Article 163 Spanish Criminal Code: Unlawful Detention and Kidnapping (2026)

Article 163 of the Spanish Criminal Code (CP) punishes unlawful detention: locking up or detaining another person and depriving them of their liberty. It opens Title VI of the CP, on offences against liberty, and is one of the most serious crimes a private individual can commit in Spain — the basic offence starts at 4 years' imprisonment, more than many violent offences. As criminal defence lawyers specialising in unlawful detention and kidnapping, we explain what the provision actually says, its mitigated and aggravated forms, the step up to kidnapping under article 164, and where the room for defence lies.

What Article 163 Says

The article has four paragraphs:

• Art. 163.1 — Basic offence: a private individual who locks up or detains another, depriving them of their liberty, faces 4 to 6 years' imprisonment.
• Art. 163.2 — Mitigated form: if the offender frees the victim within the first 3 days of the detention, without having achieved the purpose they pursued, the penalty is one degree lower.
• Art. 163.3 — Aggravated form: 5 to 8 years' imprisonment where the confinement or detention has lasted more than 15 days.
• Art. 163.4 — Apprehension to hand over to the authorities: a private individual who, outside the cases allowed by law, apprehends a person in order to present them immediately to the authorities faces a fine of 3 to 6 months.

The Basic Offence: Locking Up or Detaining (4 to 6 Years)

The protected interest is freedom of movement: a person's ability to decide where to be and where to go. The provision uses two distinct verbs:

• Locking up (encerrar): placing the victim in an enclosed space they cannot leave — a room, a vehicle, business premises.
• Detaining (detener): immobilising the victim or preventing them from moving away, even without an enclosed space — tying them up, holding them, keeping them in place through intimidation.

The offence does not require physical violence: it can be committed through intimidation or even deception, provided it effectively removes the victim's real possibility of leaving. It is also a continuing offence: it keeps being committed for as long as the deprivation of liberty lasts, which matters for the liability of later participants and for limitation periods.

The most litigated boundary in practice is with the offence of coercion under article 172 CP: coercion violently restricts a specific piece of conduct (blocking someone's entry, forcing them to do something), whereas unlawful detention suppresses freedom of movement itself. The gap between the penalties is enormous — 6 months to 3 years for coercion against 4 to 6 years here — which makes reclassification as coercion one of the central battles for the defence.

The Mitigated Form: Releasing the Victim Within 3 Days (Art. 163.2)

Article 163.2 CP rewards desistance: if the offender frees the victim within the first 3 days of the detention, without having achieved the purpose they pursued, the court imposes the penalty one degree lower — 2 to 4 years' imprisonment. Case law requires three cumulative conditions:

1. Voluntary release by the offender: it does not apply if the victim escapes, is rescued by the police or is freed under outside pressure.
2. Within the first 3 days: counted from the moment the deprivation of liberty began.
3. Without achieving the purpose: if the offender obtained what they were after (payment, a signature, preventing an act) and only then released the victim, the mitigated form is unavailable.

The Aggravated Form: More Than 15 Days (Art. 163.3)

Where the confinement or detention lasts more than 15 days, the penalty rises to 5 to 8 years' imprisonment, reflecting the greater harm caused by a prolonged attack on the victim's liberty. Proving exactly when the deprivation of liberty began and ended is a key evidentiary issue: it can mean the difference between the basic and the aggravated offence.

Citizen's Arrest and Art. 163.4

Article 163.4 CP covers a far less serious scenario: a private individual who, outside the cases allowed by law, apprehends a person in order to hand them over immediately to the authorities, punished with a fine of 3 to 6 months. The key lies in the lawful cases: article 490 of the Criminal Procedure Act (LECrim) allows any person to detain, among others, someone about to commit an offence, an offender caught in the act, or an escaped prisoner. Within those situations, restraining someone to hand them over to the police is lawful; outside them, but with that genuine purpose, the fine of art. 163.4 applies; and where not even that purpose exists, the conduct falls back into the basic offence of art. 163.1. This is the typical terrain of security guards, shop staff and disputes between neighbours.

Kidnapping Under Article 164: Demanding a Condition

Article 164 CP punishes kidnapping: detaining a person while demanding some condition for their release, with 6 to 10 years' imprisonment. The condition is what turns unlawful detention into kidnapping — a ransom, payment of a debt by a relative, that someone do or refrain from doing something. The article itself cross-refers to the forms of article 163:

• If the kidnapping lasts more than 15 days (the circumstance of art. 163.3), the penalty is one degree higher: 10 to 15 years.
• If the offender frees the victim within the first 3 days without achieving their purpose (the conditions of art. 163.2), the penalty is one degree lower: 3 to 6 years.

The Aggravating Factors of Article 165

Article 165 CP requires the penalties of the preceding articles to be imposed in their upper half where the unlawful detention or kidnapping is committed:

• By impersonating a public authority or official function (posing as a police officer, for instance).
• Against a victim who is a minor or a person with a disability in need of special protection.
• Against a public official in the performance of their duties.

For the basic offence, the upper half means 5 to 6 years; for kidnapping, 8 to 10 years.

Failing to Disclose the Victim's Whereabouts: Article 166

Article 166 CP addresses the gravest scenario: an offender convicted of unlawful detention or kidnapping who fails to disclose the whereabouts of the detained person. The penalties are 10 to 15 years' imprisonment for unlawful detention and 15 to 20 years for kidnapping. They rise to 15-20 and 20-25 years respectively where the victim was a minor or a person with a disability in need of special protection, or where the offender acted with the intent to attack the victim's sexual freedom. These ranges are comparable to homicide, precisely because the disappearance leaves the victim's fate unknown.

The chapter closes with article 167 CP, which punishes public authorities or officials who commit these acts outside the cases allowed by law and without criminal proceedings — with the penalties in their upper half, up to one degree higher, plus absolute disqualification from public office for 8 to 12 years — and article 168 CP, which punishes provocation, conspiracy and solicitation with the penalty one or two degrees lower. If you are the one suffering an unlawful deprivation of liberty at the hands of the authorities, the urgent remedy is the habeas corpus procedure.

Defence Strategies

1. No true deprivation of liberty: minimal duration, a real possibility of leaving, no effective confinement.
2. Consent of the alleged victim: if the person stayed voluntarily, there is no offence.
3. Reclassification as coercion (art. 172 CP): where what was restricted was a specific piece of conduct rather than freedom of movement itself, the penalty drops sharply.
4. The mitigated form of art. 163.2: proving a voluntary release within the first 3 days without achievement of the purpose.
5. Lawful citizen's arrest under art. 490 LECrim: proving flagrancy or another qualifying situation makes the conduct lawful or, at most, the fine of art. 163.4.
6. Challenging the condition under art. 164: without a proven demand attached to the release there is no kidnapping, only unlawful detention, with a significantly lower penalty.

For a full overview of these offences, see our complete legal guide to unlawful detention and kidnapping in Spain.