THE POLICE DETENTION
The detainee's declaration
We can define the detention like: "The personal precautionary measure of character for which is limited a person, provisionally, of their right to the freedom, with the purpose of putting it to disposition of the Judge that instructs the Summary."
The reasons that can give place to the detention as well as people that can carry out it are diverse and they are detailed next.
On the other hand to point out that the detention can take place before the existence of a penal process, during the same one or when this concludes.
I MODEL OF POLICE DILIGENCES
According to the art. 520 of L.And.Crim. the detention (and provisional prison) will be practiced in the form that less it harms the detainee in its person, reputation and patrimony. The preventive detention won't be able to last more than the strictly necessary time for the realization from the verifications tendentes to the clarification of the facts. Inside the terms settled down in the present Law and in any event, in the maximum term of seventy two hours, the detainee will be put in freedom or to disposition of the Judicial Authority.
It continues saying the art. 520 that all detained (or prey) person will be informed so I/you/he/she is him/her comprehensible, and in an immediate way, of the facts that are imputed and the motivational reasons of her privation of freedom, as well as the rights that attend him/her.
Who can stop and when?
Any person can stop:
To who tries to make a crime, in the moment to prepare to make it.
To the criminal in the moment of being making the crime (criminal in fraganti)
To the one that has already been processed or convict that is in situation of rebelliousness (he/she has not gone to the judicial calls)
To the one that escapes:
Of the penal establishment where it is completing condemnation.
Of the jail where he/she is waiting the transfer toward the place where it should complete condemnation or during the itinerary.
Being detained or prisoner for a pending cause against him.
If a matter stops to another matter, it should be in disposition of being able to justify that it has carried out the same one because it considers reasonably that the detainee is in some of the cases mentioned previously.
On the other hand, the Authority or agent of Judicial Police, have the obligation of stopping:
To that person that is in anyone of the cases mentioned in previously.
To the one that has already been processed by crime punished with a superior pain to smaller prison.
To the one that has been pointed out inferior pain to that, when for the person's antecedents or for the circumstances of the fact it is considered that it won't appear when it is mentioned by the Judicial Authority (unless he/she has lent an enough deposit that guarantees their attendance)
In the same circumstances that the previous case, to which has not been processed still, if the Authority has reasons to believe that it has participated in the commission of a fact that presents the crime characteristics.
Duration of the detention
The matter, the agent or the Judicial Authority that he/she carries out the detention, should put in freedom to the detainee or to give to the next Judge to the place in which has been carried out the detention, in the 24 following hours to the moment to take place the same one.
In the event of preventive detention, this won't be able to last more than the strictly necessary time to clarify the facts; anyway, in the maximum term of 72 hours the detainee will be put in freedom or to disposition of the Judicial Authority.
If the authorities or agents of the Judicial police are delayed in the setting in freedom or to the detainee's judicial disposition, they will be able to be punished with the pain of special disqualification for employment or public position for time from 4 to 8 years.
In the case of matters, in this supposition they will incur in a crime of illegal detention.
The detainee before the Judge or Tribunal
Depending on the reason that has originated the detention and as maximum in a term of 72 hours to count since the detainee, the Judge was given him/her it can order his entrance well in prison, well his provisional freedom.
The detainee's rights
The detained person, it should be informed so he/she can understand, of the criminal facts of those that he/she is accused and of the reasons that have given place to their detention, as well as of the rights that attend him/her, (art. 520 LECr) especially of the following ones:
Right to keep silent not declaring if he/she doesn't want it, to not answering some or some of the questions that outline him/her, and he/she will be entitled to manifest that he/she will only declare before the Judge.
Right to not declaring against itself and to not being admitted guilty.
Right to designate freely lawyer and to request that it attends declaration acts and that it intervenes in any recognition of identity that it is object.
If the detainee or prisoner didn't designate lawyer, he will be designated one of occupation on the part of the judicial authority or official that it guards him/her who he will go to the detention center to the possible biggest brevity.
Right to that it is informed the relative or person that he/she wants, the fact of the detention and the custody place in that he/she is in each moment.
The foreigners will be entitled to that the previous circumstances communicate to the Consular Office of their country.
Right to be attended by an interpreter in a gratuitous way if the foreigner doesn't understand or the Castilian doesn't speak.
Right to be recognized by the Forensic Doctor or their legal substitute and, in their defect for the forensic Doctor of the Institution in that is, or for any other clerk of the State or of other Public Administrations.
If it is about a minor or disabled, the authority that guards the detainee will inform from the facts to those who exercise the native imperium, it guides her or the guard in fact of the minor and, if is not them, it will be informed immediately to the Fiscal Ministry.
If the smallest or disabled detainee was foreigner, the detention he will also communicate to the Consul of his country.
