How does Habeas Corpus work? Practical questions about Illegal Detention and Habeas Corpus

How does Habeas Corpus work? The following are practical questions about Illegal Detention and Habeas Corpus. Personal freedom, as a fundamental right, is rigorously protected by the Habeas Corpus Institute.

How is Habeas Corpus alleged? As simple as raising your hand to invoke the magic word?

I’m sure some readers will have heard about this legal figure. Some people think they know it fairly well. But in general, we are completely unaware of it, and consequently it is not accorded the true value and importance it deserves.

This legal form is regulated in article 17.4 of the Spanish Constitution, and in Organic Law 6/1984 regulating the procedure of “Habeas Corpus”.

Recently, the Constitutional Court Judgment 13/2017 was published, which explains some of the most relevant aspects related to this legal figure.

That is why, taking into account the current regulations and the recent ruling of the Constitutional Court, we propose below the 9 practical questions that you should know about Habeas Corpus.

1.- What is meant by Habeas Corpus?

Habeas Corpus is a procedure aimed at quickly remedying the illegal detention of a citizen. To this end, it is configured as a right of the detainee, who may request the Court, from the moment of his detention, to determine, within a maximum period of 24 hours, whether his detention has been carried out under the legally established conditions.

2.- How does a Habeas Corpus present itself? Is it a magic word?

Proceedings shall be initiated, if not ex officio (usually not usually ex officio), in writing or by appearance. Three fundamental aspects should be identified within this paper:

  1. Name of the applicant of Habeas Corpus.
  2. The reason for Habeas Corpus
  3. The place of the deprivation of liberty and personal circumstances.

It should be added that Habeas Corpus may be filed by the detainee himself or by the spouse or person with an analogous relationship, descendants, ascendants, siblings and legal representatives.

3.- To whom is it presented?

The competence to decide on the application of Habeas Corpus, rests in the hands of the Pre-Trial Judge in the location in which the person was deprived of liberty. If this is not stated, the competent judge shall decide the place of detention.  And in the absence of the latter two, it will be the place where the most recent news about the whereabouts of the detainee has been kept.

In exceptional cases (terrorism, armed gang…), it will be the National High Court, which will resolve the case.

4.- When can Habeas Corpus be presented?

The Constitutional Court establishes that it may be filed both at the time of arrest and subsequently, at any time deemed to have violated any of the legally established guarantees.

5.- What should the police do when Habeas Corpus has been requested?

Where appropriate, the governmental authority, public servant or civil servant is obliged to inform the competent judge immediately of this request.

6.- Does Habeas Corpus fit although the detention has cause?

It is vitally important to know that, in order to present Habeas Corpus, it is not necessary for the detention to have taken place without cause, but even though there is cause or reason for the detention, if the rights of the detainee are not respected, an illegal detention would also be taking place. An example in which the rights of the detainee are not respected would be the refusal to grant an interpreter.

7.- What is the right to file information? Does counsel have the right to review the police record?

As regards the concept of “right to information on file”, it is laid down in the EU Directive 2012/13, Article 7, and in Article 520 of the Criminal Procedure Code (LeCrim).

In turn, the Constitutional Court understands that the right to information in the file covers all material that is held from the detainee’s file (complaints, documentation of the records made at the time of arrest…), either in physical form or by computer.

Therefore, any relevant information that has served the purpose of detention and is fundamental to effectively challenge the legality of detention is included within the right to information in the file.

With the foregoing, counsel has the right to review the police record and to request relevant information regarding detention.

8.-Doctrine applicable even when there is no rule that regulates it.

As regards the implementation of the Directives and the primacy of European law, the Constitutional Court’s ruling 13/2017 sets out two key points:

First of all, the Court states that although there is no national law covering the provisions of the Directives, the latter and the rights and guarantees set out therein are directly applicable in our legislation if the mandatory deadline for their transposition has expired. Therefore, Directive 2012/13 EU (link to the Directive), at the time was the source of the right.

Secondly, directives that have been insufficiently or inadequately transposed, or directives that have omitted obligations in favor of citizens, will always be directly applicable by direct vertical effect.

Therefore, taking into account the foregoing, in the face of any violation of the rights and guarantees of the detainee, even if they are not established in domestic legislation but in European directives that have direct effect for the reasons explained, the institution of Habeas Corpus must be consulted.

9.-What if Habeas Corpus is denied by the judge?

If Habeas Corpus is admitted to the proceeding, but rejected, it is necessary to file an appeal for protection, alleging the violation of Article 17.3 EC.

However, if Habeas Corpus is inadmissible, an action for annulment must be filed in order to exhaust all possible legal avenues before resorting to the Appeal for Protection in which the violation of Article 17.3 and 17.4 EC will be alleged.


Judgment of the Constitutional Court 13/2017 of 30 January 2007

Organic Law 6/1984, of 24 May 1984, regulating the procedure of “Habeas Corpus”.

Directive 2012/13 EU

Spanish Constitution

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