Unlawful detention and holding: where the border between them lies

Depriving someone of their freedom of movement is one of the forms of conduct that criminal law punishes most severely. The key is not always whether someone was physically locked up: sometimes it is enough to prevent a person from leaving a space, to threaten them so that they do not leave or to create a de facto situation that deprives them of their freedom.

The Criminal Code regulates this conduct under the heading of unlawful detention and kidnapping. Alongside them, reference is made to holding (retención), an attenuated deprivation of liberty which, although it does not technically exist as a separate offence, has lesser criminal consequences but can also be an offence. These offences protect freedom of movement, the right to move about freely, recognised in Article 17 of the Constitution. Their protection is very broad: it is not limited to physical confinement, but covers any means that deprives the victim of the ability to leave, including intimidation.

Unlawful detention is defined in Article 163, which punishes anyone who locks up or detains another, depriving them of their liberty. Locking up is confinement in a space from which the victim cannot leave; detaining is broader and covers any form of deprivation of liberty, even without physical confinement. The deprivation does not need to last a long time: courts have held that even a few minutes can constitute unlawful detention if the deprivation is effective. Its penalty is four to six years’ imprisonment, aggravated according to the duration of the detention and according to other circumstances.

Kidnapping, under Article 164, is an aggravated form: detention conditioned on the fulfilment of a demand in order to release the victim. Its penalties are significantly higher, six to ten years, and may reach twenty. Holding is mentioned in Article 163.2 as an attenuated form: when the perpetrator frees the detained person within the first three days, without having achieved their objective, the penalty is lower. In case-law practice, it is also used to describe deprivations of liberty of lesser significance. But it should be clear that holding, although less serious, is still an offence, not an administrative infringement.

This conduct occurs in diverse contexts: in gender-based and domestic violence, when the aggressor prevents their partner from leaving the home; in so-called citizen’s arrests, which the law permits in the face of a flagrant offence but with strict limits; and in the business sphere, when an employee is held for questioning against their will.

For there to be an offence, several elements must concur: the effective deprivation of freedom of movement, the absence of valid consent, the absence of legal justification and the intention to deprive of liberty. The absence of any of them may be the basis of the defence.

The most frequent defence arguments are the victim’s consent; the legal justification of the restriction, such as a legitimate citizen’s arrest; the brevity and lack of significance of the restriction; and the absence of intent. It is worth knowing that unlawful detention committed by a public official in the exercise of their functions has a specific and aggravated offence in Article 167.