“My husband has been arrested in A Coruña, he doesn’t speak Spanish and we don’t even know what he is accused of. What rights does he have?”. The same as a Spanish citizen plus two more, because article 520 of the Criminal Procedure Act (Ley de Enjuiciamiento Criminal, LECrim) adds for foreigners the right to a free interpreter and to have their consular office notified, and article 17.2 of the Spanish Constitution sets a hard limit of seventy-two hours on police detention before the detainee must be released or brought before a judge. What really changes for a foreigner is not what happens at the police station but what comes afterwards, the possibility that a conviction ends in expulsion and what criminal proceedings do to a residence permit. I will take it in parts.
What the law guarantees you from the first minute at the police station
Article 520 LECrim requires the police to inform the detainee, in writing and in a language they understand, of the facts attributed to them and of their rights. The ones that matter in practice are these.
You may remain silent, decline to answer particular questions or state that you will only give a statement before the judge. You may refuse to incriminate yourself and to confess. You have the right to appoint a lawyer of your choice and, if you do not, to have a duty lawyer assigned, who must attend the police station within a maximum of three hours of being notified. You have the right to have a relative or person of your choice told of your arrest and where you are being held, and to a telephone call in the presence of an officer. You have the right to a medical examination. And, as a foreigner, you have the right to have your consular office informed of your arrest and to be visited by your consular authorities, as well as the free interpreter I deal with in the next section.
The same article 520 allows the lawyer to ask that the detainee be informed of their rights, request the medical examination, meet privately with the detainee before any statement, take part in the questioning and have any irregularity recorded in the written record. Communication between lawyer and detainee is confidential. If the police offer you the chance to give a statement “to clear things up” before the lawyer arrives, the right answer is to wait.
If the seventy-two-hour limit is breached, or the detention has no legal basis, the habeas corpus procedure under Organic Law 6/1984 compels the authorities to bring the detainee before a judge, who must rule within twenty-four hours. It can be requested by the detainee, their spouse or partner, parents, children and siblings, as well as by the public prosecutor.
Interpreter and translation, what is covered and what is not
Articles 123 to 127 LECrim regulate the right to interpretation and translation in some detail, and it is worth knowing because many of the problems foreigners face in Spanish criminal proceedings start with having signed something they did not understand.
The interpreter assists at every stage in which the suspect takes part, from the statement at the police station to the trial. The right extends to communication with your lawyer where it relates directly to the questioning or the hearing, so you can prepare your defence in your own language. You are also entitled to a written translation of the essential documents of the case, and the law expressly names the decision ordering pre-trial detention, the indictment and the judgment. The cost is borne by the State regardless of how the case ends, so it will not be charged to you even if you are convicted.
Two points matter. Waiving the right to translation is only valid if it is express, informed and voluntary, and the interpreter can never be waived for the statement or the trial. And if the interpretation does not offer sufficient guarantees of accuracy, the judge can order it checked and appoint a different interpreter. A poor interpretation at the initial statement contaminates everything that follows, and it is one of the first things a lawyer reviews when taking over a case that is already under way.
From the police station to the duty court and from there to trial
Within seventy-two hours the police either release you or take you to the duty court (juzgado de guardia). There you give a statement before the judge, with an interpreter and your lawyer, and your personal situation is decided. Pre-trial detention requires, among other conditions in article 503 LECrim, that the offence carry a sentence of two or more years’ imprisonment, save for the exceptions the law itself provides (an uncancelled record for an intentional offence, two arrest warrants in the previous two years, protection of victims within the family or organised activity), and that it pursue a specific aim. For a foreigner the usual one is the risk of flight, which is assessed on the nature of the offence, the seriousness of the possible sentence and the person’s family, work and financial situation (arraigo). A foreigner without a stable address, without documented employment and with family abroad starts at a disadvantage in that assessment, and that is one of the defence’s first tasks, proving ties with documents at the hearing under article 505, which must be held within seventy-two hours of the detainee being brought before the judge.
If pre-trial detention is not ordered, the judge may impose lesser measures, such as surrender of the passport, a ban on leaving Spain or an obligation to report periodically to the court. For a foreigner with work or family in another country, those measures are often the most pressing problem, and they can be appealed and varied.
From there the proceedings follow defined stages. The investigation phase (instrucción), which gathers the evidence and has a maximum duration of twelve months under article 324, extendable in periods of up to six months if the judge gives reasons. The intermediate phase, in which the prosecution asks for the case to go to trial and states the sentence sought, and the defence responds. The trial, which is heard by the Juzgado de lo Penal when the prison sentence sought does not exceed five years and by the Audiencia Provincial when it does. And the appeal against the judgment, which must be lodged within ten days of notification.
