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Bufete de abogados penalistas Alonso Sala
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Illegal Detention & Kidnapping

High-complexity criminal defense in crimes of deprivation of liberty and kidnapping.

Illegal Detention Crime (Art. 163-168 CP)

Illegal detention (Art. 163 CP) consists of confining or detaining person depriving them of ambulatory freedom without legal causes justifying it. Protected legal asset is freedom of movement, one of most essential fundamental human rights. Penalties are very high: prison 4 to 6 years in basic type, rising to 5-8 years if kidnapping (when demands condition/ransom to release).

Deprivation doesn't need to last long: even minutes can suffice if violence or intimidation. Also not necessary locked place; can be car, room, or even open field if armed surveillance prevents escape. At Alonso Sala we defend both accused (proving detention was legal per Art. 490 LECrim, there was self-defense or consent) and victims (prosecuting perpetrator and obtaining very high compensations for moral damage and psychological sequelae).

Illegal Detention vs Kidnapping

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Illegal Detention (Art. 163)

Depriving someone of freedom without legal cause. Penalty: 4-6 years. E.g.: confining someone after dispute, preventing leaving room, tying victim.

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Kidnapping (Art. 164-165)

Illegal detention + demanding CONDITION (ransom, do/omit something) to release. Penalty: 5-8 years. Aggravated modality. E.g.: express kidnapping, retaining until debt payment.

IMPORTANTwhen Can Individual Legally Detain? (Art. 490 LECrim)

Individuals can ONLY detain in VERY specific cases. Outside them, commit illegal detention crime.

1. Criminal In Flagrante

If catch someone committing crime (robbery, assault), can detain ONLY to deliver immediately to police.

2. Fugitive in Search

If person legally in search and capture (escaped from prison, arrest warrant).

3. Attempting to Commit Crime

If attempting to commit crime and detention necessary to prevent it.

Illegal Detention Typologies

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Kidnapping

Defense in illegal detention cases demanding condition (ransom, action, or omission) for release.

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Detention by Individuals

Defense against accusations of confinement of person by another individual without authority.

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Why Alonso & Sala for Illegal Detention?

Illegal detention is one of most serious crimes. We defend with technical rigor both accused and victims.

  • checkTechnical defense proving legal causes (Art. 490), self-defense, or consent.
  • checkPrivate prosecution for victims: compensations of €50,000-200,000 in kidnappings.
  • checkPsychological coordination: evaluate trauma and PTSD to maximize compensation.
  • checkExperience in complex cases: irregular custodies, gender violence, family disputes.
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FAQs

