Duration of pre-trial detention: maximum time limits, extensions and limits
When someone is placed in pre-trial detention, the first question is always the same: until when? The uncertainty about the duration of the deprivation of liberty before trial is one of its most distressing aspects. The Spanish legal system establishes precise and binding maximum time limits that the judge cannot exceed.
It is worth starting from a principle: pre-trial detention must last only the time strictly indispensable to achieve the aims that justify it. The judge cannot maintain it until the maximum limit is exhausted if the grounds have disappeared earlier: if it was ordered for risk of flight and that risk disappears, or for risk of destruction of evidence and the evidence is already secured, the measure must be lifted. This principle is not always applied ex officio: the defence must actively request it, periodically reviewing whether the circumstances still apply.
The maximum time limits vary according to the seriousness of the offence. When the prescribed penalty does not exceed three years, pre-trial detention cannot last more than one year; when the penalty exceeds three years, it can last up to two years. The period is computed from the effective entry into the penitentiary, not from the order that decrees it; the time of prior police detention does not count within it.
When the initial period is close to expiring and the process has not concluded, the judge may ask the Provincial Court for an extension, always reasoned. In offences with a penalty not exceeding three years, the extension may add up to six months, placing the maximum at a year and a half. In more serious offences, it may add up to two more years, reaching a maximum of four years, but only in specified circumstances: when the person under investigation has caused the delay or when the case is of special complexity.
There is also an absolute and impassable limit: pre-trial detention can never last longer than the maximum penalty prescribed for the offence, because the precautionary measure cannot be more onerous than the very consequence of the offence. The computation is carried out in calendar days, continuously, and the time elapsed while the appeal is being resolved is also deducted from the maximum period.
When the period is exhausted, the person under investigation must be released immediately and unconditionally; the process continues, but with the accused at liberty. If they are not released, the deprivation becomes unlawful and habeas corpus is available. The law also requires a periodic review ex officio when the detention exceeds one year, without this preventing the defence from requesting release at any time. Several factors may shorten the detention before the time limits are exhausted: the posting of bail, the disappearance of the grounds that justified it, the holding of the oral trial or the success of the appeal.
Finally, the time in pre-trial detention is not lost even if there is a conviction: it is credited in full against the penalty automatically. Someone who has spent eighteen months in pre-trial detention and is sentenced to four years will only serve two and a half more years. And if the accused is acquitted after a long period of pre-trial detention, they have the right to compensation from the State for the harm suffered.
