Jail before trial, bail and leaving Spain while a case is open

Key rules

• Non-residents: Having no home or ties in Spain can lead a court to see you as a flight risk.
• Missed summons: If you miss a court summons, you lose your bail and can be jailed.
• Travel: With a passport withdrawal or travel ban, you need the court's permission to leave Spain.
• Lawyer: Your lawyer must request travel permission and argue for bail instead of jail.

The short answer

Before trial, a judge can restrict your movement in four ways: jail before trial (prisión provisional), bail (fianza), passport withdrawal and regular sign-in at court. If you are not a resident of Spain, the judge is more likely to see you as a flight risk. Get a lawyer as early as you can, because these decisions come fast.

When can a judge jail you before trial?

A judge can order prisión provisional only if all of these apply:

• The crime carries a penalty of at least two years in prison. A lesser penalty can be enough if you already have a record.
• There are reasonable grounds to believe you committed it.
• Jail serves a real purpose: making sure you appear in court, protecting evidence, protecting the victim, or preventing more offences.

The judge decides after a hearing (comparecencia). Jail before trial has time limits and can be reviewed.

Why non-residents are in a weaker position

To judge flight risk, the court looks at the offence and how serious the penalty is. It also looks at your family, work and roots, and how close the trial is. If you have no home or ties in Spain, a court can treat that as a sign you might leave. Being a foreigner should not automatically lead to jail, but in practice non-residents are more exposed.

Gather proof of your home, job and family, in Spain or abroad, before the hearing. The checklist below covers this.

Bail instead of jail

When jail is being considered, the judge can release you on bail (fianza). The amount depends on the offence, your means and the flight risk. It is set high enough to discourage you from leaving.

• You can pay in cash, by bank guarantee or by security.
• The judge can change the amount at any time.
• Separate bail for civil liability or costs may also be ordered. If it is not paid, your assets can be seized (embargo).
• If you miss a summons, you lose the bail. It can go toward costs and civil liability, and the judge may order jail.
• You get the bail back, or it is cancelled, if the case ends in acquittal or dismissal. After a conviction, it is returned once you have surrendered to serve the sentence.

Sign-in, passport and travel

A judge can order you to appear at court at set intervals and sign a register. This is usually weekly, fortnightly or monthly. The judge can also withdraw your passport and ban you from leaving Spain (retirada de pasaporte and prohibición de salida del territorio nacional). Border police are notified.

With these measures, you need the court's permission to travel. Your lawyer asks for it. Missing a sign-in or leaving without permission can lead to jail or higher bail, and the court may take it as proof of flight risk.

An open case does not on its own stop you leaving Spain. If no such measure has been ordered, you can travel. You must still keep the court informed of your address and answer every summons.

The decision, documents, warnings and FAQ below cover the practical steps.

Choosing between options

Do you need court permission to travel while your case is open?

• Travel freely: No travel ban, passport withdrawal or sign-in order has been made against you.

• Ask the court for permission: The judge has withdrawn your passport, banned you from leaving Spain or ordered you to sign in at court. Your lawyer makes the request.

If the judge has ordered any of these measures, you need court permission before leaving Spain; if not, you can travel.

Documents you need

• Your passport: if the judge orders its withdrawal, the court keeps it and you need the judge's permission to travel, requested through your lawyer.

Checklist

• Gather proof of your family, work and home in Spain or abroad to show you will not flee.

• Ask your lawyer to prepare for the hearing where the judge decides on jail before trial.

• Ask the judge, through your lawyer, to offer bail instead of jail before trial.

• Ask your lawyer how the bail can be paid: cash, bank guarantee or security.

• Ask your lawyer whether separate bail for civil liability or costs may also be ordered.

What to watch out for

• Being a non-resident raises the flight-risk concern: Courts look at your family, work and roots, and a lack of ties in Spain can lead a judge to order jail before trial. Offences with a penalty of two years or more are the usual case. Give your lawyer proof of your address, family and work so they can argue for a milder measure such as bail.

• Missing a summons forfeits your bail: If you do not appear when summoned, you lose the bail and the judge may order you held in jail. Keep the court informed of your address and attend every summons.

• Leaving Spain against a travel ban: Leaving without permission, or missing a sign-in, can lead to jail before trial or a higher bail, and counts as a sign you may flee. Ask your lawyer to request court permission before any trip, and sign in on every date set.

Frequently asked questions

Can I leave Spain if a criminal case is open against me?

Yes, an open case does not by itself stop you leaving Spain, unless the judge has ordered a travel ban or passport withdrawal.

What happens to my bail if I miss a court summons?

You lose the bail if you fail to appear when summoned, and the court can use it for costs and civil liability. The judge may also order you held in jail before trial.

Does being a foreigner mean I will automatically be jailed before trial?

No, being a foreigner or non-resident is not an automatic reason for jail before trial, but courts do count a lack of ties in Spain when judging flight risk. Show your family, work and address to weaken that concern.