In Spain, an arrest or remand in custody can turn a person’s life upside down within hours. At that moment, it is not enough to know that an investigation exists. What matters is knowing what acts are attributed, why they are imputed and, above all, what are the essential evidence that supports their remand in custody.
The Constitutional Court has clearly reminded us in its information note 30/2026: even in secret proceedings, the defense must be able to access the content of the essential evidence that supports the deprivation of liberty. A vague explanation or a generic reference to «recordings» or «technological proceedings» is not sufficient.
Right of access to essential elements of detention
The access to essential elements of detention is not a technical detail. It is a basic guarantee of the right to defense. It serves so that the detainee and their attorney understand why their freedom has been restricted and can react in time. The Criminal Procedure Act recognizes this right in the scope of detention and also in the hearing to decide on remand in custody, through articles 118, 505.3 and 520 of the Criminal Procedure Act
This guarantee allows contrasting the veracity and
Can they send me to remand in custody without showing me the evidence?
What does it mean that a case is under secrecy of proceedings?
The European foundation: Directive 2012/13/EU requires the Police to provide the essential elements that justify the deprivation of liberty
This right does not arise solely from Spanish legislation. It also has a very solid European foundation. Article 7.1 of Directive 2012/13/EU requires Member States to ensure that, when a person is arrested or deprived of liberty, the detainee or their lawyer is provided with documentation from the file that is essential to effectively challenge the lawfulness of the detention or deprivation of liberty.
The objective is to allow effective challenge of the deprivation of liberty. If the defense only receives empty labels, it cannot truly fight either the detention or the remand in custody. That is why the Directive fits directly with articles 118, 505.3 and 520 of the Criminal Procedure Act, and why the Constitutional Court has insisted that it is not enough to indicate the type of evidence. The source must be identified and its essential content specified.
In Spain, this guarantee protects the position of the detainee against a deprivation of liberty that cannot be challenged with sufficient information. Full access to the entire procedure is not required, but access to what is essential to discuss the legality of the measure is required
What is the essential evidence that supports remand in custody
Can a judge send someone to remand in custody without showing the evidence?
No. The person under investigation and their attorney have the right to know the essential elements of the investigation that justify the deprivation of liberty. Without that information it is impossible to effectively challenge the remand in custody.
What is the essential evidence in remand in custody?
They are those elements of the investigation that serve to justify the imprisonment of a person: intercepted conversations, statements, documents, police reports or any proceeding that connects the person under investigation with the crime.
Can evidence be concealed if the case is under secrecy of proceedings?
Secrecy of proceedings does not allow hiding everything. Although the investigation may be secret, the defense must know at least the essential content of the evidence that justifies the deprivation of liberty.
Can remand in custody be appealed if the evidence is not known?
Yes. If the person under investigation or their attorney has not had access to the essential elements that support the remand in custody, the legality of the measure can be challenged through appeal.
What can an attorney do if not allowed to access the evidence?
The attorney must expressly record that refusal and subsequently use it to oppose the remand in custody or to appeal the court order that grants it. However, it is not enough to generically record that the police report was not provided. It is essential to specify what proceedings have been requested and whose access has been denied.
Thus, for example, if the police report mentions the conducting of police surveillance, access to the corresponding reports must be requested. If reference is made to telephone interceptions, it must be recorded that access to the wiretaps or, at least, to their transcription has been denied. Similarly, if technological investigation proceedings appear —such as requests to telephone companies about ownership of numbers or data associated with IP addresses— it must be expressly recorded that access to those proceedings has been requested and that this has been denied.
How can a criminal defense attorney help if I am facing pretrial detention?
Known cases where secrecy of proceedings could not justify remand in custody
A judicial error left free the wife and sister-in-law of the former UDEF chief who collaborated with drug traffickers
An example occurred in April 2025 at the National Court, within the case against a former chief of the UDEF in Madrid accused of collaborating with drug traffickers.
In that proceeding, the wife and sister-in-law of the person under investigation were released because the investigating judge did not provide their defenses with the essential elements necessary to effectively appeal the remand in custody. The court relied on secrecy of proceedings, but that secrecy did not allow completely denying access to the basic information that justified the deprivation of liberty.
Release in the Gürtel case due to lack of access to essential evidence that supported their imprisonment
Another known example occurred in the Gürtel case, one of the largest political corruption investigations in Spain. During the investigation of several separate pieces, some defenses complained that remand in custody had been ordered without providing them sufficient access to the essential elements of the investigation that justified the measure.
The matter eventually reached the Constitutional Court, which reminded that secrecy of proceedings cannot be used to prevent the defense from knowing the basic elements that support the deprivation of liberty. Although the case may p
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Abogado penalista en Madrid (Graduado en Derecho y ADE con Máster de Acceso a la Abogacía), experto en procedimientos complejos y técnicos en Derecho Penal. Cuenta con títulos como el Curso de DerechoPenal Avanzado impartido por magistrados del Tribunal Supremo en el Iltre. Colegio de Abogacía de Madrid.