Extradition

At Chabaneix Abogados we are specialists in extradition proceedings. Our knowledge of the subject has enabled us to gain experience in extradition proceedings related to countries such as Colombia, Ecuador, Bolivia, Morocco, Algeria, Mauritania, Russia, Ukraine and Romania, in which we have prevented our clients from being extradited.

Extradition is a mechanism that allows one state to hand over a person to another for trial or to serve a sentence. There are two types of extradition: active and passive extradition.

  • Active extradition, when Spain requests another country to extradite a person to stand trial in Spain for a crime committed in Spain, because the offender has fled its jurisdiction.
  • Passive extradition is when another country asks Spain to hand over a person. This type of extradition is subject to more guarantees than active extradition.

It is important to know that when these surrender procedures take place between EU member states, instead of being an extradition, it is technically known as a “European Arrest Warrant (EAW)”. In this case, the principle of mutual trust between member states applies and therefore the EAW has fewer requirements and obstacles than an extradition.

About active extradition:

Active extradition is the procedure whereby Spain requests the surrender of a person to another country with the aim of submitting him or her to judicial proceedings or, where appropriate, to serve a sentence that is pending. Spain can only request the surrender of the following persons:

  • Spaniards who have committed a crime in Spain but then fled to a foreign country.
  • Spaniards who, while abroad, have committed an offense against the external security of the State, and have then fled to another country.
  • Foreigners who must be tried in Spain, but who have taken refuge in a country that is not their country of nationality.


This type of extradition is regulated in articles 824 to 833 of the Spanish Criminal Procedure Law.

About passive extradition:

This type of extradition, in which a third country requests the surrender of a person who is in Spain, is ruled by the Spanish Passive Extradition Law. The general rule is that the extradition of Spaniards is not granted, nor of foreigners when the jurisdiction is that of a Spanish Court. In cases of dual nationality, the “effective nationality” prevails, i.e. the one that has been used for residence, travel, etc.

In Spain, in order to grant an extradition request made by another state, the following principles must be complied with:

  • Principle of legality. Extradition may only be granted on the basis of a law or treaty.
  • Principle of dual criminality. The act motivating the extradition must be punishable both in Spain and in the requester country. This means that, in cases where the crime charged is not classified as such both in the criminal legislation of the requested state and in the Spanish Penal Code, the extradition requested will not be granted.
  • Principle of speciality. Extradition shall be granted only if the person is tried and convicted for the crime for which the extradition order has been issued.


The procedure is initiated, on the part of a third country, through diplomatic channels or through the Ministry of Foreign Affairs or the Ministry of Justice. The state in question requests Spain to hand over a person and accompanies its request with all the documentation necessary for its justification. Once the notification has been received, Spain can order the arrest of the requested person and a period of eight days begins in which the Ministry of Justice has to indicate to the government whether or not to agree to the extradition. It is then that the government must decide whether or not to proceed with the extradition procedure.

Once the Government decides to continue the proceedings, the file is sent to the Central Investigating Court. There, a detention or provisional release order will be issued and the file will be transferred to the Criminal Chamber of the Audiencia Nacional, where a hearing will be held. It will decide whether or not to grant extradition.

Refusal of extradition:

There are many grounds for refusing an extradition request. Some of them are mandatory and others are optional. For example, it is mandatory to refuse extradition in the following cases:

  • Minor offenses. Extraditions cannot be carried out in the case of minor offenses. Thus, where the person is to be tried in the country requesting his or her surrender, the sentence to which he or she could be sentenced may not be less than one year’s imprisonment; and where he or she has already been sentenced and extradition is requested for him or her to serve in that country, the sentence must be at least four months.
  • Political crimes, military crimes and crimes committed by the media in the exercise of freedom of expression. There are certain crimes for which extradition is not granted. Thus, extradition is not granted for political crimes (with the exception of terrorist crimes, crimes involving an attempt on the life of the Head of State or a member of his family, and crimes against humanity such as genocide), military crimes and crimes committed by the media in the exercise of freedom of expression.
  • Spanish judgment or Spanish prosecution. Extradition shall not be granted when the person is being or has been prosecuted in Spain for the same act on which the extradition request is based.
  • Lack of guarantees. Extradition shall not be granted if the State requesting the person does not give assurances that the person will not be executed or subjected to a punishment which would violate his or her physical safety or to inhuman or degrading treatment.

 

On the other hand, the decision on extradition is optional in certain cases, for example:

  • Cases where the purpose of the extradition request is to prosecute a person because of his or her race, religion, nationality and political opinions.
  • If the requested person is under eighteen years of age, and also has his or her habitual residence in Spain, it can be understood that in this case extradition would prevent his or her social reintegration.