What is provisional or preventive detention?

Provisional detention is a personal precautionary measure, par excellence, which consists of the admission of a suspect to prison during the processing of criminal proceedings.

Its adoption, by the investigating judge, is based on different criteria such as the nature of the crime, the seriousness of the sentence that could be imposed, the proximity of the oral trial, the work and family situation of the person under investigation, among others.

It is regulated by articles 502 to 519 of the Law of Criminal Procedure (LECrim), therefore, it implies the maximum guarantees, both in terms of its requirements and its duration.

As a preventive measure, pretrial detention pursues different legitimate purposes, the most important being:

  • Make it impossible for the criminal suspect to flee.
  • Prevent possible alteration or destruction of evidence.
  • Avoid the risk of criminal repetition.
  • Prevent the accused from acting against the legal rights of the victim.

Pretrial detention requirements

When a person is being investigated for a crime, the investigating judge or magistrate can interpose provisional detention when requested by the accusing party, the Public Prosecutor or the private prosecution, provided that the following requirements are met (established in article 503 of the LECrim ), inexcusably.

  • Pursuit of any of the aforementioned legitimate purposes
  • Existence of one or more facts that present properties of a crime punishable by law with a sentence equal to or greater than 2 years of imprisonment. In the event that the suspect has a criminal record of a conviction for an intentional crime and it is less than 2 years, he also meets the requirement.
  • Presentation of motives and compelling evidence that indicate the participation of the detainee in the criminal act. This requirement implies the judge’s prima facie assessment of all the existing evidentiary material, to impose a provisional judicial process of authorship and typicity.
  • Existence in the case of one or several facts with indications of criminality to avoid the risk that the suspect or defendant commits the same or other criminal acts.

Length of pretrial detention

Provisional detention is a temporary measure, therefore, it will last for the time strictly necessary to fulfill any of the intended purposes, including the sentence or penalty that would be introduced according to the crime that would be applied to the accused.

In any case, the time limits established in article 504 of the LECrim must be respected.

If there are grounds of flight risk or danger to the legal rights of the victim, especially in cases of repeat offenses or domestic violence:

  • The duration of the preventive detention measure may not be greater than 1 year if the crime implies a custodial sentence equal to or less than 3 years.
  • In the event that the custodial sentence exceeds 3 years, it may not exceed 2 years.
  • In the event that circumstances arise that prevent the case from being tried within the established time limits, the judge or court may agree, after the hearing is held in accordance with the provisions of article 505 of the LECrim, a single extension based on the appointed penalty. The same must be decreed before the deadline expires, otherwise it would be null.
  • If the suspect is convicted, but the sentence is not yet final because it has been appealed, the preventive detention measure may be extended up to half the sentence imposed.
  • If it has been filed to prevent the concealment, alteration or destruction of the sources of evidence that are key to the trial, said imprisonment may not exceed 6 months.
  • In the event that freedom is granted due to the expiration of the maximum applicable terms for provisional detention, it may also be agreed if the accused fails to appear before any summons from the court, without legitimate reason.

Modalities of provisional prison

As a general rule, there are 3 modalities of compliance in relation to pre-trial detention:

  • The ordinary one, which is carried out in a communicated way and in a penitentiary center.
  • The solitary confinement, which is provided for exceptionally to prevent the subtraction from justice of those people who may be involved in the events. The duration of the same is 5 days, except for serious crimes in relation to armed gangs or terrorists, which may be extended for 3 more days. This mode is governed by the provisions of article 510 of the LECrim.
  • The attenuated, which may be executed at the domicile of the accused, an official center or legally recognized organization, under the necessary surveillance measures. This modality will be applied due to serious illness, detoxification or dishabituation to narcotic substances.

Rights of the accused in a precautionary measure

The defendants who enter pretrial detention have a series of rights in their favor, among them the following:

  • Exercise their civil, social, economic, political and cultural rights.
  • Make requests and complaints to the authorities concerned.
  • Preserve both your privacy and dignity.
  • Enjoy the penitentiary benefits that correspond to you.
  • The custody of their integrity, health and life, by the Penitentiary Administration.

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