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On January 30, 2025, the Investigating Court ordered the pre-trial detention of our client, incommunicado and without bail, considering that there was a high risk of flight, reoffending, and destruction of evidence.
The mother disappeared with the minor at the moment she was supposed to hand her over to the father, which led to the immediate arrest of the grandmother, who held provisional custody, for her alleged involvement in the crimes of abduction and neglect of family duties.
According to the court order, this risk was based on several circumstances: that the accused was aware of the mother’s plan to summon the parties under the pretext of a medical appointment to facilitate the child’s abduction; that she had already participated in a prior abduction by sheltering her daughter; that she did not cooperate during her arrest and judicial appearance; that she had contacts in other countries due to her foreign background; and that the offenses under investigation were serious, as was the potential penalty that could be imposed.
However, the defense, represented by FukuroLegal, filed an appeal challenging the ruling on the following grounds.
It was argued that the pre-trial detention measure was disproportionate and contrary to the principle of minimal criminal intervention, as there was no solid evidence justifying the deprivation of liberty. The defense emphasized that pre-trial detention should be an exceptional measure and that, in this case, the legal requirements for its application were not met.
The defense refuted the alleged flight risk, arguing that the accused had strong ties to Spain, with a fixed residence for years and no history of evasion. It was pointed out that she was found at her home without having attempted to hide, contradicting any presumption of intent to evade justice. Additionally, it was argued that her personal circumstances, including her advanced age and health condition, made it unlikely that she would abscond from judicial proceedings. The defense also stressed that the fact that her daughter had expressed an intention to move to a country without judicial cooperation agreements could not be automatically extended to the accused, as there was no evidence that she shared the same intention.
Regarding the possibility of reoffending, the defense highlighted that the minor was already missing, making it materially impossible for the accused to engage again in the alleged conduct. It was further argued that there were no elements indicating that she could again assist in concealing the child, as the investigated acts stemmed from a specific and exceptional situation that could not be repeated. Moreover, the defense emphasized that the alleged severity of the facts alone could not justify the risk of reoffending without additional supporting evidence.
As for the risk of evidence tampering, it was argued that all relevant evidence had already been obtained by the Judicial Police, including searches and the extraction of data from electronic devices, making the concern that the accused might alter or destroy evidence unfounded. The defense stressed that pre-trial detention cannot be used as a means to obtain new evidence or as a form of coercion to pressure the accused into cooperating with justice, as this would violate her fundamental rights.
Finally, the defense proposed the adoption of less restrictive precautionary measures, such as a ban on leaving Spain, the surrender of her passport, and the obligation to appear periodically before the court, measures that would ensure the proper progress of the proceedings without resorting to deprivation of liberty.
After reviewing the appeal arguments, the Provincial Court of Huesca decided to revoke the initially decreed pre-trial detention, opting instead for the defendant’s release under a series of less restrictive precautionary measures. This decision was based on several key arguments that the Court deemed decisive.
First, the Court considered that, although pre-trial detention may serve to prevent the commission of new offenses based on the grandmother’s obstructive attitude, it cannot be used as a means to coerce the accused into cooperation, referring to her refusal to disclose the whereabouts of her daughter and granddaughter. The Court recalled that the right to remain silent is a fundamental guarantee and cannot be interpreted against the accused or justify a deprivation of liberty.
Second, the Court highlighted that the flight risk was not sufficiently substantiated. The accused has strong ties to the area, where she has resided for years, with stable homes in two towns. Additionally, following the minor’s disappearance, there was no indication of any intent to evade justice, as she was found by authorities at her residence. The severity of the offense cannot be the sole determining factor in establishing a flight risk; other aspects, such as the accused’s personal circumstances, must also be assessed. These factors led the Court to conclude that there was no significant risk of flight warranting pre-trial detention.
Finally, the Court emphasized that less restrictive precautionary measures could achieve the same objective of ensuring the accused’s presence at trial. These measures include periodic court appearances, a ban on leaving the country, and the obligation to report any change of residence or phone number. According to the Court, these measures are sufficient to ensure that the accused does not evade justice without the need for pre-trial detention.
As a result, the Court ordered the accused’s release on the condition that she is prohibited from leaving Spain, must surrender her passport, appear before the Investigating Court on the 1st and 15th of each month, and report any change of address or phone number.
This ruling not only reaffirms the exceptional nature of pre-trial detention but also underscores the importance of applying proportionality criteria in the adoption of precautionary measures in criminal proceedings.
At FukuroLegal, we positively value this decision, highlighting that it safeguards the accused’s fundamental right to liberty and prevents the excessive use of preventive detention in cases where it is not sufficiently justified. The ruling by the Provincial Court of Huesca thus reinforces the protection of fundamental rights in criminal proceedings.
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