Statements by Persons Under Investigation or in Custody: Rights and Legal Assistance

The statement given by a person under investigation or in custody is one of the most critical moments in criminal proceedings. At this stage, it is essential to be aware of the constitutional and procedural rights to which the person in question is entitled, as well as to have legal counsel from the very beginning.

This article discusses a publication on the judicial statement made by a person under investigation or in custody, with a particular focus on the rights recognized by the Spanish Constitution and the Criminal Procedure Act.

Statement made in court by the person under investigation or in custody

The statement given by the person under investigation or in custody should not be viewed as a mere formality. It is a procedural step that directly affects the exercise of the right to a defense, the assessment of the alleged facts, and the legal strategy that may be pursued during the proceedings.

Therefore, before giving a statement, it is particularly important to understand the rights of the person under investigation or in custody, the scope of the charges or allegations against them, and the role the attorney plays in providing assistance before and during the statement.

Rights Recognized by the Constitution

The person under investigation has the rights recognized in Article 24 of the Spanish Constitution, which entails:

• The right to a judge designated by law.
• Right to a defense and to legal counsel.
• The right to be informed of the charges.
• The right to a trial without undue delay and with all due process guarantees.
• The right to use relevant evidence in one’s defense.
• The right not to testify against oneself and not to admit guilt.
• Right to the Presumption of Innocence.

These constitutional rights form the basis of the right to a defense in criminal proceedings. Their recognition ensures that the person under investigation can participate in the proceedings with due process safeguards, be informed of the charges against them, and receive adequate legal assistance.

The presumption of innocence, the right against self-incrimination, and the right to legal counsel are particularly important in the early stages of any criminal proceeding, whether at the police station or in court.

Rights Recognized Under Article 118 of the Criminal Procedure Act

Furthermore, under procedural law, the rights of the person under investigation are recognized in Article 118 of the Criminal Procedure Act (LECrim), which includes:

• The right to be informed, in understandable and accessible language, of the charges against them, as well as of any relevant changes to the subject matter of the investigation and the charges.
• The right to review the case files in a timely manner to safeguard the right to a defense.
• The right to participate in criminal proceedings to exercise one’s right to a defense in accordance with the law, from the time the alleged criminal act is attributed to the accused until the completion of the sentence.
• The right to freely choose a lawyer, except in cases where the detainee or pretrial detainee is held incommunicado.
• The right to apply for free legal aid, the procedure for doing so, and the conditions for obtaining it.
• Right to free translation and interpretation in accordance with the provisions of Articles 123 through 127 of the Criminal Procedure Act.
• The right to remain silent and to refuse to make a statement if you do not wish to do so.
• The right not to testify against oneself and not to admit guilt.

The provision in Article 118 of the Criminal Procedure Act sets forth the basic rights of a person who becomes a suspect. In particular, it reinforces the requirement that information regarding the alleged acts be understandable and that the person be able to participate in the proceedings with legal counsel.

The right to review the case file and to appoint an attorney is particularly important for preparing a defense and avoiding statements made hastily or without sufficient knowledge of the alleged facts.

Rights Recognized Under Article 520 of the Criminal Procedure Act

In addition to these rights, which are guaranteed to any person under investigation, there are those provided for detainees as recognized in Article 520 of the Criminal Procedure Act. Therefore, in addition to the basic rights of any person under investigation, the following rights apply:

• The right to legal assistance, including the right to have a lawyer of one’s choice appointed to be present and assist the individual without undue delay, both during police proceedings and judicial proceedings.
• The right of access to the essential elements of the proceedings in order to challenge the legality of the arrest or deprivation of liberty.
• The right to have the arrest and place of custody communicated to a family member or any other person of the detainee’s choosing. If the detainee is a foreign national, he or she has the right to have this information communicated to the consular office of his or her country.
• The right to communicate by telephone with a third party of their choice, without undue delay, in the presence of a police officer or another official designated by the judge or prosecutor, as appropriate. The exception provided for in Article 527 of the Criminal Procedure Act applies.
• The right to be visited by the consular authorities of one’s country, to communicate with them, and to correspond with them.
• The right to be assisted free of charge by an interpreter if you do not understand or speak Spanish or the official language of the proceedings in question, or if you are deaf, have a hearing impairment, or have other language difficulties.
• The right to be identified by the medical examiner or his or her designee.
• The right to be informed, in language that is understandable and accessible given the individual’s personal circumstances, of the maximum legal duration of detention until the individual is brought before a judicial authority, and of the procedure through which the individual may challenge the legality of the detention.
• The right to have information regarding one’s rights provided through an interpreter if one does not understand the official language, followed by the prompt provision of a written statement of rights in a language one understands.

In the case of a minor or a person legally incapacitated who is detained, the detention must be reported to those who exercise parental authority, guardianship, or de facto custody over the individual. If such persons cannot be located, the Public Prosecutor’s Office must be notified immediately.

Information regarding the detainee’s rights must be provided in a clear and understandable manner. The person deprived of liberty must be informed of the charges against them, the reasons for their detention, and the rights they may exercise from the very beginning.

Right to a private meeting with an attorney

In Article 527 of the Criminal Procedure Act (LECrim) provides for the possibility that, both before and after the initial statement before the investigating judge, the person under investigation may meet privately with their attorney. However, there are special provisions for cases of solitary confinement.

A private consultation with an attorney is essential for preparing a statement, addressing any questions, assessing whether it is advisable to make a statement or remain silent, and developing an initial defense strategy.

In emergency situations, this assistance ensures that a person under investigation or in custody does not have to give a statement without adequate legal guidance.

The Importance of Legal Representation During a Statement

The presence of an attorney during the statement given by a person under investigation or in custody serves as a safeguard. It is not limited to merely accompanying the person; rather, it ensures that their rights are respected and that the statement is taken in accordance with due process.

The attorney can provide advice on the scope of the alleged facts, the option to remain silent, whether it is advisable to answer certain questions, a review of the available documentation, and the most appropriate defense strategy for the specific case.

Early legal intervention also helps prevent situations where a person is left without legal representation, especially when the person under investigation or in custody is unfamiliar with how criminal proceedings work or is under pressure as a result of their arrest or court summons.

Legal Advice Regarding Statements Made by a Person Under Investigation or in Custody

IN DIEM Abogados provides legal counsel on matters related to criminal law, statements by persons under investigation, representation of detainees, police and judicial proceedings, expedited trials, precautionary measures, urgent criminal proceedings, and the protection of fundamental rights during criminal proceedings.

Legal advice can be important for preparing a statement, assessing whether it is advisable to testify or remain silent, reviewing the allegations, requesting investigative measures, analyzing the possibility of release, and developing a defense strategy from the very beginning.

For an initial assessment, you can contact IN DIEM Abogados by submitting an IN DIEM inquiry.

In-person, online, and urgent service. 24-hour support.

IN DIEM Abogados provides in-person and online legal services from its offices in Madrid, Seville, Málaga, Marbella, Estepona, Las Palmas de Gran Canaria, Almería, and Huelva, serving clients throughout Spain.

The firm has a multidisciplinary team composed of specialized attorneys and professionals with experience in the judicial, tax, and administrative fields, which allows it to approach each matter from a technical, strategic, and practical perspective.

In addition, IN DIEM Abogados offers online assistance and urgent support when the nature of the matter requires an immediate response or a quick initial assessment of the case.

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