission of the crime. In cases where proof exists, if, upon viewing the prosecution's evidence, the accused does not answer or does not give sufficient exculpatory explanations, their silence may be considered as corroboration of their guilt. Hence the importance that the accused is aware of the prosecution’s proof before making their statement.

If there is insufficient evidence for the prosecution against the accused, their silence may not be used in place of the lack of that evidence for the prosecution.

Burden of proof

The material burden of proof lies exclusively with the prosecution and not with the defence. The presumption of innocence shifts the burden of proof to the prosecution, which is exclusively responsible for proving the facts constituting the criminal claim (the responsibility never lies with the defence). Moreover, this evidential process must be sufficient to provide the Court with evidence of the existence not only of the punishable act, but also of the criminal liability of the accused in that act.

What are the specific safeguards for children?

If the person under investigation is a minor, the pre-trial investigation of the criminal proceedings will be carried out by the Spanish Juvenile Prosecution Service (Fiscalía de Menores) and the trial by the Spanish Juvenile Court (Juzgado de Menores), as this is a court with special jurisdiction regulated in Organic Law 5/2000 of 12 January 2000 governing the criminal liability of minors. This law establishes that minors between the ages of 14 and 18 have criminal liability, but are subject to a special legal regime. Therefore, if a minor is detained, they will be handed over to the Juvenile Division of the Prosecution Service (Secciones de Menores de la Fiscalía) and the individuals with parental authority or guardianship or their de facto guardian will be informed of the fact and place of detention, as soon as their minority is established.

If the minor is a foreign national, their country’s consulate will be informed of their detention.

What are the specific safeguards for vulnerable suspects?

Currently, the safeguards that exist for vulnerable suspects are not systematically included in Spanish legislation, and although this is provided for in the draft Code of Criminal Procedure, it has not yet entered into force.

As such, Spanish legislation includes specific safeguards for vulnerable suspects in a haphazard manner, for example the use of comprehensible and accessible language during criminal proceedings, the right to free assistance from an interpreter in the case of deaf people or people with a hearing impairment, other people with language difficulties, etc.

What are the legal time limits during the investigation?

The judicial investigation will take place within a period of no more than 12 months from the opening of the case.

If, prior to the end of this period, it is ascertained that it will not be possible to complete the investigation, the judge, of their own motion or at the request of a party, and after consulting the parties, may grant successive extensions for periods of no more than six months.

These extensions will be adopted by means of an order giving reasoned explanations of the causes that prevented the completion of the investigation within the time limit, as well as the specific actions required and their relevance to the investigation. Where applicable, a refusal to grant an extension will also be issued by means of a reasoned decision.

What are the pre-trial preparations, including alternatives to pre-trial detention and possibilities for transfer to the home state (European Supervision Order)?

Specifically, the European Supervision Order (ESO) enables a suspect or accused awaiting trial to avoid pre-trial detention by means of provisional release in their state of residence. The ESO is issued to guarantee the principle of non-discrimination on the grounds of nationality enshrined in Article 18 of the Treaty on the Functioning of the European Union, as it enables the granting of equal treatment to EU citizens suspected of having committed an offence in a Member State other than that in which they reside, as regards their individual situation while awaiting trial.

Last update: 11/03/2020

The national language version of this page is maintained by the respective Member State. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. The European Commission accepts no responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.

2 - My rights during trial

Where will the trial take place?

The trial will take place before the competent court, which is generally determined by the severity of the offence and the place where it was committed. The trial is conducted before a judge other than the judge who presided over the investigation stage, giving legal effect to the right to a fair trial.

Can the charges be modified? If so, what is my right to information in this regard?

Yes, following the taking of evidence, the prosecuting authorities may modify the criminal classification of the acts alleged against you, provided that the circumstances remain the same and no new facts are introduced, such that all the elements of the new offence are contained within the first. In such cases, the defence may request a postponement of the hearing in order to produce new evidence to ensure an adequate defence.

What are my rights during the court appearances?

You have the right to be informed of the charges, to a defence and to the assistance of a lawyer, not to make a statement against yourself, not to incriminate yourself, not to answer any of the questions asked, and to the presumption of innocence. You also have the right to the last word once the trial is concluded.

