Active extradition is when Spain requests another state to surrender a person; passive extradition is when Spain receives a surrender request from another country. Passive extradition, the form that affects anyone on Spanish soil, is governed by Law 4/1985 of 21 March on Passive Extradition; active extradition by articles 824 and following of the Criminal Procedure Act (Ley de Enjuiciamiento Criminal, LECrim). They are two sides of the same surrender, but the applicable law and, above all, the deciding authority change. Knowing which one you face is the first step, because it defines where the defence is fought.
This article explains the Spanish framework, not extradition as defined in the UK, the US or any other system. If you are a foreigner connected to a request involving Spain, these are the rules that apply.
What extradition is and its two forms
Extradition is the surrender of a person from one state to another to be tried or to serve a sentence. Active and passive are not two different procedures but the same surrender seen from each side: what is active extradition for the requesting country is passive extradition for the country receiving the request. The distinction is not academic. It determines which rule applies, which authorities act and what the defence can do at each stage. For the step-by-step process (stages, deadlines, appeals), see the guide to the extradition procedure in Spain.
Passive extradition: when Spain receives the request
This is the most common form in practice. It is often triggered by an Interpol red notice leading to the arrest in Spain of a person wanted by another country. Law 4/1985 sets its requirements, safeguards and grounds for refusal, and reserves the decision to a mixed system: a judicial phase and a governmental phase. It is the form that affects whoever is physically in Spain.
Active extradition: when Spain requests a surrender
There is active extradition when a Spanish court asks another state to surrender an accused or convicted person who has fled abroad. It is initiated by the court hearing the case and channelled through the Ministry of Justice (art. 831 LECrim). The law requires a precondition: a reasoned detention order, or a final judgment against the person sought (art. 824 LECrim).
Article 826 LECrim limits who Spain may request: Spaniards who, having committed an offence in Spain, have taken refuge abroad; Spaniards who, having attacked the external security of the State abroad, have fled to a country other than where they offended; and foreigners who, having to be tried in Spain, have taken refuge in a country other than their own. Its success depends largely on whether a treaty exists with the country of refuge, or on reciprocity, a point that connects with the list of countries without an extradition treaty with Spain. For British readers, the practical question of does Spain extradite to the UK turns on exactly this treaty-and-reciprocity logic.
The legal framework of each: the hierarchy of sources
Extradition is not governed by domestic law alone. There are several layers, and the order matters.
The foundation is article 13.3 of the Spanish Constitution: extradition shall be granted only in compliance with a treaty or the law, in accordance with the principle of reciprocity, and political offences are excluded from it, with acts of terrorism not regarded as political offences. That constitutional rule orders everything else.
From there, the hierarchy of sources for passive extradition is clear. Law 4/1985 itself states that it applies except as expressly provided in treaties (art. 1): in other words, it is subsidiary. The treaty governs first; failing that, domestic law, always under the principle of reciprocity. Above bilateral treaties sits, for much of Europe, the European Convention on Extradition signed in Paris on 13 December 1957, which Spain ratified in 1982. For active extradition, article 827 LECrim sets the same order from the Spanish side: extradition is requested in the cases provided by the treaties in force with the country where the person is located; failing that, under the law of the requested state; and, in the absence of both, under the principle of reciprocity.
| Layer | What it adds | Rule |
|---|---|---|
| Constitutional | Extradition only by treaty or law, with reciprocity; political offences excluded | art. 13.3 Constitution |
| European Convention | Common framework for classic extradition among States parties | Paris Convention of 13 Dec 1957 |
| Bilateral treaties | Specific regime with a particular country | Applicable treaty |
| Domestic passive law | Applies in the absence of a treaty, with reciprocity | Law 4/1985 (art. 1) |
| Domestic active law | How and whom Spain requests | arts. 824 ff. LECrim |
Classic extradition vs the European Arrest Warrant
Within the European Union, classic extradition has been replaced, between member states, by the European Arrest Warrant (EAW; in Spanish, orden europea de detención y entrega). In Spain it is regulated by Law 23/2014 of 20 November on the mutual recognition of criminal decisions in the European Union, which transposes Framework Decision 2002/584/JHA. It is not an extradition processed under Law 4/1985: it is a mechanism of direct surrender between judicial authorities, faster and with fewer governmental filters. Its most relevant consequence for the individual is that it has significantly relaxed the rule against surrendering nationals that applies in classic extradition. So when the request comes from another EU country, it is not extradition but an EAW, and that is worth knowing from the outset. For readers in the UK, note that since Brexit the UK is no longer part of the EAW system, so a request to or from the UK runs through extradition channels rather than the EAW.
