Extradition lawyers

It guarantees that extradition of a citizen will only be granted on the basis of a law or treaty in force and for one of the offences listed therein.

In Spain there are several laws that regulate the extradition process: the Spanish Constitution of 1978, the Passive Extradition Law of 1985, the European Convention on Extradition of 1957, as well as more than a hundred bilateral treaties signed with third countries.

There are occasions when extradition is requested for offences not included in the law or in the treaty, and therefore extradition should be refused.

For Spain to agree to extradite a citizen, it is required that the requesting country also agrees to extradite citizens to Spain. This reciprocity must be verified in the domestic legislation of the country requesting extradition or through an undertaking included in the request.

There are numerous countries that include the non-extradition of nationals clause in their Constitution, which will affect a request for the extradition of Spaniards, as Spain will not extradite a citizen if the requesting country does not agree to extradite Spain either.

The offence for which a citizen is requested must be a crime in both countries, in the requesting State and in Spain.

This is a very important requirement to verify as there are numerous cases in which the requirements of the offence are different. For example, in many countries there is no income tax and therefore there can be no income tax fraud. In other countries, it is an offence to provide confidential banking information to the Treasury and in Spain it is not, indeed it may be a mitigating factor.

This means that surrender will only be granted on condition that the person is tried and convicted for the offences expressly authorised by Spain, i.e. for the offences for which the extradition order has been issued. This condition is essential and is a guarantee for the citizen that there will be no trial with surprise accusations.

When the State requesting extradition wants to prosecute for offences other than those for which the person was extradited, it must request an extension of extradition.

In this respect, the Spanish Passive Extradition Law states that extradition of nationals will not be granted. However, what is established in the bilateral treaty between Spain and the requesting country, if such a treaty exists, will be fundamental.

In any case, nationality will be assessed taking into account that it was not acquired for the fraudulent purpose of making extradition impossible.

In this regard, Spain will not grant extradition for acts for which the laws of Spain or the requesting State set sentences of less than one year’s imprisonment.

Extradition will not be granted for political offences (except for terrorist offences, offences 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 offences and offences committed by the media in the exercise of freedom of expression.

Another mandatory ground for refusal is the extinction of criminal liability under Spanish law or that of the requesting State.

In this respect, it is essential that the specialised lawyer is fluent in the language of the country (USA, Canada, Australia, Russia, etc.) and in Spanish in order to be able to analyse the regulations of both countries.

Extradition will also not be granted when the person sought is to be tried by an exceptional court or when the requesting State does not give a guarantee that the extradited person will not be executed or subjected to inhuman or degrading treatment.

Spain will not extradite persons who have asylum status. In cases where asylum has not been recognised, this does not preclude the refusal of extradition on any of the other grounds.

Similarly, Spain will not agree to extradition in cases where the person has already been tried or convicted for the same acts for which surrender is requested.

Spain may refuse extradition where there are substantial grounds for believing that the extradition request, motivated by an offence of an ordinary nature, has been made for the purpose of prosecuting or punishing a person on account of race, religion, nationality or political opinions. The same applies in cases where the person’s situation is at risk of being aggravated for these reasons.

If the requested person is under eighteen years of age at the time of the extradition request and is habitually resident in Spain, extradition may be refused without prejudice to the adoption of other measures.

In this phase, the requesting country will send the Spanish government, through the Ministry of Foreign Affairs, the necessary documents to initiate the procedure. The requesting country will have 40 days to present the following documents in due form:

– The conviction or indictment and imprisonment order.
– The identity, nationality and residence details of the requested person. It must be accompanied by a photo and fingerprints.
– A copy of the regulations applicable to the case, including the applicable penalty. If the act is punishable by death or a penalty that is injurious to health or degrading, the requesting State must give assurances that it will not be applied.
– Original documents or certified true copies and official translations.
– In case of urgency, detention may be requested as a preventive measure.

Once the request has been received, it is forwarded to the Ministry of Justice. A period of 8 days is given to submit the proposal for continuation of proceedings. In turn, the Government must take the decision within 15 days. If the Government has not taken a decision within this period, the Ministry of Justice will take a decision on its behalf within three days of the expiry of this period.

The file will be forwarded to the Central Examining Magistrate of the Audiencia Nacional (National High Court). The judge will order the appearance of the defendant, who must be assisted by his lawyer and, if necessary, an interpreter.

At this point, the requested person must consent to or oppose extradition. If he objects, the lawyer must submit in writing the reasons for refusing the request.

The examining magistrate will refer the case file to the Chamber of the National High Court and set a hearing to discuss the grounds for refusing extradition. The hearing will be attended by the defence counsel, the public prosecutor and, when appropriate, the representative of the requesting State.

The requested person will make a statement and the appropriate evidence will be taken. After the hearing, the Court will issue its decision granting or refusing extradition. Only an appeal may be lodged against this decision, which will be resolved by the Plenary of the Criminal Chamber of the Audiencia Nacional.

If the decision is negative and the defendant is in prison, he/she will be immediately released.

If the decision declares the extradition to be admissible, it will be sent to the Ministry of Justice.

The Government will decide on the surrender of the requested person and will set a specific date and place. If the requesting State fails to receive the requested person within fifteen days of the date set, he or she may be released. In any event, if thirty days have elapsed since the date, he or she shall be compulsorily released.