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LEX DIXIT TAX AND LEGAL ABOGADOS EXPERTOS EN EXTRADICION DESDE ESPAÑA

Lawyers with expertise in extradition from Spain

Lawyers with expertise in extradition from Spain

Extradition

Extradition is a legal procedure that refers to handing over a person accused or convicted of committing a crime, from one State to another State that demands it so that he/she can be prosecuted or serve the sentence that has been imposed on him/her.

In the Spanish Constitution, Article 13.3 states that extradition shall be granted only in compliance with a treaty or with the law, on the basis of the principle of reciprocity.

There are 2 types of extradition:

-Active extradition:

We are talking about active extradition when one State requests another State to deliver a person responsible for an offence. The request is addressed to the Government so that the latter can order the extradition of those convicted in final judgement, where this is appropriate in accordance with law. Active extradition proceedings are regulated by the Spanish Criminal Procedure Act, Articles 824 to 833.

The circumstances under which extradition may be requested or proposed are the following:

    • The extradition of Spanish nationals who, having committed a crime in Spain, have taken refuge in a foreign country.
    • The extradition of Spanish nationals who, having attacked State external security from abroad, have taken refuge in a country other than that of the offence.
    • The extradition of foreigners who are to be tried in Spain and have taken refuge in a state other than their own.

-Passive extradition:

We are talking about passive extradition when a State delivers the offender or alleged offender to the country that requested it.

The necessary requirements for passive extradition are divided into three groups: objective requirements, subjective requirements and procedural requirements.

Lawyers with expertise in Extradition from Spain

We provide our service quickly and efficiently, anticipating any possible eventualities.

We protect our clients from preventive detention, by providing them with advice and demonstrating their commitment to Spanish society (known as arraigo).

Detention for extradition in Spain

We provide services throughout Spain and we deploy immediately at the moment of arrest. We develop legal defence strategies that have helped us to avoid the extradition of numerous people detained in Spain.

Objective requirements for extradition:

    • PRINCIPLE OF LEGALITY: the reasons for extradition must be provided for in agreements or laws.
    • PRINCIPLE OF DOUBLE CRIMINALITY : the alleged offence committed by the person must be established as a crime in both the requesting country and the requested country.
    • PRINCIPLE OF SPECIALITY: the country must penalize the specific offence for which the extradition is requested, not the previous and different punishable acts. However, there are two exceptions to this rule: (i) consent of the requested State, in which case it is obligatory the formulation of an extension of extradition and (ii) consent of the person surrendered, expressed either tacitly or explicitly.
    • EXCLUSION OF CERTAIN OFFENCES BY REASON OF THEIR NATURE: political, military and fiscal offences (except for excise, VAT and customs offences).
    • EXTINGUISHMENT OF CRIMINAL LIABILITY: extradition is made dependent on the non-extinguishment of the criminal liability for the crime.
    • PRINCIPLE OF RECIPROCITY: mutual treatment between States (art. 13.3 of the Spanish Constitution).

Subjective requirements of the extradition procedure:

    • NATIONALITY: countries have the possibility to refuse extradition of their nationals.
    • MINOR AGE: a person under 18 years old who habitually resides in Spain could be refused extradition.
    • ASYLUM: extradition will not be granted when the person is recognised with asylum status.

Procedural requirements in extradition cases:

    • JURISDICTION OF THE REQUESTED STATE: extradition will not be granted if the offence falls within the jurisdiction of the Spanish courts.
    • NATURE OF THE COMPETENT COURT: extradition will not be granted when the requested person is to be judged by a court of exception.
    • PRINCIPLE OF NON BIS IN IDEM: extradition cannot be granted when the person has already been prosecuted or is being prosecuted in Spain.
    • CONVICTION IN ABSENTIA: a State may refuse a request for extradition to enforce a sentence if it does not respect the minimum defence rights of an accused person.
    • PROSECUTION AT THE REQUEST OF A PARTY: extradition shall not be granted for offences that are prosecutable only at the request of a party, except for the offences of rape, statutory rape, abduction or indecent assault.

The procedure begins with the extradition request, which must contain (i) the details identifying the requested person, (ii) a description of the behaviour motivating the request and its criminalisation, as well as (iii) the existence of a legal charge in the requesting State.

The request shall be made through diplomatic channels or directly by a letter from the Ministry of Justice of the requesting State to the Spanish Ministry of Justice.

The following documents must be attached to this request:

  1. The sentence of conviction or the indictment and imprisonment or similar decision as required by the law of the requesting country with a statement of the events and the place and date on which they were carried out.
  2. All the information available on the identity, nationality and place of residence of the requested person and, if possible, his/her photograph and fingerprints.
  3. Copies of the relevant laws, stating the applicable penalty.
  4. If the act is punishable by a penalty involving bodily integrity or inhuman or degrading treatment, the requesting State shall give assurances, sufficient in the opinion of the Spanish Government, that such penalties will not be carried out.

When the request has been made through diplomatic channels, the Ministry of Foreign Affairs shall forward the request for extradition to the Ministry of Justice, stating the date on which it was received; the latter shall submit to the Government a reasoned proposal as to whether or not the extradition proceedings should be pursued through judicial channels.

If the Government decides to continue the proceedings through judicial channels, it will send the file to the Central Investigating Court, which will order the immediate appearance of the requested person, assisted by a lawyer and, if necessary, an interpreter, the purpose of which is threefold:

  1. That the requested person states whether he/she consents to the extradition or wishes to oppose it.
  2. That the requested person is asked whether or not he/she waives the principle of speciality.
  3. To determine the personal circumstances of the requested person.

This is followed by an intermediary phase, when the court presents the case file to the Public Prosecutor and to the defence consecutively. The Public Prosecutor draws up a statement setting out the procedural background to the request, the identity of the person sought, whether or not he/she consents to extradition and whether or not he/she has waived the principle of speciality. The Prosecutor then details the facts on which the request is based, the legal definition in accordance with the legislation of the requesting and requested State and whether or not the issues preventing or justifying the request are present, and whether or not he opposes it.

In response, the defence may formulate its pleading in the terms it deems appropriate, given that the law does not establish a procedure. A hearing is then held before the Criminal Chamber of the National Court, attended by the Public Prosecutor's Office, the requested person, his or her defence and the representatives of the requesting State. After the hearing, the Court will rule by means of a reasoned order on the appropriateness of the extradition.

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