Extradition Between Spain and Morocco: The 2009 Convention and the Procedure

Morocco is Spain's closest neighbour outside the European Union, and that proximity produces a steady flow of surrender requests in both directions. One misunderstanding is worth clearing up at the outset: there is no European Arrest Warrant between Spain and Morocco, since the EAW operates only between EU member states, and the 1957 European Convention on Extradition does not apply either. The framework is purely bilateral, alongside the rest of the instruments on the page of Spain's extradition treaties.

The 2009 Convention: the instrument that applies

The instrument in force is the Extradition Convention between the Kingdom of Spain and the Kingdom of Morocco, signed in Rabat on 24 June 2009, published in Official Gazette No. 238 of 2 October 2009 under reference BOE-A-2009-15671 and applied provisionally from the date of signature itself. It entered into force definitively on 1 September 2012, as published in Official Gazette No. 209 of 31 August 2012 (BOE-A-2012-11228).

The Convention was signed alongside the mutual legal assistance instrument of the same date, so a single investigation may generate both a letter rogatory and a surrender request. Article 1 sets out the reciprocal obligation to surrender persons sought for prosecution or enforcement, subject to a gravity threshold and a closed list of grounds for refusal.

If you are arrested in Spain on a Moroccan request

The sequence usually begins not with the formal request but with 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, plus an undertaking to file the request immediately afterwards.

The person must then 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 alternative measures in Article 8.3: home supervision, a prohibition on leaving a given place without judicial authorisation, periodic reporting, surrender of the passport and bail. Fighting that first hearing conditions months of proceedings. It is also worth knowing that an Interpol red notice is not in itself an automatic arrest warrant.

Dual criminality and the penalty threshold

The 2009 Convention requires dual criminality: the acts must be an offence under both Moroccan and Spanish law. An approximate match between offence names is not enough; what counts is the conduct described in the request measured against the Spanish offence definition. That is one of the strongest defence lines whenever the request describes conduct that would not be punishable in Spain.

A gravity threshold is added to it. Article 2 of the Convention reserves surrender for acts punished by custodial penalties of a certain length and distinguishes a request to prosecute from a request to enforce a sentence. Law 4/1985 sets its own in Article 2: 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, which forces counsel to analyse it fact by fact rather than as a block.

Nationals are not surrendered

Article 3 of the Convention excludes the surrender of nationals, and Article 3.1 of Law 4/1985 is equally blunt: Spain does not extradite its own nationals, nor foreign nationals for offences falling within the jurisdiction of the Spanish courts. Nationality is assessed by the court at the moment of the decision, and gives way only where it was acquired with the fraudulent purpose of making surrender impossible.

The consequence is not impunity. Article 3.2 of the Act articulates the classic extradite or prosecute rule: where surrender is refused on nationality grounds and the State where the acts took place so requests, the Spanish Government reports the matter to the Public Prosecutor and the case papers are sought so the prosecution can continue in Spain.

Political offences, limitation and ne bis in idem

Article 4 of the Convention excludes surrender for political offences, saving attacks on the life of a Head of State or members of their family. Law 4/1985 contains the same exclusion in Article 4.1 and adds, in Article 4.2, military offences, offences committed through the media in the exercise of freedom of expression, and offences prosecutable only on a private complaint.

Limitation is an autonomous ground for refusal: Article 5 of the Convention bars surrender where the prosecution or the penalty is time-barred, and Article 4.4 of Law 4/1985 goes further, since it is enough that criminal liability has been extinguished under Spanish law or under the law of the requesting State. That double filter is often decisive in files built on old facts. Ne bis in idem operates through Article 8 of the Convention and Article 4.5 of the Act: a person already tried in Spain for the same facts, or currently being tried there, is not surrendered. Article 4.8 closes the list, barring the surrender of anyone granted refugee status.

The death penalty and life imprisonment

This is the point that worries clients most and the one best resolved. Article 7 of the 2009 Convention establishes substitution: where the law of the requesting Party punishes the acts with the death penalty or life imprisonment, that penalty is replaced by the one laid down for the same acts in the law of the requested Party.

Article 4.6 of Law 4/1985 reinforces that guarantee from the Spanish side: extradition is refused where the requesting State does not guarantee that the person sought will not be executed or subjected to penalties harming physical integrity or to inhuman or degrading treatment, and Article 7.1(d) requires those assurances to accompany the request and to be sufficient in the judgement of the Spanish Government. In practice the argument is not about whether an assurance is owed, but about whether the one offered is adequate and verifiable.

The procedure in Spain: two stages and one court

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).

Once continuation is agreed, the judicial stage begins. 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 consent is given and no legal obstacle arises the judge may grant the request; where it is opposed, the file is raised to the Criminal Division of the National Court, the body to which Article 65.4 of the Judiciary Act assigns judicial passive extradition proceedings.

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, and only evidence bearing on the conditions required by the Treaty or the Act is admitted (Article 14). The court rules by reasoned order within the non-extendable period of three days from the hearing, and the only appeal against that order lies to the full Criminal Division (Article 15). One essential asymmetry remains, in Article 6: if the court refuses surrender the decision is final and surrender can no longer be granted; if it declares surrender admissible, the order does not bind the Government, which may still refuse on grounds of reciprocity, security, public order or essential Spanish interests, and no appeal lies against that decision.

Time limits and custody: the calendar to watch

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. 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, where a person under investigation in Spain is located in Morocco, is governed by Articles 824 to 833 of the Criminal Procedure Act, with an unavoidable precondition in Article 825: before extradition can be sought or proposed, a reasoned detention order or a final judgment must have been issued. 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 and what to prepare

No extradition defence is built by arguing whether the person committed the acts: the Spanish court does not try the merits, and Article 14.2 confines the evidence to the conditions of the Treaty or the Act. The work lies elsewhere: checking that the request contains the underlying decision, the identity details, the legal texts stating the applicable penalty and the official Spanish translation required by Article 7; comparing the conduct described with the Spanish offence definition, fact by fact, and testing the threshold; measuring limitation under either legal system and counting the custody deadlines rigorously; and exploring the personal route, from Spanish nationality acquired later or refugee status to Article 5.1 of Law 4/1985, which allows refusal where there are substantial grounds to believe the request conceals persecution on account of race, religion, nationality or political opinion.

Where the requesting country is an EU member state the framework changes entirely and the European Arrest Warrant applies; 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. In every scenario, instructing an extradition lawyer from the first hearing shapes the rest of the file.