By Luis Chabaneix
The principle of dual criminality requires that the acts for which extradition is requested constitute an offence both under the criminal legislation of the requesting State and under Spanish criminal law.
This is completely independent of whether or not the extradited person has committed these punishable acts since, in extradition proceedings, it is not necessary to decide on the guilt or innocence of the requested person.
The absence of the principle of dual criminality is a ground for refusing extradition.
For the principle of dual criminality to apply, it is sufficient for the act to be an offence under the criminal law of both countries, without the need for it to be the same offence.
It makes no difference that the offences are not absolutely identical, that the punitive consequences are not the same (higher or lower penalty) or that they are called by different names (nomen iuris).
The legal classification of the facts on which the requesting State bases its request is therefore not binding on the Extradition Court.
What is essential is that the act in question is criminally relevant (criminal) according to the legislation of both States, regardless, for example, of whether what is fraud in the requesting country is misappropriation in our country.
In assessing dual criminality, the Extradition Court will not only refer to the law, but will also take into account its interpretation and application by the national courts (doctrine and case law).
On the other hand, whether or not the principle of dual criminality applies will be assessed on the basis of the account of the facts contained in the documents accompanying the extradition request.
The description of the punishable acts in the documentation of the note verbale must be sufficiently specific to analyse whether the dual criminality requirement is met.
In this sense, among the MINIMUM REQUIREMENTS OF THE EXTRADITION REQUEST is that documentation (conviction, indictment and imprisonment or similar resolution according to the legislation of the requesting country) with “summary expression of the facts and the place and date on which they were carried out“.
Therefore, even if it is stated by the requesting State that the conduct deserves criminal reproach, if the factual account offered to justify the extradition request, by its own narrative and structure, does not contain sufficient elements for the attribution of criminal responsibility, extradition must be denied.
Such was the case of the extradition refused to Algeria in the “East-West Highway” case. Our client was arrested on the basis of an extradition request to Algeria in which he was accused of having been part of a corruption scheme in the construction of the East-West Motorway, the biggest political-financial scandal of the last decade in Algeria.
Nowhere in all the extradition documents provided by the Algerian authorities did they specify when or exactly what conduct our client had carried out. This blatant lack of determination of the criminal conduct of which the defendant was accused meant that the principle of dual criminality was violated. If the facts suffered from a total lack of specificity, it was impossible to examine whether or not they were criminal according to our legislation.
Despite the contrary opinion of the Public Prosecutor’s Office, the Criminal Division of the National High Court upheld our arguments and refused extradition.