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Defendants (criminal proceedings)


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What are the stages and what is the purpose of a criminal investigation?

The purpose of the investigation and the preliminary criminal investigation is to gather evidence related to the commission of a crime and to determine who might have committed the crime

The criminal investigation has two stages:

  • Police investigation: The police investigate the facts and the suspects to find out if a crime has been committed, what the circumstances were, or if nothing happened. They contact the alleged suspects, search for relevant evidence and witnesses.
  • Court investigation: If the police find any evidence that points to the existence of a crime, the judge in charge of preliminary investigations will investigate the facts and take the evidence that s/he considers necessary, question the people involved, may visit the scene of the crime, question witnesses, examine expert reports, etc.

If the judge considers that no crime has been committed, he or she will file the case, and no trial will be held (no need to adjudicate). Otherwise, the trial stage will begin.

The Public Prosecutor’s Office must be kept informed during the criminal investigation and, if it decides that the evidence does not point to the existence of a criminal offence, it may request the closure of the proceedings.

My rights during the investigation

  • Right not to make a statement;
  • Right not to give evidence against myself;
  • Right to be presumed innocent;
  • Right to respect for my physical and moral integrity;
  • Right to respect for my dignity;
  • Right not be discriminated against on grounds of age, sex, religion, opinion, nationality or any other personal circumstance;
  • Right to be assisted by a defence lawyer of my choice or by a legal-aid lawyer;
  • Right to remain silent;
  • Right to have an interpreter if I do not understand the language;
  • Right to be heard;
  • Right to challenge the evidence against me.

For more detailed information about your rights during the various stages of the investigation, click on the links below:

Arrest (1)

Can I be arrested? And, if so, who can arrest me, why, and for how long?

The arrest can be for as long as necessary to investigate the facts and you may be held for a maximum of 72 hours. During the arrest, a civil servant or the judge in charge of the case, will inform you of your rights and will explain to you what is happening, the crime you are accused of and the reasons for your arrest. After the arrest you will be released or you will be brought before the competent court.

How will I be arrested?

The arrest must be proportional and cause the least possible damage to your physical and moral integrity. Everything possible will be done for you not to be in contact with other detainees.

Can I ask for a lawyer and an interpreter?

Yes, you may choose a lawyer but, if you have no lawyer, a legal-aid lawyer will be assigned to your case. You can speak to him after making your statement.

Can I ask for an interpreter if I don’t understand the language?

If you don't understand the language you may ask for an interpreter to assist you.

Can I contact a family member or a friend?

You may not contact anyone, but you may ask the police to call an acquaintance of yours to inform him/her that you have been arrested. They will ring whoever you want them to ring after you have been advised of your rights.

You may also ask the police or the court to see a doctor if you need one.

What happens if I am from another country?

If you are a national of another Member State, the police will notify your consulate that you have been arrested. If you are a foreigner you must be present during the investigation unless, after you have given your statement, the judge authorises you to leave. Furthermore, if the judge so decides, you may appear via video-conferencing.

What happens if I am a minor?

The police will notify your parents or guardian and the Public Prosecutor’s Office of the facts. If you are a foreigner the consulate of your country will be notified of your arrest.

Can I be held in solitary confinement?

If the judge orders it, you may be held in solitary confinement. In this case, you may not speak to your family or inform anyone about your arrest. A legal aid lawyer will be appointed for you, but you may not contact him.

What happens if there is a European Arrest Warrant issued against me?

You will be informed about it and you may challenge it, although it will be difficult to prevent its enforcement. You will have to give a statement before the National Court in Madrid and you will be assisted by a lawyer and an interpreter (if you need one).

Police questioning (2)

What will happen during police questioning?

The police will ask for information to find out if you have been involved in the crime. You are under no obligation to give a statement; you have the right to remain silent. If, however, you want to speak, you have the right to be heard.

Will I have the right to be assisted by a lawyer?

You have the right to choose a lawyer that you trust; otherwise, a legal-aid lawyer will be appointed for you.

Can I speak to my lawyer?

You can speak to your lawyer after you have been questioned at the police station and before and after giving your statement at the court. Sometimes the police can be present during the meeting between a detainee and his/her lawyer, until the detainee gives a statement or refuses to give a statement.

