Article 509 LECrim: Incommunicado Detention and Custody in Spain

Being held incommunicado is the most restrictive measure Spanish criminal procedure can impose on someone already deprived of liberty. It is not a prison regime and not a police decision: it is a court ruling that temporarily removes rights which, in normal conditions, form the core of a detainee's status. Article 509 of the Spanish Criminal Procedure Act (Ley de Enjuiciamiento Criminal, LECrim) subjects it to a closed list of grounds, a strict time limit and a reinforced duty to give reasons.

If You Have Been Arrested and Held Incommunicado: What That Means

Article 509.1 LECrim opens with a word that conditions everything else: "the investigating judge or the court may exceptionally order, by reasoned decision, detention or custody incommunicado".

Exceptionally means that this is not a routine companion to an arrest, nor an automatic consequence of the type of offence under investigation. And "the investigating judge or the court" means that no other body may order it: the police and the public prosecutor can only ask for it.

It is also worth placing the measure. Being held incommunicado does not replace the general regime of detention under Article 520 LECrim; it is layered on top of it, restricting some of those rights. Everything Article 527 LECrim does not expressly remove remains in force.

The Two Grounds in Article 509.1 LECrim

The provision admits only two circumstances, and both are drafted in terms of urgency:

• a) "An urgent need to avoid serious consequences that may endanger the life, liberty or physical integrity of a person".
• b) "An urgent need for immediate action by the investigating judges to prevent the criminal proceedings from being seriously compromised".

The adjectives matter. Convenience is not enough: the statute asks for an urgent need. Any risk will not do: it asks for serious consequences or a serious compromise of the proceedings. And the second ground is tied to immediate action by the investigating judge, so an incommunicado order that serves no specific and imminent investigative step has nothing to rest on.

Duration: Five Days, and a Narrow Extension

Article 509.2 LECrim contains three chained rules. The first is one of proportionality: the measure "shall last for the time strictly necessary to carry out, as a matter of urgency, steps aimed at avoiding the dangers referred to in the preceding paragraph". The second is a ceiling: "the incommunicado regime may not extend beyond five days".

The third is the extension, and it is confined: "in cases where custody is ordered in proceedings for one of the offences referred to in Article 384 bis or other offences committed in concert and in an organised manner by two or more persons, the incommunicado regime may be extended for a further period of no more than five days".

The first rule is the one that pays off most often in practice: even where the order sets five days, the regime must be lifted as soon as the steps that justified it have been taken. Keeping it in place beyond that moment leaves it without legal cover.

The Reinforced Reasoning Required by Paragraph 3

Article 509.3 LECrim is a rule of form with consequences of substance: "the order in which the incommunicado regime or, as the case may be, its extension is decided must state the reasons for which the measure has been adopted".

Article 527.2 LECrim reinforces the requirement: the incommunicado regime and each of the exceptions applied "shall be ordered by a court decision, and the reasons justifying the adoption of each of the exceptions to the general regime must be given". A blanket statement of reasons is therefore not enough: each restriction has to be argued separately.

That same paragraph places the judge under a duty of active supervision: "the judge shall effectively monitor the conditions in which the incommunicado regime is carried out, and to that end may request information in order to verify the state of the detained or imprisoned person and respect for their rights".

The Absolute Prohibition in Paragraph 4

Article 509.4 LECrim admits no exception and no balancing: "in no case may persons under sixteen years of age be held in incommunicado detention".

It is a rule of age, not of maturity or of the gravity of the act, and it operates irrespective of any other circumstance in the proceedings.

Which Rights May Be Removed (Article 527 LECrim)

The incommunicado regime does not by itself remove any right: the ones that fall away are those the judge selects from the four listed in Article 527.1 LECrim, and only "where the circumstances of the case so justify":

• a) "To appoint a lawyer of their own choosing".
• b) "To communicate with all or some of the persons with whom they are entitled to communicate, save for the judicial authority, the Public Prosecutor and the forensic physician".
• c) "To hold a private interview with their lawyer".
• d) "For the person or their lawyer to access the case file, save for those elements essential to challenge the lawfulness of the detention".

The two provisos written into the text are decisive. Letter b) always preserves communication with the judge, the prosecutor and the forensic physician. And letter d) always preserves access to what is essential to challenge the detention, which is what makes review of the deprivation of liberty possible.

Note too what does not appear on the list: legal assistance as such. What falls away is the choice of a lawyer of confidence, not the assistance itself, which is provided by a duty lawyer and remains compulsory.

The Guarantees That Survive

The twenty-four-hour rule in Article 527.2 LECrim is the first. Where the restriction is requested by the judicial police or the Public Prosecutor, the measures sought "shall be deemed granted" for a maximum of twenty-four hours, "within which the judge must rule on the request". Without a judicial ruling in that time, the restriction cannot be maintained.

The second is medical. Article 527.3 LECrim requires examinations of a detainee whose right to communicate has been restricted to be carried out "at a frequency of at least two examinations every twenty-four hours, according to medical judgement".

The third is Article 510.4 LECrim: a person held incommunicado who so requests "shall have the right to be examined by a second forensic physician appointed by the judge or court with jurisdiction over the case".

And the general time limit on detention continues to apply above all else: Article 520.1 LECrim requires that "in any event, within a maximum period of seventy-two hours, the detainee must be released or brought before the judicial authority".

The Regime Itself (Article 510 LECrim)

Article 510 LECrim governs day-to-day life under the measure. Paragraph 1 allows the person held incommunicado "to attend, with due precautions, the proceedings in which this Act gives them a role, where their presence cannot defeat the purpose of the incommunicado regime". Paragraph 2 allows them to keep the belongings they obtain for themselves "provided that, in the view of the judge or court, they do not frustrate the aims of the incommunicado regime".

Paragraph 3 states the general rule — "the prisoner may not make or receive any communication" — but leaves a valve open: "nevertheless, the judge or court may authorise communications that do not frustrate the purpose of incommunicado custody".

The whole article is built on the same criterion: whatever does not frustrate the purpose of the measure should not be restricted.

Three Things Not to Confuse

• Incommunicado detention and secrecy of the proceedings. These are different measures. The secrecy of Article 302 LECrim affects the parties' access to the file and may last up to one month; the incommunicado regime affects the person deprived of liberty and does not exceed five days. They may coincide, but they are ordered separately.
• Incommunicado detention and pre-trial custody. The incommunicado regime is layered on top of an arrest or a custody order already in place; it neither replaces them nor, on its own, presupposes them.
• Incommunicado detention and prison solitary confinement. Solitary confinement is a disciplinary sanction imposed during the serving of a sentence, entirely outside Article 509 LECrim.

What the Defence Looks At

• Whether one of the two grounds genuinely exists. Without a proven urgent need, the order can be challenged from the outset.
• Individual reasoning for each restriction. Article 527.2 LECrim requires each exception to be argued, not the measure as a block.
• Compliance with the twenty-four-hour rule. It is the judicial check on a restriction that began at the request of the police or the prosecutor.
• Access to what is essential to challenge the detention. It can never be removed, and refusing it undermines the review of lawfulness.
• The medical examinations. Two every twenty-four hours and, on request, a second forensic physician appointed by the judge.
• The moment the measure is lifted. Once the urgent steps have been taken, the regime must end even if the five days have not run out.

If a relative has been arrested and you cannot find out where they are, the first step is to confirm their situation and which court is dealing with the case. You can speak to us on +34 91 078 65 74 or read our page on assistance for detainees.