International cases
Extradition from Spain to a country outside the EU
Outside the EU there is no European Arrest Warrant: each request follows the treaty with that country and, where the treaty says nothing, the Spanish Extradition Law of 1985. The procedure has a judicial phase and two Government phases, takes longer and leaves more room for defences, guarantees and, sometimes, a political decision.
Saúl Rosell Manglano · Criminal defence lawyer · Madrid · ICAM 83.198
The essentials
1 year
The offence must carry at least one year of prison in both countries; to serve a sentence, at least four months must have been imposed.
40 days
After an urgent arrest, time for the formal request unless the treaty sets another period (80 days with Peru or Brazil, for example).
Last word
If the court approves extradition, the Government can still refuse it. If the court refuses, the refusal is final.
Treaty first, then the law
Spain applies the treaty with the requesting country first, and the Extradition Law (Law 4/1985) for everything the treaty does not regulate. Without a treaty, extradition is only possible on the basis of reciprocity. That is why the same question can have different answers for the United States, Morocco or Colombia, and the treaty is the first thing I read.
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The facts must be a crime in both countries. The request must include the judgment or the arrest order, a summary of the facts with places and dates, the applicable legal texts and an official translation into Spanish. Requests that describe the facts vaguely are a frequent reason for refusal.
When extradition is refused
The law rules out extradition for political offences (terrorism is not considered political), for military offences and for offences committed through the press in the exercise of freedom of expression; when the person would be tried by an exceptional court; when criminal liability has been extinguished, for example by prescription, under Spanish law or the law of the requesting country; when the person has already been tried or is being tried in Spain for the same facts; and when the person has been granted asylum.
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It can also be refused when there are well-founded reasons to believe the request seeks to persecute the person for their race, religion, nationality or political opinions.
Guarantees the other country must give
Spain does not extradite without guarantees that the person will not be executed or subjected to corporal punishment or inhuman or degrading treatment. For life sentences, the courts require guarantees that the sentence can be reviewed. If the request is based on a judgment given in absence, extradition is conditional on a new trial with the person present and defended. Time spent in custody in Spain for the extradition must be counted as time served.
Spanish nationals
The Extradition Law does not allow the extradition of Spanish nationals, but treaties can regulate this differently and prevail. Nationality is assessed when the court decides, and nationality acquired to avoid extradition does not count. When extradition of a national is refused, the requesting country can send the case so that the person is tried in Spain.
After the decision
If the person is also facing proceedings or serving a sentence in Spain, surrender can be postponed or made temporary. Once surrendered, the person cannot be tried for earlier, different facts without a new authorisation from Spain, unless they stay in the requesting country for more than 45 days after being free to leave.
How we will understand each other
I work in Spanish. With my clients from abroad I use translation tools to read and answer messages, and we manage well that way. At the police station and in court the law gives you a free interpreter, and I make sure that right is respected. If you write to me in English, I will answer you.
Common questions
If the court approves the extradition, is there anything left to do?
Yes. The Government can still refuse it, and a request for that has to be prepared with reasons of reciprocity, security, public order or Spain's essential interests. It is not common, but it happens.
The facts are very old. Can that stop the extradition?
Yes, if criminal liability is extinguished under Spanish law or the law of the requesting country. Whether steps taken abroad interrupted the time limit has to be checked one by one.
My relative has applied for asylum. What happens?
Recognised asylum prevents extradition. While the application is pending, the court can approve extradition but the actual surrender has to wait. Both procedures need to be coordinated.
Is it urgent?
Call me on 688 884 488. I answer the phone myself, at any hour.
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