Criminal Lawyers in Extradition and European Arrest Warrant

Extradition is the procedure of international judicial cooperation by which one State surrenders a person claimed by another State for prosecution or to serve an already imposed sentence. Its legal framework in Spain consists of Act 4/1985 on Passive Extradition, bilateral treaties with each State (USA, Morocco, Argentina, Colombia, etc.), multilateral Conventions (European Convention on Extradition 1957, UN Convention against Corruption), and, within the European Union, Act 23/2014 on Mutual Recognition regulating the European Arrest Warrant (EAW). Supreme Court doctrine and Audiencia Nacional case-law configure a demanding technical framework with full constitutional guarantees.

The extradition modalities structurally differ. Passive extradition (Spain receives the request) is governed by Act 4/1985 and combines a governmental phase (Council of Ministers) with a judicial phase (Criminal Chamber of the Audiencia Nacional). Active extradition (Spain requests) is managed by the Ministry of Justice with advice from the Prosecutor's Office and Foreign Affairs. The European Arrest Warrant (EAW), regulated by Framework Decision 2002/584/JHA and Act 23/2014, operates exclusively between EU Member States with a simplified procedure: 60-day maximum term, suppression of dual criminality for 32 categories of serious crimes (terrorism, trafficking, drug trafficking, money laundering, cybercrime), mutual recognition and exclusively judicial decision without governmental intervention. Intermediate modalities exist: detention orders issued by Interpol (Red Notices), simplified extradition with the consent of the requested person and transit extraditions.

The consequences and timeframes are significant. In the EAW, the maximum period to decide the surrender is 60 days, extendable to 90 in exceptional cases; once agreed, transfer must be executed in 10 working days. In classical extradition, the procedure can extend for months or years, especially when appeals concur. During the process, the requested person may suffer pre-trial detention (Arts. 502 LECrim and 17 Act 23/2014) or alternative precautionary measures (provisional release with bail, passport retention, periodic appearances, electronic device). Sentence enforcement after surrender is governed by the issuing State's law, with possible transfers to the State of nationality (Strasbourg Convention 1983 and Framework Decision 2008/909/JHA). In sensitive cases, diplomatic guarantees are habitual on prison conditions, fair trial and non-application of death penalty or life imprisonment without review.

The technical defense in extradition is built on the grounds for refusal listed in law. First, dual criminality: the fact must be a crime in both States (general rule in classical extradition; suppressed in EAW for 32 categories). Second, prescription under Spanish law. Third, non bis in idem: impossibility of surrendering someone already tried, acquitted or convicted for the same facts. Fourth, substantive grounds: real risk of torture or inhuman treatment (Art. 3 ECHR), death penalty without commutation guarantees, political persecution (Art. 4 Act 4/1985), risk of not receiving a fair trial (Art. 6 ECHR). Fifth, personal grounds: Spanish nationality (with limitations in EAW), age under 14, health conditions incompatible with transfer. Sixth, speciality: the requested person can only be tried for the facts contained in the request.

In current forensic practice we observe intense international judicial cooperation. Framework Decision 2002/584/JHA on the EAW, Directive 2014/41/EU on the European Investigation Order, the creation of the European Public Prosecutor's Office (Regulation 2017/1939), CJEU case-law (Aranyosi and Căldăraru, ML, OG and PI cases on procedural guarantees and prison conditions) and Constitutional Court doctrine on fundamental rights control configure a sophisticated system. The Criminal Chamber of the Audiencia Nacional has exclusive jurisdiction for the judicial phase of passive extraditions and EAW; its decisions are appealable in cassation before the Supreme Court and, where applicable, in amparo before the Constitutional Court. At Alonso Sala, with more than 15 years of experience, we intervene before the Audiencia Nacional both in defense of requested persons (opposition to surrender, requesting guarantees, provisional release) and, where appropriate, in private prosecution and coordination with foreign lawyers for a comprehensive cross-border defense.