Act 4/1985
Passive extradition: governmental phase
The Government decides, at the outset, whether to continue the proceedings or to discontinue them on grounds of sovereignty, security, public order or other interests essential to Spain. This phase is discretionary and political, and does not prejudge the subsequent judicial decision. Early involvement by counsel makes it possible to file submissions with the Ministry of Justice before the file is referred to the Audiencia Nacional.
Continuation or discontinuance
Act 4/1985
Passive extradition: judicial phase
The Central Investigating Court carries out the procedural steps, hears the requested person and rules on their personal situation. The relevant Section of the Criminal Chamber of the Audiencia Nacional decides whether the extradition should be granted, and its order may be challenged by way of an application for review before the Chamber sitting in plenary session. Surrender may be ordered only where the statutory and treaty requirements are met.
Order and review before the plenary Chamber
Arts. 824-833 LECrim
Active extradition
Where it is Spain that seeks a person located abroad, the competent court orders the extradition request by reasoned decision, which is referred to the Government for processing through diplomatic channels. The defence may intervene by challenging whether the statutory conditions are met and the proportionality of the request.
Order making the request
Act 23/2014
European Arrest Warrant
It replaces extradition between Member States and is based on mutual recognition. The issuing judicial authority transmits the warrant and the Spanish executing authority verifies only the formal requirements and the grounds for refusal laid down by law, without reviewing the merits of the charge or the issuing State’s assessment of the evidence.
Surrender or refusal
Act 23/2014
Surrender deadlines
If the requested person consents to surrender, the decision must be taken within ten days of consent being given. If they do not consent, the period is extended to sixty days from arrest, extendable by a further thirty days where justifying circumstances arise, with a reasoned notification to the issuing authority.
10, 60 or 90 days
Act 23/2014
Exhaustive grounds for refusal
Surrender may be refused only on the grounds expressly provided for by law: res judicata and the prohibition of double jeopardy, limitation where Spain has jurisdiction, being below the age of criminal responsibility, amnesty, absence of dual criminality outside the listed categories of offence, or insufficient safeguards where a conviction was handed down in the defendant’s absence.
Closed list
Speciality rule
Objective limit on surrender
A surrendered person may not be prosecuted, convicted or deprived of liberty for acts committed before, and other than, those giving rise to the surrender, save with express consent, waiver by the requested person themselves, or where one of the statutory exceptions applies. It is a safeguard that must be invoked and documented within the proceedings themselves.
Substantive safeguard
Guarantee of return
Nationals and residents
Where the requested person is a Spanish national or resident in Spain, surrender for the purpose of serving a sentence may be made conditional on their being returned to serve it on Spanish territory, or may be refused with Spain taking on enforcement of the sentence. It is one of the submissions with the greatest practical traction in defending people with established ties to the country.
Condition of return
Interpol
Red notice and CCF review
A red notice is neither a judicial decision nor an obligation to arrest: it is a request to locate and provisionally arrest addressed to member countries. Its lawfulness is reviewed by the Commission for the Control of Files, which may order the deletion of the data where the request is politically motivated or breaches article 3 of Interpol’s Constitution.
Deletion of data
