Articles 503 and 504 LECrim: Pre-Trial Detention in Spain, Requirements and Time Limits

Pre-trial detention (prisión provisional, called remand in custody in the United Kingdom) is the most serious precautionary measure in Spanish criminal proceedings: it deprives of liberty someone who has not been tried and is presumed innocent. The Criminal Procedure Act (LECrim) confines it to two provisions. Art. 503 LECrim says when it may be ordered and Art. 504 LECrim says how long it may last.

Their wording comes from Organic Laws 13/2003 and 15/2003, and Organic Law 13/2015 only replaced «imputado» with «investigado o encausado» ("person under investigation or accused"). It is the version in force since 6 December 2015, checked against the consolidated text in the Official State Gazette (BOE). The quotations below are our own unofficial English translation, for guidance only; only the Spanish text is authoritative. The practical criteria courts apply, including electronic monitoring, are covered in our note on the 2026 criteria; this guide deals with the statutory text.

Arrested and the prosecutor wants you held: what it means and what happens next

Once a detained person is brought before the judge, the judge may release them or call the hearing regulated in Art. 505 LECrim, at which the Public Prosecutor's Office or the private prosecution may ask for detention. If no party asks, the person must be released (Art. 505.4 LECrim). And even if detention is requested, seriousness is not enough: the requirements of Art. 503 must be met and the measure must be necessary.

That second filter is Art. 502 LECrim. Detention may only be adopted when it is «objetivamente necesaria» ("objectively necessary") and no less burdensome measure for the right to liberty can achieve the same purposes (Art. 502.2 LECrim). It is never possible if it can be rationally inferred that the act is not an offence or that a justification, such as self-defence, applies (Art. 502.4 LECrim). The debate therefore has two levels: whether the law allows detention, and whether a lesser measure would do, such as pre-trial release with or without bail, surrender of the passport or regular reporting to the court.

What Article 503.1 LECrim requires: the three conditions

The article opens: "Pre-trial detention may only be ordered when the following requirements are met". The three are cumulative: if one is missing, detention is not possible, however serious the facts seem.

First condition: an offence punishable by two years or more

"1.º That the case file shows the existence of one or more acts bearing the features of an offence punishable by a penalty whose maximum is equal to or greater than two years' imprisonment, or by a custodial penalty of shorter duration if the person under investigation or accused has a criminal record that has not been cancelled and is not eligible for cancellation, arising from a conviction for an intentional offence.

If several acts are alleged, the special rules for the application of penalties shall apply, in accordance with Section 2 of Chapter II of Title III of Book I of the Criminal Code."

What counts is the maximum penalty laid down in the abstract in the Criminal Code (CP), not what the prosecutor seeks or the sentence later imposed. Theft under Art. 234.1 CP (six to eighteen months' imprisonment) does not reach the threshold; violent robbery under Art. 242.1 CP (two to five years) does. Below two years, a live record for an intentional offence is needed: one not cancelled and no longer cancellable under Art. 136 CP. The rules for several offences are in Arts. 73 to 79 CP.

Second condition: sufficient grounds against that person

"2.º That the case file shows sufficient grounds to believe that the person against whom the detention order is to be issued is criminally liable for the offence."

Full proof is not required, but rational and specific indications linking that person to the act are. A general suspicion or an uncorroborated complaint is not enough, and the defence can challenge this from the first day.

Third condition: pursuing one of the purposes set by law

Rule 3.º requires "that pre-trial detention pursues one of the following aims" and lists three; section 2 adds a fourth. The list is closed. Before 2003 courts could consider the «alarma social» ("social alarm") caused by the offence; Organic Law 13/2003 removed it, and the public profile of a case does not, on its own, justify detention.

The four purposes that can justify pre-trial detention

Risk of flight (Art. 503.1.3 a) LECrim)

"a) To ensure the presence of the person under investigation or accused in the proceedings where a risk of flight may be rationally inferred.

In assessing this risk, account shall be taken jointly of the nature of the act, the seriousness of the penalty that might be imposed on the person under investigation or accused, his or her family, employment and financial situation, and the imminence of the trial, in particular in cases where the procedure for fast-track trials regulated in Title III of Book IV of this Act is to be opened.

Pre-trial detention shall be ordered on this ground where, in view of the records appearing in the proceedings, at least two requisitorias for the person to be located and summoned have been issued by any court in the previous two years. In such cases the limit relating to the penalty laid down in rule 1.º of this section shall not apply."

The factors are weighed together: the likely penalty matters, but ties (home, work, dependants) are the usual counterweight. A requisitoria is a court order to find and summon someone who cannot be located.