The measures of security and the detainee's isolation
In general, they coincide with the measures settled down in the cases of prison, highlighting that they are adopted in an extraordinary way against the detainee in the cases of disobedience, violence, rebellion, or when he/she has attempted or carried out preparations to escape.
The measures are temporary for what you/they only last the strictly necessary time.
The Judge can order the detainee to be isolated during the time that the detention lasts.
In these cases he/she won't be entitled to communicate with their family, to inform of the fact of the detention and the lawyer will be designated him/her of occupation for the Official or Judicial authority that it guards him/her.
A special case constitutes it the detention of the minors.
INSTRUCTION 12/2007 of the Secretary of State of Security on the behaviors demanded to the members of the Forces and Bodies of security of the state to guarantee the rights of detained people or under it guards police
In date September of 2007, 14 the Secretary of State of Security, clerk of the Ministry of the Interior, it has dictated two relative Instructions to the police performances:
- The first of them, the Instruction 12/2007, of more interest for the lawyers, he/she refers to the behavior that is demanded to the members of the Forces and Bodies of Security of the State to reach a more effective protection of the detainee's rights and a bigger clarity in their performances, imparting new instructions, precise and up-to-date, that allow to continue safeguarding such rights and, simultaneously, to endow the agents of the juridical enough guarantees with occasion of the practice of the detention and the later custody.
- On the other hand, the Instruction 13/2007, of the same date, it concerns to the use of the number of personal identification in the uniformity of the Bodies and Forces of Security of the State.
THE DETENTION IN PARTICULAR CASES.
1. Cases in that the detention doesn't proceed:
to) E1 King: Article 56.3 C.And. the King's person is inviolable, and you/he/she is not subject to responsibility." Not it fits, because, the detention.
b) The Defender of the Town: He/she will enjoy absolute inviolability for the opinions that it formulates or acts that he/she carries out in the exercise of their competitions.
c) Deputies and Senators. So much if they are of Cortés Generals as of the Autonomous ones, they also enjoy absolute inviolability for the opinions in the exercise of their functions.
2. Cases in that the detention proceeds, but only in the event of flagrant crime.
to) The Defender of the Town. Only in the event of flagrant crime it fits their detention. Their prosecution corresponds to the Room of the Penal thing of the Supreme Tribunal. These prerogatives expand to their two Assistants.
b) Deputies and Senators of Cortés Generals. Their detention (in the event of flagrant crime) must be put immediately in knowledge of the President of the respective Camera. For their inculpación and prosecution is required the authorization of this (suplicatorio).
c) Autonomous Parliamentarians. On their inculpación, prosecution and prosecution corresponds to decide to the superior Tribunal of Justice from the Autonomous Community to which belongs, unless hubiere offended outside of its Community, in which case he/she decides the Room II (Penal) of the Supreme Tribunal.
d) Judges, Magistrates and members of the Fiscal Ministry.
For their detention I save in cases "in fraganti", order of the competent Judge is required, should realize immediate of the detention, in any event, to the President of the Tribunal or Audience that it depends.
and) the Central or Autonomous government's Members. With regard to the seconds, the statutes of autonomy settle down like general rule that the same ones can only be stopped in the event of flagrant crime, deciding on their inculpación, prosecution and trial of the Superior Tribunal of corresponding Justice.
With regard to the Central Government's members, anything says the Law as for their detention, although, in evitación of absurd, it is logical that it only fits their detention in the event of flagrant crime.
f) foreign state Bosses, diplomatic representatives, the administrative personnel's members and technician and the members of their respective families that are not Spanish. In the event of detention (flagrant crime) they will be put immediately to disposition of their Governments.
g) consular Officials. Besides the cases of flagrant crime, they can be stopped when it is about serious crime and for decision of the Judicial Authority, communicating the detention immediately to their State for via diplomat (Agreement of Vienna, subscribed by Spain 1.963).
3. Detention with special formalities.
to) Authorities and officials. The detention you must communicate to the superior.
b) Military. You can proceed to their detention, unless he/she is lending service of weapons or another military function, in such a case it can be stopped by their bosses.
In the event of detention, in the briefer possible term it will be given to the military Authority, who will retain it to disposition of the competent Judge.
THE DETAINEE'S DECLARATION: IT FORMS OF BEING TAKEN TO END AND PROCEDURAL VALUE OF THE SAME ONE.
• IT FORMS OF BEING CARRIED OUT.
The Judge should take declaration in the first twenty-four following hours to the detention that you/they can be continued by other forty eight hours if concurriere causes serious. Likewise, the one processed, he/she can declare how many times quisiere and the Judge will receive him/her the declaration in an immediate way if he had relationship with the cause.
