Unlawful Detention and Kidnapping (Art. 163): Guide to Penalties and Defence
Last updated:
listIn this article
lightbulbKey Takeaways
- check_circleBasic penalty 4-6 years
- check_circleThe difference from kidnapping
- check_circleCitizen's arrest
- check_circlePrivate security
Unlawful detention (Art. 163 of the Criminal Code) is one of the offences carrying the highest prison penalties in Spain. It consists of confining or detaining a person, depriving them of their liberty, where there are no legal grounds to justify it. But when does a family or neighbourhood dispute cross the red line and become unlawful detention? Our criminal lawyers experienced in unlawful detention in Madrid can help you with this type of situation.
The Difference Between Unlawful Detention and Kidnapping
They are often used as synonyms, but in criminal law they are very different:
- Unlawful Detention (Art. 163): the perpetrator deprives the victim of liberty (confines them, ties them up, prevents them from leaving). The basic penalty is 4 to 6 years in prison.
- Kidnapping (Art. 164): this is an unlawful detention in which a condition is demanded for release (paying a ransom, doing something, signing a document). Because this "condition" exists, the penalty rises to 6 to 10 years in prison.
Example: confining someone out of revenge is unlawful detention. Confining them and saying "you don't leave until you pay me the debt" is kidnapping.
Can I Detain Someone? (Citizen's Arrest)
Yes — the law (Art. 490 LECrim) allows any citizen to detain another, but ONLY in cases of a flagrant offence (catching them "red-handed"), if they are escaping from prison, or if there is a wanted notice. And always to hand them over to the police immediately. If you detain someone on mere suspicion, or hold them longer than necessary to call the emergency line, you go from hero to offender: you would be committing the offence of unlawful detention.
The "Repentance Clause" (Art. 163.2)
The Criminal Code offers the perpetrator an emergency exit. If the guilty party voluntarily releases the victim within the first 3 days of the detention, without having achieved their aim (e.g. without having collected the ransom), the penalty will be reduced by one degree. It is a criminal-policy measure to encourage the swift release of victims.
Security Guards and Nightclubs
A common case: security staff hold someone in a back room over a fight. Unless it is to wait for the police over a serious offence committed in flagrante, this holding may be unlawful. Private security has no authority to interrogate or to hold people over administrative infringements, and it could be reported as unlawful detention.
Need a criminal defence lawyer?
If you are facing a criminal matter, our team of specialist lawyers can help. Contact us for a case evaluation.
Frequently asked questions
What is the difference between illegal detention and kidnapping?expand_more
Both deprive the victim of their liberty. Kidnapping (art. 164 CP) adds a condition for their release —typically demanding a ransom or the fulfilment of a demand—, which aggravates the penalty compared with simple illegal detention (art. 163 CP).
What penalty does illegal detention carry?expand_more
Basic illegal detention (art. 163 CP) is punished with imprisonment of 4 to 6 years. The penalty is reduced if the victim is released within the first three days, and aggravated if the deprivation lasts more than 15 days or other circumstances are present.
Is locking someone in a room illegal detention?expand_more
It can be. Illegal detention does not require moving the victim: it is enough to prevent another person from moving or leaving against their will for a criminally relevant period of time. The duration and the circumstances determine the gravity of the act.
How is an illegal detention charge defended?expand_more
By disputing the actual existence of the deprivation of liberty and its duration, the presence of consent, or the possible reclassification as a less serious offence such as coercion. In kidnapping, the evidence of the condition demanded for the release is key.