Am I required to be present in the court? What are the conditions for me to be absent during the court case?

Under Spanish law, the presence of the accused is necessary for the trial to be held. This derives from the right to effective judicial protection (thereby preventing a lack of inadequate defence) and from the right to a trial with due process (including the right to be heard).

You must attend the trial in order to defend your innocence, but it is possible for the trial to be held in your absence if, despite having been lawfully summoned, you do not appear without good reason and the sentence sought does not exceed 2 years of imprisonment or 6 years in the case of a different form of punishment. A sudden illness would constitute a good reason for not attending, in which case the hearing would be postponed.

What are my right to an interpreter and translated documents?

You Have the right to translation and interpreting free of charge. Will be entitled to an interpreter if you do not speak Spanish or the official language of the place in which the trial is taking place. Will also have the right to a written translation of the documents that are essential to ensure the exercise of your right to a defence.

Do I have the right to a lawyer?

Yes, you have the right to the assistance of a lawyer, who you are free to appoint yourself, or, failing that, an officially appointed lawyer, and will be able to communicate and meet with them in private. Only in the case of minor offences is legal assistance not necessary.

Which other procedural rights should I be aware of? (e.g. bringing of suspects before the court)

You should be aware that you have the right to use any evidence you consider necessary for your defence (witnesses, experts, producing documents, recordings, etc.), provided that they are admitted by the judge or court. You are entitled to a public hearing, unless the judge or court decides otherwise in accordance with the law for reasons of security or public order, in order to ensure adequate protection of the fundamental rights of the parties involved and, in particular, the right to privacy of victims and their family members. At the beginning of the trial, you also have the right to admit to all or some of the charges and may reach an agreement with the prosecution leading to a reduction of the sentence.

Possible sentences

At the end of the trial, the judge or court will issue a judgment settling all the matters that were the subject of the trial, by either convicting or acquitting the accused of all offences heard in the case. The judgment may also be given orally at the trial stage and must then be set out in writing at a later stage. If, after the judgment has been published, the parties express their intention not to appeal, the court will then declare this judgment to be final.

If you are convicted of an offence, the judge or court may, in the judgment, impose the penalty corresponding to that particular offence, without exceeding the most severe penalty sought by the prosecution.

Last update: 11/03/2020

The national language version of this page is maintained by the respective Member State. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. The European Commission accepts no responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.

3 - My rights after the trial

Do I have the right to appeal the court’s decision?

Yes, judgments in criminal matters are always open to appeal. An appeal against any judgment may be brought before a higher court by means of an appeal procedure (recurso de apelación). Furthermore, judgments handed down by that higher court ruling on the appeal may be appealed before the Supreme Court (Tribunal Supremo) by means of an appeal on a point of law (recurso de casación) on different grounds, depending on the original proceedings in which the judgment was delivered. By way of exception, judgments issued in proceedings for minor offences may only be appealed by means of an appeal procedure [they may not be appealed on a point of law].

The deadlines for filing an appeal depend on the procedure followed and are calculated as of the notification of the date of the judgment. For example, in ordinary and summary proceedings and proceedings before a jury, the deadline will be 10 days. In the case of fast-track trials and proceedings for minor offences, that deadline will be 5 days. An appeal on a point of law must be announced within 5 days. The subsequent period for lodging that appeal is 15, 20 or 30 days, depending on the territory in which the court that delivered the judgment under appeal is based.

What other recourse options do I have?

If you have been convicted in a trial held in absentia (in those cases where it is legally possible to hold such a trial), you have the right to appeal against the judgment, even if the deadline for doing so has expired, on the same grounds as the appeal, with the 10-day period calculated as of the date on which you became aware of the existence of the judgment.

Even if the conviction is final, you may seek to have it annulled and a new judgment handed down by means of the procedure known as the final judgment review (recurso de revisión de sentencias firmes) in certain cases (for example, where the conviction was based on a document or testimony subsequently declared to be false, or where two different persons have been convicted for the same offence where only one could have been the perpetrator or when a favourable judgment is delivered to the convicted person by the European Court of Human Rights).

