Employment of Control Guards (porteros)

[Lawbird Lawyer]

You're welcome Patrick.

Regards,

[patoc]

Raymundo,

Some quick developments on this subject. The President of an adjoining urbanisation who I have been speaking to, had a Meeting with the Administrator today ( the same one that looks after our urbanisation) and the subject of employing "porteros" came up again. He passed on what you had said and received the following responses.

The Adminisrator said that in Spain it is illegal to have anybody patrolling the urbanisation pretending to be Security guards when they are not. The President explained that they were not security guards but purely there for assisting the owners etc. He said this is not the case and any judge would say they are acting as security guards and therefore illegal.
Can this be true ? What is the difference between "patrolling" and just walking around for example ? How can he define "pretending" ?

The Administrator went on to say that a Portero is for blocks of Apartments not properties like ours (we have a mix of Apartment blocks, town houses and villas), as a Portero can ONLY be on private land. In our case they would have to walk on the main pavements/roads which are public and therefore have to be licenced by the town hall and Government. Again I find this hard to believe withn so many urbanisations using Companies like this - any comments?

The Administrator said the only way we can have security is by a national security firm which are, as we know, twice the price. From local feedback the local Companies are also totally useless.

From what you have been Raymundo, a portero does not have to be licenced as a security Company. Is our Administrator correct in saying that as long as they are on Private land then it is ok but not if they have to walk on public roads (which they mustb in our urbanisations). If so is their any other licence / permission needed from the Town Hall ?

He also says that a a similar urbanisation to ours employed a similar "portero" company Pratorian and were fined 30,000 euros for using an unlicensed security company, and reminded us of the liabilities of the President. Do you think this can be true, and if so what were they likely to be fined for ?

I keep coming back to the fact that 20 other urbanisations employ this Company with 100% satisfaction and no problems - do you thing the Administrator is being over cautious ?Might he be scare mongering?

Again any assistance you can give, particularly on HOW we should engage such a Company, would be very much appreciated on this important issue ..... many, many owners want to see a cost effective solution put in place but the Administrator seems dead against it.

Regards

Patrick O'Connell

[Lawbird Lawyer]

I keep coming back to the fact that 20 other urbanisations employ this Company with 100% satisfaction and no problems - do you thing the Administrator is being over cautious? Might he be scare mongering?

The cynic in me would say he may be being offered an "incentive" by a sec company but he's probably just being overcautious.

I really do not see what he's rambling on. The people who you hire to patrol the grounds cannot have any type of weapon such as a gun or a baton. To bear a gun in a holster you need to have a special licence. i.e. a proper licenced security guard

Thre is no problem in you hiring porteros to do surveillance and janitor duties so long as its clear they cannot detain anyone nor carry any type of weapon.
If all developments had to hire state-of-that-art security then setting up a security company would be a fantastic business.

Regards,

[patoc]

Raymundo

Many thanks again for your quick, helpful response

Regards
Patrick O'Connell

[patoc]

Raymundo

One final question to be absolutely clear - in my previous note I said that if this Company did see someone breaking into a property, their brief is to call the police and if need be restrain the person using "Citizens power of arrest". I understand "Citizens power of arrest" is the same in Spain as the UK - can you confirm exactly what they can / cannot do in these circumstances please ?

Many thanks again
Patrick O'Connell

[Lawbird Lawyer]

Dear Patrick,

You're welcome.

In my last post above I've written they cannot detain anyone.

Your portero has no "citizen power of arrest". What he must do is act as a deterrant and if he happens to catch someone red handed he must phone the police so that they deal with the intruder.

Only licenced security guards could arrest for example a thief. They carry handcuffs with them for this purpose.

Regards,
Raymundo LarraÃ*n Nesbitt

[patoc]

Raymundo

I am confused now. I was under the impression that any private citizen can make a "Citizen's arrest" . I found a few articles earlier ; a global definition -

" an arrest made not by a law officer but by any citizen who derives the authority to arrest from the fact of being a citizen. Under common law, a citizen may make an arrest for any felony actually committed, or for a breach of the peace committed in his or her presence."

When I looked at another Spanish web site I also read

"1. Arrest
An individual can be arrested either before a criminal proceeding is initiated, during prosecution or once it is completed.

1.1. How long may the arrest last?
The detained must either be released or brought before a Judge within 24 hours from the arrest.

If you are detained in custody you may be held in a police cell for up to 72 hours, then you must either be released or brought before a Judge.

1.2. Who may arrest the offender? under which circumstances?
A private citizen may arrest the offender:

•Should the offender intend to commit an offence.
•When the citizen sees suspicious activity, or knows that a crime is being committed.
•Where search order is issued against the defendant for contempt.
•Where the convicted is escaped from prison.
It is the police's duty to arrest the person who is under any of the circumstances described above.

The Spanish Constitution prohibits arbitrary arrest.

1.3. Your rights as a detained person
If you are detained, be aware that you must be informed in a language that you understand and in detail of the nature and cause of the accusation against you.

Your rights as a detained person are guaranteed under Article 17 of the Spanish Constitution:

•You have the right to remain silent and not plead guilty of the offence you are charged with.
•You may appoint a private Lawyer and have that Lawyer during questioning. If you do not appoint a lawyer or cannot afford him, one will be assigned by the court.
•An interpreter must assist you if you cannot understand or speak Spanish.
•You have the right to be examined by the Court Doctor.
•The Consulate office of your home country in Spain must be informed about your arrest.
The judge may determine in specific cases no communication with the detained person, and thus he cannot inform his family about his arrest, the Lawyer will be then assigned ex officio.

These are only general guidelines and not definitive statements of the law, all questions about the law's applications to individual cases shall be directed to a Spanish lawyer."


Under section 1.2 above then surely anyone, including a portero who is also a private citizen, who witnesses a crime being or about to be committed can hold someone until the police arrive ? Obviously you have to be very careful and not make arbitrary arrests or breach the rights of the offender, otherwise the private citizen could be arrested I understand.

Regards
Patrick O'Connell

[kala]

They are employed on urbanisations as Porters (Portero) or Caretakers...Thank you for your swift reply....