Extradition and European Arrest Warrant Lawyers in Spain

European Arrest Warrant or extradition? Why the distinction matters

Where the request comes from a Member State of the European Union, Spain applies the European Arrest Warrant procedure (orden europea de detención y entrega, OEDE). It rests on mutual recognition, is handled exclusively by the courts and is considerably faster than traditional extradition. The legal basis is Spanish Law 23/2014 on the mutual recognition of criminal decisions in the European Union.

Where the request comes from outside the EU, for example from the United States, Turkey or a Latin American country, the case is one of extradition in the strict sense. It is governed by Spanish Law 4/1985 on passive extradition and by the applicable treaties, and the Spanish Government takes part in the decision.

Since Brexit, the United Kingdom is no longer part of the European Arrest Warrant system. Surrender between Spain and the UK is now governed by the EU–UK Trade and Cooperation Agreement, which sets up its own arrest warrant scheme with specific rules and grounds for refusal. British nationals living in Spain should not assume that the old EAW case law or practice still applies unchanged.

The distinction is not a formality. Time limits, grounds for refusal, appeals and even who takes the final decision differ between the procedures. Identifying the correct legal framework is therefore the defence’s first task.

The European Arrest Warrant in Spain: procedure and time limits

Arrest and first appearance

After arrest, the person must be brought within a maximum of 72 hours before the Juzgado Central de Instrucción, the central investigating court of the Audiencia Nacional. There, in the presence of their lawyer, they are informed of the warrant, its content and their rights.

The hearing and the question of consent

At the hearing the judge asks whether the person consents to surrender to the issuing state. That consent is irrevocable. Anyone who consents gives up the opportunity to oppose surrender at a separate hearing, and the court must then decide within ten days. Consent should never be given without first reviewing the position with your own lawyer.

If the person does not consent, a further hearing is held within a maximum of three days, confined to grounds for refusal and possible conditions of surrender. The judge then rules by reasoned order within ten days. That order may be appealed (recurso de apelación) to the Criminal Chamber of the Audiencia Nacional.

The overall time limit

Without consent, a final decision must be reached within 60 days of arrest. For justified reasons, that period may be extended by a further 30 days. Monitoring these deadlines is one of the defence’s first tasks.

Custody or release

At the hearing itself, after hearing the prosecutor, the judge decides whether the person remains in custody or is released subject to conditions. Release is a real possibility where there are documented ties to Spain (residence, work, family, property) and effective safeguards are offered to the court.

When Spain can refuse surrender or make it conditional

The European Arrest Warrant relies on trust between Member States, not on automatic surrender. Spanish law sets out mandatory and optional grounds for refusal, together with conditions that may be attached to surrender. In practice, the following are the most relevant.

Dual criminality. As a rule, the conduct must also be an offence under Spanish law. The exception covers the 32 categories of offence on the statutory list, where the offence carries a maximum custodial sentence of at least three years in the issuing state. Whether the allegation genuinely falls within a listed category can often be challenged.

Double jeopardy. Where the person has already been finally convicted or acquitted of the same acts, surrender is excluded.

Limitation and Spanish jurisdiction. Where the offence is time-barred under Spanish law and the Spanish courts would have jurisdiction over it, surrender may be refused.

Judgments in absentia. Where the warrant is based on a judgment given in the person’s absence, the court examines whether they were properly summoned and represented or whether a retrial is guaranteed. Without those guarantees, surrender may be refused.

Residence in Spain. Where surrender is sought for prosecution and the person lives in Spain, it may be made conditional on their return to Spain to serve any sentence imposed. Where the warrant seeks enforcement of a sentence already passed, Spain may, under certain conditions, undertake to enforce it itself. For long-term residents of the Costa del Sol, the Costa Blanca, the Balearics or the Canary Islands, this point is often decisive.

Fundamental rights and prison conditions. Under the case law of the Court of Justice of the European Union, surrender may be postponed or excluded where there is a real and individual risk of inhuman or degrading detention conditions in the issuing state. General reports are not enough. A specific, well-documented case is required.

Defects in the warrant. Incomplete or inconsistent information about the conduct, its date, place or sentencing range may lead the court to request further information from the issuing state and opens room for objections.

Extradition from Spain to countries outside the EU

Proceedings under Law 4/1985 run in three stages. First, the Spanish Government, on a proposal from the Ministry of Justice, decides whether the request proceeds to the courts. Next, the Criminal Chamber (Sala de lo Penal) of the Audiencia Nacional examines the request at an oral hearing and rules by reasoned order. If the court declares extradition admissible, the final decision returns to the Government, which may still refuse it. If the court refuses extradition, that decision is final. The defence therefore has two opportunities to win and only one point at which it can lose definitively.

