Extradition in Spanish Law

Posted on Sep 7, 2024 in Law & Jurisprudence

Extradition

Definition

Extradition is an international agreement where one state (the requested state) surrenders an individual (the subject) to another state (the requesting state) to face prosecution or serve a sentence. This agreement is fundamentally different from deportation, where an individual is expelled from a territory without any legal obligation for another state to accept them. In deportation, the expelling state relinquishes its right to prosecute the individual, and no other state acquires that right.

Types of Extradition

  1. Active Extradition: The requesting state initiates the extradition process to seek the return of an offender.
  2. Passive Extradition: The requested state receives the extradition request and decides whether to surrender the offender.
  3. Extradition in Transit: A state grants permission for an extradited individual to be transported through its territory.
  4. Re-extradition: A state that has granted extradition receives a request from another state seeking to try the same individual. Authorization from the first requesting state is required for re-extradition.

Classification of Extradition

Based on Governing Sources:

  1. Extradition by Law: Extradition rules are enshrined in domestic legislation.
  2. Extradition by Convention: Extradition rules are established through bilateral or multilateral treaties. In Spain, the Extradition Act governs passive and internal extradition, supplemented by treaties with various countries. In the absence of an international treaty, internal legislation applies.

Based on Implementing Authority:

  1. Governmental Extradition: The government solely handles the extradition process.
  2. Judicial Extradition: The courts are solely responsible for implementing extradition.
  3. Mixed Extradition: Both the government and the courts are involved in the extradition process. In Spain, the National Court plays a crucial role by providing a technical report to determine the applicability of extradition based on international treaties and the Extradition Act.

Extradition in Spain

Active Extradition

Governed by Articles 824 onwards of the Law of Criminal Procedure, active extradition involves two phases:

  1. Judicial Phase: The process begins with the judge or court hearing the case, either automatically or upon the prosecution’s proposal. They request the government, through the Ministry of Justice, to seek the subject’s extradition from the foreign government.
  2. Government Phase: Upon receiving the request, the government, exercising its sovereignty, decides whether to request extradition. If approved, the request is submitted to the concerned government. The final decision rests with the foreign government, subject to their domestic laws and international agreements.

Passive Extradition

Spain receives the extradition request and decides whether to grant it. The procedure is outlined in the Law on Passive Extradition of March 21, 1985, and specific legislation for European extradition. The 1985 Act applies to countries outside the Schengen Area. Like active extradition, it involves two phases:

  1. Judicial Phase: The requesting government submits the extradition request to the Spanish government, which forwards it to the National Court. The court prepares a technical report, considering international treaties and the Passive Extradition Act, to determine if extradition is permissible. The court issues a binding order (not a ruling) based on legal grounds. While the government can grant extradition even if the court denies it, the reverse is not possible.
  2. Government Phase: After receiving the court’s order, the government makes the final decision. Even with a positive court order, the government can refuse extradition based on sovereignty, reciprocity, internal security, humanitarian reasons, public order, or other grounds stipulated in Article 6 of the Law on Passive Extradition. This decision is final and cannot be appealed.

European Arrest Warrant

The European Arrest Warrant, ratified in 2002 and applicable to most European countries, governs extradition within Europe. This system aims to expedite the process and remove legal barriers. The goal is to complete the extradition within a month, significantly faster than the traditional process, which could take up to three years.

The process is streamlined through fax, video conferencing, and simplified formalities. Typically, a search and seizure warrant is issued, and upon apprehension, the Spanish authorities are notified for delivery. The detainee is informed about the surrender request and can either accept or contest it. They can choose a fast-track delivery within 15 days (surrender to the specialty) but cannot contest extradition for crimes with sentences less than one year or four months. Refusal to fast-track delivery leads to the standard extradition procedure, which takes considerably longer.