Extradition from Spain to Venezuela: Treaty, Grounds for Refusal and Procedure

An extradition request from Venezuela is not resolved by Spanish law alone, nor by the treaty alone. It is resolved by both, in a specific order of priority. The Extradition Treaty between the Kingdom of Spain and the Republic of Venezuela, signed in Caracas on 4 January 1989 and published in the BOE (the Spanish official gazette) of 8 December 1990, sets the substantive requirements and the grounds for refusal. Act 4/1985 of 21 March, on Passive Extradition, published in the BOE of 26 March 1985, supplies the procedure and covers whatever the treaty does not: its Article 1 states that passive extradition is governed by that Act except where a treaty binding on Spain expressly provides otherwise, and always subject to reciprocity.

If You Are Arrested in Spain on a Venezuelan Request: What Happens Next

Most files open with an urgent arrest rather than with the formal request. Article 24 of the Treaty allows provisional arrest to be sought before the extradition request is complete. In Spain, Article 8 of Act 4/1985 requires the detainee to be brought before the Central Investigating Court on duty within no more than twenty-four hours.

That court does not try the facts. It checks identity, informs the person of the request and rules on custody: remand, or release with measures to prevent flight. This is the first point at which the defence intervenes, and it is routinely underestimated — the position taken at that hearing shapes months of proceedings. Where the arrest originates in an Interpol red notice, the separate route for challenging the data before the Commission for the Control of Interpol's Files should be reviewed in parallel.

The Applicable Instrument

The European Arrest Warrant does not apply here: it is an EU-internal mechanism, as explained in our note on the European Arrest Warrant in Spain. Nor does the 1957 European Convention on Extradition. What applies is the 1989 bilateral treaty, in force since 30 September 1990 — a short, classic text that defines which offences give rise to surrender, lists the grounds for refusal and leaves the rest to each party's domestic law. The full inventory of instruments in force is set out in our guide to Spain's extradition treaties.

Multilateral conventions may operate alongside it. 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, contains in its Article 16 an extradition regime between States Parties for offences within its scope. It does not displace the bilateral treaty, which remains the specific instrument, but it can complete the legal basis for cooperation.

Dual Criminality and the Two-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 security measure with a maximum duration of no less than two years. Where the request seeks enforcement of a sentence, the portion of the penalty still to be served must be no less than six months.

Two practical consequences follow. First, the assessment is made on the conduct described, not on the label the offence carries in the requesting State: an offence with no nominal equivalent in the Spanish Criminal Code may still be extraditable if the facts fit a Spanish provision, and a serious classification abroad is not enough if the conduct described is not a criminal offence in Spain. Second, the two-year threshold is higher than the one in Spanish domestic law, whose Article 2 is satisfied with one year at the upper end of the range. Where the treaty is stricter, the treaty prevails.

Grounds for Refusal

• Political offences (Article 6): extradition is not granted for offences regarded as political or connected with them, subject to the narrow exceptions the provision itself lists, among them attacks on the life of a Head of State and cases covered by multilateral conventions imposing a duty to prosecute.
• Nationals (Article 8): where the requested person is a national of the requested party, that party may refuse surrender in accordance with its own law. On the Spanish side, Article 3 of Act 4/1985 turns that option into a prohibition: extradition of Spanish nationals is not granted, nor that of foreign nationals for offences falling within the jurisdiction of the Spanish courts.
• Res judicata and extinguished liability (Article 10): surrender does not lie where the person has been tried in the requested party for the same facts, or where the penalty or the criminal action has been extinguished.

Domestic law adds its own list. Article 4 of Act 4/1985 bars surrender where, among other cases, the person is to be tried by an exceptional court, criminal liability has been extinguished under Spanish law or under the law of the requesting State, proceedings for the same facts are pending in Spain, or the person has been granted refugee status. Article 5 adds discretionary grounds, including a well-founded suspicion that the request pursues a purpose other than the criminal one. Limitation is checked under both legal systems at once; the Spanish periods are in Article 131 CP, ranging from five to twenty years depending on the maximum penalty attached to the offence.

Death Penalty, Life Imprisonment and Inhuman Treatment

Article 11 is the broadest safeguard in the text. Extradition is not granted where the conduct is punishable by the death penalty, by life imprisonment, or by penalties or security measures that impair bodily integrity or expose the person to inhuman or degrading treatment.

The bar is not absolute. The same provision allows surrender where the requesting party gives sufficient assurances that the person will not be executed, that the maximum penalty to be served will be the one immediately below life imprisonment, and that no penalty impairing bodily integrity will be imposed. In practice the argument shifts to the quality of those assurances: who gives them, at what level and whether compliance can be verified. Article 4.6 of Act 4/1985 states an equivalent requirement in domestic law.

The Procedure in Spain

• First executive stage. 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 file continues before the courts (Article 9). A refusal at this stage closes the matter.
• Judicial stage. The requested person appears before the Central Investigating Court assisted by a lawyer and is asked whether he or she consents to surrender (Article 12). If not, the file goes up to the Criminal Chamber of the National Court. The prosecutor and the defence each have three days to examine the file (Article 13), the hearing is listed within the following fifteen days (Article 14), and the court rules by reasoned order within a non-extendable three days, with an appeal by way of súplica to the full Criminal Chamber (Article 15).
• Final decision. Article 6 sets out the asymmetry that governs strategy: a final judicial refusal is definitive and surrender can no longer be granted, whereas an order declaring extradition admissible does not bind the Government, which decides on surrender under Article 18.

Hence a basic working rule: legal grounds are exhausted before the National Court, because a judicial refusal cannot be reversed.

Time Limits and Provisional Custody

Article 24 of the Treaty allows forty days from arrest for the requesting party to submit the formal extradition request. Article 10 of Act 4/1985 works in the same direction: if forty days pass without a properly filed request, provisional custody must be lifted; if the request is filed in time, custody may be extended for a further forty days, subject to the maximum set by the Criminal Procedure Act.

These periods are counted and argued. An incomplete request, a defective translation or documents arriving out of time are not administrative details: they are grounds for release. Article 12.4 also allows the judge to seek additional information within a maximum of thirty days.

When Spain Is the Requesting State

The same treaty operates in reverse where the accused or convicted person is in Venezuela. The domestic rules are in Articles 824 to 833 LECrim (the Criminal Procedure Act): the request requires a reasoned remand order or a final judgment (Art. 825 LECrim); it lies only in the cases listed in Art. 826 LECrim and, where a treaty is in force, in the cases it determines (Art. 827 LECrim); the court hearing the case is competent (Art. 828 LECrim) and orders the request by reasoned decision (Art. 829 LECrim), which is then transmitted through the channel provided (Art. 831 LECrim).

Building the Opposition

• Check dual criminality fact by fact, comparing conduct rather than headings, and verify the two-year threshold in Article 2.
• Calculate limitation under both systems, by reference to the dates of the facts and any documented interruptions.
• Examine the file itself: authenticity, translation, identification of the requested person and the decision relied on.
• Anticipate the assurances debate where life imprisonment is possible; Article 11 will be the centre of the case.
• Coordinate with the defence in the requesting State, because a discontinuance or a revoked arrest order there has immediate effect here.

No one can promise an outcome in extradition: the framework is set by the treaty and the Act, and the final decision combines a judicial stage with an executive one. What can be done is to raise each ground while it still counts. If a request or a recent arrest concerns you, you can call us on +34 91 078 65 74, and our approach to these matters is set out on our extradition and European Arrest Warrant defence page.