Requirements: what is needed for extradition to proceed
Not every request succeeds. As a rule, three things must come together:
- Sufficient gravity of the offence. There is no extradition for minor offences. Law 4/1985 requires that the act be punishable by a custodial penalty whose maximum duration is not less than one year where the person is sought for prosecution; and, where the person is sought to serve a sentence, that at least four months of a custodial penalty remain to be served (art. 2).
- A judicial decision behind the request. A detention order or a final judgment. In active extradition, the LECrim requires it expressly (art. 824).
- Compliance with the principles set out below.
Key differences between active and passive extradition
The distinction is clearest in a table:
| Feature | Active extradition | Passive extradition |
|---|---|---|
| Spain’s role | Requesting state: asks for surrender | Requested state: decides whether to surrender |
| Applicable law | Articles 824 ff. LECrim | Law 4/1985 of 21 March |
| Who decides | The court investigating the case | The Audiencia Nacional (judicial phase) and the Government (governmental phase) |
| Who it affects | A person who has fled abroad | A person on Spanish soil |
| Purpose | Bring the person to justice | Safeguard their rights before surrender |
| Mechanism within the EU | Replaced by the EAW (Law 23/2014) | Replaced by the EAW (Law 23/2014) |
Principles governing all extradition
Both forms share principles that are, in practice, the main lines of defence:
- Dual criminality: the act must be an offence both in Spain and in the other country.
- Speciality: the surrendered person may be tried only for the acts that justified surrender, not for others.
- Legality and reciprocity: extradition is granted only in compliance with a treaty or the law, in accordance with reciprocity (art. 13.3 Constitution).
- Non-surrender of nationals in certain cases: as a rule Spain does not surrender its own nationals (a point relaxed within the EU by the EAW).
- Exclusion of political offences, with acts of terrorism not regarded as such (art. 13.3 Constitution).
When extradition is refused: excluded offences and grounds for refusal
A request arriving does not mean it will be granted. Law 4/1985 sets out situations in which passive extradition is not granted, and this is where much of the defence is concentrated. It helps to distinguish those that apply automatically from those the system weighs case by case.
Grounds the law imposes (extradition is not granted):
- Where a Spanish national is sought, or for acts that fall to be tried by the Spanish courts (art. 3).
- Where the offence is political in nature, with acts of terrorism not regarded as such (art. 4).
- Where the offence is a military offence, or one committed through the media in the exercise of freedom of expression, on the terms of the law (art. 4).
- Where the person has already been tried in Spain for the same facts (non bis in idem) or criminal liability has been extinguished, for example by limitation (art. 4).
- Where the person has been granted asylum status (art. 4).
- Where there are no sufficient guarantees that the death penalty will not be carried out, or that the person will not be subjected to inhuman or degrading punishment or treatment (art. 4).
Grounds weighed case by case (extradition may be refused):
- Where there are grounds to believe the request conceals persecution on account of race, religion, nationality or political opinion, or that the person’s situation may be aggravated for those reasons (art. 5).
- Where the person is a minor habitually resident in Spain and surrender could harm their social reintegration (art. 5).
How these grounds are raised inside the process (filings, stages, deadlines) belongs to the extradition procedure guide; here the focus is the “what”, not the “how”.
Who is involved in each
The allocation of roles differs in each form, and it is exactly what you most need to be clear about.