Can I have an interpreter?

You may request the assistance of an interpreter if you do not understand the language.

Am I under an obligation to make a statement?

You are under no obligation to testify or to plead guilty. If you testify you may say something that may damage you and have an adverse effect on your interests. If you want to do so, you have the right to testify before a judge.

Will whatever I say be important?

Everything you say will be important; it will be included in the police report and may be used as evidence at the trial.

Can I plead guilty to all or some of the charges before the trial?

You may plead guilty to all or some of the charges from the very first moment. Despite that, the investigation will most probably carry on so that your testimony can be verified and, if appropriate, a trial can take place. Depending on the type of penalty and offence, an accelerated trial may be held.

Can I leave the country during the investigation?

You may leave the country provided you have not been prohibited from doing so, but you will have to return whenever you are summoned.

What can they ask during the investigation?

During the investigation the authorities may ask for your fingerprints, DNA samples, hair, saliva, or other bodily fluids. You may refuse.

Can there be a body search?

Yes, there may also be a body search. You can only require that the body search should be carried out with respect.

Can my home, business premises or car be searched?

The police may search your home, business premises or car and other places of interest for the investigation, if they have a search warrant and if the court clerk keeps a record with two witnesses. If you have been arrested, your lawyer may be present. If the reason for the search is insufficient, your lawyer may appeal in writing to the judge who authorised it.

What can the consequences be?

If you have been arrested you will remain in provisional custody; if you are released, some security measures may be imposed (bail, regular appearances, withdrawal of your passport, etc.).

Testimony before the judge (3)

Will I give my statement before the judge?

You will give your testimony before the judge after you have given a statement at the police station, and within a maximum time limit of 72 hours after you were arrested.  This time limit may be extended. You may give testimony any time you wish to do so.

How will I give testimony?

Your testimony will be oral and you may be assisted by an interpreter if you do not speak the language correctly.

What can the judge ask me?

The judge may ask you whatever he or she thinks fit in order to clarify the facts and to determine your involvement in the crime which you have been charged with.

You may be asked about:

  • your particulars;
  • your personal circumstances;
  • your place of work;
  • if you have previously been indicted;
  • for what crime, before which judge or court;
  • what was the outcome of the procedure;
  • what the conviction was;
  • if you served the sentence;
  • if you can read and write;
  • if you know why you have been arrested and what your rights are, etc.

The questions must be clear; no leading questions are allowed.

Can I meet with my lawyer?

You can meet with your lawyer before and after giving your testimony before the judge.

Am I under obligation to tell the truth?

If you give testimony as the suspect you are not under an obligation to tell the truth.

Can I take a break during questioning?

If you are tired during your questioning, you can take a break.

Can I read my statement?

Once you have made a statement you have the right to read it.

Can I leave the country during the investigation?

Yes, provided leaving the country has not been prohibited, but you will have to return every time you are summoned.

Can I plead guilty to all or some of the charges before the trial?

You may plead guilty to all or some of the charges from the very first moment. Despite that, the investigation will carry on, to verify your testimony and, if appropriate, begin the trial. Depending on the type of penalty and offence, an accelerated trial may be held.

Can I be charged with crimes other than the initial ones?

You may not be charged with crimes other than the initial ones.

Can new charges be added?

Yes, if related offences appeared.

Can I be charged with an offence which I have already been charged with in another Member State?

Yes, if you have not been tried for this offence before.

Will I get information about the witnesses?

You will be informed of the names of the witnesses who will give evidence against you.

You will also be informed of the evidence submitted against you.

Can I be sent back to my home country?

If your legal residence is in Spain you may not be sent to your home country; you may be sent back to your country only if you have entered Spain illegally.

Will I be arrested?

You will be arrested if there is a risk of flight, i.e. that you might leave Spain without permission, if there is a risk that evidence will go missing, if there is a risk that the witnesses or victims will be threatened, and if there a risk of committing a criminal offence again.  You can appeal and will not be arrested if you post bail.

Related links

Spanish Ministry of the Interior

Spanish Police

Guardia Civil

Spanish Constitution

Spanish Ministry of Justice - International Co-operation

Spanish Criminal Code

Last update: 11/03/2020

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