Appeal Pretrial Detention Order: When to Request Client Release

Obtaining provisional release is one of the most desired—and difficult—objectives in criminal proceedings. However, its application requires a precise strategy. A premature motion can be counterproductive, giving the impression that the attorney is acting on impulse rather than through technical evaluation of the case circumstances.

Furthermore, courts tend to rely on the first denial order as a strong argument to maintain detention, which makes each new attempt more difficult. Therefore, before appealing, one must know if it is truly the right time.

What is provisional detention and when does it apply?

Provisional detention is a personal precautionary measure, of exceptional nature, that involves the imprisonment of a person under investigation during the investigation phase or trial. Its purpose is not punitive nor does it anticipate the sentence, but rather acts as a procedural instrument to ensure the proper course of criminal proceedings and protect certain legal interests that could be compromised if at liberty.

In which crimes is provisional detention most frequently ordered?

Provisional detention is usually applied more frequently in crimes that carry high sentences or involve relevant procedural risks. Some of the most common are:

• Homicides, attempts and crimes against life or physical integrity, due to the severity of the sentence and the social alarm generated.
• drug trafficking.

What if the case is under secrecy?

The secrecy of proceedings cannot become a trench against the right to defense. Since the reform operated by Organic Law 13/2015, which incorporated into Spanish law the Directive 2012/13/EU on the right to information in criminal proceedings, Article 520.2.b) LECrim expressly recognizes that the detainee has the right to access in writing the essential elements to challenge the legality of their detention, even if the case is declared secret.

This right has been reinforced by the Constitutional Court, which has emphasized that there cannot be an absolute restriction on access to proceedings when personal freedom is at stake. The secrecy of the investigation, therefore, is not an insurmountable wall, but an exception that must be interpreted strictly and proportionally.

What should be done if the case is secret?

• Request in writing at the police station access to the essential elements of the police report:
• This includes complaints, incriminating statements, expert reports that link the detainee, relevant recordings, search records or telephone intervention reports.
• Reiterate the request before the duty judge, before the detainee testifies:
• It is important to individualize which elements are requested and justify their relevance to be able to exercise the right to defense effectively.
• Leave express record in the

The provisional release application: effective structure

A good brief is not the longest, but the most precise. Its objective is to convince the judge that, at the current time, provisional detention is no longer necessary or proportionate. To achieve this, it is advisable to follow this structure:

Demonstrate a real change in circumstances

Article 539 LECrim requires that there be a substantial alteration from the previous order. It is not about insisting on what has already been said, but about providing new elements that change the assessment of necessity. Without change, the brief will be automatically rejected.

Avoid excessive case law

Including judgments without direct connection to the case can overwhelm the judge and dilute the message. It is preferable to cite one or two relevant decisions, well contextualized, that support the main argument.

Propose alternative and less serious criminal charges

Raising a reasoned reclassification to less serious charges can completely change the proportionality framework:

• In result crimes (injuries, homicides), an expert report can justify moving from consummated crime to attempt or injury.
• In drug trafficking, shared possession or non-habitual criminal activity can be alleged to justify the basic charge.

Violation of the principle of equality

If there are other co-defendants who have been released, this fact should be highlighted:

• Periodic appearances at court.
• Passport withdrawal or prohibition from leaving the country.
• Prohibition of communication or approaching victims/witnesses.
• House arrest.
• Electronic monitoring (in cases of specific risk).
• Reasonable bail, adjusted to economic capacity.

The more alternative measures proposed, the more room