In the passive form, three levels act. The judicial phase falls to the Audiencia Nacional (the National High Court): the Central Investigating Court processes the case and the Criminal Chamber rules on whether surrender is appropriate. The governmental phase falls to the Government, which takes the final decision and may decline to surrender even where the court found it appropriate (art. 6). Administrative channelling and the diplomatic route run through the Ministry of Justice and the Ministry of Foreign Affairs. It is a mixed system: a court finding surrender appropriate does not exhaust the decision, because the Government has the last word in its phase.
In the active form, the leading role belongs to the court hearing the case, which is competent to request extradition (art. 828 LECrim) and channels it through the Ministry of Justice (art. 831). Knowing which form you face defines who decides and, therefore, where and how the defence is fought.
The lawyer’s role
Extradition is often won or lost in the initial classification: identifying whether you face a passive case, an active one or an EAW, and which ground for refusal fits your situation. A criminal lawyer assesses from the first moment whether dual criminality is met, whether the offence could be political in nature, whether the penalty sought reaches the legal threshold and whether there is a risk to your fundamental rights in the requesting country. If you are connected to the UK, the starting question of does Spain extradite to the UK is answered through this same treaty-and-reciprocity analysis.
A practical example
Consider an illustrative case. A foreign national is arrested at a Spanish airport following an Interpol red notice: a third country seeks them for prosecution over an economic offence. This is passive extradition, to be resolved by the Audiencia Nacional and, in its phase, the Government. The defence examines whether the act is also an offence in Spain (dual criminality), whether the penalty reaches the threshold of article 2 of Law 4/1985, and whether there are signs that the request conceals persecution on political grounds. This is a hypothetical example, but it reflects the typical situation: what decides the outcome is not the substance of the offence but whether the requirements are met and no ground for refusal applies.
Frequently asked questions
If I am in Spain, which type of extradition affects me?
Passive extradition: another country asks Spain to surrender you. It is governed by Law 4/1985, processed by the Central Investigating Court, ruled on by the Criminal Chamber of the Audiencia Nacional, and the Government takes the final decision in its phase.
How does extradition differ from the European Arrest Warrant?
Classic extradition is processed with a country outside the EU, under Law 4/1985 and the treaties, with a governmental phase in which the Government decides. The EAW (Law 23/2014) operates between EU states as direct surrender between judicial authorities, faster and without that governmental phase.
On what grounds can extradition be refused?
For political offences (not terrorism), military offences, because the person is a Spanish national or the facts fall to Spain, because they have already been tried for the same facts, by limitation, because they hold asylum status, or for lack of guarantees against the death penalty or inhuman treatment (art. 4 Law 4/1985). It may also be refused where there is a risk of persecution on account of race, religion, nationality or political opinion (art. 5).
Can Spain extradite a Spanish national?
In classic extradition, as a rule the limit on surrendering nationals applies (art. 3 Law 4/1985). Within the EU, the EAW has significantly relaxed that rule.
Do I need a treaty to exist for Spain to extradite or to request?
Not always. The treaty governs first; failing that, domestic law applies in accordance with the principle of reciprocity (art. 13.3 Constitution and art. 1 Law 4/1985). Whether a treaty exists with a given country is decisive, and that point is addressed on the firm’s page about countries without an extradition treaty with Spain.
What penalty threshold is required?
To request someone for prosecution, the act must be punishable by a custodial penalty whose maximum duration is not less than one year; to request them to serve a sentence, at least four months of a custodial penalty must remain (art. 2 Law 4/1985).
Can an extradition decision be appealed?
Yes. The defence is conducted within the procedure before the Audiencia Nacional and, once domestic remedies are exhausted, an appeal may be brought before the Constitutional Court and, where appropriate, the European Court of Human Rights.
If a request for extradition affects you, active or passive, do not wait: the classification of the first hours shapes the whole defence. Review your case with a criminal lawyer in Spain.
Official source: Law 4/1985 of 21 March on Passive Extradition (BOE).