What is illegal detention crime (Art. 163 CP)?expand_more
Consists of confining or detaining person depriving them of freedom of movement without legal causes justifying it. Protected legal asset is ambulatory freedom, one of most important fundamental rights.
Difference between illegal detention and kidnapping?expand_more
KIDNAPPING is AGGRAVATED modality of illegal detention. Occurs when, besides depriving victim of freedom, DEMANDS some CONDITION (money/ransom, do something, omit something) to release. Penalty: 5-8 years (vs 4-6 in basic illegal detention).
Can individual legally detain someone?expand_more
YES, but ONLY in VERY specific cases regulated by Art. 490 LECrim: 1) Criminal in flagrante. 2) Fugitive in search. 3) Attempting to commit crime. Outside these cases, individual commits illegal detention crime.
What penalties for illegal detention?expand_more
Basic illegal detention: 4-6 years prison. Kidnapping (with ransom condition): 5-8 years. If lasts MORE than 15 days: penalty in UPPER half. If victim is minor or vulnerable person: AGGRAVATING. Very high penalties.
Is it illegal detention to prevent someone leaving room?expand_more
YES, if there's EFFECTIVE deprivation of freedom. Don't need to lock with key. Enough to block door, threaten, or use force to prevent person from leaving. Duration: even minutes can suffice if violence/intimidation.
What if claimed it was 'joke' or 'scare'?expand_more
Does NOT exempt. If there was real deprivation of freedom (even brief), it's CONSUMMATED crime. That author thought to release quickly or it was 'joke' is irrelevant. Victim's fear and objective deprivation of freedom are sufficient.
Is it crime to lock my minor child in room?expand_more
DEPENDS. If PROPORTIONAL and brief EDUCATIONAL CORRECTION (e.g. 1 hour punishment), jurisprudence supports (right of correction). But if prolonged, disproportionate, or cruel confinement, YES can be illegal detention + family abuse.
Can I detain thief stealing in my store?expand_more
YES (criminal in flagrante, Art. 490 LECrim). But ONLY to deliver IMMEDIATELY to police. Can NOT lock in room for hours or hit. Force use must be STRICTLY necessary (self-defense). Excess = illegal detention.
Is it kidnapping to retain someone until pay debt?expand_more
YES. Classic kidnapping: deprivation of freedom + ransom condition (pay debt). Penalty: 5-8 years. Doesn't matter if debt was real. NEVER permitted to 'take justice' by depriving anyone of freedom.
What is 'illegal detention simulating authority'?expand_more
SERIOUS aggravating. Consists of making victim believe being detained by public authority (police, judge) when not true. E.g.: saying 'I'm police' and confining someone. Penalty increases significantly (similarity with authority usurpation).
Minimum duration to be crime?expand_more
NO legal minimum. Even MINUTES can suffice if effective deprivation of freedom with violence/intimidation. What's relevant: victim could NOT leave freely, even if short time. Cases of 10-15 minutes convicted.
Is it legal for nightclub security to retain me in room?expand_more
ONLY if flagrant crime (e.g. caught stealing) and retention is MINIMAL to wait for police. If retain WITHOUT legal cause, for discussion or 'unfounded suspicions', it's illegal detention. Private security has NO police power.
What to do if accused of illegal detention?expand_more
1) Do NOT declare without lawyer. 2) Justify: Was there legal cause (Art. 490)? Was self-defense? Was consent? 3) Prove minimum duration and no violence. 4) Allege mistake of fact (believed acting legally). Technical defense crucial.
Can there be illegal detention in family context?expand_more
YES. Typical cases: irregular custodies (parent retains child without court authorization), gender violence (confining partner at home), elderly disputes (children 'kidnap' father to sign powers). Even if family, it's CRIME if forced freedom deprivation.
Is it crime to kidnap kidnapper to free victim?expand_more
Complex. If using force STRICTLY necessary to free victim in imminent danger (state of necessity, Art. 20.5 CP), can be justified. But if 'kidnap' kidnapper AFTER for revenge, YES it's crime. Everything depends on proportionality and urgency.
Difference with coercion (Art. 172)?expand_more
COERCION: preventing someone doing legal thing or forcing to do against will (without reaching complete ambulatory freedom deprivation). ILLEGAL DETENTION: TOTALLY depriving freedom of movement (confine, tie). Coercion is 'lesser crime' (prison 6 months-3 years).
Does it matter if there was violence or intimidation?expand_more
YES, A LOT. If freedom deprivation achieved with violence or intimidation, can concur separate crime of coercion/threats/injury. Penalties ACCUMULATE. If serious violence, can aggravate illegal detention penalty in upper half.
Is it illegal detention to confine someone in car?expand_more
YES. Don't need 'locked room'. Can be car, trunk, room, basement, even open field if armed surveillance prevents escape. What's relevant: EFFECTIVE freedom deprivation, regardless of physical place.
Can I claim victim consented?expand_more
IF there's FREE and VALID consent, NO crime. But must be AUTHENTIC consent, not vitiated by deceit, fear, or coercion. E.g.: consensual 'sexual game' NOT detention. But if victim says 'stop' and don't stop, YES it's crime (revoked consent).
When does illegal detention crime expire?expand_more
Basic crime (4-6 years): expires 10 years from victim's release. Aggravated kidnapping (5-8 years): expires 10 years. It's SERIOUS crime with long prescription. Important: period counted from when freedom deprivation ENDS.
Civil liability: how much compensation?expand_more
VERY high compensations. Moral damage for freedom deprivation: €300-1,000/day depending on severity. Long kidnappings: easily €50,000-200,000. If violence, psychological damage, or PTSD sequelae: compensation multiplies. Plus, lost income and medical expenses.

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