​Illegal arrested in Spain? Can you allege to Habeas Corpus and be set free?What is Habeas corpus?

What is Habeas corpus?

Many people tend to think that once someone is arrested, they could simply spell the magic words of “Habeas corpus” and claim their right to be set free until the court proceedings, while they should be presumed innocent. However, that is not the case; even if it is true that the Spanish Constitution does state that every person has a right to freedom and that if arrested it has to be on legal grounds, if not, then he has the right to allege for Habeas Corpus, it still has to fulfill certain conditions. 

First of all, the aim of the habeas corpus proceeding is not to judge the issue if someone is innocent or not. Habeas corpus is the proceeding, that aims to protect the rights of legal detention, meaning that one can claim habeas corpus when he is illegally arrested. The Organic Law of Habeas Corpus is stating the different situations for which one could be considered illegally arrested. 

If one thinks that the arrest is illegal, then he, the lawyer, the prosecutor or Ombudsman officer or f.ex. a family member can claim for habeas corpus, which means that the case has to be reviewed and decided about the illegality or not about the arrest within 24 hours. 

Common assumptions for illegal arrest could be that one is arrested without that the officers have informed about the grounds for the arrest, or is kept one arrested over 72 hours without a legal proceeding. However, one has to understand that habeas corpus is not applicable in situations, where it exists a judge's decision on putting someone behind bars. In general, the applicable situations are when the police, guardia civil or other authority is locking someone up without legal grounds or when one is put to jail via a civil arrest for a crime in flagranti. In these cases, and if you are concerned that the arrest did not fulfil the conditions for a legal arrest you could claim for habeas corpus and get your case reviewed within 24 hours and claim the possibility to be set free.

Please, not that the concept of habeas corpus is much more than discussed in this post. This post is not meant for any legal advice. More specific info about habeas corpus by case-by-case study. Please, contact us in case you are arrested illegally and we can study the case.