Transnational Criminal Proceedings Defence Lawyers

The New Transnational Scenario

Globalization of economic, digital and organized crime has consolidated a dense network of penal judicial cooperation. Spain is one of the states with greatest volume of cooperation both active and passive. We defend clients in proceedings crossing jurisdictions: EAW between EU states, extraditions with third countries, bidirectional letters rogatory, international asset recovery and positive jurisdictional conflicts.

European Arrest Warrant

The EAW (Framework Decision 2002/584/JHA, transposed by Law 23/2014) is the most effective cooperation mechanism: operates by mutual recognition and drastically limits grounds for refusal. Periods: 60 days from detention to decide, extendable 30 days. Defense: obligatory grounds for refusal (res judicata, amnesty, prescription) and optional (territoriality, double criminality for non-listed offenses) are the defense backbone.

Letters Rogatory and MLA

Letters rogatory are the classic cooperation channel: Spanish judge requests procedural acts abroad (interrogations, document collection, seizure) and vice versa. Operate through Council of Europe Convention 1959 and its 2001 Protocol, EU Convention 2000 on judicial assistance in criminal matters, bilateral treaties (MLAT) with countries like US, Mexico or Morocco.

Cross-Border Asset Recovery

EU Regulation 2018/1805 on freezing and forfeiture facilitates execution of Spanish orders in other EU states in very brief timeframes (48h for freezing). Outside EU, World Bank's STAR Conventions and bilateral cooperation operate.

Jurisdictional Conflicts

When several states claim jurisdiction over the same facts, positive conflict may arise. Defense may invoke ne bis in idem principle guaranteed by Art. 50 EU Charter and Schengen Convention Arts. 54-58 to avoid double prosecution.

Cooperation channels: when each instrument applies and how it is processed

Not every act of international judicial cooperation runs through the same channel, and choosing the right instrument is decisive for the validity of the evidence. Between European Union States, the general rule for obtaining or accessing sources of evidence is the European Investigation Order, transposed by Law 3/2018, which replaced the old letters rogatory and operates under the principle of mutual recognition: the executing authority recognises and carries out the measure subject to a closed list of grounds for refusal, without re-examining the merits. For third States with no applicable European instrument, the classic letter rogatory is used, governed by treaties, bilateral or multilateral conventions and, failing that, by reciprocity.

An EIO must be issued using the standard form, stating the measure sought, the facts, the provisional legal classification and the proportionality and necessity assessment, confirming that the measure would be available in an equivalent domestic case. The executing authority has indicative deadlines to recognise (around 30 days) and to execute (around 90 days) the measure, extendable on reasoned grounds. For the defence, identifying the correct channel makes it possible to challenge evidence obtained through an inappropriate route and to verify that the formalities Spanish law imposes on that act of investigation were observed.

Grounds for refusal, proportionality review and safeguards against transnational evidence

Mutual recognition is neither automatic nor unlimited. Law 3/2018 sets out a closed list of grounds for refusing or postponing recognition and execution: interference with immunities or privileges, risk to essential security interests, lack of dual criminality where required, the non bis in idem principle, insufficient judicial control, or the unavailability of the measure in an equivalent domestic case. To these is added the cross-cutting clause requiring respect for fundamental rights: no authority should execute a measure that would entail a manifest breach of the rights recognised in the Charter of Fundamental Rights of the European Union and in the Constitution.

The defence must scrutinise the entire chain: whether the measure (for example, an interception of communications, a search, or the production of banking data) was ordered by a competent authority through a reasoned decision and a proportionality review, and whether the safeguards of both the requested and the requesting State were observed during execution. Evidence obtained in breach of fundamental rights may be affected by the exclusionary rule of article 11.1 of the Organic Law of the Judiciary. It is also advisable to check how the evidence was incorporated into the Spanish proceedings, its translation, and the genuine opportunity to contest its lawfulness and authenticity.

Joint investigation teams, Eurojust and the European Public Prosecutor's Office

Where an investigation affects several States, joint investigation teams allow authorities from different countries to act in a coordinated way under a written agreement that fixes the team's object, duration and composition, with a leader for each State and rules on the use and exchange of the information gathered. Evidence collected by the team may be used in national proceedings in accordance with the agreed conditions and each State's legislation. Eurojust facilitates this coordination, resolves jurisdiction conflicts, speeds up the execution of orders and structures cooperation, without replacing the national judicial authorities.

The European Public Prosecutor's Office, created by Regulation EU 2017/1939, is a body with its own competence to investigate and prosecute offences affecting the Union's financial interests, acting through European delegated prosecutors who operate within each State applying its procedural law and the safeguards it recognises. For the defence, knowing which body is leading the investigation matters: it determines the applicable procedural framework, the available remedies, and the regime governing access to the case file, which cannot hollow out the right of defence despite the supranational dimension of the matter.

Defence strategy and the party's rights in transnational proceedings

The transnational dimension multiplies the control points the defence can rely on, but it demands acting early. It is advisable to request full access to the case file, including the cooperation documentation (the EIO or letter rogatory, the joint team agreement, the certificates and the chain of custody), and to verify the issuing body's competence, the reasoning behind the measure and compliance with deadlines and formalities. Faithful translation of the documents and the assistance of an interpreter are rights that condition the validity of the proceedings; their omission may ground nullity or a challenge to the evidence.

The rights of defence, to effective judicial protection and to a trial with all safeguards under article 24 of the Constitution, together with the European directives on the right to information, to translation and interpretation and to access to a lawyer, apply in full even where the evidence comes from abroad. The strategy includes challenging unlawful evidence through article 11.1 of the Organic Law of the Judiciary, demanding adversarial scrutiny of acts carried out abroad and, where appropriate, requesting that evidence be taken in the State of origin. Decisions granting or refusing cooperation can be challenged through the remedies provided in the Criminal Procedure Act (reform and appeal), reserving grounds for a possible cassation or constitutional amparo appeal.