International cases
When a Spanish court can say no to surrender
Being wanted by another country does not mean being handed over without a fight. Spanish law sets out when surrender must be refused, when it may be refused, and when it can be made conditional. Those grounds are limited and technical, so they have to be raised early and with evidence.
Saúl Rosell Manglano · Criminal defence lawyer · Madrid · ICAM 83.198
The essentials
12 months
Minimum maximum penalty in the issuing country for a European Arrest Warrant to prosecute; for a sentence, at least four months must remain to be served (Law 23/2014, art. 47).
3 years
For a list of serious offences punishable by at least three years, surrender is ordered without checking whether the facts are a crime in Spain.
Listed
The grounds for refusal are those in the law and no others. Each one has to be argued and proved in the hearing.
European Arrest Warrant: when surrender must be refused
Spanish law obliges the court to refuse surrender in some cases, among them: when the person has been pardoned in Spain for the same facts and Spain had jurisdiction; when a Spanish court has definitively closed the case for the same facts; when the person has already been finally judged for the same facts in another EU country, or in a non-EU country and the sentence has been served, is being served or can no longer be enforced; and when the person was too young to be criminally responsible under Spanish law.
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The idea behind most of them is simple: nobody should be prosecuted twice for the same facts.
European Arrest Warrant: when surrender may be refused
The court may refuse when the person is already under criminal proceedings in Spain for the same facts; when the warrant is to enforce a sentence and the person is a Spanish national, who can then serve it in Spain unless they agree to serve it in the issuing country; and when the facts took place outside the issuing country and Spanish law would not allow them to be prosecuted in that situation.
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Outside the list of serious offences, surrender can also depend on the facts being a crime under Spanish law, whatever name they are given in the other country.
Trials held in your absence
If the warrant is to enforce a judgment given in a trial you did not attend, surrender can be refused unless the issuing country guarantees certain things: for example, that you were properly summoned, that you were represented by a lawyer you appointed, or that you will be notified in person after surrender and will have the right to a new trial or an appeal. This ground is frequent in practice and depends heavily on the documents sent by the other country.
Surrender with conditions
If the person is a Spanish national or a resident in Spain and the warrant is to prosecute, the court can make surrender conditional on the person being returned to Spain to serve any prison sentence. Ties with Spain (work, home, children) matter here and must be documented. This also applies to people from outside the EU who live in Spain: the Court of Justice of the EU has ruled that they cannot be excluded automatically, and the court must assess how integrated they are.
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If the offence carries a life sentence in the issuing country, surrender is subject to that country having a review of the sentence or measures of clemency.
Extradition to countries outside the EU
Extradition follows the treaty with the requesting country and the Spanish Extradition Law (Law 4/1985). The court checks, among other things, that the facts are a crime in both countries, that the penalty reaches the minimum, that the offence or the penalty is not time-barred, that it is not a political or military offence, and that the request does not seek to persecute someone for their race, religion, nationality or political opinions. The risk of inhuman treatment or of a penalty contrary to the Spanish Constitution must also be examined.
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Spanish nationality is not an automatic ground for refusal: it depends on the treaty. In a recent case the National Court refused the surrender to the United States of a Spanish mother of two dependent children, applying the treaty clause on nationals, while in another, under an agreement with Argentina, nationality could not be invoked and surrender was made conditional on return to Spain to serve the sentence. A favourable decision by the court still has to go through the Government, which can refuse surrender for reasons of its own.
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
Should I consent to be handed over?
Not without advice. Under a European Arrest Warrant consent is irrevocable, the decision comes within days and most of the arguments against surrender are lost. It can be the right choice in some cases, but only after reading the warrant.
Can I appeal if the court orders my surrender?
In a European Arrest Warrant case, if you did not consent, the decision can be appealed to the Criminal Division of the National Court. As a rule the appeal does not automatically suspend surrender, so suspension has to be asked for specifically.
I have applied for asylum. Does that stop extradition?
Asylum does not prevent the court from declaring that extradition can go ahead, but it can prevent the actual surrender while the application is pending. Both procedures have to be coordinated.
Is it urgent?
Call me on 688 884 488. I answer the phone myself, at any hour.
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