How to Fight Extradition from Spain: A Defence Guide
If you are looking for an extradition lawyer Spain because you or a relative are wanted by another country from Spanish territory, this guide explains how that request is fought. Extradition is neither an administrative formality nor a rubber stamp from a judge. It is a procedure with an exhaustive list of grounds for refusal, strict time limits, and genuine room for defence, provided you know where that room lies and act from day one.
What passive extradition is, and what it is not
Passive extradition is the surrender by Spain of a person wanted by another state, either to stand trial or to serve a sentence. It is governed by Law 4/1985 of 21 March, except where treaties to which Spain is a party expressly provide otherwise.
One distinction matters from the outset. Where the requesting country is an EU member state there is no extradition, but a surrender procedure under the European Arrest Warrant, which is considerably faster and carries its own grounds for refusal. Extradition in the strict sense applies to third countries.
The Law also imposes a general condition that is often overlooked. Extradition is granted only on the basis of reciprocity, and the Spanish Government may require a guarantee of reciprocity from the requesting state.
The three stages of the procedure
Understanding the structure is essential, because each stage has its own battleground.
The first is governmental. Within a maximum of eight days the Ministry of Justice submits a reasoned proposal to the Government on whether the matter should continue through the judicial channel, assessed against Articles 2 to 5 of the Law. The Government decides within fifteen days. If the decision is negative, the procedure ends there.
The second is judicial. The file passes to the central investigating court, a hearing is held, and the Criminal Chamber of the Audiencia Nacional then rules by reasoned order.
The third is governmental again. There is an asymmetry here worth remembering. If the court refuses extradition, that decision is final and surrender can no longer be granted. If the court declares extradition admissible, however, that ruling does not bind the Government, which may still refuse it in the exercise of national sovereignty, on grounds of reciprocity or of security, public order or other essential interests of Spain. No appeal lies against the Government’s decision.
Put differently, the defence has two chances to win and only one to lose definitively.
Arrest and the time limits to watch
Most of these cases begin with an arrest under an international alert, frequently channelled through Interpol.
The detainee must be brought before the duty central investigating court within twenty-four hours, and the judge may order custody pending extradition.
That triggers the first decisive deadline. Custody must be lifted if, after forty days, the requesting state has not formally submitted the extradition request. If it is submitted within that period, the deadline is extended by a further forty days so that the Ministry of Justice and the Government can complete their steps.
A second control also applies. Where proceedings begin with receipt of the request through diplomatic channels, the judge must lift custody if the Government’s decision to continue the judicial procedure is not received within forty days.
These deadlines are missed more often than people assume, and monitoring them is one of a lawyer’s first tasks.
Custody and the alternatives to it
Custody is not automatic, even if in practice it is almost always ordered.
The judge may order release at any time while adopting measures to prevent flight. The Law lists supervision at the person’s home, an order not to leave a specified place without judicial authorisation, an obligation to report periodically to the designated authority, surrender of the passport, and the provision of bail.
That list is a tool and should be used. A properly constructed application, with documented ties to Spain and the simultaneous offer of several of those measures, has a genuine prospect of success. Bear in mind, though, that release prevents neither a further arrest nor eventual surrender. The aim is to face the procedure from outside prison, not to treat the case as won.
Dual criminality and the minimum penalty threshold
This is the first substantive filter and the one that defeats most requests.
Extradition may only be granted for conduct for which both Spanish law and the law of the requesting state provide a custodial sentence or security measure of not less than one year at its maximum, or a more serious penalty.
Where the request seeks enforcement of a sentence already imposed, a different threshold applies. What is required then is a penalty or measure of not less than four months of deprivation of liberty, and always for conduct that is also an offence under Spanish law.
The defence works in two directions here. First, verifying that the conduct described in the request genuinely fits an offence in the Spanish Criminal Code, rather than an approximate match of labels. Second, checking that the sentencing range meets the threshold in both jurisdictions.
One important qualification. Where the request covers several acts and only some meet those requirements, the extradition order may also extend to those carrying lower penalties. The main offence must therefore be attacked, because the rest depend on it.
The mandatory grounds for refusal
Article 4 of the Law sets out eight situations in which extradition shall not be granted. These are not discretionary. If they apply, surrender is not available.
Political offences. Acts of terrorism are expressly excluded from that category, as are crimes against humanity under the Genocide Convention and attacks on the life of a Head of State or a member of their family.
Military offences under Spanish law, without prejudice to the international conventions ratified by Spain. Also offences committed through the mass media in the exercise of freedom of expression, and offences prosecutable only on private complaint, subject to the exceptions the Law itself sets out.
