In the field of Criminal Law, terms are often used that, although they share the objective of limiting the freedom of a person subject to judicial proceedings, have very different legal, practical and personal implications. Two of the concepts that generate the most confusion are house arrest and preventive detention (or provisional imprisonment). Understanding the distinction between these two precautionary measures is crucial for anyone involved in criminal proceedings and requires expert advice. At ActumAdvocats, your law firm in Girona, we offer you the knowledge and experience necessary to guide you in these complex situations.

Defining precautionary measures

Both house arrest and preventive detention are precautionary measures of a personal nature. This means that they are judicial decisions adopted before the trial and a final sentence, with the main objective of ensuring the presence of the accused in the process, avoiding the destruction of evidence or preventing recidivism. Both involve a restriction of freedom, but their nature and impact vary substantially.

1. Preventive detention (or provisional imprisonment)

Preventive detention is the most severe and restrictive personal precautionary measure. It consists of the admission of the accused to a penitentiary center. It is regulated by the Criminal Procedure Law (LECrim) and can only be applied when there are sufficient reasons to believe in the commission of a serious criminal act and when other less harmful measures are not sufficient to achieve the precautionary purposes.

The requirements for the application of provisional imprisonment are strict and are mainly based on:

• The risk of flight.
• The risk of obstructing the investigation (destruction of evidence).
• The risk of recidivism.

This measure implies the total loss of ambulatory freedom and isolation from the family and social nucleus, being carried out under a regime of penitentiary discipline.

2. House arrest (or house arrest)

House arrest, on the other hand, is configured as an alternative to provisional imprisonment, being a considerably less harmful measure. It consists of restricting the freedom of the accused to their home or another place designated by the judge. This measure allows the person under investigation to maintain a certain proximity to their family environment and a minimum continuity with their daily life, although under strict surveillance, which often includes electronic devices (such as telematic bracelets).

House arrest can be ordered when the precautionary objectives (risk of flight, etc.) can be guaranteed without the need for imprisonment, especially when there are personal circumstances such as serious illnesses, advanced age, or responsibilities to care for minors or dependents, or when the crime is not very serious.

Key differences: environment and restriction

The fundamental difference lies in the place of deprivation of liberty.

• Preventive detention: It is carried out in a penitentiary center under a disciplinary regime.
• House arrest: It is carried out in the home or designated place, a personal environment that reduces psychological distress and maintains family and social contact.

This distinction, which may seem purely physical, has a profound impact on the life of the accused and demonstrates the principle of least harm, by which judges must always opt for the measure that least affects the fundamental rights of the person.

The role of the criminal lawyer

When deciding to apply any of these precautionary measures, legal assistance is absolutely essential. An expert criminal lawyer must intervene from the very beginning to:

1. Argue against provisional imprisonment and request less restrictive measures, such as bail or house arrest.
2. Present solid allegations based on the specific case and the personal circumstances of the accused.
3. Appeal the provisional imprisonment order.

At ActumAdvocats in Girona we are specialists in Law and we are aware of the hardship that provisional imprisonment entails. Our priority is to defend your freedom using all legal instruments at our disposal. Whenever possible, the application of house arrest or freedom with alternative measures, ensuring that your rights are respected to the maximum. If you are facing a criminal proceeding where your freedom is at stake, our experience is your best ally.