Extradition proceedings in Spain fall under the jurisdiction of the National Court and are carried out in accordance with legally established procedures and steps. In order to determine whether or not a person should be handed over, the will of the person and the fulfilment of certain requirements established by the countries in question will be relevant.
On the one hand, the requesting state is the one that requests the surrender of a citizen to its country. This request may be either for the person in question to stand trial or to serve the sentence that has already been imposed.
On the other hand, it is the requested state that agrees whether or not to authorise the surrender of the citizen in question, who is in its country. The requested state must check whether or not all the requirements are met in order to determine whether or not the surrender can proceed.
These requirements are governed in Spain by Law 4/1985, of 21 March 1985, on Passive Extradition, as well as by the Treaty between the two countries, when there is one.
Extradition Treaties are the instrument that defines the conditions that must be met in order for the requested country to grant or refuse the extradition request made by the requesting country.
What criteria must the Spanish state take into account in order to agree or reject the surrender of a citizen to Brazil?
As has been made clear, it is necessary to resort to the existing treaty between the two countries, in this case the Instrument of Ratification of the Extradition Treaty between the Kingdom of Spain and the Federative Republic of Brazil, made in Brasilia on 2 February 1988.
Continuing with the example given, supposing that a citizen in Spain is arrested after the so-called “INTERPOL red alert” is triggered, and is requested by Brazil, the following circumstances will arise.
Spain will not consent to his extradition:
If the offence for which the person is being investigated provides for a prison sentence of less than one year both in our country and in Brazil, or if the person has been sentenced to a prison sentence of less than one year.
If Spain considers that it has jurisdiction to try the offence in question, or if the person is already being prosecuted or has already been tried by the Spanish courts.
If the offence in question is time-barred under the laws of both States.
If the person in question is wanted for an offence of a purely military or political nature.
If the person is being persecuted by the requesting state for reasons of race, religion, nationality or political opinion.
Furthermore, if the requested person has Spanish nationality, Spain is not obliged to agree to his or her surrender. In this situation, if Spain rejects the surrender of a Spanish citizen to Brazil for an act committed there, it may request information and documentation from Brazil regarding the alleged criminal act so that he or she can be tried by the Spanish courts.
The extradition procedure is initiated through diplomatic channels by means of a request made by the requesting state, together with various necessary documentation: details of the alleged act, identification data of the person, legal precepts, legal provisions relating to the statute of limitations for criminal action or punishment. Spain may grant an extension of sixty days to Brazil when it considers that the request is not duly formalised.
From that moment, the steps established in the aforementioned Passive Extradition Law are followed, such as the hearing in which the citizen is asked about his or her willingness to be extradited and a decision is taken on whether or not to impose provisional detention; the document and hearing in which the citizen’s lawyer argues the reasons why extradition is not appropriate in his or her case; the decision of the corresponding Chamber of the National High Court with regard to the ruling.
Finally, the requested state will decide whether or not to surrender the person in question, and will immediately notify the requesting state.
In the event that surrender is agreed, if sixty days have passed since notification to the requesting state without the person being received by the requesting state, the person will be released and may not be arrested again for the same offence. There are regulated exceptions whereby surrender may be postponed, such as serious illness.
If surrender is refused, the person in question cannot be requested to be surrendered again for the same offence.
What happens if the extradition of a person is requested from Spain by more than one State?
Article 21 of the Treaty sets out the order of preference to be followed in this situation. Thus, preference will be given to the State that has an Extradition Treaty with Spain. Next, the State in whose territory the offence was committed if the act is the same; thirdly, the State in whose territory the most serious offence in Spain’s opinion was committed; then, the State which made the request first if they are different acts of equal gravity; and if they are simultaneous, the State of origin or domicile of the person in question. If none of these situations apply, Spain will decide on preference.
In short, in the event that a citizen is requested by Brazil, Spain must abide by the provisions of the aforementioned Treaty and the Passive Extradition Law, so that, after hearing the citizen, his or her lawyer, the Public Prosecutor’s Office, and the lawyer of the requesting state when there is one, it can decide whether or not the surrender is admissible.
Undoubtedly, it is essential to choose the defence lawyer in an extradition procedure with caution. At Chabaneix Abogados Penalistas we are specialists in extraditions, having been a party to many different extradition proceedings, and having achieved very satisfactory results.
Furthermore, in the event that our client’s extradition is refused, our work does not end there, but we take a further step such as deleting his INTERPOL red card so that he can move freely through each country without being “jumped” each time the red alert is issued.