What Your Lawyer Does in the First 72 Hours of Detention

When someone is arrested, their family usually wonders what they can do from the outside — something we explain in the guide on what to do if a family member is arrested — and the detainee themselves wonders what lies ahead, as we detail in what to do if you have been arrested. This article covers something different: the lawyer's work, step by step, during the first 72 hours. Knowing what they do — and why — helps explain why early legal assistance is decisive.

Attending the police station and the private consultation

The lawyer's first act is to attend the police station where the detainee is being held. Before the detainee gives a statement, the lawyer has the right to hold a private consultation with them (art. 520 of the Criminal Procedure Law). It is a key moment: in that confidential conversation the lawyer finds out what happened, reviews what charges and proceedings are on record, checks that the detainee's rights have been respected from minute one, and begins to design the strategy. Nothing said there can be used against the detainee.

Deciding whether to make a statement or remain silent

The most important decision of these first hours is whether to make a statement or to exercise the right to remain silent. It is the detainee's decision, but it is made on their lawyer's advice, who weighs up what is in the police report and what is at risk with each option. Often, when the real scope of the investigation is not yet known, the prudent course is not to make a statement at the police station and to save it for later, before the judge and with the case file studied. Article 520 LECrim guarantees this right, and a wrong step here — a hasty statement — can shape the entire defence.

Watching the time limit and your rights

During the detention, the lawyer watches the clock. The Constitution states that pre-charge detention cannot last longer than strictly necessary for the inquiries and, in any event, within a maximum of 72 hours the detainee must be released or brought before the judicial authority (art. 17.2 of the Constitution). The lawyer also verifies that the other safeguards are respected: being informed of your rights, medical assistance where appropriate, contact with a family member, and the possibility of an interpreter when needed.

Habeas corpus, if the detention is unlawful

If the lawyer considers that the deprivation of liberty is unlawful — because the time limit has been exceeded, because there is no legal ground for it, or because basic rights are being breached — they can apply for a habeas corpus. This is an urgent procedure, provided for in art. 17.4 of the Constitution and developed by Organic Law 6/1984 of 24 May, whose sole purpose is for a judge to immediately examine the legality of the detention and, if it is unlawful, order the person's release or that they be brought before the judicial authority. It does not address guilt: only the legality of the deprivation of liberty.

Being brought before the judicial authority

Once the police phase is over, if the detainee is not released, they are brought before the court. Here the lawyer's work changes setting: it moves from the police station to the investigating court. The lawyer prepares the detainee for the judicial statement, examines the police report in more detail, and assesses what the prosecution is likely to seek.

The pre-trial detention hearing (art. 505 LECrim)

When the Public Prosecutor's Office or the prosecuting parties seek pre-trial detention, the pre-trial detention hearing is held, the preliminary hearing regulated under article 505 of the Criminal Procedure Law. It is often the decisive moment of these first hours. The lawyer argues against detention: they challenge the grounds the request is based on, rebut the risks invoked — flight risk, reoffending, or destruction of evidence — and propose less onerous alternative measures, such as provisional release on bail, surrender of the passport, or periodic court appearances. A well-prepared defence at this hearing can be the difference between entering prison or awaiting trial at liberty.

Why early assistance matters

All of the above happens within a matter of hours and involves decisions that shape the rest of the proceedings. That is why legal assistance from the very first moment is not a formality: it is the stage where what is most basic — liberty — is protected, and where the foundations of the defence are laid. If you need assistance in the event of an arrest or want to find out about our detainee legal assistance service, you can contact us.