A guide for foreigners on what is a crime in Spain and how to proceed

Spanish legislation for foreigners

What is a crime and what is not?

When you are in a country that is not your own, it is important to know which behaviours are criminal offences and which are not: conduct that is not a crime in your country may be one in Spain, and vice versa.

Committing an offence in Spain believing it is not a crime because it is not classified as such in your country of origin is usually considered a mitigating circumstance, but it can still represent a serious problem, as the Spanish Criminal Code is one of the most punitive and strict in Europe.

For this reason, and with the aim of providing information to foreign nationals who visit Spain or settle in the country, the following guide sets out some behaviours that may not be criminal offences in other Western countries but are considered offences in Spain.

i. Offences related to driving vehicles

Can I commit a criminal offence for speeding?

In Spain, a motor vehicle or moped must respect the legally established speed limits. If you exceed the limit by 60 km/h on an urban road (within a city) or by 80 km/h on an interurban road (outside the city, such as motorways, highways or regional roads), you will be committing a criminal offence, which may even be punishable by a prison sentence.

Example: on Spanish motorways the speed limit is 120 km/h; if you drive at 210 km/h, you are committing a criminal offence.

Is it a criminal offence to drive without a Spanish driving licence? What documents must I carry to avoid committing an offence?

Driving a motor vehicle (of any kind) or a moped in Spain without ever having obtained a driving licence (Spanish or foreign) is a criminal offence that may even be punishable by imprisonment. Important: if you do not have a Spanish or international driving licence, it is essential that you carry the driving licence issued by your home country. If the police ask for your licence and you do not have it with you, you may be charged with the offence of driving without a licence and you will have to appear in court and prove that you did in fact obtain it in your country.

Can I drive if I have lost all the points on my driving licence?

The Spanish driving licence operates on a points system. If you have lost all your points and you drive, you are committing a criminal offence. You will also be committing a criminal offence if you drive despite a judge having ordered the suspension of your driving licence for a period that has not yet expired.

Is driving after drinking alcohol always a criminal offence?

Only if you are driving a motor vehicle or moped and your blood alcohol level exceeds 0.60 milligrams per litre in breath. In that case, a criminal offence is committed that may even be punishable by imprisonment. If the level is lower, it constitutes an administrative offence punishable by a fine, unless the police consider that your driving ability was impaired. If the police determine that your ability to drive was impaired, even with a lower alcohol level, a criminal offence may still be committed.

If a driver tests positive for narcotic substances, is it always a criminal offence?

If you drive a motor vehicle or moped and test positive for any narcotic substance, the police will inform you that you are being charged with an offence against road safety, which may even be punishable by imprisonment, and that you will have to appear in court. A positive result in the roadside test is sufficient to charge a person with a criminal offence and bring them to trial.

Can I refuse to undergo alcohol or drug tests?

If you are the driver of a vehicle and you expressly or implicitly refuse, or fail to cooperate in carrying out alcohol or drug tests, you commit a criminal offence that may be punishable by a prison sentence of six months to one year.

What happens if I add or modify elements on the vehicle’s licence plate?

You may commit the offence of forgery of an official document, punishable by six months to three years of imprisonment. The offence is not only committed by those who replace vehicle licence plates, but also by anyone who alters them, even in a crude way (for example, with adhesive tape), modifying any element of the plate—such as turning the letter “J” into a “U.”

ii–Possession of narcotic substances.

Is possession of substances always a criminal offence?

Possession is not a criminal offence if it is for personal use. However, when the following quantities are exceeded, it is presumed that the substances are not intended for personal consumption and the conduct becomes a criminal offence:

iii-conduct relating to gender-based violence

Cualquier acción intimidatoria o denigrante para la mujer, ¿es delito?

Any degrading action towards a current or former female partner may constitute a criminal offence, including the use of insults. Not only intimidating acts or physical aggression are considered criminal offences.

Is a complaint from the woman required?

No. In Spain, if a man threatens, mistreats, coerces, injures or exercises any form of physical or psychological violence against his current or former partner (a woman), he may be arrested even if the woman has not filed a complaint against him.

What happens if there is a protection order?

The judge may immediately issue a protection order in favour of the woman, preventing the man from approaching her and even prohibiting any form of contact with her. If the man breaches that prohibition, even indirectly—for example, by liking a post on Facebook—this may constitute a new criminal offence.

iv. Conduct relating to possession of weapons

Is it prohibited to carry pepper spray, a telescopic baton or other similar instruments? What can be carried and what cannot?

In Spain, there are weapons that are strictly prohibited, and possessing them constitutes a criminal offence punishable by imprisonment.

