By Dámaris Pamplona
In this article, we will deal with the different phases of an extradition process from a practical perspective, the result of the experience gained by Chabaneix as lawyers in numerous extradition proceedings over the years.
1.- THE INTERPOL RED ALERT:
The vast majority of times, an extradition process will not start directly with the governmental phase, as indicated in books and theoretical explanations; it will start with a prior “red alert”, i.e. with an international request for the arrest of a person through INTERPOL.
The authority of the requesting country will transmit to INTERPOL, in a schematic form, the basic identification data of both the requested person and the criminal proceedings against him/her, requesting at the international level the arrest of the wanted person.
2.- PROVISIONAL DETENTION OR PROVISIONAL RELEASE:
Once the person has been arrested, for example at a roadblock or at the airport, a decision will have to be taken within 72 hours as to whether he/she will be deprived of liberty while the National High Court processes the extradition proceedings, or whether he/she can remain in provisional liberty in the meantime.
For this purpose, a hearing will be held in accordance with Article 505 of the Criminal Procedure Act, where the defendant must be assisted by a lawyer to represent his interests and request his provisional release. At this hearing, the parties will explain what measure should be adopted, particularly with regard to whether or not there is a risk of absconding, assessing whether or not the person has roots in our country.
After the hearing, the judge will decide whether to order release or pre-trial detention. In the first case, some measures are usually imposed to ensure that the person is located, such as the retention of their passport, or the obligation to sign in periodically. In the second case, the person will be detained in a penitentiary while the extradition proceedings are being processed.
3.- THE EXTRADITION REQUEST
Next, it will be necessary to wait for the requesting country to send the “extradition request”, as this will be the time for the country to send all the documentation supporting its request for arrest for surrender. But the wait will never be indefinite, because the Treaties establish a maximum time limit, and subsidiarily the Passive Extradition Law establishes a maximum time limit of 40 days.
If the deadline has passed and the documentation has not arrived, it does not mean that the extradition procedure is over. The effect of the expiry of the deadline is that if the requested person was in prison, he or she will be provisionally released. It is possible that the judge may decree a provisional closure, but the procedure has not ended: it will be reactivated when the documentation arrives.
4.- GOVERNMENT DECISION
Once the extradition request has arrived, it will pass through the first filter: the governmental phase. This is also the case if the extradition procedure was not initiated through a red alert, but through diplomatic channels.
The Ministry of Foreign Affairs will forward the extradition request to the Ministry of Justice, which will make a proposal to the government as to whether or not the extradition procedure should continue through the courts. If the government decision does not reach the Audiencia Nacional within 40 days and the requested person was in prison, he will be provisionally released.
5.- FIRST APPEARANCE IN THE JUDICIAL PHASE
At the Audiencia Nacional, the first person to deal with the judicial phase of the extradition procedure will be the Central Examining Magistrate who has been assigned to the case in turn.
On receiving the extradition request documentation, he or she will summon the parties to the hearing under Article 12 of the Passive Extradition Act: the defendant, his or her lawyer, the Public Prosecutor’s Office, and it is also possible for a lawyer representing the interests of the requesting country to appear.
At this hearing, the requested person will have to decide whether or not to accept extradition. If he accepts, the proceedings will be terminated and he will be sent to the requesting country without further judicial proceedings. In the event that he/she objects to being extradited, the proceedings will continue.
At this point, the parties may state whether they consider that the documentation sent by the requesting country is deficient in any aspect, in order to request that the requesting country be asked to complete it. The judge, if he considers it appropriate, will accede to this request, giving said country a maximum period of 30 days to complete its claim.
6.- WRITTEN SUBMISSIONS BY THE PARTIES
The Central Preliminary Investigating Judge will then submit the case file to the Criminal Division of the National High Court. At this point, the Public Prosecutor’s Office, the lawyer of the requesting State (if it is represented), and the lawyer of the requested party, will have to present their respective reports in writing, in what is known as the procedure of art. 13 of the Passive Extradition Law.
In their reports they will argue the reasons why they consider that extradition is appropriate or not. It is important at this point that the defendant’s lawyer specialises in extradition and has experience, in order to be able to find and allege the existence of any mandatory or mandatory grounds for refusal that could block the surrender of the defendant. Furthermore, this will be the time to provide any documentation deemed relevant and to propose the evidence considered necessary for the extradition hearing.
7.- EXTRADITIONAL HEARING
The extradition hearing will be attended by all the parties to defend the extradition or its refusal, that is to say, verbally presenting the positions already presented in writing in the aforementioned reports of art. 13 LEP. The evidence will be taken and the Court will have to take a decision, which will be issued by means of a reasoned Order within three days of the hearing.
CHABANEIX CRIMINAL LAWYERS
Our experience and numerous successful cases are our guarantee in this sector. 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.