Extraditions and EAW for High Net Worth Individuals

Defense against extraditions is one of the most demanding areas of international criminal law. It involves simultaneity of proceedings in two or more jurisdictions, urgent deadlines, knowledge of bilateral and multilateral treaties, and capacity to coordinate with corresponding firms. For high-net-worth clients, the economic dimension adds complexity: preventive seizures, cross-border confiscations, asset freezing in Swiss or American banks.

Procedural Framework of Extradition and EAW

Two major regimes coexist. Within the European Union the European Arrest Warrant (EAW) operates —Framework Decision 2002/584/JHA, transposed by Law 23/2014—, a simplified instrument based on mutual recognition: after detention, the delivery period is a maximum of 60 days, extendable to 90 with appeal. Toward third States, classical extradition applies, governed by the applicable bilateral treaty or by the European Extradition Convention, whose procedure is conducted before the National Court with an opposition and appeal phase. Knowing which of the two regimes we are in determines the deadlines, the grounds of opposition and the strategy: the margin for discussion is narrower in the EAW and broader in classical extradition.

Most Effective Grounds for Refusal

The core of the defense lies in identifying and establishing the applicable ground for refusal. In the EAW the grounds are limited: (1) res judicata on the same facts; (2) prescription according to Spanish law; (3) Spanish nationality with a commitment to serve the imposed sentence in Spain; and (4) serious humanitarian reasons. To these has been added, through CJEU case law (Aranyosi/Căldăraru case), refusal due to a real risk of inhuman or degrading treatment in the issuing State, for example because of detention conditions. In classical extradition the catalog is broader and includes the control of double criminality, the political nature of the offense and the guarantees of due process in the requesting State.

Red Notices and International Action

Red Notices are international alerts that may cause detention when crossing borders. Their diffusion without a sufficient prior filter has been criticized for facilitating political or pressure use. The challenge before the Commission for the Control of Interpol's Files (CCF), based in Lyon, is the essential route for clients legitimately persecuted by regimes that abuse the system: it is a written procedure, before an independent body, which may culminate in the cancellation or blocking of the notice. International action must be proactive: anticipating detention by challenging the alert is always preferable to defending against it once it has occurred.

Multi-Firm Coordination

An extradition is fought, by definition, in at least two countries at once, and the lack of coordination between the defenses is one of the greatest risks. We immediately activate a network of correspondent criminal firms in the jurisdictions involved for a simultaneous defense in the issuing and the receiving State, with a single strategic thread. This ensures that the opposition to the surrender in Spain and the substantive defense in the country of origin do not contradict each other, that the deadlines of each jurisdiction are managed without surprises and that the economic dimension —seizures, confiscations, asset freezing— is attended to in parallel and coherently.

Asylum and Subsidiary International Protection

When the surrender exposes the client to a real risk of torture, of persecution on political grounds or of violation of the right to a fair trial, the defense against extradition may be complemented by an application for international protection —asylum or subsidiary protection—. Both routes share the same evidentiary substrate (the risk in the country of origin) and can reinforce each other: what is established to oppose the extradition serves to ground the protection, and vice versa. The articulation of both proceedings requires care so that actions in one do not harm the other, and it is decided case by case depending on the requesting country and the strength of the indications of risk.