There is a frequent shortcut. The fast-track procedure (juicio rápido) under article 795 applies to offences carrying up to five years’ imprisonment where the police have arrested or summoned the suspect and the facts are straightforward, such as assault, theft, threats or road traffic offences. In that procedure article 801 allows a guilty plea (conformidad) before the duty court itself with a one-third reduction in sentence, provided the offence carries up to three years’ imprisonment and the sentence sought, reduced by a third, does not exceed two years. It is a useful tool and a trap at the same time, because it is decided within hours and for a foreigner a plea to anything over one year’s imprisonment opens the door to expulsion. I will come back to this.
| Time limit | What it means for you |
|---|---|
| 3 hours | Maximum time for the lawyer to attend the police station after being notified (art. 520 LECrim) |
| 24 hours | Time for the judge to rule on a habeas corpus application (Organic Law 6/1984) |
| 72 hours | Maximum length of police detention before being brought before a judge (art. 17.2 Constitution) |
| 12 months | Maximum length of the investigation phase, extendable in periods of up to 6 months (art. 324 LECrim) |
| 10 days | Time limit to appeal the judgment from notification |
Under investigation without arrest, the summons that arrives by post
Not everything starts with an arrest. More often a summons arrives from the court to give a statement as a suspect (investigado). Article 118 LECrim grants you from that moment the right to know the facts attributed to you, to examine the case file, to appoint a lawyer, to an interpreter and to silence. A suspect is the person being investigated, an accused is the person against whom charges have been formally brought after the investigation, and a convicted person is only someone with a final judgment against them. The difference between a denuncia (complaint) and a querella (private prosecution) matters little to the person on the receiving end, both open an investigation, although the querella means the complainant joins the case as a private prosecutor with their own lawyer. The same framework applies whether the allegation is a theft or a domestic or gender violence accusation, which has its own specialised courts.
Two issues affect foreign suspects in particular. The first is the address for service. If you leave Spain without giving a valid address and a lawyer to receive notices, the case continues without you, you may be declared in absentia (rebeldía) and end up with a search order that triggers at any border control. The second is that you do not need to be physically in Spain throughout the investigation. With a lawyer appointed and an address notified, much of the procedure continues without your presence, and for some steps a statement by videoconference can be requested.
The risk of expulsion, which is what really changes for a foreigner
This is the real difference compared with a Spanish citizen, and it is why the defence strategy for a foreigner cannot copy that of a Spaniard facing the same facts.
The rule in article 89 of the Criminal Code is that a prison sentence of more than one year imposed on a foreign national is replaced by expulsion from Spain, although exceptionally the judge may order up to two thirds of the sentence to be served first. If the sentence exceeds five years, the court orders all or part of it to be served, and expulsion follows once that part has been served or on progression to open prison or parole. Expulsion carries a ban on returning to Spain for five to ten years. Substitution does not apply where, in view of the circumstances of the offence and of the offender, in particular their ties to Spain, expulsion would be disproportionate, and for EU citizens it is only possible if they represent a serious threat to public order or public security. The convicted person has the right to be heard before expulsion is decided. Each of those exceptions must be argued and proved, they are not applied automatically. And there is never substitution for human trafficking or for illegal labour trafficking and clandestine immigration offences.
The second route is administrative. Article 57.2 of Organic Law 4/2000 (the Immigration Act) makes it a ground for expulsion that a foreigner has been convicted, in Spain or abroad, of intentional conduct that constitutes in Spain an offence punishable by more than one year’s imprisonment, unless the criminal record has been cancelled. That expulsion is processed by the immigration authorities in a separate file, independently of what the criminal judge decided, and it also affects people with legal residence. Article 57.7 of the same law even allows the judge, where an expulsion file is already open and the offence under investigation carries less than six years, to authorise expulsion before the criminal case concludes.
Beyond expulsion, a conviction or an uncancelled criminal record can prevent renewal of a residence permit and blocks naturalisation for years, since Spanish nationality requires good civic conduct.
The practical consequence is that the one-year threshold is a line the defence always has in front of it. Between a sentence of one year and one of a year and a day lies the difference between continuing to live in Spain and a five-year entry ban, and that line is fought over both in how the facts are classified and in a plea someone signs at the duty court thinking only of avoiding prison. At the firm we conduct criminal defence for foreign nationals under investigation in A Coruña and across Galicia, with service in English, and in these cases the work starts by measuring the possible sentence against that threshold before deciding anything else.
European arrest warrant
If the arrest in Spain is due to a warrant issued by another EU member state, the governing rules are those of Law 23/2014 on mutual recognition of criminal judgments. The detainee is brought before the Central Investigating Court of the Audiencia Nacional, with an interpreter and a lawyer, and asked whether they consent to surrender. If they consent, the decision must be taken within ten days. If not, the time limit is sixty days, extendable by a further thirty.
