What is extradition and how does it work in Spain?
Extradition is the procedure by which one State surrenders a person located in its territory to another State that requests them for investigation, trial, or execution of an already imposed sentence. Within the European Union, the European arrest warrant (EAW) operates, based on mutual recognition between judicial authorities and with fixed time limits; with third countries, classic extradition applies, governed by bilateral or multilateral treaties and by channels that combine judicial and governmental processes. In Spain, passive extradition—when another country requests someone who is here—is centralized in the Audiencia Nacional. It is worth dispelling a widespread error: believing that without a bilateral treaty there is no extradition. This is not the case; Spain extradites even its own nationals. And there is a feature that distinguishes this process from any other: the court does not assess the guilt or innocence of the requested person, but the formal and legal grounds for opposition to surrender.
What can be done before and during arrest?
An extradition process does not necessarily begin with arrest: frequently the requested person knows they are being sought beforehand, and there the defense has significant room to act. Voluntary surrender before the Audiencia Nacional, coordinated with the lawyer, can avoid arrest at a checkpoint and has a positive impact on the subsequent decision on provisional release—an arrest at an airport creates the presumption that the person is fleeing, which negatively influences everything that follows. Once the requested person is arrested, within a maximum of 72 hours a decision is made whether they remain in pre-trial detention or at liberty while the file is processed; at that hearing the defense must quickly demonstrate ties: family, employment, and social connections in Spain.
What are the phases of the extradition process?
The procedure advances through stages with their own deadlines:
- Arrival of the order. Following arrest, the requesting country must formally submit its request with all documentation; subsidiarily, the Passive Extradition Law sets a maximum of 40 days. If it expires without documentation and the requested person was in detention, they are released provisionally.
- Governmental phase. An initial administrative filter: the Foreign Ministry forwards the request to the Justice Ministry, which submits to the Government a proposal on whether the procedure continues through judicial channels.
- Judicial phase in the Audiencia Nacional. The Central Investigating Judge summons an appearance, where the requested person accepts or rejects surrender. If they oppose, the file is elevated to the Criminal Chamber, with written reports from the Prosecutor, the requesting State, and the defense, and an oral hearing.
What are the grounds for opposing surrender?
The defense is built on specific grounds, and knowing them thoroughly is what distinguishes effective defense:
- Double criminality. The act must be a crime in both countries.
- Principle of speciality. One can only be tried for that for which surrender was granted.
- Prescription. If the offense has prescribed in Spain or in the requesting country.
- Non bis in idem. No surrender for acts already tried or pardoned in Spain.
- Political offense. Spain does not extradite for political offenses, with the exception of terrorism.
- Discriminatory persecution. When the request conceals persecution based on race, religion, or political opinion.
- Insufficient guarantees. Risk of death penalty, torture, inhuman treatment, or exceptional tribunal in the requesting country.
- Asylum and international protection. No extradition for those who have recognized refugee status.
Appeals: up to Strasbourg
If the order grants surrender, several avenues of appeal are available: reconsideration before the Full Criminal Chamber of the Audiencia Nacional, nullity of proceedings motion, amparo appeal before the Constitutional Court, and application before the European Court of Human Rights, which may order interim measures to suspend surrender while it examines the case. Once the judicial decision is final, the file returns to the Government: the Council of Ministers may deny surrender for reasons of sovereignty, national security, or public order. Extradition is not only a judicial act, but also a political one. And the principle of speciality continues to protect afterwards: if additional offenses are charged in the destination country, immediate action must be taken with local lawyers.
Common mistakes to avoid
- Believing that without a bilateral treaty you cannot be extradited: Spain extradites even without a treaty.
- Thinking that not opposing extradition is equivalent to being released: these are independent matters.
- Waiting for arrest at a checkpoint or airport instead of considering voluntary surrender.
- Making statements or signing documentation without having first demonstrated ties for the provisional release hearing.
- Neglecting the principle of speciality once surrender has occurred.
Case example
Businessman requested by a third State through an Interpol red notice. After detecting the search before arrest, a voluntary surrender before the Audiencia Nacional is coordinated and ties are demonstrated; the requested person faces the procedure on provisional release while opposition to surrender is articulated on grounds of insufficient guarantees in the requesting State. (Illustrative example)