In any event, once the appeals before the courts of law have been exhausted, if you believe there to have been a violation of any fundamental rights, you can appeal to the Constitutional Court (Tribunal Constitucional) by way of an action for infringement of fundamental rights and freedoms (recurso de amparo). Once all domestic remedies have been exhausted, you may also apply to the European Court of Human Rights.

What are the consequences if I am sentenced?

Different types of penalties may be imposed depending on the offence committed: custodial sentences (e.g. imprisonment or permanent traceability), non-custodial sentences (e.g. driving ban or community service, always with your consent) and fines (you are required to pay a sum of money). In addition to the penalty imposed for the offence, if damages were caused, you may also be ordered to pay compensation (civil liability due to the offence that may be claimed against you in the same criminal proceedings). If you fail to pay the fine, that penalty may be replaced by a custodial sentence or community service.

Criminal record

The conviction will mean that you will have a criminal record, the details of which will be recorded in the Spanish Criminal Records Register (Registro de Antecedentes Penales). The existence of a criminal record may be taken into account, increase the severity of the sentence if you reoffend, or prevent you from obtaining benefits while serving the sentence imposed (for example, prevention from obtaining a suspension of a prison sentence). Once you have served the sentence imposed and a set time period has passed, this record will be erased and will no longer have negative consequences for you. This time period varies, depending on the type and severity of the offence, from 6 months for minor offences to 10 years for the most severe penalties.

Execution of sentence, transfer of prisoners, probation and alternative sanctions

Once the judgment has become final, either because the appeals against it have been exhausted or because the time limit for appeal has expired without an appeal being lodged, the judgment must be enforced, that is to say, the sentences imposed must be served. If the sentence is not served voluntarily, the judge will order the necessary measures to enforce it (for example, order the police to find you and arrest you for imprisonment, or the seizure of your property for payment of the fine).

Suspension of the sentence: If the sentence was a custodial sentence (imprisonment or permanent traceability in a given place, for example, your home) and if you do not have a criminal record for similar offences and the prison sentence does not exceed a particular time limit, generally two years, the judge may decide to suspend the sentence, i.e. you will not have to go to prison, provided that you do not reoffend for a set time period. If you commit another offence during that time, you may be required to serve the sentence that was previously suspended, in addition to the sentence for the new offence. If, during the period of suspension, you do not commit any offences, your original sentence will be deemed to have been served and, on expiry of the period laid down by law, your criminal record may be erased.

Sometimes, so as to order the suspension of your custodial sentence, the judge may impose other conditions that you must fulfil, for example, attending courses for drug rehabilitation or prohibiting you from going to certain places or approaching certain persons.

Alternative penalty: If the sentence imposed on you is a prison term of less than three months, the judge will in any event replace the prison sentence with another less onerous penalty (fine, community service or 24-hour traceability).

If you are a foreign national and the sentence imposed was a prison term of more than one year and no more than five years, the judge may order that this sentence be replaced by your expulsion from the national territory with a ban on returning for a set number of years. If the prison sentence exceeds five years, before being expelled, you will be required to serve a part of the sentence imposed by the judge and may then be expelled.

Transfer of prisoners: If you have been sentenced to a prison term, you have the right to serve it in a prison near your family home, unless exceptional reasons apply. Furthermore, if you are a citizen of the European Union, you can be transferred to your country to serve the sentence there. If you are a national of a third country, this will depend on whether there are international treaties that allow such a transfer.

Probation: If certain particularly serious offences have been committed, in addition to the penalties that apply for that offence, the convicted person may be subject to judicial supervision through compliance with any orders that the judge may impose on them (normally when a convicted person is released after serving a prison sentence). These measures are very varied, and the measure selected will depend on the severity or type of the crime committed (e.g. undergoing medical treatment or participating in sexual education training programmes, or approaching and communicating with certain persons). Failure to comply with such orders may lead to other measures being imposed and, in cases of serious or repeated breaches, you may be charged with a new offence for failing to comply with the judicial measures imposed.

Probation is different from conditional release which is what you would be entitled if you have been sentenced to a prison sentence, have already served part of that sentence and have so far shown good conduct. In such cases, the remaining prison sentence may be suspended and the person may be released and required to comply any measures imposed by the judge.

Last update: 11/03/2020

The national language version of this page is maintained by the respective Member State. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. The European Commission accepts no responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.