Extradition Between Spain and Brazil: The 1988 Treaty and the Procedure

Brazil is not part of the European Union, so the European Arrest Warrant is ruled out from the start. The relationship rests on a bilateral treaty from the late 1980s, with its own thresholds, grounds for refusal and deadlines. The official text, like those of the other instruments, is linked on the page listing Spain's extradition treaties.

The 1988 Brasilia Treaty

The applicable instrument is the Extradition Treaty between the Kingdom of Spain and the Federative Republic of Brazil, done in Brasilia on 2 February 1988. Its Instrument of Ratification was published in the Spanish Official Gazette of 21 June 1990 under reference BOE-A-1990-14345. The instruments of ratification were exchanged in Madrid on 11 May 1990 and the Treaty entered into force on 30 June 1990.

Article I sets out the reciprocal obligation: both States undertake to surrender persons subject to criminal proceedings or convicted by the judicial authorities of the other Party. Unlike the Argentine treaty, this text deals with extradition alone; mutual legal assistance travels along other channels.

The interlocking rule between the Treaty and Spanish law is worth keeping in mind. Article 1 of the Passive Extradition Act provides that 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. Where the Treaty regulates, the Treaty prevails; on everything else, the Act.

If you are arrested in Spain on a Brazilian request

The file usually opens with an urgent application for provisional arrest, frequently channelled through Interpol. Article XII of the Treaty requires that application to declare the existence of one of the documents listed in Article IX and to announce that the formal request will follow. Article 8 of Law 4/1985 adds the domestic requirements: it must state that the application 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 chooses between provisional imprisonment and release under the measures in Article 8.3: home supervision, a prohibition on leaving without authorisation, periodic reporting, surrender of the passport and bail. An Interpol red notice is not by itself a definitive arrest title.

The Article II threshold

Article II of the Treaty sets the substantive filter: surrender lies for acts that the laws of both the requesting and the requested State punish with a custodial penalty of more than one year, irrespective of circumstances modifying liability. It is dual criminality with a threshold, and the threshold is measured on the basic offence.

The same article defines the personal scope: surrender covers principals, accomplices and accessories, at any stage of execution of the offence. It also extends the catalogue to offences covered by multilateral conventions to which both States are party, a clause that in practice reaches much of transnational crime.

On the Spanish side, Article 2 of Law 4/1985 also applies, with its own minimum — 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 with a useful rule: where the request covers several sets of facts and only some meet the threshold, the decision may extend to those carrying lower penalties too. The defence must examine the request fact by fact rather than as a block.

Nationals, political offences, limitation and life sentences

Article III of the Treaty follows the Ibero-American model: the Parties are not obliged to surrender their nationals, but must submit them to trial where the other State so requests, unless the act is not punishable under their own law. In Spain the rule is stricter still: Article 3.1 of Law 4/1985 prohibits granting the extradition of Spanish nationals, and Article 3.2 channels the alternative of trying the facts here.

Article IV lists the grounds for refusal. Strictly military offences and political offences are excluded, although the article itself denies that character to terrorism, attacks on the life of Heads of State and crimes against humanity. Surrender is also barred where the prosecution or the penalty is time-barred under the law of either State, and where ne bis in idem applies: a person already tried, or subject to proceedings, amnesty or pardon in the requested State over the same act.

Article VI deals with the death penalty and life imprisonment: surrender is conditional on the requesting State giving a diplomatic assurance that such a penalty will be commuted to the maximum custodial penalty available under its law. That is a more demanding guarantee than a bare promise not to execute, and it is reinforced by Article 4.6 of Law 4/1985. Article V sets out the rule of speciality, which bars trying the surrendered person for earlier and different facts without the consent of the requested State.

The procedure in Spain

The government stage begins 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, competent under Article 65.4 of the Judiciary Act.

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, with an appeal to the full Criminal Division as the only challenge (Article 15). The Article 6 asymmetry applies: a judicial refusal is definitive, while a favourable order does not bind the Government.

Time limits: where the Treaty displaces the Act

This is where knowing which rule applies matters most. Article XII of the Treaty allows eighty days to file the formal extradition request after the provisional arrest application, whereas Article 8.2 of Law 4/1985 speaks of forty days, extendable by a further forty under Article 10. Since Article 1 of the Act defers to the Treaty on whatever the Treaty expressly provides, the applicable count must be settled case by case and argued from the first hearing.

For the handover, Article XIII of the Treaty provides that if the person sought has not been collected by the requesting State within sixty days of the relevant communication, the requested State is to order their release. Law 4/1985, in Article 19.3, allows release fifteen days after the date set and makes it mandatory at thirty. Keeping the calendar current, with the right rule in view, is one of the central 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 covered 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, which here means the 1988 Treaty itself.

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

The argument is not about authorship: Article 14.2 of Law 4/1985 confines the evidence to matters bearing on the conditions of the Treaty or the Act. The first front is documentary: checking that the request carries the documents listed in Article IX of the Treaty, the identity details, the legal texts stating the applicable penalty and the official translation required by Article 7 of the Act.

The second is characterisation: testing the conduct against the Spanish offence definition and verifying the Article II threshold. The third is temporal: limitation under either legal system and strict control of the Article XII and XIII deadlines. The fourth is personal: 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, with no government stage and far shorter deadlines. 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.