Extradition

Understanding Extradition in Spain: What you need to know

Carlos Bautista has been a prosecutor for 32 years, 20 of which were at the National Court. Since 2005, he has been the Chief Prosecutor for Extraditions and European Arrest Warrants (EAWs), having supervised over 1000 extradition and EAW proceedings. He is the absolute reference in Spain for Extradition and EAWs and is the author of the most important manual on the subject: “Passive Extradition Procedure” published by SEPIN.

Navigating extradition can be daunting. Whether facing cross-border legal issues or seeking to understand extradition law, it’s crucial to grasp the procedures and implications. This guide offers a comprehensive overview of extradition in Spain, covering key aspects and processes, and highlighting the importance of a qualified extradition law firm such as Chabaneix Abogados Penalistas.

Chabaneix Abogados: Specialists in Extradition Proceedings in Spain

At Chabaneix Abogados, we specialize in extradition proceedings. Our extensive knowledge has enabled us to gain experience in extradition cases involving countries such as Colombia, Ecuador, Bolivia, Morocco, Algeria, Mauritania, Russia, Ukraine, and Romania. We have successfully prevented our clients from being extradited in many of these instances. With a proven track record in handling complex international legal matters, we ensure our clients receive expert representation in all aspects of extradition law.

What is Extradition?

Extradition is a mechanism that allows one state to hand over a person to another for trial or to serve a sentence. In the context of the European Union, the extradition process between member states is referred to as a European Arrest Warrant (EAW). This system operates on the principle of mutual trust and has fewer requirements compared to traditional extradition.

Types of Extradition in Spain

There are two types of extradition in Spain: active and passive. 

Active Extradition

Active extradition is the judicial procedure where Spain requests the surrender of a person from another country to face judicial proceedings for a crime committed in Spain or to serve a pending sentence. Spain can request the surrender of:

• Spaniards who have committed a crime in Spain and fled to another 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 have taken refuge in another country.

This type of extradition is regulated by articles 824 to 833 of the Spanish Criminal Procedure Act.

Passive Extradition

Passive extradition is the procedure whereby another country requests Spain to surrender a person. This process is governed by the Spanish Passive Extradition Law. Generally, Spain does not grant the extradition of its citizens or foreigners when the jurisdiction is under a Spanish court. In cases of dual nationality, the “effective nationality”—the one used for residence, travel, etc.—takes precedence.

For Spain to grant an extradition request from another state, the following principles must be adhered to:

• Principle of Legality: Extradition can only be granted based on a law or treaty.
• Principle of Dual Criminality: The act prompting the extradition must be punishable in both Spain and the requesting country. If the crime is not recognized as such in both jurisdictions, the extradition will not be granted.
• Principle of Speciality: Extradition will be granted only if the person is tried and convicted for the specific crime mentioned in the extradition request.

The Passive Extradition Proceeding Process

The procedure for passive extradition is initiated by a third country through diplomatic channels, the Ministry of Foreign Affairs, or the Ministry of Justice. The requesting state submits all necessary documentation to justify the extradition. Upon receiving the notification, Spain can order the arrest of the requested person. The Ministry of Justice then has eight days to inform the government whether to proceed with the extradition.

If the government decides to continue, the case file is sent to the Central Investigating Court. This court will issue a detention or provisional release order and transfer the file to the Criminal Chamber of the Audiencia Nacional. A hearing will then be held to decide whether or not to grant the extradition. 

Refusal of Extradition

Extradition requests can be refused on several grounds, some mandatory and others optional:

Mandatory Grounds for Refusal of Extradition

There are several mandatory grounds for refusing an extradition request. These include:

• Minor Offenses: Extradition cannot be carried out for minor offenses. The person must be facing a potential sentence of at least one year’s imprisonment if tried in the requesting country, or already have a sentence of at least four months if extradition is requested for serving the sentence.
• Political, Military, and Media Crimes: Extradition is not granted for political crimes (except terrorist crimes, crimes against the Head of State or their 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 Prosecution: Extradition will not be granted if 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 will be refused if the requesting state does not guarantee that the person will not be executed or subjected to inhumane or degrading treatment.

Optional Grounds for Refusal of Extradition

In certain cases, the decision to refuse extradition is optional. These cases include:

• Persecution Based on Race, Religion, Nationality, or Political Opinions: Extradition can be refused if it is believed that the request is made to prosecute a person because of their race, religion, nationality, or political opinions.
• Minors: If the requested person is under eighteen years of age and has their habitual residence in Spain, extradition may be refused to prevent hindering their social reintegration.

Spain Extradition Treaties: An Overview

Spain has extradition treaties with various countries, which outline the procedures and guarantees for extradition. These treaties play a crucial role in the extradition process and ensure that requests are handled in accordance with international and domestic law.

Navigating the complexities of extradition law requires expertise and a thorough understanding of the legal landscape. At Chabaneix Abogados, we provide comprehensive legal support to guide you through extradition proceedings. With our extensive experience and specialized knowledge, we are well-equipped to protect your rights and ensure a fair process.

If you need assistance with an extradition matter, don’t hesitate to contact us. Let our team of skilled extradition lawyers provide the expert representation you need.