The answers will be oral and they won't be been able to demand oath, being necessary the literate attendance except for for the crimes against the security of the traffic.
If the one imputed doesn't understand or doesn't speak the Spanish language he/she will be named an interpreter.
The detainee will be able to dictate for itself the declarations, if doesn't make it it will be tried to consign the same words for him employees.
In the declaration they will be consigned the questions and answers entirely.
In the first declaration it will be asked by the general of the law: filiation, way of living, work place, if was processed previously, why crime, before what Judge or Tribunal, punish imposed, if it completed it, if he/she knows how to read and to write, if he/she knows the causes of the detention and the rights that attend him/her, etc.
The questions that are asked will go to the verification of the facts and the participation in them of the detainee and of other people that hibieren contributed to execute them or to hide them.
He/she will be interrogated, case of habérsele opposing objects, on their origin, destination and reason of possessing them.
The questions will be direct and at all suggestive or captious.
One won't be able to use with the detainee any coercion gender, otherwise you could incur in torture crime (art. 204 bis Penal Code).
When the interrogation is prolonged excessively, or for the number of questions lost hubiere the trial serenity, will be suspended, being granted time to rest.
The detainee will read his declaration and, in his defect it will be read him/her by the Secretary, signing all the interveners.
Crossing outs, amendments, neither spacings won't be made, being consigned at the end the made mistakes. In the practice the resource is used of the I "SAY."
PROCEDURAL VALUE OF SAME DE THE DETAINEE'S DECLARATION.
The detainee's declaration before the Police is part of the one crowded and, consequently, it follows the destination of this whose legal value, according to L.And.Crim. it is from accusation to the legal effects.
The detainee's declaration can have value indiciario and it must be proven, as he/she comes off of the art. 406 L.And.Crim.: "The confession of the one processed won't excuse the Judge of Instruction of practicing all the necessary diligences in order to acquire the convencimniento of the truth of the confession and of the existence of the crime."
To this respect it is interesting to point out that a Sentence of the Constitutional Tribunal of 1.981, it annulled a sentence in which had been condemned a person being based on this person's confession before the Police, to understand that it didn't constitute it test with the guarantees that Consititución demands.
PROCEDURE OF HABEAS CORPUS.
The art. 17.2. of C.And., it imposes the necessity to regulate a procedure of "habeas corpus", to produce the immediate setting illegally to all detained person's judicial disposition.
This procedure has been regulated by Law of 24.5.1984.
The procedure begins by means of application directed to the Judge of the place in that the detainee is, or if it didn't consist the place, to that of that in that you produced hubiere the detention and, in his defect, to that of the place where the last news have been had on the detainee's whereabouts.
If the detention corresponding to crimes of competition of the National Audience, the application will go to the Central Judge of Instruction; and if it was competent the military jurisdiction, to the Judge Military Togado of Instruction.
They are legitimated to urge the procedure, the private of freedom, their nearer relatives or legal representatives, Fiscal Ministry and Defender of the Town. And, inclusive, the competent Judge of occupation.C) Procedure.
Promoted the application, the Judge will examine the concurrence of the necessary requirements.
If they don't converge, it will refuse the application and, in another case, he/she will agree by means of car, the incoación of the procedure. In the incoación car, the Judge will order to the authority to whose disposition the detainee is that puts it of manifesto before him, without pretext neither it delays some, or it will be constituted in the place where that is.
In the term of 24 hours from the incoación, the Judge will hear the private person of freedom, to M.F. and to the one who orderly hubiere the detention, and he/she will practice the tests that this people propose and they can be practiced at once.
This practiced performances, the Judge will solve: 1. If it estimates that the circumstances don't converge so that the detention can be considered illegal, it will decree the file of the performances.
2. Otherwise, it will adopt some of the following measures:
The setting in freedom.
That the privation of freedom continued, but if it considers it pertinent, in different establishment or under the custody of different people.
That the private person of freedom is put immediately to judicial disposition, if already lapsed hubiere the legally established term for her detention.
VALUE OF THE TESTIMONY OF THE MEMBERS OF THE JUDICIAL POLICE FROM THE POINT OF SEEN PROCEDURAL.
In the phase of summary instruction of L.And.Crim. it determines that "the other declarations, that is to say, those that are not carried out in the one crowded that presentaren Judicial Police's officials, will have the value of declarations you testify them, as soon as they refer had made of own" knowledge. And, in the same sense, in the oral trial they will have the value of declarations you testify them, appreciable according to the rules of rational approach.
Therefore, the police manifestations don't have pre-eminence on those of other people, although in the practice the calls rules of rational approach come to say in implicit way that he/she would be necessary to give a specific bigger value to the police testimonies, being necessary, in our opinion a modification of the Law of Criminal Prosecution in this sense.