Exceptional tribunals. Where the person sought would be tried by a court of that nature.
Extinction of criminal liability. This point is critical, because it is enough that liability has been extinguished under Spanish law or under the law of the requesting state. Limitation is therefore examined twice over, and it defeats a substantial share of requests in practice, particularly older ones.
Pending proceedings or res judicata in Spain. Where the person has been tried, or is being tried, in Spain for the same facts. The Law nevertheless permits surrender where a decision was taken not to prosecute or to terminate the pending proceedings, provided this did not occur by a decision carrying res judicata effect.
Absence of guarantees as to the penalty. Where the requesting state fails to guarantee that the person will not be executed, nor subjected to penalties affecting their bodily integrity or amounting to inhuman or degrading treatment.
Absence of guarantees regarding a conviction in absentia, addressed below.
Recognised refugee status. The Law adds that the non-recognition of that status, for whatever reason, does not prevent refusal on any other statutory ground.
The discretionary grounds for refusal
Article 5 adds two situations in which extradition may be refused.
The first, where there are substantial grounds for believing that a request based on an ordinary offence has in fact been made for the purpose of prosecuting or punishing a person on account of race, religion, nationality or political opinions, or that the person’s situation may be aggravated for such reasons.
This is the non-discrimination clause and it is the natural route where requests come from states in which criminal prosecution is instrumentalised. It demands serious evidential work, using reports from international organisations, decisions of other states in comparable cases, and documentation of the individual’s specific circumstances.
The second, where the person sought is under eighteen at the time of the request, habitually resides in Spain, and extradition is considered liable to hinder their social reintegration.
Spanish nationals and Spanish jurisdiction
Spain does not extradite its own nationals, nor foreign nationals for offences falling within the jurisdiction of the Spanish courts under Spanish law.
Two points of detail matter. Nationality is assessed by the competent court at the moment of deciding on extradition, and only provided it was not acquired for the fraudulent purpose of making extradition impossible.
Where refusal follows on that ground, and if the state where the acts took place so requests, the Spanish Government refers the matter to the public prosecutor so that proceedings may be brought in Spain. Refusal therefore does not always end the problem. Sometimes it transfers it to the Spanish courts, and the client must be prepared for that.
A related discretionary ground also exists. Where the offence was committed outside the territory of the requesting state, extradition may be refused if Spanish law would not permit the prosecution of a comparable offence committed outside Spain.
Convictions handed down in absentia
This is one of the most productive fronts, and Spanish constitutional case law goes further here than the statute itself.
The Extradition Law provides that where the request is based on a judgment given in the person’s absence, and the sentence imposed could not under Spanish law be imposed on someone who was not present at trial, extradition is granted subject to the requesting country’s diplomatic representation offering sufficient guarantees that the person will face a fresh trial at which they must be present and properly defended.
Constitutional case law refines and extends that approach. According to judgment STC 91/2000 of 30 March of the Spanish Constitutional Court, a conviction in absentia without any subsequent opportunity to remedy the disadvantages flowing from that absence is incompatible with the right to a fair trial under Article 24.2 of the Constitution, at least in proceedings for very serious offences. Presence at the trial hearing is not merely a fundamental right of the accused but an essential rule governing the conduct of the proceedings.
The practical consequence is that granting extradition to countries which, in cases of very serious offences, give effect to convictions in absentia, without making surrender conditional on the convicted person being able to challenge them, breaches those requirements.
Indirect violation of fundamental rights
This is the concept a specialist works with and one that almost never appears in a generic submission. It deserves its own section.
Spanish public authorities can indirectly violate fundamental rights when they recognise, endorse or give effect to decisions taken by foreign authorities. The Spanish judge’s supervisory role does not disappear because the violation originates with a foreign authority, where his own act creates a significant risk of a breach or enforces decisions that breach those rights.
That external projection does not extend to the whole content of every right, but to what the case law calls the absolute and inalienable core inherent in human dignity. Where the acts of the requesting state harm that core, or represent a significant danger to it, the Spanish decision giving them validity or effect may indirectly infringe the Constitution.
This construction, developed in judgment STC 91/2000 of 30 March and reaffirmed in judgment STC 181/2004 of 2 November, among others, is the key that allows a substantive examination of what actually awaits the individual in the country requesting them. Without it, the defence is reduced to checking paperwork.
Inhuman treatment and prison conditions
This connects directly with the above and with the mandatory ground concerning guarantees as to the penalty.
Here the arguments concern detention conditions in the requesting state, meaning overcrowding, lack of medical care, exposure to violence, prolonged isolation or a regime incompatible with the prohibition of inhuman or degrading treatment under Article 3 of the European Convention on Human Rights.
