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.
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.
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:
This type of extradition is regulated in articles 824 to 833 of the Spanish Criminal Procedure Law.
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:
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.
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:
On the other hand, the decision on extradition is optional in certain cases, for example: