Extradition Lawyers: Defence in Extradition and EAW Proceedings
Technical defence in extradition and European Arrest Warrant proceedings before the Audiencia Nacional.
Extradition is the judicial cooperation procedure through which Spain surrenders, or requests the surrender of, a person to be tried or to serve a sentence, governed by Law 4/1985 on Passive Extradition and, within the European Union, by the European Arrest Warrant (Law 23/2014), which must be decided within 60 days of arrest if the requested person does not consent, extendable by a further 30. In passive extradition, the Criminal Chamber of the Audiencia Nacional (National Court) rules; an EAW is decided by the Investigation Section of the Central Court of Instance, with an appeal to that Chamber. Extradition can be refused for lack of double criminality, the offence being time-barred in Spain, non bis in idem, a political offence, or the risk of torture or the death penalty. Our defence raises these grounds for refusal and applies for measures as an alternative to pretrial detention.
Extradition and European Arrest Warrant: Concept, What the Prosecution Must Prove, Procedure and Defence
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 ordered by the judge or court hearing the case and processed by letter rogatory (suplicatorio) to the Ministry of Justice (Articles 824 to 833 LECrim). 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: a 60-day term, extendable by 30, where there is no consent, 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 within 10 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 53 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 defence 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 offences or persecution on political grounds (Arts. 4 and 5 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 in the EAW; in extradition, optional refusal for a person under 18 resident in Spain) and, only to postpone surrender, serious humanitarian reasons such as a state of health 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 (on procedural guarantees and prison conditions in the European Arrest Warrant) and Constitutional Court doctrine on fundamental rights control configure a sophisticated system. The Criminal Chamber of the Audiencia Nacional decides the judicial phase of passive extradition (its order can only be challenged by súplica before the full Chamber, Art. 15 Act 4/1985) and hears appeals in EAW cases, which are executed by the Investigation Section of the Central Court of Instance; where fundamental rights are breached, an amparo appeal lies to the Constitutional Court. At Alonso Sala, with more than 15 years of experience, we intervene before the Audiencia Nacional both in defence 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 defence.
Passive Extradition vs European Arrest Warrant
| Aspect | Traditional Extradition | European Arrest Warrant |
|---|---|---|
| Scope | Non-EU (countries with treaty or reciprocity) | Only between EU countries |
| Timeframe | Months or years | 60 days (+30 extension) |
| Dual criminality | Always required | Not required for 32 serious offences |
| Decision-making body | National Court + Government | National Court only |
| Grounds for refusal | Broad and specific | Limited and specific |
| Guarantees | Can be demanded from requesting State | Mutual recognition system |
Grounds to Oppose Extradition
Prescription
The offence has lapsed under the statute of limitations applicable under Spanish criminal law.
Ne Bis in Idem
The person was already tried and convicted or acquitted for the same facts in Spain or another country.
Dual Criminality
The conduct alleged does not constitute an offence under Spanish law.
Political Offence
The infraction is political in nature, with exceptions (terrorism, genocide, or an attack on the life of a Head of State or a member of their family).
Death Penalty
Real risk that the death penalty will be imposed and executed in the requesting State.
Risk of Human Rights Violation
Risk of torture, unfair trial, or inhumane prison conditions in the requesting country.
Criminal Procedure in Spain: Fast Trials, Extraditions & Prison Law — Defence Guide
Beyond substantive criminal offences, Spanish law contains a complex procedural framework that directly affects defence strategy. Fast-track trials (juicios rápidos), extradition procedures (European Arrest Warrants and bilateral treaties), penitentiary law (classification grades, parole, sentence review) and juvenile justice (LO 5/2000) each demand specialised knowledge. Understanding procedural rights and deadlines is often decisive for the outcome of a case.
Key Procedural Frameworks
| Framework | Legal Basis | Scope | Key Feature |
|---|---|---|---|
| Fast-track trials | Arts. 795-803 LECrim | Offences punishable by up to 5 years prison | Trial listed within the following 15 days |
| European Arrest Warrant | Law 23/2014 | Cross-EU extradition | 60 days to decide without consent (+30 extension) |
| Prison classification | LO 1/1979 (LOGP) | Classification into grades 1, 2 or 3 | Open regime (grade 3) = semi-liberty |
| Conditional release | Arts. 90-93 CP | Release from prison on licence | Grade 3 + ¾ of sentence served + good conduct |
| Juvenile justice | LO 5/2000 | Offenders aged 14-17 | Sanctioning-educational measures, not criminal penalties |
| Criminal record expungement | Art. 136 CP | Deletion of criminal record | Timeframe varies by offence severity |
Key Defence Strategies
Fast-Trial Conformity Advantage
In fast-track proceedings, agreeing to a plea (conformidad) with the prosecution carries a one-third reduction of the sentence sought. This can make the difference between prison and a suspended sentence.
EAW Refusal Grounds
European Arrest Warrants may be refused on grounds of: ne bis in idem (double jeopardy), time-barred offence, minor's age, or if the person will serve the sentence in Spain. Each ground requires specific procedural challenges.
Prison Grade Review
Inmates may contest their classification grade before the Supervisory Judge (Juez de Vigilancia Penitenciaria). Progression to grade 3 (semi-liberty) requires demonstrating good conduct, personal development and reduced recidivism risk.
Juvenile Diversion
For minor or less serious offences committed without serious violence or intimidation, the Prosecutor may end the file and ask for it to be dismissed (sobreseimiento) if the minor reconciles with the victim or makes reparation (Art. 19 LO 5/2000); the technical team may also propose not continuing it (Art. 27.4). The defence can steer the case towards this outcome, which avoids the hearing and any judgment being entered in the juvenile register.
Key Case Law
In fast-track proceedings, once the duty court has checked that the plea meets the legal requirements, it imposes the sentence sought reduced by one-third, even below the statutory minimum.
The CJEU held that where there is a real risk of inhuman or degrading treatment because of detention conditions in the issuing State, the executing authority must request supplementary information and postpone its decision on surrender until that risk can be discounted; if it cannot be discounted within a reasonable time, it must decide whether to bring the procedure to an end.
The Constitutional Court holds that prison classification decisions must be reasoned and subject to periodic review, in line with the fundamental rights of sentenced persons under Art. 25.2 CE.
FAQs on Extradition
What is extradition?
What is the European Arrest Warrant (EAW)?
Can an extradition be refused?
What rights do I have if arrested in Spain on an extradition order?
What is active extradition?
How long can I be held in provisional detention under a European Arrest Warrant?
What does extradition consist of?
Can Spain refuse an extradition?
Is the European Arrest Warrant different from extradition?
Can a Spanish citizen be extradited?
What is the role of the Audiencia Nacional?
Can I appeal an extradition decision?
Are tax offences extraditable?
Does political asylum prevent extradition?
What is provisional arrest for extradition purposes?
Do I need a lawyer specialising in extraditions?
Advanced Criminal Defence
Our firm approaches each procedure with rigorous evidentiary analysis and proactive defence strategy. When the case involves parallel investigations in several jurisdictions, we coordinate transnational criminal proceedings alongside the extradition or EAW defence.
Extradition from Spain and Prisoner Transfer
Two mechanisms are often confused because both involve moving a person across borders, but they answer different questions. Surrender — through the European Arrest Warrant (EAW) within the EU, or classic extradition outside it — hands a person over to another State so that person can be prosecuted or begin serving a sentence there, frequently against their will, after a judicial decision (in extradition, by the Criminal Chamber of the Audiencia Nacional; in an EAW, by the Investigation Section of the Central Court of Instance, with an appeal to that Chamber). A transfer of sentenced persons, by contrast, does not decide guilt or reopen a trial: it moves the enforcement of an already-imposed custodial sentence to the person's country of nationality or residence, usually at the prisoner's own request, so the remaining time is served closer to home.
The transfer of sentenced persons runs through two channels. Within the EU it is governed by Framework Decision 2008/909/JHA, transposed in Spain by Act 23/2014 on Mutual Recognition, with recognition of the sentencing judgment on the basis of a standard certificate and, in defined cases, without the prisoner's consent. Outside the EU — including, after Brexit, the United Kingdom — the reference instrument is the Council of Europe Convention on the Transfer of Sentenced Persons (Strasbourg, 21 March 1983), where the prisoner's consent is normally required and there are no binding deadlines. For the details of the EU channel, see our overview of the EU Mutual Recognition Law; for the mechanism itself, see our guide on the transfer of prisoners to serve a sentence in the home country.
Related Resources
- European Arrest Warrant in Spain: fighting extradition
- Extradition of international clients: how it is defended
- Interpol Red Notice: what it is and what to do
- Consular assistance for a detained foreigner in Spain
- Prisoner transfer from Spain: serving your sentence at home
- Arrested in Spain, left the country: can I go back?
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