Extradition from Spain to Peru: The 1989 Treaty and Its 2009 Amendment

Of the extradition treaties Spain has in force with Latin American States, the one with Peru is among the most demanding for the defence, for a counter-intuitive reason: its seriousness threshold is low. Where other texts require two years of maximum penalty, this one is satisfied with one. In exchange it offers a detailed catalogue of refusal grounds and a provisional custody period that was amended just over a decade ago and is now one of the longest in the Spanish treaty network.

If You Are Arrested in Spain at Peru's Request

Proceedings usually begin with an urgent arrest requested while the formal application is still being prepared. In Spain, Article 8 of Act 4/1985 of 21 March, on Passive Extradition (BOE of 26 March 1985), requires the detainee to be brought before the Central Investigating Court on duty within no more than twenty-four hours. That court rules on custody: remand, or release with measures to prevent flight.

Two decisions at that first hearing should not be improvised. The first is custody, argued on whatever material is available at that moment, which is almost always incomplete. The second is the position on surrender: Article 12 of Act 4/1985 asks the requested person whether he or she consents to being extradited, and consent shortens the procedure at the cost of giving up the debate on the grounds of opposition. That is not a decision to take without knowing the file.

The Treaty and Its Amendment

The applicable instrument is the Extradition Treaty between the Kingdom of Spain and the Republic of Peru, signed in Madrid on 28 June 1989, published in the BOE of 25 January 1994 and in force since 31 January 1994. A later instrument is projected onto that text: the Exchange of Notes of 4 August 2008 and 9 March 2009, published in the BOE of 12 August 2011 and in force since 9 July 2011, which redrafted Article 24.5.

That two-part architecture explains a frequent error: working from the 1989 text and ignoring the amendment. The period stated there is no longer the one in force. Both documents can be traced through our guide to Spain's extradition treaties, which links to the official gazette.

As with the rest of the region, there is no European Arrest Warrant here — that mechanism operates only between EU member states, and a State that leaves the Union ceases to take part in it, as our note on post-Brexit surrender with the United Kingdom explains. Cooperation runs through the classic bilateral channel, supplemented, for offences within its scope, by multilateral conventions such as the United Nations Convention against Transnational Organized Crime, done at New York on 15 November 2000 and published in the BOE of 29 September 2003, whose Article 16 governs extradition between States Parties.

Dual Criminality With a One-Year Threshold

Article 2 of the Treaty provides that extradition lies for conduct punishable under the laws of both parties by a custodial penalty or custodial security measure whose maximum duration is no less than one year. Where the request seeks enforcement of a sentence, the outstanding portion must exceed six months.

One year of maximum penalty is a level reached by a very large number of ordinary offences. That shifts the centre of gravity of the defence: the argument will rarely be whether the offence is serious enough, and almost always whether the conduct described is also an offence in Spain and whether criminal liability is still alive. The comparison is made on the conduct set out in the file, not on the label or the name of the Peruvian offence.

Grounds for Refusal Under the Treaty

• Political offences (Article 5). Extradition is not granted for offences regarded as political or connected with them. The provision adds an important caveat: merely alleging a political aim or motive in the commission of an offence does not, in itself, make it political. The exception exists, but it is not triggered by invoking it.
• Nationals (Article 7). Where the requested person is a national of the requested party, that party may refuse surrender under its own law. On the Spanish side the reference is closed by Article 3 of Act 4/1985, which prohibits the extradition of Spanish nationals and that of foreign nationals for offences within the jurisdiction of the Spanish courts.
• Limitation and res judicata (Article 9). Surrender is barred where, under the law of either party, the penalty or the criminal action has been extinguished, and also where the person has already been tried for the same facts. The provision likewise covers the exceptional-court scenario.
• Death penalty and life imprisonment (Article 10). Extradition is not granted where the conduct is punishable by death or by life imprisonment, unless sufficient guarantees are given that such penalties will not be imposed or enforced.

To these must be added the grounds in Article 4 of Act 4/1985 — criminal liability extinguished under Spanish law or that of the requesting State, proceedings pending in Spain for the same facts, or recognised refugee status, among others — and the discretionary grounds in Article 5. Limitation periods in Spain are calculated under Article 131 CP, which ranges from five to twenty years depending on the maximum penalty attached to the offence.

Eighty Days: The Period That Changed in 2011

Article 24.5 of the Treaty, as originally drafted, required release where sixty calendar days had passed from arrest without the extradition request being received. The Exchange of Notes of 2008 and 2009 replaced that figure: the competent authority of the requested party may order the release of the detainee subject to measures to prevent flight and, in any event, release must be ordered if the extradition request has not been received within eighty calendar days of the arrest.

That treaty period should not be confused with the domestic ones. Article 10 of Act 4/1985 has its own mechanics — forty days for the request to be filed, extendable by a further forty where it is properly filed, subject to the ceiling in the Criminal Procedure Act — and Article 12.4 allows the judge to request additional information within a maximum of thirty days. In any given file it is essential to identify which period is being applied and from what date it runs, because that is where an application for release comes from.

How the File Moves Through Spain

Act 4/1985 builds a mixed procedure. The request arrives through diplomatic channels or directly from Minister of Justice to Minister of Justice (Article 7). The Ministry of Justice submits a reasoned proposal to the Government within eight days and the Government decides within fifteen whether the matter continues before the courts (Article 9); a negative answer ends it there.

Once the judicial stage opens, the requested person appears with a lawyer before the Central Investigating Court (Article 12); if there is no consent, the file goes up to the Criminal Chamber of the National Court. Prosecutor and defence examine the file for three days each (Article 13), the hearing takes place within the following fifteen days (Article 14) and the court rules by reasoned order within a non-extendable three days, subject to an appeal by way of súplica to the full Criminal Chamber (Article 15). Article 6 closes the circuit: a final judicial refusal is definitive, whereas an order declaring extradition admissible does not bind the Government, which decides on surrender under Article 18.

Outgoing Requests From Spain

The same treaty applies where the requested person is in Peru and a Spanish court seeks the surrender. The domestic rules are in Articles 824 to 833 LECrim: a reasoned remand order or a final judgment is required (Art. 825 LECrim); the request lies in the cases listed in Art. 826 LECrim and, where a treaty is in force, in those it determines (Art. 827 LECrim); the court hearing the case decides by reasoned order (Arts. 828 and 829 LECrim); and where the order is made by an investigating judge, it may be appealed (Art. 830 LECrim).

Recurring Mistakes

• Arguing the merits of the offence. Extradition proceedings do not decide guilt; they check whether the conditions for surrender are met. Arguments on the facts belong to the proceedings in the requesting State.
• Consenting without knowing the file. Consent under Article 12 of Act 4/1985 speeds up surrender and waives the debate on the grounds of opposition.
• Using the 1989 text without the amendment. The period now in force under Article 24.5 is eighty days, not sixty.
• Leaving the home proceedings undefended. A discontinuance, a revoked arrest order or a change of classification in Peru immediately alters the Spanish file.

Preparing the Opposition

The useful work consists of testing the request against the treaty point by point: identification of the requested person, the decision relied on, dual criminality for each fact, the Article 2 threshold, limitation under both legal systems, the grounds in Article 9 and, where life imprisonment appears, the sufficiency of the guarantees required by Article 10. None of these checks guarantees an outcome — the final decision combines a judicial stage and an executive one — but all of them are lost if raised too late.

If a request or a recent arrest concerns you, you can call us on +34 91 078 65 74. How we work on these files is described on our extradition and European Arrest Warrant defence page.