Be realistic about the evidential standard. Invoking the general situation in a country is not enough. What is required is an individualised and significant risk to the particular person, supported by reports from international organisations, rulings of courts in other states concerning surrenders to that same country, information about the intended prison, and, where they exist, diplomatic assurances whose adequacy can be challenged.
That is demanding evidential work, and it is exactly where the difference between specialist and improvised defence becomes visible.
The rule of speciality
This is the guarantee that operates after surrender, and many defences neglect it.
For a surrendered person to be tried, sentenced or subjected to any restriction of liberty for earlier acts other than those which gave rise to the extradition, an extension of the original grant is required, processed as a fresh extradition request. The same applies to re-extradition to a third state.
With one exception that must always be explained to the client. That authorisation is not required where the surrendered person, having had the opportunity to leave the territory of the state to which they were surrendered, remains there for more than forty-five days or returns after leaving.
The hearing and the limits on evidence
Here lies the technical core that explains why these cases demand specialisation.
At the hearing, only evidence relating to matters connected with the conditions required by the applicable treaty or by the Extradition Law is admitted and taken.
Extradition proceedings therefore do not determine whether the person committed the acts. This is not a trial on guilt, and anyone who runs the defence as though it were will waste both time and opportunity. What is argued is whether the statutory conditions for surrender are met and whether any ground for refusal applies.
The entire strategy must be built within that perimeter. An effective submission does not contest the evidence of the offence. It contests reciprocity, dual criminality, the minimum penalty threshold, limitation under both legal systems, double jeopardy, the guarantees offered, the persecutory motive behind the request and the risk to the inalienable core of fundamental rights.
Appeals and the decision
The court rules by reasoned order within the non-extendable period of three days following the hearing.
The only appeal against that order is the recurso de súplica, decided by the full Criminal Chamber of the Audiencia Nacional, and no judge who made the contested order may act as rapporteur.
Where a refusal becomes final, the court orders immediate release. Where extradition is declared admissible, the file returns to the Government, which may still refuse it.
One practical point always worth requesting. The court must record the period spent in custody for extradition purposes, and surrender is conditional on that period counting towards the sentence.
Why this field requires specialisation
Because it resembles nothing else that happens in a criminal court.
Cases are heard before a single court, the Audiencia Nacional, with its own practice. A mixed regime of bilateral treaty, multilateral convention and domestic statute applies, and determining which prevails is the first decision in the case. Admissible evidence is restricted by statute. Time limits are short and preclusive. And much of the work involves proving facts that occur outside Spain, which means handling international sources, obtaining foreign documentation and frequently coordinating with lawyers in the requesting country.
There is a further dimension that tends to be forgotten. While proceedings run, the person is usually in custody or has surrendered their passport, unable to work or to return home. Managing that situation is part of the retainer.
What to do and what never to do
Act before arrest if you suspect a request exists. The existence of an international alert can be checked and worked on in advance, and that head start changes the picture completely.
Do not consent to surrender at the first hearing without assessing it with your lawyer. If the person consents and no legal obstacle arises, the judge may grant the request there and then. That consent closes off the route of opposition, and it is often given through ignorance or exhaustion.
Gather documentation of your ties to Spain from day one, meaning municipal registration, employment contract, family responsibilities, residence permit and medical reports. It helps on custody and it helps afterwards.
Collect everything relating to the proceedings in the country of origin. Decisions, service documents, evidence that you were never summoned, that you were already tried, or that the case is time-barred. That is where the grounds for refusal are found.
And do not treat the case as lost because a treaty exists. The existence of an extradition treaty removes none of the grounds for refusal and none of the requirements for guarantees.
Extradition lawyer in Madrid, Palma de Mallorca, Ibiza and Alicante
Fechenbach Abogados is a criminal defence firm based in Madrid, close to the Audiencia Nacional, with further offices in Palma de Mallorca, Ibiza and Alicante. We act throughout Spain.
We work regularly in extradition proceedings, European Arrest Warrant cases, international alerts and mutual legal assistance, as well as in the substantive criminal defence where required.
We deal with you directly in English, with no intermediary. In proceedings where the client is by definition a foreign national, that is not a minor consideration. We also work in Spanish, German and Polish.
Speak to an extradition lawyer in Spain
Have you been arrested in Spain under an international alert? Do you know, or suspect, that another country is seeking you? Get in touch.
We will tell you clearly what stage the procedure has reached, which grounds for refusal are available in your case, and what must be done immediately. In English, without evasion and in complete confidence.
