Extraditions

Extradition may only be requested or proposed:

• Of Spaniards who, having committed a crime in Spain, have taken refuge in a foreign country.
• Of the Spaniards who, having attacked the external security of the State abroad, had taken refuge in a country other than where they committed the crime.
• Of foreigners who should be tried in Spain and have taken refuge in a country other than their own.

The passive extradition procedure consists of three different phases: the governmental, the jurisdictional and the governmental decision phase.

It begins with the request for extradition made by a State, called the requesting state, through diplomatic channels. That is, through the Ministry of Foreign Affairs, or directly by the Minister of Justice of the requesting party to the Spanish Minister of the same class. Once the request is received, the Ministry of Foreign Affairs will forward it to the Ministry of Justice and, if the requested person is not detained, the latter may order the Ministry of the Interior to arrest him. However, normally the beginning of an extradition procedure is marked by the arrest of a person for whom a search and detention order for extradition is pending. Subsequently, the Ministry of Justice, within a period of eight days following receipt of the request, must submit a reasoned proposal to the Government, on whether or not it is appropriate to continue the extradition procedure through judicial means. The Government must adopt the decision within fifteen days, and if the agreement is rejected, the requesting State will be informed, and if the detainee’s imprisonment was agreed, the Judge will release him or her.

If the Spanish Government agrees to continue the procedure through judicial means, it sends the file to the Central Investigative Court of the National Court. If the requested person is not detained, the Ministry of Justice will notify the Ministry of the Interior so that it can carry out preventive detention, draft the report, and within twenty-four hours bring the detainee to justice. The judge agrees to an appearance for the defendant, assisted by his lawyer, interpreter, if necessary, and the Public Prosecutor’s Office. In said appearance, once the detainee has been identified, if he agrees to the extradition and there are no other legal obstacles, the Judge will agree to it within twenty-four hours. If he objects, he may request an extension of the information provided for thirty more days, and in any case, he will resolve what is appropriate, agreeing to the release of the detainee or his imprisonment, elevating the procedure to the Criminal Chamber of the National Court. Once the file is received in the indicated Criminal Chamber of the National Court, within the following fifteen days, a hearing is scheduled, in which, in addition to those previously indicated, the representative of the requesting State may intervene, if it has requested it, following the principle of reciprocity. At the hearing, the defendant gives a statement, and evidence can only be taken in relation to the conditions required by the Treaty or by the Spanish Extradition Law. The Court decides by order three days following the hearing, both on the admissibility of the extradition, and on whether the delivery to the requesting State of the objects seized from the requested person is appropriate. There is only an appeal against this resolution, which must be resolved by the Plenary Session of the Criminal Chamber of the National Court, without any of the Magistrates who issued the appealed resolution being able to be appointed rapporteur. If the decision is negative, the Court orders the release of the requested person and communicates it to the Ministry of Justice, and the latter to the Ministry of Foreign Affairs so that it can be communicated to the requesting State.

Within the European Union, instead of using the term extradition, it is technically known as “European Arrest and Surrender Warrant” or “Euroorder”. In this case, the States start from a “mutual trust” given that they all belong to the European Union, and therefore the “Euroorder”, in principle, has fewer requirements and obstacles than an extradition.

Within the European Union, instead of using the term extradition, it is technically known as “European Arrest and Surrender Warrant” or “Euroorder”. In this case, the States start from a “mutual trust” given that they all belong to the European Union, and therefore the “Euroorder”, in principle, has fewer requirements and obstacles than an extradition.

Avoiding extradition is possible. The system established in the Passive Extradition Law is the mixed one, as specified in the BOE. That is, extradition is requested from the Ministry of Justice, which submits it to the Government of the nation to decide whether or not to continue the procedure through judicial means. If the Government agrees, the judges will declare the admissibility or inadmissibility of the extradition. If it is declared inadmissible, it cannot be granted; On the other hand, if it is declared appropriate, the Government can deny it.

Extradition may be denied in the following cases:

• Principle of reciprocity: It refers to the idea of ​​responding with the other state as it has responded with the Spanish State in similar requests.
• Principle of legality: Extradition should only be granted for crimes expressly included in the Law, or not be granted for those expressly excluded.
• Specialty principle: According to this principle, the extradited person can only be tried and convicted for the crimes on which the extradition request was based.
• Principle of double criminality: The facts that motivate the extradition request must be a crime according to the legislation of both States, requesting and requested.
• Principle of denial of extradition for minor crimes that cannot be prosecuted ex officio.
• Principle of denying extradition for political and military crimes.
• Principles of commutation (of the death penalty, if provided for in the legislation of the requesting State) and of not subjecting the extradited person to inhuman penalties.
• Principle of non-surrender of the national or the asylum seeker.
• Principle of submission to ordinary jurisdiction—and not to exceptional courts.
• “Non bis in idem” principle, by which extradition is not granted for crimes already tried or being tried in Spain.
• Likewise, extradition may be denied when it is reasonably suspected that extradition has been requested to persecute or punish a person for reasons of race, ideology, etc. Also, when the person sought is under eighteen years of age, he has his habitual residence in Spain and it is considered that extradition may prevent his reintegration.