Illegal Detention & Kidnapping Defense Lawyers

The crime of illegal detention (Arts. 163 to 168 of the Spanish Criminal Code) is one of the most serious types of Title VI on crimes against liberty. The protected legal interest is ambulatory freedom: the fundamental right guaranteed by Art. 17 of the Constitution to move freely without limitations other than those legally established. When one person deprives another of that freedom without legal cause, the criminal reproach is among the most severe in the legal system. Consolidated Supreme Court case-law has clarified that no physical lock-up is required: any form of effective movement deprivation suffices (tying, threatening with a weapon, blocking exit, armed surveillance even in open space) provided the passive subject cannot freely leave the place.

The Criminal Code articulates several modalities graduated in intensity and reproach. The basic illegal detention of Art. 163.1 punishes those who confine or detain another, depriving them of liberty. Art. 163.2 contemplates voluntary release within the first three days as a specific mitigating factor that reduces the penalty. Art. 163.3 aggravates the penalty when detention lasts more than fifteen days. Art. 163.4 provides for the case of those who, not being authorized, retain another to present them immediately before authority. The kidnapping of Art. 164 is the aggravated modality par excellence: detention conditioned upon fulfilment of a demand (ransom, action, omission); penalties are substantially higher. Art. 165 further aggravates when the victim is a minor, person with disability or official in the exercise of their functions. Art. 166 sanctions the autonomously typified offence of failing to give account of the whereabouts of the disappeared person. Art. 167 aggravates when the conduct is committed by authority or public official outside legally permitted cases. And Art. 168 sanctions the provocation, conspiracy and proposition to commit these crimes.

Penalties are among the most severe in the Code. Basic illegal detention under Art. 163.1 carries 4 to 6 years' prison; if it lasts more than 15 days, the penalty rises to 5 to 8 years. The kidnapping of Art. 164 sanctions with 6 to 10 years' prison; with the aggravations of Art. 165 it may reach 15 years. The modality of Art. 166 (failing to give account of whereabouts) provides 10 to 15 years' prison in illegal detentions and 15 to 20 years in kidnappings, with penalties in the upper half if the victim is a minor or person with disability. When the perpetrator is authority or official (Art. 167), penalties are imposed in their upper half with absolute disqualification of 8 to 12 years. On the custodial penalties, civil liability also operates for moral damage (between €300 and €1,000/day of deprivation, depending on gravity), psychological sequelae (PTSD, chronic anxiety) and patrimonial damage.

Technical defense is built on several axes consolidated by case-law. The first is the concurrence of legal cause: Art. 490 LECrim authorizes any citizen to arrest a criminal caught in flagrante, a fugitive from prison or one attempting to commit a crime, provided that delivery to authority is immediate; exceeding those limits turns the retention into illegal detention. The second is self-defense under Art. 20.4 CP when the deprivation of liberty was necessary, proportionate and responded to prior unlawful aggression. The third is free and valid consent of the victim, which excludes unlawfulness if genuine and not vitiated by deceit, fear or coercion. The fourth is the requalification to coercion under Art. 172 CP when the deprivation was not total ambulatory but rather restrictive of freedom to act: the Supreme Court carefully distinguishes between confining and merely preventing doing something. And the fifth is the spontaneous-release mitigating factor of Art. 163.2 when the active subject voluntarily releases the victim within the first three days, reducing the penalty by two degrees.

In current forensic practice, illegal-detention and kidnapping proceedings concentrate in several recurrent scenarios. Neighborhood or private-security disputes with excess in the retention of alleged shoplifters; couple crises with confinement or prevention of leaving the joint home; inheritance disputes with retention of elderly relatives to force signing of powers or wills; economic controversies with retention until debt payment ("express" kidnapping); and, in its most serious form, organized extortive-kidnapping networks, frequently connected with drug trafficking or transnational crime, assigned to the Central Investigating Courts of the National Court. ECtHR case-law on deprivation of liberty (López Ribalda case, among others) and Organic Law 13/2015 on procedural guarantees have reinforced judicial-control standards on any restriction of liberty. At Alonso Sala we intervene both in defense of the accused and as private prosecution of the victim, articulating forensic psychological expert reports to prove post-traumatic stress, camera analysis and chronological reconstructions. We treat each file with the conviction that in these crimes — given the magnitude of penalties — the client's freedom or fair compensation of the victim depends on technical rigour from the very first proceeding.