Consent is irrevocable and should not be given without having spoken to a lawyer who has seen the file. There are defined grounds for refusing or making surrender conditional, and one of them directly concerns people resident in Spain, because where the warrant is for serving a sentence already imposed, Spain may refuse to surrender a resident and undertake to have the sentence served here. Which grounds apply and how they are proved depends on each warrant and is the defence lawyer’s job.
Duty lawyer or private lawyer
The duty lawyer who assists you at the police station is not a lesser lawyer, they are a member of the Bar like any other. The difference lies in the time they can devote to the case, in continuity, and in the fact that you did not choose them. The right to free legal aid under Law 1/1996 extends to foreigners present in Spain in criminal matters regardless of their immigration status, where their income does not exceed set multiples of the IPREM public income index, which is twice the IPREM for a single person and rises with the number of family members.
You can replace the duty lawyer with a private one at any point in the proceedings by a simple appointment before the court, and the new lawyer has access to everything on file. You can also go the other way if you can no longer pay and meet the legal aid requirements. What is not advisable is changing on the eve of trial, because the court is not obliged to adjourn so the new lawyer can prepare.
As for fees, each firm quotes in its own way. What is reasonable is for the quote to distinguish assistance at the police station and duty court, the investigation phase and the trial, and for you to know in advance what each stage includes. If you are convicted, the costs may include the private prosecutor’s fees, on top of what you pay your own lawyer.
What you can do today on your own without harming your case
Do not sign any document at the police station that has not been translated for you, and if you do not trust the interpreter, say so and ask for it to be recorded. Ask expressly for your consulate to be notified, do not wait to be offered it. Do not give a statement about the facts before speaking alone with your lawyer, with an interpreter if you need one. If you have been summoned as a suspect and live outside Spain, do not travel without having appointed a lawyer and notified an address to the court. Keep the documents that prove your ties to Spain, employment contract, municipal registration, lease, children’s school enrolment, because they are the basis for avoiding pre-trial detention and, if it comes to it, expulsion. Do not contact the person who reported you or any witnesses, directly or through others, because that can become a second offence. And keep the messages and emails related to the facts without deleting them, even if they seem incriminating, because your lawyer needs to know about them before the prosecution does.
Why this is not something to defend on your own
What a foreigner risks by facing criminal proceedings alone, or by signing the first thing put in front of them, is a sentence that from one year’s imprisonment upwards turns into expulsion and a five-to-ten-year entry ban, on top of losing residence. At the firm we conduct the criminal defence of foreign nationals under arrest or investigation from the first assistance at the police station through to judgment and appeal, with service in English, and with the possible sentence always measured against the expulsion threshold. If you need a criminal defense lawyer in Spain, call +34 677 841 007 or write through the contact page. To make the first conversation useful, have to hand the summons or the document you were given at the police station, the name of the court and the case number if you know it, your residence documents and the papers that prove your ties to Spain.
Frequently asked questions
Can I refuse to give a statement at the police station if my Spanish is poor?
Yes. Article 520 of the Spanish Criminal Procedure Act gives you the right to remain silent, to decline to answer particular questions or to give a statement only before the judge, as well as the right to a free interpreter. Remaining silent at the police station does not harm your defence and cannot be used against you. The sensible course is not to give a statement until you have spoken alone with your lawyer and with an interpreter.
Can I be expelled from Spain because of a criminal conviction?
It depends on the sentence. As a rule, article 89 of the Criminal Code replaces prison sentences of more than one year imposed on foreigners with expulsion and a five-to-ten-year entry ban, although exceptionally the judge may order up to two thirds of the sentence to be served first (and all or part of it if it exceeds five years) and there is no expulsion if it would be disproportionate given your ties to Spain. In addition, article 57.2 of the Immigration Act allows the authorities to expel anyone convicted of an intentional offence carrying more than one year. A sentence of one year or less triggers neither route.
Can I go back to my country while I am under investigation in Spain?
If the judge has not taken your passport or banned you from leaving the country, you can travel, but first you must appoint a lawyer and notify the court of an address where you can be served. If you leave without doing so, the case continues without you, you may be declared in absentia and end up with a search order that will trigger at any border control.
Do I need a private lawyer if I already have a duty lawyer?
Not always. If the matter is a minor offence punishable by a fine, or a fast-track case where the possible sentence is clearly below one year’s imprisonment, the duty lawyer may be enough and changing is not worth it. It is worth it when the sentence sought exceeds one year’s imprisonment, when there is a risk of pre-trial detention, when a European arrest warrant is involved or when your residence in Spain depends on the outcome, because in those cases the defence requires time, documentation of your ties and a strategy that the duty rota cannot always provide.