It was written on 1 June 2016. The law and practice in Spain change all the time. Our guides are updated as frequently as possible - typically every three years - but may be out of date.
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This guide is only about what happens if you become involved in a criminal case in Spain. It covers some basic elements of the Spanish criminal law and some details of the criminal process, the criminal courts and the criminal system. Its focus is on the person who is accused or suspected of some criminal offence in Spain.
It describes, in particular, how to deal with criminal cases in the area of Andalusia/Andalucía – which contains the Costa del Sol. See a map here. Please note that certain aspects of the law in Spain vary from one "autonomous community" (comunidad autónoma) to another.
This guide does not cover what happens if you are involved in a criminal case as the complainant or as a witness.
See our Guide to the Legal System on the Costa del Sol for related information.
In each country the criminal system is unique: probably more so than any other part of the law except for family law. In both cases this is because the law in these areas goes right to the heart of a nation's values, traditions and culture.
Do not be surprised if the criminal law in Spain is very different from the criminal law in your country.
Just because it is different does not mean that it is worse.
There is a long tradition in Spain of impartial justice and the protection of the individual's rights. As in many other European countries, Roman law is the base of a significant part of the Spanish current law.
Foreigners have exactly the same rights when it comes to the criminal process as native Spanish.
The Spanish Penal Code sets out all of the activities that are considered crimes in Spain and the penalties for committing those offences.
Note that, unusually, in Spain for most offences there is a minimum as well as a maximum penalty.
There are certain offences with which we come into contact all of the time and so in this section I will give you a brief indication of the penalties associated with them. Bear in mind that the precise definition of the offence may be different from what you are used to at home and so, if you or your family or friends are in any way involved in allegations of criminal activity, you should contact a lawyer without delay. This can greatly shorten the process and, in particular, the length of time that the person concerned spends in pre-trial custody.
The minimum penalty for an assault in Spain where the person concerned suffers any injury is imprisonment from three months to three years and a fine of 6 to 12 months. This means that the Judge will decide the daily figure of the fine, depending upon your wealth and other personal circumstances. It is often €10 per day. The maximum penalty depends upon the severity of the assault and the circumstances in which it was committed.
When driving dangerously, you may be imprisoned from six months to two years, and you lose your driving license from one to six years. If your driving shows that you really do not care at all about the lives of others, you may go to prison for a period of two to five years and have a fine from 12 to 24 months. Plus you lose your driving license for a period from six to 10 years
The minimum penalty for a first offence is a fine of €500 and a disqualification from driving for three months. If you are convicted a second or subsequent time the minimum penalty is €1,000. In addition, a conviction for a second or subsequent time gives rise to the possibility of a prison sentence of up to six months. See our Guide about Drink Driving on the Costa del Sol for more details.
Spain takes a tough line on drugs. Possession of any prohibited drug carries a minimum penalty of a €500 fine. Possession of Class A drugs (heroin, cocaine etc) carries a minimum penalty of three months in prison and a maximum penalty of two years in prison.
This offence carries a minimum penalty of two years in prison and a maximum of 15 years in prison. See our guide to drink and drugs in Spain.
Fraud is usually punished by a period of imprisonment from six months to six years, and a fine in especially serious cases of six to 12 months. If the amount involved in the fraud is under €400, the fine would be from one to three months (typically €10 per day).
For homicide, the penalty is fixed by law at imprisonment for 10 to 15 years. For murder, it would be 15 to 25 years, depending on the circumstances.
Imprisonment from one to five years. When there is vaginal, anal or oral penetration, imprisonment is from six to 12 years, and under certain circumstances, 12 to 15 years' imprisonment.
There is a difference between hurto and robo, and the main difference is that in the first case there is no violence, and the victim does not even realize the offence has taken place until later on. In the case of an hurto, imprisonment is from six to 18 months whenever the amount stole is higher than €400. If the amount is lower, it would only be a fine from one to three months (as previously mentioned, normally calculated on a €10 per day rate).
Penalties for a robo are much higher.
In general terms, the period of imprisonment ordered by a court will be greater than the time actually served. The time served will be reduced if the prisoner is well behaved and cooperates with the authorities.
The courts also have the power to order other penalties such as public service instead of fines or imprisonment in the circumstances set out in the law.
The courts also have the right, in addition to any prison term imposed, to order a total or partial loss of all civil rights such as the right to vote, the right to hold a passport, the right to run a business etc.
The court also has the right to order the convicted person to pay compensation to the victim of any crime. This can involve the forfeiture of your assets such as your house or your car - particularly if you are unmarried.
These are the Courts in Spain that deal with criminal cases:
Audiencias Provinciales (province courts):
Criminal cases, except those allocated to Criminal Courts or any other courts as per the law
Appeals against court decisions issued by instruction or criminal courts of the province
Appeals against court decisions made by penitentiary vigilance courts, when not dealt with by the criminal court at a national level
Appeals against decisions made by the provincial courts of violence against women, when those belong to the criminal scope
Appeals against resolutions made by the children court based in the province, and also jurisfiction matters amongst those
Juzgados de lo Penal (criminal courts) deal with those criminal cases that are not the responsibility of the Audiencias Provinciales.
Juzgados de Instrucción are investigation courts with jursidiction throughout Spain. These deal with the preliminary investigation and stages of cases that will be dealt with later on by the national criminal court -Sala de lo Penal de la Audiencia Nacional - or the regular criminal courts when applicable, and they also handle the execution of European arrest warrants and extradition files.