Arrest and custody pending extradition

After an arrest, usually on an international alert circulated through Interpol, the person must be brought within 24 hours before the duty central investigating judge, who decides on custody. Custody must be lifted if the requesting state does not submit the formal extradition request within 40 days. If it arrives in time, the period is extended by a further 40 days. Release on conditions is also possible here. The law lists, among other measures, supervision at home, a prohibition on leaving a specified place without judicial authorisation, periodic reporting, surrender of the passport and the provision of bail.

What the extradition hearing decides

Extradition proceedings do not decide guilt or innocence. Only evidence relating to the statutory and treaty conditions for extradition is admitted. Running the defence as though it were a trial on the merits wastes time and opportunities. What is argued is dual criminality, the minimum penalty threshold, limitation under both legal systems, double jeopardy, the guarantees offered by the requesting state and the risk to the person’s fundamental rights.

The conduct must carry a maximum custodial sentence of at least one year under both legal systems. Where enforcement of a sentence is sought, the sentence imposed must be at least four months. The court rules within three days of the hearing, and its order may be challenged by recurso de súplica before the full Criminal Chamber of the Audiencia Nacional.

Key grounds for refusal

Spain does not extradite its own nationals. Extradition is also excluded, among other cases, for political and military offences, where liability is time-barred under Spanish law or the law of the requesting state, where the person has been tried or is being tried in Spain for the same acts, where the requesting state fails to guarantee that neither the death penalty nor any inhuman or degrading punishment will be carried out, and for recognised refugees. Where the request is based on a judgment in absentia, extradition is granted only against a guarantee of a retrial in the person’s presence. Finally, extradition may be refused where a request for an ordinary offence is in reality aimed at persecution on grounds of race, religion, nationality or political opinion.

For a detailed guide to fighting extradition from Spain, see our guide: How to fight extradition from Spain.

International alerts and Interpol Red Notices

Many arrests in Spain follow an alert circulated through Interpol or the Schengen Information System and take place at airports, during police checks or when dealing with public authorities. If you suspect that a warrant exists against you, have the position reviewed before you travel or attend an appointment with the authorities. Early notice changes everything. The defence can be prepared, documents can be gathered and, where appropriate, a voluntary appearance can be arranged on better terms than a surprise arrest.

Wanted by Spain? The Spanish side of the case

Often the position is reversed. A Spanish court has issued a Spanish arrest warrant, usually in the form of a European Arrest Warrant, against someone living abroad. Whether that person is surrendered is decided by a court in their country of residence, but the underlying criminal case and the warrant itself are conducted in Spain, and that is where the defence must act.

In Spain it may be possible to apply for the warrant to be withdrawn or replaced by less restrictive measures, for example where the person is willing to cooperate with the proceedings, give evidence by videoconference or appear voluntarily before the court. We conduct the defence in Spain and coordinate with your lawyer abroad so that both sets of proceedings follow a single strategy.

Arrested in Spain? What to do now, and what to avoid

• Act before any arrest if you suspect a request exists. Every day of notice strengthens the defence.
• Do not consent to surrender at the first hearing without discussing the consequences with your lawyer. Consent is irrevocable and is often given out of unfamiliarity with the system or sheer exhaustion.
• Say nothing about the allegations before speaking to your lawyer. Surrender and extradition proceedings do not decide guilt, and careless statements may be used in the proceedings of the requesting state.
• Gather evidence of your ties to Spain from day one, such as your municipal registration (empadronamiento), your NIE or residence documents, employment contracts, proof of family and home, and medical reports. They help on custody and later on any conditions attached to surrender.
• Collect every document relating to the proceedings in the requesting state, including judgments, summonses and proof of service, and evidence that you were never summoned, have already been convicted or acquitted, or that the case is time-barred. That is where the grounds for refusal are found.
• After an arrest, a duty lawyer (abogado de oficio) is assigned automatically. They usually work only in Spanish, and their services are not automatically free of charge. A lawyer of your choice can take over the case at any time.

Why Fechenbach Abogados

David Fechenbach Marcos is a criminal defence lawyer and Managing Partner (Socio Director) of Fechenbach Abogados. He is registered with the Madrid Bar Association (ICAM, no. 122770), is a member of the Alcalá de Henares Bar Association (ICAAH) and has taught procedural law as Profesor Asociado at the University of Alcalá since the 2019/2020 academic year. He has appeared as a criminal defence lawyer in Spanish media including TVE, Antena 3, Cadena SER, El País and La Vanguardia.

The firm has practised since 2014. It is based in Madrid, with offices in the Balearic Islands (Palma de Mallorca and Ibiza) and Alicante, and acts throughout Spain, including the Canary Islands. Extradition in Spain and European Arrest Warrant proceedings are at the core of its practice.

You speak directly to the lawyer handling your case, in English, with nothing lost in translation. We also work in Spanish, German and Polish and, where needed, coordinate with colleagues abroad.