Types of extradition
a) Passive extradition is the one in which a judge from another country requests the Spanish authorities to hand over a citizen, either to try him or her or to serve a sentence.
b) Active extradition would be the opposite case, in which a Spanish judge asks another country to hand over a person.
Taking into account the interests at stake, the extradition process must comply with certain guarantees in order for Spain to agree to the request or for another country (United States, Canada, China, Russia, etc.) to agree to send a person to Spain. The job of a specialised lawyer is to verify whether all the requirements are met, otherwise the extradition will have to be refused and the person will not be sent to the other country.
Principle of legality
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.
Principle of reciprocity
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.
Principle of dual criminality
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.
Principle of speciality
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.
Non-extradition of nationals
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.
Spain will not agree to extradite persons wanted for minor offences
Statute of limitations of the offence or penalty
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.
Court of exception, inhuman or degrading treatment
“Non bis in idem”
Persecution on grounds of race, religion, political opinion or nationality
The arrest in Spain of a citizen wanted by another country can occur as a result of any common procedure, e.g. when identifying oneself in a hotel, when boarding a train or plane, when being identified at a routine checkpoint, etc.
– 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.
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.
|Provisional Prison||40 days|
|Formal submission of extradition request and documentation||40 days|
|Ministry of Justice submits a reasoned proposal to the Government on whether or not to continue the proceedings in judicial proceedings||8 days|
|Government adopts its decision||15 days|
|In case the Government does not decide, deadline for the Ministry of Justice to do so||3 days|
|Request for additional information from complainant country||30 days|
|Appointment of hearing after the Pre-Trial Period||15 days|
|Final decision of the Court||3 days|
|In case extradition is accepted, a date and place for surrender is set, release if the requesting country does not present itself||15 days + 15 days|