Juzgados de Violencia sobre la Mujer (courts for violence against women) deal with all matters related to violence against women, whenever a criminal offence has taken place.
Any person witnessing the commission of any crime has the right to detain the person who he reasonably suspects to have committed a crime for as long as is necessary to allow the police to attend.
The police have the power to arrest any person who they believe to have committed any criminal offence.
In the case of any minor offence which is not punishable by a period of imprisonment, they can only detain you for as long as is necessary to establish your identity and address.
For offences potentially punishable by a period of imprisonment, they have the right to detain you for a maximum period of 72 hours during which they will take from you a formal statement in which you answer the specific allegations made against you.
You are legally required to answer those questions, but you may do so by saying you have no comment to make.
A lawyer and, if you do not speak adequate Spanish, an official interpreter, must be present when you answer these questions.
If you do not know a lawyer or cannot pay for one, a lawyer will be provided for you at public expense. However, if it later turns out that you have the means to pay for a lawyer, you will be required to reimburse this cost.
It is important to note that, at this stage, the lawyer is not there to defend the suspect. He or she is there to make sure that the police follow the proper procedure, that your constitutional rights are respected and that the allegations made against you are clear and properly presented.
As a consequence, the lawyer will not normally discuss the case with you prior to you making your statement - though, in an increasing number of cases, this facility is provided as it can speed up the whole process to everybody's advantage.
In exceptional circumstances, the period of detention can be extended by up to 72 hours and, also in exceptional circumstances - primarily terrorism offences - the suspect can be held incommunicado for a period of up to 72 hours.
Once you have given your statement to the police they may decide to release you on the basis that there is clearly no case for you to answer or they will refer your case to the Court of Investigation (Juzgados de Instrucción). It is more likely that you'll be referred to the Court of Investigation.
You will make an initial appearance before that court. That will normally be within 24 hours.
At that initial appearance the court will establish your identity and ask you to confirm or deny the initial statement made to the police.
During this appearance you must be accompanied by a lawyer.
After this brief appearance the Court will decide whether there is a case to answer or whether you should be released without charges.
If there is a case to answer, they will decide whether you should be given bail (released from custody pending the investigation of the case) or kept in custody.
This decision can be appealed by either the prosecutor or the defendant.
An examining magistrate is placed in charge of the investigation of the alleged crime. He is assisted by specially appointed police officers.
The examining magistrate will interview and take formal statements from any witnesses, and will arrange for the preparation of any drawings, photographs or expert evidence required.
There is a maximum period during which the suspect may be held in custody whilst these investigations continue. This can be up to twelve months in serious cases. In extremely serious cases this can be extended to two years.
This process of investigation by the court is critical and requires the active participation of your lawyer. Even if you have taken advantage of the publicly funded lawyer, now is a good time to consider who you want to represent your interests. You can continue with the publicly funded lawyer but they tend to be under great pressure of time and they tend to be relatively junior and inexperienced.
The public prosecutor and your lawyer can each ask the court to investigate specific aspects of the case. For example, you might want the court to investigate any alibi that you have put forward.
The public prosecutor is under a legal obligation to act fairly and to respect the suspect's rights.
At the end of the investigation phase the court will decide whether the evidence is sufficiently strong to justify formal charges being laid and the case proceeding to trial. If so, the public prosecutor will lay charges before the relevant court.
Either party may appeal this decision.
Basically, at this stage the suspect will receive one of two court orders:
There is no or insufficient evidence of the accused committing any criminal offence and so the file should be closed and the case discontinued.
There is evidence of a criminal offence committed by the suspect and the case should proceed to trial at the Criminal Court.
Your lawyer will explain, in detail, how things will be dealt with. This varies depending upon the court that will deal with your case.
Be aware that dealing with a criminal case in Spain – especially a serious criminal case – can take a long time. Well over a year would not be unusual.
As we've already seen, if you do not have sufficient money to pay for your own legal representation the state can appoint a lawyer to represent you. This assessment is made by a state official.
If you're not resident in Spain it will still be the Government of Spain that foots the bill for your legal aid.
There are many combinations of punishments that can be applied in the case of a conviction in any particular case. These include punishments that are not common in other countries, such as the removal of your right to hold a passport, the removal of your driving license or pilot's license (even in cases which do not involve your car or aeroplane), the removal of your right to hold private office and the removal of your right to vote.
Any punishment involving a sentence of imprisonment can be wholly or partially suspended. In this case the suspended portion will only be served if you commit another offence during the period of suspension.
Your lawyer will be able to advise you about the punishments open in your particular case and the punishment likely to be adopted by the court.
A conviction can be appealed by either the defence or the prosecution.
Depending on the court that passed your sentence, the appeal will have to be filed with one superior court or the other.
As the system in Spain is so complex, you need your lawyer to explain you what to expect in your particular case and process.
Have you ever had to deal with crime or a criminal case in Spain? Tell us about it and share your story by emailing email@example.com.
The Spanish system of criminal justice is robust, and although it may not thequickest, it is fair.
|The Legal System on the Costa del Sol
This guide explains, briefly, the legal system in Spain and, by extension, in the Costa del Sol. It covers the criminal legal system, the civil legal system, the family law legal system, the administrative law system, the way laws are made and the legal services available in Spain.
|The Spanish Penal Code
Downloadable (in Spanish)
We hope you have found this guide useful. If you need any further help, please contact us.Manzanares Abogados S.L. 1 June 2016