By Luis Chabaneix
Article 7 of the Passive Extradition Law (LEP) regulates the minimum requirements that the extradition request must meet.
The request for extradition shall be formulated through diplomatic channels, or directly in writing from the Ministry of Justice of the requesting party to the Spanish Ministry of Justice, and must be accompanied by:
The conviction or indictment and imprisonment or similar decision according to the legislation of the requesting country with a summary of the facts and the place and date on which they were carried out.
As much information as is known about the identity, nationality and residence of the requested person and, if possible, his or her photograph and fingerprints.
A copy of the legal texts with a summary of the applicable penalty.
The aforementioned documents, originals or certified true copies, shall be accompanied by an official translation into Spanish“.
The request for extradition sent through diplomatic channels (formalised in the note verbale) is the model that the law provides for initiating the extradition file.
However, it is more common that, without prejudice to the fact that the request is finally sent, extradition begins when the requested person is arrested by virtue of an international arrest warrant.
The note verbale must be accompanied by the following documentation:
Sentence of conviction, indictment and imprisonment or analogous resolution: This is what is known in doctrine as the title of the extradition, that is to say, that documentation that justifies why the request is made. The key lies in the clause “analogous resolution“. Spanish extradition legislation assumes that the procedural instruments of States are necessarily diverse and, therefore, equivalence is established precisely on the existence of a “summary expression of the facts and the place and date on which they were carried out”. The Extradition Court (Audiencia Nacional) must have the capacity to examine the main circumstances of the facts attributed to the subject and the legal consequences arising therefrom as an essential minimum. Otherwise, the request would not be sufficiently justified and extradition must be refused. We examined this aspect of the basic specification of the facts when we dealt with the PRINCIPLE OF DUAL CRIMINALITY. In addition, this decision on the basis of which extradition is granted must be valid in terms of the organ issuing it being competent to do so. The authority issuing this decision does not necessarily have to be judicial. As mentioned above, each national judicial system is different. For example, in countries such as the United States, it is the Public Prosecutor’s Office which assumes the functions which in Spain are traditionally entrusted to the examining magistrate, and the Audiencia Nacional does not question this attribution.
Identification data: They do not have to correspond exactly to those listed in the precept. For example, it is possible that there are no fingerprints or even a photograph of the person being extradited as long as their identity is sufficiently accredited.
What is essential is that the person against whom the extradition proceedings are directed is indeed the person who is alleged to have committed a criminal offence in the requesting country.
Copy of the legal texts with summary expression of the applicable penalty: This requirement is closely linked to that of the conviction, indictment and imprisonment or similar decision. The requesting State must provide the normative reason for the criminal case against the extradited person, i.e. how it punishes his or her conduct (the criminal articles that regulate the offences allegedly committed by the extradited person). Further elements such as the statute of limitations must also be taken into account. If the criminal offence is time-barred, extradition will be refused, as the act could no longer be prosecuted. Finally, as far as translations are concerned, their deficiencies or errors are not grounds for refusing extradition unless they are of such a magnitude as to render the defendant defenceless. It is not viable to exercise the right of defence that all extradition subjects have if the documentation that would serve as a basis for their surrender is not understandable by the parties to the proceedings or by the Extradition Court itself.