Legal Assistance for Persons Detained for Gender-Based Violence.

Detention for an alleged crime of gender-based violence is one of the most traumatic and complex situations a citizen can face within the framework of Spanish criminal law. The special protection that our legal system grants to women in the context of domestic or former domestic relationships implies that the police and judicial action protocol is extremely rigorous and, in most cases, results in the immediate deprivation of liberty of the accused until they are brought before a court.

At abogadaviolenciadegenero.com, under the direction of counsel Celeste Pérez Bleda, we understand that legal assistance in these cases cannot be a mere administrative formality. It must be an active, immediate, and strategic technical defense from the very first minute at the police station.

1. Immediacy of the Response: 24-Hour Assistance

The moment of detention is critical. The decisions made in the first hours following the reading of rights will irreversibly shape the course of the judicial proceedings. Our firm guarantees immediate assistance at any detention center (National Police Station, Civil Guard Headquarters, or municipal premises) and before the Courts of Violence against Women (JVM).

Why is a specialized defense vital from the moment of detention?

Organic Law 1/2004, of December 28, on Integrated Protection Measures against Gender Violence, establishes a specific procedural framework. We are not dealing with an ordinary criminal proceeding; we are facing a system that prioritizes precautionary protection measures. An error in the first statement or an inappropriate attitude toward law enforcement officers can lead to the adoption of a restraining order, removal from the family home, and even the suspension of visitation rights with minor children.

2. The Legal Framework: What is Considered Gender-Based Violence?

To understand the assistance provided to the detainee, it is fundamental to know the specific type of offense. According to Article 1 of Organic Law 1/2004, gender-based violence is that which is exercised against women by those who are or have been their spouses or by those who are or have been linked to them by similar affective relationships, even without cohabitation.

The most common crimes that lead to detention are:

• Occasional mistreatment (Art. 153.1 CP): Blows or mistreatment without causing injury.

• Habitual mistreatment (Art. 173.2 CP): Recurrent physical or psychological violence that creates a climate of terror.

• Threats (Art. 171.4 CP) and Coercion (Art. 172.2 CP): Conduct aimed at restricting freedom or instilling fear.

• Lesiones (Art. 148.4 CP): Agresiones físicas que requieren tratamiento médico-quirúrgico.

3. Rights of the Detainee (Article 520 of the LECrim)

At the time of detention, officers must inform the detainee of their rights in an understandable manner. As specialist lawyers, we ensure the strict fulfillment of these rights:

1. Right to remain silent: The detainee may choose not to testify if they wish, not to answer certain questions, or to state that they will only testify before the Judge. Our general recommendation is not to testify at the police station until having had access to the full police report (atestado).

2. Right to not incriminate oneself and to the presumption of innocence: No one is obliged to testify against themselves.

3. Right to legal assistance: This is a fundamental right. The detainee has the right to have their private lawyer present during all police proceedings.

4. Right of communication: To have a family member or designated person informed of the detention and the place of custody.

5. Right to be assisted by an interpreter: In the case of foreign nationals or individuals who do not speak the language.

6. Right to be examined by a forensic medical examiner: Vital if there has been a physical altercation where the detainee also presents injuries.

4. Phases of Assistance to the Detainee

Fase I: En Dependencias Policiales

Once the detention has occurred, the individual is transferred to the police station. This is where the Police Report (Atestado Policial) begins.

• Privileged Interview: As your counsel, I will hold a private interview with you before and after any proceeding to outline the line of defense.

• Examination of the Proceedings: We will analyze exactly what you are accused of, what evidence they claim to have, and who the witnesses are.

• Monitoring of Police Conduct: We supervise that no coercion is exercised and that the period of detention does not exceed what is strictly necessary (a maximum of 72 hours, although in these crimes the individual is usually brought before a judge the following morning).

Phase II: In the Court of Violence against Women (JVM)

After the police proceedings, the detainee is brought before the duty Judge specializing in gender-based violence. This is the most decisive phase.

1. Declaración Judicial: This is the moment to offer our version of the facts, duly advised and after knowing all the details of the complaint.

2. Appearance under Article 544 ter of the LECrim (Protection Order): The complainant usually requests a Protection Order. A hearing is held where the Judge will decide on:

   • Criminal Measures: Prohibition of communication, restraining order, or provisional prison.

   • Civil Measures: Use of the family home, custody of children, visitation rights, and child support. These measures are valid for 30 days, extendable if a civil lawsuit is filed.

5. The Defense Strategy: Rigor and Verification

At the law firm of Celeste Pérez Bleda, we do not work with templates. Each case of gender-based violence requires a meticulous analysis of the evidence. Our defense is based on:

• Analysis of Contradictions: Dismantling inconsistent versions of the complainant through questioning.

• Digital Evidence: Recovery and submission of WhatsApp messages, emails, or recordings that demonstrate the non-existence of the crime or prior provocation.

• Testimonial Evidence: Locating eyewitnesses who can provide an objective view of what occurred.

• Expert Reports: If necessary, we work with forensic psychologists to analyze the credibility of the testimony or the psychological state of the parties.

6. The Speedy Trial (Urgent Proceedings)

In most gender-based violence cases where there are no serious injuries, the procedure is handled as a Speedy Trial (Juicio Rápido).

If the detainee admits to the facts, a Consent Judgment (Sentencia de Conformidad) may occur, which entails a one-third reduction of the sentence. However, our policy is one of absolute rigor: settlement is only recommended if it is the most beneficial option for the client after an exhaustive analysis of the evidence. If there are grounds for acquittal, we will fight the case in the Criminal Court (Juzgado de lo Penal).

7. Legal Consequences of a Conviction

It is imperative that the detainee is aware of what they are facing. A conviction for gender-based violence entails:

1. Criminal Record: Non-cancellable until the legal timeframe has passed without further offenses.

2. Deprivation of the right to possess weapons.

3. Disqualification from the exercise of parental authority in serious cases.

4. Community Service Work or Prison.

5. Mandatory Restraining Order: In gender-based violence crimes, the Judge is legally required to impose a prohibition on proximity, even if the woman wishes for forgiveness or reconciliation.

8. Frequently Asked Questions after an Arrest

Can I return home if I have been arrested?

It will depend on whether the Judge issues a restraining order. If the property is the family home and such an order is issued, you will not be able to return, and you must collect your personal belongings escorted by the police if the Judge authorizes it.

What happens if the complaint is false?

Although statistically they represent a specific percentage, instrumental complaints exist (sometimes used to obtain advantages in divorce proceedings). Our job is to demonstrate the lack of truthfulness to the Judge through objective evidence and to request the filing of the proceedings or a full dismissal of the case.

Will they take my children away from me?

The current law is very restrictive. Article 544 ter of the LECrim and the reforms of the Civil Code tend to suspend visitation rights when there are well-founded indications of violence. Therefore, the intervention of an expert lawyer during the hearing for precautionary measures is vital to protect your right to fatherhood.

9. Commitment and Professionalism

We understand the distress that an arrest generates. Therefore, we offer:

• Transparency: We inform you of the reality of your situation without creating false expectations.

• Legal Rigor: We apply the most recent jurisprudence of the Supreme Court regarding evidence for the prosecution and the presumption of innocence.

• Discretion: We handle your case with the utmost confidentiality.

If you or a relative find yourself in a situation of arrest for gender-based violence, do not wait. The choice of lawyer in the first 24 hours is the most important decision of the entire process.