Risk to the evidence (Art. 503.1.3 b) LECrim)

"b) To prevent the hiding, alteration or destruction of sources of evidence relevant to the trial in cases where there is a well-founded and specific danger.

Pre-trial detention shall not be ordered on this ground where that danger is to be inferred solely from the exercise of the right of defence or from a lack of cooperation by the person under investigation or accused in the course of the investigation.

In assessing this danger, account shall be taken of the ability of the person under investigation or accused to access the sources of evidence, directly or through third parties, or to influence other persons under investigation or accused, witnesses or experts, or those who may become such."

The danger must be specific, not hypothetical, and remaining silent cannot by itself ground detention.

Protection of the victim (Art. 503.1.3 c) LECrim)

"c) To prevent the person under investigation or accused from acting against the victim's legally protected interests, especially where the victim is one of the persons referred to in Article 173.2 of the Criminal Code. In these cases the limit relating to the penalty laid down in rule 1.º of this section shall not apply."

Art. 173.2 CP covers current and former spouses or partners (even without living together), descendants, ascendants, siblings and other members of the family unit. This is the typical purpose in gender and domestic violence cases, though not limited to them. Lesser measures, such as a restraining order, usually come first; detention appears when they have been breached or are not enough.

Risk of reoffending (Art. 503.2 LECrim)

"2. Pre-trial detention may also be ordered, where the requirements of rules 1.º and 2.º of the previous section are met, to avoid the risk that the person under investigation or accused commits other criminal acts.

In assessing this risk, account shall be taken of the circumstances of the act and the seriousness of the offences that might be committed.

Pre-trial detention may only be ordered on this ground where the alleged criminal act is intentional. However, the limit laid down in rule 1.º of the previous section shall not apply where, from the record of the person under investigation or accused and other data or circumstances provided by the Judicial Police or appearing in the proceedings, it may rationally be inferred that he or she has been acting in concert with one or more other persons in an organised manner to commit criminal acts, or carries out criminal activities habitually."

When the two-year penalty threshold does not apply

How long it can last: the maximum periods in Article 504 LECrim

"1. Pre-trial detention shall last for the time strictly necessary to achieve any of the aims provided for in the previous article and for as long as the grounds that justified its adoption persist.

2. Where pre-trial detention has been ordered under paragraphs a) or c) of section 1.3.º or under section 2 of the previous article, it may not exceed one year if the offence carries a custodial penalty of three years or less, or two years if the custodial penalty for the offence exceeds three years. However, where circumstances suggest that the case cannot be tried within those periods, the judge or court may, on the terms laid down in Article 505, order by means of an auto a single extension of up to two years if the offence carries a custodial penalty exceeding three years, or of up to six months if it carries a penalty of three years or less.

If the person under investigation or accused is convicted, pre-trial detention may be extended up to the limit of half of the sentence actually imposed in the judgment, where the judgment has been appealed.

3. Where pre-trial detention has been ordered under section 1.3.º b) of the previous article, it may not exceed six months.

However, where incommunicado detention or secrecy of the investigation has been ordered, if the incommunicado regime or the secrecy is lifted before the period laid down in the previous paragraph, the judge or court must give reasons for the continued existence of the grounds for pre-trial detention."

These periods are ceilings, not the normal length: if the reason disappears earlier, detention must end (Art. 528 LECrim).

The extension is not automatic: it requires a forecast that the case cannot be tried in time, a request from a party, a hearing for the defence under Art. 505 and an auto (a reasoned court order), and there is only one. With a conviction under appeal, the cap is half of the sentence imposed: with six years, for example, three years, which include the time already spent under arrest or in pre-trial detention for the same case (Art. 504.5). It is an overall cap, not an additional period.

How the periods are counted and what happens when they run out

"4. Release on expiry of the maximum periods of pre-trial detention shall not prevent it from being ordered again if the person under investigation or accused, without legitimate reason, fails to appear when summoned by the judge or court.

5. In calculating the periods laid down in this article, account shall be taken of the time the person under investigation or accused has been under arrest or in pre-trial detention for the same case.

However, any time during which the case suffers delays not attributable to the Administration of Justice shall be excluded from that calculation.

6. Where the pre-trial detention ordered exceeds two thirds of its maximum duration, the judge or court hearing the case and the Public Prosecutor's Office shall respectively report this to the President of the Governing Chamber and to the Chief Prosecutor of the relevant court, so that the necessary measures are taken to conduct the proceedings with maximum speed. To this end, the case shall have priority over all others."

In short: police custody counts towards the maximum, delays not attributable to the courts do not, and past two thirds of the maximum the case takes priority. When the limit is reached the person must be released, although a later unjustified failure to appear allows a new detention order.