This is the case with firearms (even if licensed) when their original manufacturing characteristics have been modified. Firearms disguised to look like other objects. Sword-canes, daggers of any kind and so-called automatic knives. For these purposes, daggers are considered to be bladed weapons with a blade shorter than 11 centimetres, double-edged and pointed.

Possession is also prohibited of firearms, air guns or other compressed-gas weapons, whether real or simulated, combined with bladed weapons; wire or lead batons; knuckle-dusters; punch daggers; knuckle weapons with or without spikes; enhanced slingshots and blowguns; nunchaku and xiriquetes, as well as any other instrument that is especially dangerous to people’s physical integrity.

Is possession of firearms a criminal offence?

Possession of firearms is not a criminal offence if you have previously obtained the corresponding Spanish firearms licence and the weapon has not been modified or tampered with. Otherwise, mere possession constitutes a criminal offence.

How to proceed if you are accused of a crime: your rights

How long can I be detained if I have been arrested on suspicion of a crime?

In the case of police detention, it may not exceed 72 hours. Once this period has passed, the detainee must be brought before a judge or released. In exceptional circumstances, police detention may be extended for a further 72 hours.

Is an interpreter provided?

Yes. The police are required to immediately inform a person of the reason for their arrest as well as their rights, providing an interpreter if the detainee does not understand or speak Spanish.

Can I call someone if I am detained?

While in police custody, the detained person has the right to call a person they trust. In addition to this call, they have the right to have the police inform a family member or another designated person of their detention. They also have the right to have the consulate of their country informed of their detention.

Do I have the right to a lawyer if I am arrested?

Yes. You have the right to a lawyer. You may request a lawyer you know; if you do not, a court-appointed lawyer will be assigned to you. That lawyer will assist you both at the police station and before the court. You have the right to speak with your lawyer privately before and after the police take your statement. Your lawyer will explain that you have the right to be examined by a doctor and the right to give a statement or to refuse to answer some or all questions. If you choose to make a statement, you have the right not to plead guilty and not to incriminate yourself. The court-appointed lawyer who assists and advises you may charge professional fees if you are not granted legal aid.

What happens if a detained person is not released by the police and is taken before a court?

Si estás detenido en el juzgado podrás, mediante tu abogado, acceder al expediente y decidir si quieres declarar ante el juez o no. Tanto si declaras como si no, puedes ser puesto en libertad, con o sin alguna medida cautelar (por ejemplo, retirada de pasaporte). Si el juez no te pone en libertad, decretará tu ingreso en prisión provisional.

If the judge orders supervisory measures, can I comply with them in my home country?

Yes. If the judge grants your release and orders a supervisory measure (for example, having to report every 15 days), it is possible to request authorisation to comply with it in your home country, provided that the country of origin is a member of the European Union.

In what cases can pre-trial detention be ordered?

In Spain, a judge may order pre-trial detention if the offence you are accused of carries a prison sentence of more than two years and if there is a risk of flight, reoffending, or destruction or concealment of evidence.

How long can someone remain in pre-trial detention in Spain while awaiting trial?

The maximum period a person can remain in prison without trial in Spain is two years, which may, in exceptional circumstances, be extended for a further two years.

In the event of a conviction, can the sentence be served in the country of origin or residence?

Yes. If the country of origin or residence is within the European Union, any sentence imposed may be served there, provided the judge authorises it. If the country of origin or residence is not part of the European Union, it will depend on whether there is an agreement with that country and on the type of sentence imposed.

How to proceed if you are the victim of a crime: your rights

If I am the victim of a crime, is it necessary to file a complaint for it to be prosecuted?

In Spain, most crimes are investigated even if the victim does not file a complaint. Only in a few offences is a complaint required for the facts to be investigated—for example, certain sexual offences or offences against privacy. However, it is advisable to file a complaint immediately.

Where can I file a complaint?

If you are the victim of a crime in Spain, the complaint can be filed with the police or before the duty court in the city where you are located.

Can I be accompanied by a family member or someone I trust?

Yes. If you are the victim of a crime, when giving your statement—both before the police and before the judge—you may be accompanied by a person you trust, as well as by an interpreter.

What measures can I request if I have been the victim of a crime?

You have the right to receive medical or psychological support if you need it. If you are a victim of gender-based or domestic violence, you may request a protection order, a restraining order or a prohibition of contact so that your aggressor cannot communicate with or approach you.

Can I receive information about the criminal proceedings in which I am the victim?

Yes. Any victim who requests it will be informed, without unnecessary delay, of the date, time and place of the trial, as well as the content of the charges brought against the offender, and will be notified of all decisions issued in the case. In addition, in Spain the victim may appear in the proceedings and act as a private prosecutor alongside the public prosecutor. For this, a lawyer and a legal representative (procurador) will be required.