The order decreeing pre-trial detention is one of the rulings with the greatest immediate impact on a person’s life: in minutes, someone goes from freedom to entering a penitentiary facility. Every hour in pre-trial detention is an hour of freedom that is not recovered, so appealing that decision with the greatest urgency is one of the most important actions of the defence.

The first remedy is the motion for reconsideration, filed before the same court that issued the order, asking it to reconsider its decision. The term is three working days from notification, very short. Its success rate is limited, because judges rarely revoke their own decisions, but filing it is usually necessary, since in many cases it is a prerequisite for the appeal. The remedy must identify precisely which legal requirements are not met or why the measure is disproportionate, and propose alternatives.

The appeal is the most effective route: it is filed before the investigating court so that the Provincial Court resolves it. The term is five working days from notification of the order. In some cases it can be filed directly, without the prior motion for reconsideration, which saves crucial days. The Provincial Court must process it with maximum urgency and may call an oral hearing in which the lawyer presents their arguments in person, a valuable opportunity.

The most effective grounds for the appeal are: the absence or insufficiency of rational evidence of criminal conduct; the non-existence of the substantive grounds, such as the risk of flight, of destruction of evidence, or of reoffending; the sufficiency of less restrictive alternative measures, such as bail or periodic appearances; the lack of proportionality; and the insufficient reasoning of the order.

One of the most-used arguments is the suspect’s ties to the community: their links with their surroundings, such as stable residence, employment, family, the absence of assets abroad, or prior cooperation with the justice system, are the main counterweight to the risk of flight. Establishing it requires providing objective documentation: a lease or deed, an employment contract, the family record book, a certificate of residence registration.

In addition to the remedies, the defence may at any time request the modification or substitution of the detention with a less restrictive measure, especially useful when the circumstances that justified it have changed. If the judge denies it, that denial can be appealed. The law also requires a periodic ex officio review, but the defence should not wait passively for it. When the ordinary remedies fail, there are extraordinary routes: the constitutional appeal (recurso de amparo) before the Constitutional Court, when the detention violates fundamental rights and the ordinary route is exhausted, and the European Court of Human Rights, which has condemned Spain in cases of excessive pre-trial detention.

All of this is only effective if activated with absolute urgency. An appeal filed on the same day as the order can mean fewer days of deprivation of liberty if it succeeds. The lawyer must be available to act immediately, know the case file in depth, and draft the appeal within a few hours when the urgency requires it.