How to Avoid Arrest on Holiday in Spain

Spain still retains its popularity as a holiday destination for British nationals, who alone contribute several billion euros annually to the Spanish economy. However, the rising anti-tourism protest campaign against over-tourism is largely due to the poor behaviour of the tourists. Stag and hen dos being a common flash-point. 

Many British tourists do not recognise that the laws in Spain and England and Wales are not the same. For example, if the Spanish police believe you are being uncooperative, it is an offence, which can result in arrest. Drunken young people, particularly if they do not speak Spanish, often do not understand their position and a minor incident can lead to arrest. For example, if the police require you to move on and you do not comply and argue with the police you can be arrested for lack of cooperation.

In Spain everyone, all residents and tourists, must provide a photo ID if asked by a police officer. This applies to all the police forces, the Guardia Civil and national, and local police forces. The police have the right to hold you at a police station until they have established your identity. Failing to comply with direct requests of a police officer can be considered ‘disobedience’, which is a criminal offence.

Activities that can result in arrest

• Excessively rowdy drunkenness;
• Fighting in the street, either a group brawl or as individuals;
• Drinking alcohol in the street;
• Shouting and singing loudly late at night in the street;
• Arguing or refusing to cooperate with the police;
• Climbing between balconies (often leading to serious injury);
• Wearing swimwear other than on the beach;
• Public nudity as well as indecent behaviour in the street;
• Sexually designed outfits and costumes;
• Carrying balloons with a sexual theme;
• Refusing to provide ID to police when asked;
• Urinating in public;
• Bathing in public fountains;
• Vandalism, especially damaging historical buildings.

There is a reasonably benign attitude to private drug consumption in moderation, but any activities involving public consumption and drug dealing will not be acceptable and will be met with arrest. 

Attempts to control such behaviour, such as alcohol bans and laws banning “happy hours”, have met with limited success.

The potential consequences of the above behaviour are fines and in serious offences, imprisonment. The fines vary between the 17 autonomous regions in Spain, and range from approximately €750-€3,000 but can be considerably higher depending on the offence. A custodial sentence is possible for the most serious offences.

Arrest

If you are arrested, you can be detained for 72 hours, during which time the police will consider the circumstances. You have the right to a criminal defence lawyer and if you cannot afford to instruct one, an English-speaking duty lawyer will be appointed. You also have the right to an interpreter when being questioned.

You will have the opportunity to contact the British Consulate who can assist you with the names of English-speaking criminal defence lawyers. It is vital that you have the guidance and advice of a criminal defence lawyer to ensure that you understand your position and the lawyer can discuss the matter with the police. An English-speaking duty lawyer may not have sufficiently good English to be able to help.

After 72 hours you will either be permitted to leave or brought before a judge in court, or bailed. The judge may decide to allow you to return home to the UK to be recalled when you will stand trial in Spain. Or you may be retained in custody.

Extradition

If you are permitted to return to the UK pending a trial in Spain, it is imperative that you do return to stand trial when requested, or you will be extradited. This is a procedure where the Spanish Authorities evoke the Extradition Act 2003 under the Trade and Cooperation Agreement.  The Spanish Authorities will issue a European Arrest Warrant under the 2020 EU–UK Trade and Cooperation Agreement, which will be received by the National Crime Agency for verification. If valid, it will be certified by the Home Office.

Once you have been arrested within 24 hours, you will appear before a Magistrates’ court where it will be established that the warrant is lawful.  Bail may be considered, but it is very restricted with regard to extradition matters. An extradition hearing is held, usually within 21 days of arrest. The court then decides if the initial crime warrants extradition.  The crime must be punishable in both countries by at least 12 months in prison.   

There are bars to extradition as follows:

• Double Jeopardy: Where the individual has already been tried for the same offence.
• Breach of Human Rights: Such as unfair trial or poor prison conditions
• Length of Time: A trial would be unfair if the passage of time between the crime and extradition was excessively prolonged
• Mental or physical health of the individual: If there is the potential of serious deterioration of the health of the individual
• Political reasons: The trial is motivated by political reasons

The judge, in extradition proceedings, will not assess the guilt or innocence of the individual, simply the need to satisfy the extradition warrant.

If extradition is ordered, the individual has seven days in which to appeal to the High Court, with the further potential to appeal to the Supreme Court but only on a point of law. If no appeal is lodged or an appeal has not been successful, the individual will be extradited within ten days. 

The individual will be presented to a Spanish judge or, if it is a pre-trial warrant, they could be held in prison or granted bail. If the individual has been extradited to serve a prison sentence, they will be immediately transferred to prison.

Our English-speaking criminal defence lawyers in Giambrone and Partners have a wealth of experience in assisting British nationals arrested in Spain.  Our lawyers both in Spain and England and Wales can help you in all aspects of arrest or extradition.

Regardless of the stage of the proceedings or the nature of the charges, Giambrone & Partners’ criminal defence lawyers will be able to assist

If you need assistance in connection with an arrest in Spain, please click here.