Credit for time in pre-trial detention (Art. 58 CP)

If there is a conviction, time spent in provisional custody is credited in full towards the sentence in that case (Art. 58.1 CP). No period is credited twice, and credit in a different case, decided by the prison supervision judge (Juez de Vigilancia Penitenciaria), is only possible if the detention came after the facts of that other conviction (Arts. 58.2 and 58.3 CP). See sentence consolidation and pre-trial detention served in another case.

If you are a foreign national: interpreter, consulate and flight risk

Articles 503 and 504 apply equally to Spanish and foreign nationals, but some rights matter especially to someone who does not live in Spain or speak Spanish:

• Interpreter. From arrest, a person who does not understand Spanish has the right to an interpreter (Art. 520.2 h) LECrim), also at the detention hearing and in related conversations with the lawyer (Art. 123.1 LECrim). The authorities bear the cost, whatever the outcome.
• Written translation. Decisions ordering detention must always be translated in writing (Art. 123.1 d) LECrim), so the person knows the reasons and can appeal.
• Consulate. A foreign national may have their consular office informed of the detention and place of custody, be visited by consular officials and correspond with them (Art. 520.2 e) and g) LECrim).

Living abroad is not an automatic ground for detention. Art. 503.1.3 a) requires a rational inference of flight risk, assessed jointly with the nature of the act, the likely penalty and the person's family, work and financial situation. Foreign residence is one element of that situation, to be balanced against documented ties in Spain or abroad and alternatives such as passport retention and regular reporting (Art. 530 LECrim). Within the European Union, Law 23/2014 on mutual recognition provides a channel for supervision measures imposed instead of pre-trial detention to be transmitted to the Member State where the person lives (Art. 109 of Law 23/2014); whether it is used is for the court. On travelling while the case continues, see whether you can leave Spain while under investigation.

Ordinary, incommunicado or home-based detention

The general rule is ordinary detention (prisión comunicada), with visits and communication with the lawyer and family under the prison rules; the practical side is in what the family of a pre-trial detainee can do. Incommunicado detention is exceptional, temporary and requires enhanced reasons (Art. 509 LECrim; see incommunicado detention and custody). The mitigated form (prisión atenuada, Art. 508 LECrim) allows detention at home where illness makes prison a serious danger to health, or in a rehabilitation centre where the person was already in addiction treatment that prison could frustrate and the facts predate it.

Not a final decision: reasons, review and appeal

The order imposing or extending detention must state «los motivos por los que la medida se considera necesaria y proporcionada» ("the reasons why the measure is considered necessary and proportionate") in relation to its purposes (Art. 506.1 LECrim). An order that repeats the statutory formula without specific facts is the first target of an appeal. These orders can be revisited throughout the proceedings (Art. 539 LECrim), so the defence may seek release if circumstances change, and an appeal (recurso de apelación) lies against them, processed with priority and decided within thirty days at most (Art. 507.1 LECrim).

If you are later acquitted: compensation under Article 294 LOPJ

A person held in pre-trial detention who is then acquitted, or whose case is definitively dismissed (sobreseimiento libre), may claim compensation from the State if the detention caused harm (Art. 294.1 of the Organic Law of the Judiciary, LOPJ). Since STC 85/2019, in which the Constitutional Court struck down the words limiting it to the «inexistencia del hecho imputado» ("non-existence of the alleged act"), the court need not declare that the act never happened; but compensation is not automatic and the harm must be proved. The amount depends on the time in custody and its personal and family consequences (Art. 294.2 LOPJ); see compensation for wrongful pre-trial detention.

What to do (and what not to do) if pre-trial detention is requested

The hearing takes place very soon after the arrest, and what is put forward there weighs more than what is argued later:

• Gather evidence of your ties: local census registration (empadronamiento), tenancy or title deeds, employment contract, payslips, dependants.
• Offer specific alternatives: affordable bail, passport surrender, regular reporting. Art. 502.2 LECrim requires the less burdensome measure if it serves the same purpose.
• Do not contact the victim or witnesses, directly or through others: that is exactly what can ground detention under letters b) and c).
• Do not make a statement without a lawyer: silence cannot justify detention (Art. 503.1.3 b) LECrim).
• Ask for an interpreter and for the written translation of the order if you do not fully understand Spanish.
• Watch the time limits: police custody counts; ask for release if the reason disappears or the limit is reached without an extension.

Our firm handles bail and pre-trial detention defence in Madrid: preparing the hearing, appealing the detention order and applying for release. You can call us on +34 91 078 65 74 for an initial assessment of your case.