Extradition Between Spain and Colombia: The 1892 Convention and the 1999 Protocol

There is no European Arrest Warrant between Spain and Colombia: the EAW is an internal EU instrument. What applies is classic extradition, and its treaty basis is surprisingly old. The full framework, with links to the official texts, is set out on the page listing Spain's extradition treaties.

An 1892 convention that is still alive

The applicable instrument is the Extradition Convention between Spain and Colombia, signed in Bogotá on 23 July 1892. It was published in the Gaceta de Madrid No. 51 of 20 February 1894 and now appears in the historical collection of the Spanish Official Gazette under reference BOE-A-1894-1124. It entered into force in 1893, after the exchange of ratifications in Bogotá.

Reading it in its original wording would be a mistake. Two later instruments sit on top of that text. The first is the exchange of notes of 19 September 1991, constituting an Agreement to develop the Convention, published in the Official Gazette of 3 July 1992 (BOE-A-1992-15559) and in force since 25 May 1992, which connected Articles 2 and 3 of the Convention with the 1961 Single Convention on Narcotic Drugs.

The second, and decisive, is the Protocol amending the Extradition Convention of 23 July 1892, done ad referendum in Madrid on 16 March 1999, published in Official Gazette No. 219 of 13 September 2005 (BOE-A-2005-15158) and in force since 17 September 2005. It rewrote Articles 3, 10 and 15 of the Convention. For mutual legal assistance, that framework is completed by the Convention on judicial cooperation in criminal matters done in Bogotá on 29 May 1997 (BOE-A-2000-20802).

If you are arrested in Spain on a Colombian request

The file rarely begins with the formal request. What usually comes first is an urgent application for provisional arrest, often channelled through Interpol. Article 8 of the Passive Extradition Act requires it 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. It is worth remembering that an Interpol red notice is not by itself a definitive arrest title.

Which offences trigger surrender after the Protocol

The 1892 Convention followed the model of its time: a closed catalogue of extraditable offences, listed one by one. That system aged badly, because it left out modern economic and organised crime. The 1999 Protocol replaced it with a general threshold: surrender is available for persons pursued for an offence or sought for the enforcement of a custodial sentence of not less than one year.

The Protocol added a point of great practical value: differences of classification or naming between the two legal systems do not bar surrender. What is compared is the conduct, not the label of the offence. Even so, dual criminality remains the core of the defence: the facts described in the request must be tested against the Spanish Criminal Code, fact by fact.

On the Spanish side, Article 2 of Law 4/1985 sets its own threshold: a penalty or security measure of not less than one year of deprivation of liberty at its upper limit, or a sentence of not less than four months where enforcement is sought. Where the request covers several sets of facts and only some meet the threshold, the decision may extend to those carrying lower penalties too.

Nationals, political offences, limitation and the death penalty

The 1892 Convention already provided that neither Party is bound to surrender its own nationals. Law 4/1985 turns that into a prohibition in Article 3.1 and specifies that nationality is assessed by the court at the moment of the decision, unless it was acquired with the fraudulent purpose of defeating surrender. Article 3.2 opens the alternative: reporting the matter to the Public Prosecutor so the facts can be tried in Spain.

Political offences are excluded by the Convention itself, which bars extradition for political offences or acts connected with them. Article 4.1 of Law 4/1985 keeps that exclusion and specifies that acts of terrorism, crimes against humanity and attacks on the life of a Head of State or a member of their family are not treated as political.

Limitation works as a double filter: Article 4.4 of the Act refuses surrender where criminal liability has been extinguished under Spanish law or under the law of the requesting State. Ne bis in idem in Article 4.5 bars the surrender of anyone already tried in Spain for the same facts or currently being tried there. And Article 15 of the Convention, as rewritten by the 1999 Protocol, allows refusal where the requesting State provides for the death penalty and does not guarantee that it will not be imposed, in line with Article 4.6 of the Act.

The procedure in Spain: government, judge and Division

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, competent under Article 65.4 of the Judiciary Act.

Before the Division, 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 (Article 14) and the court rules by reasoned order within a non-extendable three days, subject only to an appeal to the full Division (Article 15). The asymmetry in Article 6 also applies: a judicial refusal is final, while 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, provisional arrest and handover

Each deadline in Law 4/1985 opens a route out of custody. Provisional imprisonment ordered after an urgent application lapses if forty days pass without the requesting State duly filing the request; filed in time, Article 10 extends the period by a further forty days for the government stage. Where proceedings start directly with the request, the Central Investigating Judge lifts custody if the government decision to continue does not arrive within forty days.

Once surrender is agreed, Article 19.3 allows release fifteen days after the agreed date if the person has not been collected, and requires it at thirty. Article 21 adds the rule of speciality: prosecution for earlier and different facts requires an extension of the original grant, unless the person, free to leave, remained more than forty-five days in the State to which they were surrendered or returned there voluntarily.

When Spain is the requesting State

The mirror scenario is governed by Articles 824 to 833 of the Criminal Procedure Act. Article 825 imposes a precondition: before extradition can be sought or proposed, a reasoned detention order or a final judgment must have been issued. Article 826 defines the situations covered and Article 827 refers first of all to the cases provided for 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

The defence does not argue authorship but the preconditions of surrender. The first task is documentary: checking that the request contains the underlying decision, the identity details, the legal texts stating the applicable penalty and the official translation required by Article 7 of Law 4/1985. The second is characterisation: testing the conduct described against the Spanish offence definition and verifying the one-year threshold introduced by the 1999 Protocol.

The third is temporal: measuring limitation under both legal systems and counting the custody deadlines rigorously. 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 framework would be the European Arrest Warrant. 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.