By Borja Juárez Serna
This is a procedure in which one State (called the requesting State) asks another State (called the requested State) to place an alleged offender at its disposal, either for prosecution or for serving a sentence.
TYPES OF EXTRADITION
There are two types of extradition, active and passive.
Active extradition is considered from the perspective of a requesting State, in which a judge or competent court hearing criminal proceedings requests the extradition of an investigated or convicted person. When extradition is requested by a Spanish body, the procedure is regulated in the Criminal Procedure Act. Extradition can only be requested in three cases: when it is a Spanish citizen who has committed a crime in Spain and has taken refuge in a foreign country, when a Spanish citizen has committed a crime abroad against the foreign security of Spain and has taken refuge in a country other than the one in which he/she committed the crime, and in cases where a foreigner must be tried in Spain and has taken refuge in a country of which he/she is not a national.
Passive extradition, on the other hand, is when a State is requested to extradite a subject and a Judge or Court must decide whether or not to grant the request. In Spain, passive extradition is regulated by Law 4/1985. In order for it to proceed, it is required that the offences for which the Spanish laws and those of the requesting State stipulate a sentence or measure of deprivation of liberty whose duration is not less than one year of deprivation of liberty or four months of deprivation of liberty if it is a matter of serving a sentence or security measure.
LEGAL SOURCES OF EXTRADITION
Article 13.3 of our Constitution stipulates that extradition may only be granted in compliance with a treaty or the law, in accordance with the principle of reciprocity. Political offences are excluded from extradition, and terrorist offences are not considered as such.
It follows from the above that the prevailing source of extradition is constituted by treaties and, failing that, by law. It is important to bear in mind that supranational norms (international treaties), bilateral treaties signed between Spain and other countries, and rules of domestic law concur in determining the legal regime. The most characteristic international sources of extradition are the following:
– European Convention on Extradition of 13 December 1957, ratified by Spain on 21 April 1982.
– European Convention for the Suppression of Terrorism of 27 January 1977 (ratified by Spain on 9 May 1980).
– Strasbourg Convention of 21 March 1983, on the transfer of sentenced persons, ratified by Spain on 10 June 1983 and published in the Official State Gazette on 19 July 1985.
– Bilateral treaties signed by Spain and in force, which are of preferential application.
– Convention of 17 September 1996, in execution of Article K-3 of the Treaty on European Union.
– Convention on simplified extradition procedure between the Member States of the European Union of 10 March 1995. And in relation thereto Council Decision 2003/169/JHA of 17 February 2003 determining which provisions of the 1995 Convention on simplified extradition procedure between the Member States of the European Union constitute a development of the Schengen acquis within the meaning of the Agreement concerning the association of the Republic of Iceland and the Kingdom of Norway with the implementation, application and development of the Schengen acquis.
In the absence of an applicable international treaty, domestic sources apply, i.e. the Passive Extradition Act 4/1985 of 21 March 1985. Active extradition has been regulated by articles 824 to 833 of the Law of Criminal Procedure.
BILATERAL EXTRADITION TREATIES SIGNED BY SPAIN
Spain has signed extradition treaties with countries with very different forms of state and legal systems:
- Cape Verde
- Costa Rica
- El Salvador
- United Arab Emirates
- United States of America
- New Zealand
- Dominican Republic
EUROPEAN ARREST WARRANT
Within the European Union, extradition requests were replaced by the creation of the European Arrest Warrant (EAW). EU member states created this mechanism to replace the formal extradition procedure (which was very complex and time-consuming) with a swift and efficient system of surrender between judicial authorities, based on mutual trust. Currently, the European Arrest Warrant is regulated by Law 3/2003 and Law 23/2014.
The time limits for processing an EAW are shorter than those set out in the Passive Extradition Act, and the grounds for refusal are limited. These include pardon, non bis in idem, principle of dual criminality, minority, competence of the Spanish courts to hear the case or immunity of the requested person.
The mechanisms of international judicial cooperation enabled in the European Union are contemplated and regulated in the following provisions:
- European Convention on Mutual Assistance in Criminal Matters, signed in Strasbourg on 20 April 1959, Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters, signed in Strasbourg on 17 March 1978 and the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union, signed in Brussels on 29 May 2000.
- Convention implementing the Schengen Agreement of 14 June 1985 on the gradual abolition of checks at common borders, signed in Schengen on 19 July 1990.
- Council Framework Decision of 13 June 2002, made in Luxembourg, on the European arrest warrant and the surrender procedures between Member States, with application of the principle of reciprocity.
CHABANEIX CRIMINAL LAWYERS
Our experience and the numerous successful cases we have handled in this field are our guarantee. We will be happy to help you and fight for you to achieve the best result in court. You can rely on our years of experience to find the most beneficial solution for you when faced with an extradition problem.