The difference between pre-trial detention and a final sentence is fundamental: pre-trial detention (prisión provisional) is a precautionary measure that a judge may order before trial, while you are still innocent in the eyes of the law, to prevent flight or the destruction of evidence; a final sentence (condena firme) is the penalty imposed in a judgment that can no longer be challenged by an ordinary appeal. One does not anticipate the other, although time spent in pre-trial detention is deducted if there is ultimately a conviction.
If a family member has just been taken into custody or you fear it may happen to you, this is what you need to know.
What pre-trial detention is
It is the deprivation of liberty of a suspect or accused person, ordered by a judge before any judgment has been delivered. It is exceptional: it is only appropriate when other less restrictive measures are not enough, and it cannot be used as advance punishment.
Requirements (Art. 503 of the Criminal Procedure Act, Ley de Enjuiciamiento Criminal, LECrim)
- The facts must appear to constitute a crime punishable by a maximum sentence of two years’ imprisonment or more, or by a lesser sentence if you have an unexpunged criminal record for an intentional crime.
- There must be sufficient grounds to believe you are responsible.
- It must pursue one of these aims: preventing a risk of flight; preventing the concealment or destruction of evidence, where there is a well-founded and specific danger; protecting the victim; or preventing the risk of you committing further crimes.
The risk of flight is assessed according to the seriousness of the penalty, your family, employment and financial situation and how close the trial is. A danger to the evidence cannot be inferred merely from the fact that you exercise your right of defence or do not cooperate.
How it is ordered
If the public prosecutor or a prosecuting party requests it, the judge of the Investigating Section of the Court of First Instance (Sección de Instrucción del Tribunal de Instancia, formerly the juzgado de instrucción) must hold a hearing within 72 hours of you being brought before the court, with your lawyer present (Art. 505). Your defence can make submissions, provide evidence of your ties to the area and propose alternatives. If nobody requests it, the judge must release you.
How long it can last (Art. 504 LECrim)
| Situation | Maximum duration | Extension |
|---|---|---|
| Risk of flight, protection of the victim or reoffending, for a crime punishable by up to 3 years | 1 year | Once, up to 6 months |
| The same aims, for a crime punishable by more than 3 years | 2 years | Once, up to 2 years |
| Risk to the evidence | 6 months | No |
| Already convicted, with the judgment under appeal | Up to half of the sentence imposed | Not applicable |
In any event, it must last only as long as is essential and while the grounds that justified it remain.
Alternatives and appeals
The judge may grant provisional release (libertad provisional), with or without bail, with an obligation to report periodically and, if necessary, surrender of your passport (Art. 530). The detention order can be challenged by an appeal (recurso de apelación), which must be decided within a maximum of 30 days (Art. 507), and you can apply for release at any time if circumstances change. We can help you with an appeal against pre-trial detention.
What a final sentence is
A judgment becomes final when no further appeal is possible: because the appeal and, where applicable, cassation (casación) have been exhausted, or because the deadline has passed without an appeal. From then on, the sentence is enforced. An amparo appeal to the Constitutional Court, an application to the European Court of Human Rights or an application for review (recurso de revisión) are extraordinary remedies which do not, in themselves, prevent enforcement.
What happens after a final sentence
- Credit for pre-trial detention: all the time you were deprived of liberty in connection with that case is deducted from the sentence (Art. 58 of the Criminal Code, Código Penal).
- Suspension of the sentence: prison sentences of up to two years may be suspended if it is your first offence and the civil liability is paid, or you undertake to pay it (Art. 80 CP).
- Admission to prison if the sentence is not suspended. From that point on, prison classification, prison leave and parole come into play; we deal with these under prison law.
- A criminal record, which is expunged if you do not reoffend within the periods set out in Article 136 CP: from six months to ten years depending on the sentence. See removing a criminal record.
- In specific cases, a pardon (indulto) may be requested.
Key differences
| Pre-trial detention | Final sentence | |
|---|---|---|
| Timing | Before the final judgment | After the final judgment |
| Nature | Precautionary measure | Penalty |
| Presumption of innocence | Still applies | Rebutted |
| Duration | Limits in Art. 504 LECrim | As set in the judgment |
| Remedies | Appeal and application for release | Extraordinary remedies only |
What if I was held in pre-trial detention and then acquitted?
Article 294 of the Organic Act on the Judiciary (Ley Orgánica del Poder Judicial) allows you to claim compensation from the State for the pre-trial detention you suffered where you are subsequently acquitted or the case is definitively dismissed (sobreseimiento libre), provided the legal requirements are met. There are time limits for making the claim, so it is advisable to seek advice early.
Frequently asked questions
Does being in pre-trial detention mean I am guilty?
No. You remain protected by the presumption of innocence until there is a final judgment.
Can I get out of pre-trial detention before the trial?
Yes. You can apply for release if the grounds no longer exist, offer guarantees such as bail or reporting obligations, or appeal against the order. If a family member has just been arrested, also read about our 24-hour assistance for people arrested.
If a family member is in pre-trial detention or you fear it may be requested in your case, call us on 607 449 491. We will study the order and the case file and explain clearly what can be done.
