Citizen's Arrest in Spain: Articles 490 and 495 LECrim

The idea that "only the police can arrest someone" is wrong. The Spanish Criminal Procedure Act (Ley de Enjuiciamiento Criminal, LECrim) has granted every citizen a power of arrest since 1882, and private security staff in shops, stadiums and nightlife venues rely on it daily. But it is a narrow power, confined to a closed list and subject to a limit that is frequently ignored. Articles 490 and 495 LECrim are the two faces of that rule.

If You Have Been Arrested by a Security Guard or a Private Citizen: What the Law Allows

Article 490 LECrim opens with a formula that cannot be stretched: "any person may arrest", followed by a closed list of seven cases. Outside that list a private individual has no power of arrest, however well founded the suspicion may look.

It matters to understand what "arrest" means here. It is not investigating, questioning, searching or punishing. It is a momentary deprivation of liberty with a single purpose: to hand the person over to the authorities. Anything beyond that has no legal cover.

The Seven Cases in Article 490 LECrim

• 1st "A person attempting to commit an offence, at the moment they are about to commit it".
• 2nd "An offender caught in the act" (delincuente in fraganti).
• 3rd "A person escaping from the penal institution where they are serving a sentence".
• 4th "A person escaping from the prison where they were awaiting transfer to the penal institution or place where they are to serve the sentence imposed on them by a final judgment".
• 5th "A person escaping while being taken to the institution or place mentioned in the preceding number".
• 6th "A person escaping while detained or imprisoned in pending proceedings".
• 7th "A person formally indicted or convicted who is at large in default".

In real life, the five escape cases and the default case are exceptional. Practically all the litigation concentrates on the second: catching someone in the act. And Article 490 LECrim does not define that concept, which means it has to be built on three features: the act must have just happened, the person must be caught then and there, and whoever makes the arrest must have perceived it directly.

From that come the three most common mistakes. Arresting someone hours later, after identifying them on a recording, is not catching them in the act. Nor is arresting on a suspicion based on earlier behaviour. And arresting someone pointed out by a third party, where the person making the arrest saw nothing, still less.

The Duty to Justify Under Article 491 LECrim

Article 491 LECrim completes the picture: "a private individual who arrests another shall justify, if required to do so by that person, having acted on rationally sufficient grounds to believe that the person arrested fell within one of the cases in the preceding article".

Two consequences follow. First, the statute does not require the arresting person to be right: it requires rationally sufficient grounds at the moment of acting, judged on the information then available. A reasonable mistake does not automatically turn the arrest into an offence. Second, the burden of explaining those grounds falls on whoever made the arrest, and that explanation becomes the centre of the later argument.

The Limit in Article 495 LECrim: No Arrest for Minor Offences

Article 495 LECrim is short and emphatic: "no arrest may be made for the alleged commission of minor offences, unless the alleged offender has no known address and does not provide sufficient security, in the judgement of the authority or officer seeking to arrest them".

Its practical reach is enormous, because many of the incidents that happen in shops and venues are precisely minor offences: theft below 400 euros under Article 234.2 CP, the bodily harm of Article 147.2 CP or the physical mistreatment of Article 147.3 CP. Where the act is minor and the person is identified and has a known address, the lawful response is to identify and report them, not to arrest them.

The exception has two cumulative requirements — no known address and no sufficient security — so anyone who proves their address with an identity document removes the possibility of arrest on that basis.

Handing the Person Over: Article 496 LECrim

Making an arrest creates a duty to hand the person over. Article 496 LECrim requires the "private individual, Authority or officer of the judicial police" who has made the arrest to "release the person or hand them over to the Judge nearest to the place where the arrest was made within the twenty-four hours following it", with the warning that "if the handover is delayed, they shall incur the liability laid down in the Criminal Code, where the delay has exceeded twenty-four hours".

In everyday practice that period is theoretical: the normal course is to call the police at once and hand the person over within minutes. Any deliberate delay — to "talk things over", to review the cameras or to negotiate payment for the item taken — has no legal cover.

How It Differs From a Police Arrest

The private individual's power is discretionary; the officer's is compulsory and wider. Article 492 LECrim provides that "the Authority or officer of the judicial police shall be under a duty to arrest" in the cases of Article 490 LECrim and, in addition, where there are "rationally sufficient grounds to believe in the existence of an act bearing the features of an offence" and equally sufficient grounds to believe that the person took part in it.

That asymmetry explains a familiar scene: the security guard holds someone caught in the act, calls the police, and it is the officers who formalise the arrest with the reading of rights under Article 520 LECrim. From that moment the full status of a detainee applies, including legal assistance and the maximum period of seventy-two hours before being brought before a judge.

What Happens if the Arrest Was Unlawful

Article 163.4 CP contains a specific and reduced offence for this situation: it punishes with "a fine of three to six months" a "private individual who, outside the cases permitted by law, apprehends a person in order to present them immediately to the authorities".

The key lies in that purpose of immediate handover. Where it is missing — because the person is held to teach them a lesson, to extract payment or to force a confession — the act leaves paragraph 4 and enters Article 163.1 CP, which punishes with "imprisonment of four to six years" a private individual "who locks up or detains another, depriving them of their liberty". The distance between the two labels is measured in years of imprisonment.

To that may be added the offence of coercion under Article 172 CP where the person was prevented from leaving the premises by force, and any injuries caused while they were being held.

What the Defence Looks At

• Whether the situation fits one of the seven cases. The list in Article 490 LECrim is closed. If it does not fit, the power does not exist and everything else is secondary.
• Whether the person really was caught in the act. Times and recordings. A gap of minutes between the act and the detention can decide the case.
• The label of the underlying act. If it was a minor offence, Article 495 LECrim prohibits arrest save for the address exception, and that taints everything done afterwards.
• How long and in what way the person was held. Searching belongings, isolating someone in an office, handcuffing them or a late handover all go beyond Article 496 LECrim.
• The purpose. It is what separates Article 163.4 CP from Article 163.1 CP, and therefore a fine from a prison sentence.
• The validity of what was obtained while the person was held. Identifications, statements or handovers of objects obtained by a private individual outside the law can be challenged in the proceedings.

Whether you have been arrested in this way or you are the one who stepped in to detain someone else, the facts should be fixed before the police report is closed. You can speak to us on +34 91 078 65 74 or read our guide on what to do after an arrest.