How to appeal a pre-trial detention order and recover your freedom
The order decreeing pre-trial detention is one of the decisions with the greatest immediate impact on a person's life: within minutes, someone goes from freedom to entering a penitentiary. Every hour in pre-trial detention is an hour of freedom that is not recovered, so appealing that decision with the greatest urgency is one of the most important actions of the defence.
The first appeal is the appeal for reconsideration (recurso de reforma), which is lodged before the same court that issued the order, asking it to reconsider its decision. The time limit is three working days from notification, very short. Its success rate is limited, because judges rarely revoke their own decisions, but lodging it is usually necessary, since in many cases it is a prerequisite for the appeal proper. The appeal must precisely identify which legal requirements are not present or why the measure is disproportionate, and propose alternatives.
The appeal (recurso de apelación) is the most effective route: it is lodged before the investigating court for resolution by the Provincial Court. The time limit is five working days from notification of the order. In some cases it may be lodged directly, without the prior appeal for reconsideration, which saves crucial days. The Provincial Court must process it with maximum urgency and may convene an oral hearing in which the lawyer presents their arguments in person, a valuable opportunity.
The most effective grounds of the appeal are: the absence or insufficiency of rational indications of criminality; the non-existence of the substantive grounds, such as the risk of flight, destruction of evidence or reoffending; the sufficiency of less restrictive alternative measures, such as bail or periodic appearances; the lack of proportionality; and the insufficient reasoning of the order.
One of the most used arguments is the ties of the person under investigation to the community: their links to their environment, such as stable residence, employment, family, the absence of assets abroad or prior cooperation with justice, are the main counterweight to the risk of flight. Establishing this requires providing objective documentation: a rental contract or title deed, an employment contract, a family record book, a certificate of registration.
In addition to the appeals, the defence may request at any time the modification or substitution of detention for a less restrictive measure, especially useful when the circumstances that justified it have changed. If the judge refuses it, that refusal can be appealed. The law also requires a periodic review ex officio, but the defence should not wait passively for it. When the ordinary appeals fail, there are extraordinary routes: the appeal for protection (amparo) before the Constitutional Court, when the detention infringes fundamental rights and the ordinary route has been exhausted, and the European Court of Human Rights, which has convicted Spain in cases of excessive pre-trial detention.
All of this is only effective if activated with absolute urgency. An appeal filed on the same day as the order may mean fewer days of deprivation of liberty if it succeeds. The lawyer must be available to act immediately, know the case file in depth and draft the appeal within a few hours when urgency demands it.
