Extradition Between Spain and Argentina: The 1987 Treaty and the Procedure

Argentina is not an EU member state, so the European Arrest Warrant does not come into play. Surrender is handled as classic extradition, on the basis of a bilateral treaty that has now been applied for three decades and which can be consulted, with a link to the official text, on the page listing Spain's extradition treaties.

The 1987 Treaty: extradition and legal assistance in one text

The applicable instrument is the Treaty on Extradition and Judicial Assistance in criminal matters between the Kingdom of Spain and the Argentine Republic, signed in Buenos Aires on 3 March 1987. Its Instrument of Ratification was published in Official Gazette No. 170 of 17 July 1990 under reference BOE-A-1990-16893, and the Treaty entered into force on 15 July 1990, thirty days after the exchange of instruments of ratification in Madrid on 15 June 1990.

Its distinctive feature is a unitary architecture: the surrender regime and the mutual legal assistance regime live in the same text, followed by a block of common provisions. That has a practical consequence worth anticipating: one investigation may trigger a letter rogatory and a surrender request at the same time, both travelling through the same channel of authorities.

The relationship between the Treaty and domestic law is set by Article 1 of the Passive Extradition Act: the conditions, procedures and effects of passive extradition are governed by that Act except where the Treaties to which Spain is a party expressly provide otherwise. The Treaty governs what it regulates; the Act covers everything else.

If you are arrested in Spain on an Argentine request

The file usually starts with an urgent application for provisional arrest, often channelled through Interpol, before the formal request arrives. Article 8 of the Passive Extradition Act requires that application to state that it rests on a final conviction or arrest warrant, with the date, the facts, the place of commission and the identity of the person sought.

Once the arrest is made, the person must be brought before the duty Central Investigating Court within no more than twenty-four hours. That court decides whether to order provisional imprisonment or release under the measures in Article 8.3: home supervision, a prohibition on leaving without judicial authorisation, periodic reporting, surrender of the passport and bail. An Interpol red notice is not by itself a definitive arrest title and does not prejudge whether surrender is admissible.

Dual criminality and the Article 2 threshold

Article 2 of the Treaty condenses the substantive filter: extradition lies for acts punishable, under the laws of both Parties, by a custodial penalty or custodial security measure whose maximum duration is not less than one year. That is two requirements in one: dual criminality and a gravity threshold.

Dual criminality is not satisfied by matching labels. What must be tested is the conduct described in the request against the Spanish offence that would correspond to it, fact by fact. Where the request describes a figure with no equivalent in the Spanish Criminal Code, or whose Spanish equivalent does not reach one year at its upper limit, the route to opposing surrender is open.

Article 3 of the Treaty extends the catalogue to offences covered by multilateral conventions to which both States are party. On the Spanish side, Article 2 of Law 4/1985 adds its own threshold — a penalty of not less than one year at its upper limit, or a sentence of not less than four months where enforcement is sought — and allows the decision to extend to facts carrying lower penalties where the request covers several and only some meet the minimum.

Nationals, political offences, limitation and life sentences

Article 7 of the Treaty allows the requested Party to refuse the surrender of its nationals in accordance with its own law. In Spain that option becomes a prohibition: Article 3.1 of Law 4/1985 bars the extradition of Spanish nationals and specifies that nationality is assessed by the court at the moment of the decision, unless it was acquired for a fraudulent purpose. Article 3.2 then opens the route of trying the facts in Spain.

Article 5 excludes political offences, while providing that terrorism, attacks on the life of a Head of State and crimes against humanity are not to be treated as such; Article 6 leaves out strictly military offences. Article 9 gathers the classic grounds for refusal, among them limitation of the prosecution or the penalty under the law of either Party and ne bis in idem where the person has already been tried in the requested State for the same facts.

Article 10 addresses the death penalty and custodial penalties for life: surrender is not granted unless the requesting State offers sufficient assurances that such penalties will not be imposed or, as the case may be, enforced. Spain adds Article 4.6 of Law 4/1985, requiring a guarantee that the person will not be executed or subjected to penalties harming physical integrity or to inhuman or degrading treatment, and Article 4.8, which bars the surrender of anyone granted refugee status.

The procedure in Spain

The government stage opens when the request is received through diplomatic channels or directly at the Ministry of Justice, which has a maximum of eight days to submit a reasoned proposal to the Government on whether the file should continue judicially; the Government decides within the following fifteen days (Article 9 of Law 4/1985).

In the judicial stage, the Central Investigating Court orders the immediate appearance of the person sought, assisted by counsel and, where necessary, an interpreter, with the Public Prosecutor summoned, and asks whether the person consents to surrender or intends to oppose it. Where it is opposed, the file is raised to the Criminal Division of the National Court, to which Article 65.4 of the Judiciary Act assigns judicial passive extradition proceedings.

The file is made available to the Prosecutor and defence counsel for successive three-day periods (Article 13); the hearing is listed within fifteen days of the investigation period and admits evidence only on the conditions required by the Treaty or the Act (Article 14); and the court rules by reasoned order within a non-extendable three days, subject only to an appeal to the full Criminal Division (Article 15). Article 6 imposes the final asymmetry: a judicial refusal is definitive, but a favourable order does not bind the Government, which may still refuse on grounds of reciprocity, security, public order or essential Spanish interests.

Time limits: the Treaty's and the Act's

The Treaty has a calendar of its own. Article 24 requires release where the extradition request has not been received within forty days of the arrest, and Article 18 provides that, once surrender is granted, the Parties are to agree on carrying it out within forty-five days. Article 13 sets out the rule of speciality, which bars prosecution of the surrendered person for earlier and different facts without authorisation.

Those deadlines coexist with those of Law 4/1985. Article 10 allows provisional imprisonment to be extended by a further forty days where the request was filed within the first period, so that the Ministry of Justice and the Government can decide; and Article 19.3 allows release fifteen days after the date set for handover if the person has not been collected, and requires it at thirty. Keeping that count up to date is one of the least glamorous and most valuable tasks of the defence.

When Spain is the requesting State

Active extradition is governed by Articles 824 to 833 of the Criminal Procedure Act. Article 825 requires a reasoned detention order or a final judgment; Article 826 defines the situations in which surrender may be sought and Article 827 refers first of all to the cases laid down in the treaties in force with the country where the person is located.

Jurisdiction lies with the court hearing the case (Article 828), which decides to seek surrender of its own motion or on application, by reasoned decision (Article 829), with an appeal where an investigating judge issued the order (Article 830). The request is formalised as a letter to the Ministry of Justice with a certified copy reproducing the extradition order verbatim (Articles 831 and 832).

Defence lines

Guilt is not the subject of the proceedings. Article 14.2 of Law 4/1985 confines the evidence to matters bearing on the conditions of the Treaty or the Act, so the work concentrates on four fronts. The documentary one: the request must carry the underlying decision, the identity details, the legal texts stating the applicable penalty and the official translation required by Article 7. The characterisation one: testing the conduct against the Spanish offence definition and verifying the Article 2 threshold.

The temporal one: limitation under either legal system and a strict count of the custody and handover deadlines. And the personal one: Spanish nationality, refugee status, proceedings already open in Spain over the same facts, or the circumstances in Article 5.1 of Law 4/1985 where there are substantial grounds to believe the request conceals persecution on account of race, religion, nationality or political opinion.

Where the requesting State is an EU member, the instrument would be the European Arrest Warrant, a much faster regime with no government stage. Two non-EU comparisons already covered here are instructive: the post-Brexit route to the United Kingdom and the treaty route to the United States. Instructing an extradition lawyer from the first hearing shapes the rest of the file.