Extradition & EAW Defence 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 on the European Arrest Warrant and detention conditions, 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.

Two cooperation tracks: passive extradition (Ley 4/1985) and the European arrest warrant (Ley 23/2014)

The first point to clarify is that "extradition" and "surrender" are not interchangeable terms. When the State requesting a person is outside the European Union, the applicable regime is passive extradition under Ley 4/1985 of 21 March, completed by the relevant bilateral or multilateral treaties and by the principle of reciprocity. The procedure is mixed: a first governmental phase, in which the Council of Ministers decides whether to pursue the request, and a judicial phase before the Criminal Chamber of the Audiencia Nacional, which rules on whether surrender is appropriate, with the participation of the Public Prosecutor and the defence.

When the requesting State is an EU country, the instrument is the European arrest warrant (EAW or euroorden), transposed in Spain by Ley 23/2014 of 20 November on the mutual recognition of criminal judgments. This is no longer classic extradition but a streamlined cooperation mechanism, faster, built on mutual trust between judicial authorities and subject to short decision deadlines. Identifying from the outset which regime applies is decisive, because the grounds for refusal, the time limits and the scope of judicial review differ between the two.

Principles that frame surrender: double criminality, speciality and non bis in idem

Cooperation is not automatic: it is governed by principles that operate as filters. The first is double criminality, under which the conduct for which the person is sought must constitute an offence both in the requesting State and in Spain. In passive extradition this requirement is general; under the EAW there is a list of offence categories, set out in Ley 23/2014, for which the double criminality check is dispensed with where the conduct carries a certain level of seriousness in the issuing State. Verifying correctly whether the case falls within that list is one of the defence's first technical tasks.

The second principle is speciality: the surrendered person may only be tried or sentenced for the conduct that justified the surrender, not for earlier and distinct facts, save subsequent consent or express waiver. The third is non bis in idem: surrender cannot proceed if the person has already been finally judged for the same facts. To these are added the limitation-period check and the requirement that the request be sufficiently documented. Each of these principles opens an avenue of opposition that must be built with precision on the documentation submitted by the requesting State.

Grounds for refusal and review of fundamental rights

Spain does not grant surrender in certain situations. It does not proceed for political or military offences, with the limited exceptions that the legal framework itself recognises, as is the case with terrorism or crimes against humanity, which are not regarded as political offences for these purposes. Nor does it proceed where the request conceals a purpose of persecution on grounds of race, religion, nationality or political opinion, or where the person's situation could be aggravated for those reasons. Spanish nationality and the possibility of serving any sentence in Spain are likewise relevant factors that the applicable regime allows to be assessed.

Above all stands the review of safeguards and fundamental rights. The Spanish judicial authority can and must examine whether surrender would expose the person to a real risk of inhuman or degrading treatment, to detention conditions incompatible with the Charter of Fundamental Rights of the European Union or the European Convention on Human Rights, or to proceedings lacking the guarantees of a fair trial. Under the EAW there are also mandatory and optional grounds for refusal that Ley 23/2014 sets out in detail. The defence's role is to document these risks with objective material and, where appropriate, to request additional guarantees from the issuing State before any decision on surrender.

INTERPOL red notices: real scope and an orderly response

An INTERPOL red notice is not an international arrest warrant, nor is it, on its own, equivalent to a judicial decision ordering surrender. It is an alert circulated by a member country to locate a person and request their provisional detention with a view to a possible extradition. Each State decides, under its own law, what weight to give it. Understanding this distinction avoids precipitate reactions: the existence of a red notice opens a procedure, it does not close one, and it leaves intact the full catalogue of principles and grounds for refusal examined above.

Red notices are subject to control. The Commission for the Control of INTERPOL's Files can review and, where warranted, delete circulations that breach the organisation's rules, particularly where a political motivation or a misuse of the system is identified. Faced with a red notice, the orderly approach is to analyse the underlying documentation, verify the competence and regularity of the issuing State, prepare opposition to any future extradition request or European arrest warrant and, where there are indications of abuse, raise a challenge before the relevant control body. All of this is done with discretion and without assuming any penalty or outcome, because this is a cooperation procedure, not a trial on the merits.