Illegal detention and habeas corpus proceedings


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the one habeas corpus proceeding can be requested when a illegal arrest or in the event that a legitimate detention is illegally prolonged. The Habeas Corpus Procedure guarantees the right to individual liberty established in article 17 of the Spanish Constitution.

The illegal arrest In Spanish Law it is a crime that consists of arresting or imprisoning a person. It is depriving a person of their right to move freely from one place to another, forcing them to remain in a certain closed space or place against their will. 

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Illegal detention and habeas corpus proceedings

What is illegal detention?

The Penal Code establishes that the illegal arrest It is a punishable act that is punishable by imprisonment. This crime is among the crimes against freedom and increases when an individual detains or locks up another, depriving him of his freedom. 

 He crime of illegal detention is regulated in Title VI called crimes against freedom. In Chapter I called On illegal detentions and kidnappings, articles 163 to 168 of the Penal Code.

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The legal right protected in the crime of illegal detention is freedom of movement, for it to be considered a crime it must be produced with intent. The basic type of this crime is committed when an individual detains or locks up another, making it impossible for him to exercise his freedom of movement.

The crime of minor detention is committed when the culprit releases the person detained or locked up in the first three days of kidnapping. But only when he does not achieve the objective that he proposed with the arrest. 

He crime of illegal detention of the aggravated type for this criminal offense is committed when any of the following circumstances exists:

In the event that the detention or confinement lasts more than 15 days.

When a reward or condition is required to release the detained person.

In the event that the person guilty of having committed the crime has pretended to be a public official or authority.

When the victim is a public official in the exercise of his position, a minor or person with a disability who requires special protection.

In cases where the culprit does not indicate the place where the victim is kidnapped or held.

When is an illegal stop made?

The illegal arrest of a citizen occurs in the following cases, according to Article 1 of Organic Law 6/1984:

When the requirements demanded by the laws are not met or the legal assumptions to carry out the arrest do not concur.

In the event that the citizen is detained in any place that is not a detention center, such as a police station. When a situation of this type occurs it would be considered a kidnapping.

The detention will be extended for a period longer than that provided by law. The constitution establishes a maximum period of 72 hours, which is the time necessary for the investigation of the crime. Although there are special cases for certain crimes such as terrorism that can last up to 5 days.

When the constitutional rights of the citizen and those guaranteed by procedural laws have not been respected. This usually happens when police interrogations of citizens are carried out and their lawyer is not present.

Organic Law 6/1984 establishes that when any of this situation occurs, the habeas corpus procedure. With which any person illegally detained will be immediately placed at the disposal of the competent judicial authority.

What is a habeas corpus proceeding?

He habeas corpus proceeding It is a right that citizens have, established in article 17.4 of the Spanish Constitution. Its compliance is through Organic Law 6/1984, dated May 24, which regulates the development of the Habeas Corpus procedure.

This procedure is intended to protect the citizen from illegal arrests and detentions. This procedure prevents a detention from originating or prolonging if there is no legal reason that justifies it.

He habeas corpus proceeding It is used to request a judge to release a person who, apparently, has been illegally detained. This procedure only focuses on determining whether or not the detention is in accordance with the law.

But it does not evaluate the legal consequences of the fact that originated the arrest, which will continue its course through the corresponding judicial procedure.

Who can request the habeas corpus procedure?

Article 3 of Organic Law 6/1984 provides that in order to initiate a habeas corpus proceedingThe first thing to do is request it. The request can only be made by the following institutions or persons:

The Ombudsman or the Public Prosecutor, can also do it ex officio the competent judge 

The detained citizen, their descendants as children or grandchildren, their ancestors as grandparents, parents, their spouse, girlfriend or boyfriend, common-law partner, siblings. In the event that the detainee is incapacitated or a minor, their legal representatives, such as mother, father or guardian, must request the procedure.

How is the habeas corpus procedure carried out?

The resolution of the habeas corpus proceeding It has to be within a maximum time of 24 hours. During this time, all the procedures established in Organic Law 6/1984 are carried out so that the Judge can make a decision.

When the judge accepts the request for processing, he orders the authority to bring the citizen he is detaining to his presence. The Judge does not carry out a judgment but rather does the following:

First listen to arrested, according to the case to your lawyer or legal representative and the Public Prosecutor. He then listens to the arresting officer and the authority holding the detainee in custody.

After hearing the parties, the judge can decide according to article 8 of Organic Law 6/1984 the following:

The freedom of the detained citizen.

That the detained citizen continue in the same situation until he is brought to justice. You can also agree to the immediate judicial disposal, if the maximum period of your detention has elapsed.

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