European Arrest Warrant in Spain: Fighting Extradition
In this article
Key Takeaways
- 60-Day Procedure
- Dual Criminality
- Ne Bis in Idem
- Fundamental Rights Defence
The European Arrest Warrant (EAW) is a rapid but not automatic mechanism: the Central Investigating Judge of Spain's National Court (Audiencia Nacional) can refuse surrender (the decision can be appealed to its Criminal Chamber). The detained person must be brought before that judge within 72 hours; if they consent to surrender, the decision is taken within 10 days of the hearing and, if not, the final decision must be reached within 60 days of arrest, extendable by a further 30. There are mandatory grounds for refusal (among them ne bis in idem, a pardon granted in Spain, or the person not being criminally liable by reason of age) and optional ones (among them lack of dual criminality outside the 32 listed categories, limitation under Spanish law where the facts fall within Spanish jurisdiction, or the person being a Spanish national or resident sought to serve a sentence, which they will then serve in Spain) (Arts. 32, 48, 50, 51 and 54 of Law 23/2014).
Need help with your case? Talk to a criminal defence lawyer at Alonso Sala.
The European Arrest Warrant (EAW) — known in Spain as Orden Europea de Detención y Entrega (OEDE) — is designed as a rapid surrender mechanism between EU member states. However, fast does not mean inevitable: the Central Investigating Judge of Spain's National Court (Audiencia Nacional) decides whether to execute or refuse every EAW, with an appeal to its Criminal Chamber, and there are significant legal grounds to oppose surrender.
How the EAW Process Works in Spain
When a person is detained in Spain under an EAW, they must be brought before the Central Investigating Judge of the National Court within 72 hours. If they do not consent to surrender, the judge holds a hearing within 3 days at most, where the requested person can appear with their lawyer and formally oppose surrender. The final decision must be reached within 60 days of arrest (10 days from the hearing if they consent), extendable by a further 30 days (Arts. 51 and 54 of Law 23/2014). During this period, the person may be remanded in custody or released with precautionary measures.
Mandatory and Optional Grounds for Refusal
Spanish courts must refuse an EAW if, among other grounds: the person was already definitively judged for the same acts (ne bis in idem); they were pardoned in Spain for those acts; they cannot be held criminally liable by reason of age under Spanish law. Courts may refuse if, among other grounds: the alleged conduct is not criminal in Spain (dual criminality, for offences outside the 32 listed categories); the offence is time-barred under Spanish law and falls within Spanish jurisdiction; proceedings are pending in Spain for the same acts; the requested person is a Spanish national or resident sought to serve a sentence, which they will then serve here (Arts. 32 and 48 of Law 23/2014). Exceptionally, serious and specific fundamental rights concerns may also be raised.
Building an Effective Defence
The key to fighting an EAW is speed and preparation. From the moment of detention, the defence must: challenge the formal validity of the warrant, research the legal systems of both countries, assess the human rights situation in the requesting state, gather evidence for ne bis in idem or prescription arguments, and urgently consider whether to consent to surrender (which can result in more favourable conditions).
Need a criminal defence lawyer?
If you are facing a criminal matter, our team of specialist defence lawyers can help. Contact us for a case assessment.
Frequently asked questions
What is the European Arrest Warrant (EAW)?
It is a criminal cooperation mechanism between EU member states designed to be rapid, but not automatic: the Central Investigating Judge of Spain's National Court can refuse surrender when certain legal grounds apply.
What are the deadlines of the procedure in Spain?
The detained person must be brought before the Central Investigating Judge of the National Court within 72 hours, and the hearing takes place within a further 72 hours at most. If they consent to surrender, the decision is taken within the following 10 days; if not, the judge holds a contested hearing within 3 days at most and the final decision must be reached within 60 days of arrest, extendable by a further 30 days for justified reasons (Arts. 50, 51 and 54 of Law 23/2014). During that time the requested person may be remanded in custody or released with precautionary measures.
Should you oppose surrender or consent to it?
It is one of the first strategic decisions. Consenting speeds up the procedure and can result in more favourable conditions; opposing allows the grounds for refusal to be argued, but prolongs the uncertainty and, where applicable, custody. There is no universal answer: it depends on the strength of the grounds, the personal situation and the issuing state, and it should be decided with specialist advice.
What are the grounds for refusing surrender?
Mandatory, among others: ne bis in idem (a final judgment for the same acts), a pardon granted in Spain and the person not being criminally liable by reason of age under Spanish law. Optional, among others: that the conduct is not an offence in Spain (dual criminality, outside the 32 categories exempt from that check), limitation under Spanish law where the facts fall within Spanish jurisdiction, proceedings in Spain for the same acts, or the person being a Spanish national or resident sought to serve a sentence, which they will then serve in Spain (Arts. 32 and 48 of Law 23/2014). In addition, and exceptionally, a serious and specific risk of a violation of fundamental rights may be raised.
What frequent mistakes does the requested person make?
Consenting to surrender at the first appearance without advice, out of exhaustion or lack of knowledge; failing to prove ties (work, family, residence in Spain) to avoid custody; and letting the first weeks pass without gathering the foreign documentation. With such short deadlines, time lost at the start cannot be recovered.
Do you need criminal defence in this area?
We are criminal defence lawyers specialising in european arrest warrant. We act urgently to protect your rights.
This page is for information purposes only and does not constitute legal advice: every case requires individual assessment. How this content is produced and verified: editorial policy.