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How passive and active extradition works in Spain

Extradition is a legal-political process in which a State executes its sovereignty by deciding whether or not to surrender an alleged offender to be tried or serve his sentence in the country requesting the surrender. Extradition is an international legal process, which operates on many assumptions to ensure its execution, such as penal solidarity, or the value of reciprocity of international relations, which is why its nature beyond judicial, is political.

When we talk about extradition many possible cases come to mind, from criminals trying to avoid capture, to refugees fleeing dictatorial regimes.  The large number of cases that may occur of dubious nature, is solved in the quality of judgment of the requested State and not the applicant, imposed by its sovereignty over the territory, regardless of the nationality of the alleged offender.

In an extradition process there are two roles, passive and active extradition. Each role, complementary to the other, can also be defined as types, where active extradition is issued by the requesting State, and passive extradition is issued by the requested State. It should be noted that although extradition is framed in international law, it depends on domestic legal sources, i.e. the laws of the country from which it is requested, and not on the requesting State.

Legal sources of Spanish extradition

The Spanish Constitution establishes in Article 13.3 that extradition will only be executed in compliance with treaties or laws that comply with the principle of reciprocity. In Spain, as in most countries, the possibility of extradition for political crimes is rejected, which applies even to countries with which there are treaties.

However, often even if the grounds for extradition are political, the defendants’ charges do not contemplate it. Whether an extradition case is carried out or denied depends largely on the lawyer handling the case, so it may be necessary to hire the best criminal lawyers in Spain. Not only is knowledge of criminal law required, but international law, so specialization is vital to a successful refusal.

The most relevant international sources for extradition are:

  • European Convention on Extradition (ratified by Spain in 1982).
  • European Convention on Mutual Assistance in Criminal Matters (ratified by Spain in 1982).
  • Strasbourg Convention on the Treaty on the Transfer of Sentenced Persons (ratified by Spain in 1985).
  • European Convention on the Suppression of Terrorism.
  • Bilateral treaties in force (signed by Spain).
  • Convention on the simplified extradition procedure between the States of the European Union.
  • Convention on the execution of article K-3 of the Treaty on European Union. (1996).

The sources for internal extradition are contemplated in the Passive Extradition Law (4/1985), which applies if the requesting State does not have any agreement with the Spanish State. The active extradition law is regulated on the basis of articles 824-833 of the Criminal Procedure Law.

Material requirements for passive extradition

A series of requirements apply for passive extradition to take place, including objective requirements, of a legal and criminal nature, and subjective requirements, which refer to the attributes of the person in question. Given that the expedition is a process that combines international laws, conventions, internal laws of the extraditing country, of the requesting State, and political motives, in order for the extradition to be carried out.

Objective presuppositions

  • Principle of legality: The grounds for extradition must be contemplated in treaties.
  • Principle of dual criminality: The offense must be criminalized as such in both States.
  • Principle of specialty: If extradition is carried out, the charge for which the subject will be tried is the one for which he/she was extradited.
  • Extinction of criminal liability: The criminal liability for the crime has not been extinguished.
  • Principle of reciprocity: reciprocity between States.

In addition to those mentioned above, the exclusion of certain crimes is contemplated, i.e., the crimes for which extradition is required are not of a political, military or fiscal nature. In the case of military offenses, they would have to be of a common nature, and in the case of fiscal offenses, offenses involving specific consumption are considered.

Subjective requirements

  • Nationality
  • Minority of age
  • Asylum

The fulfillment of the requirements is mandatory for the extradition to be carried out. However, the services of the best extradition lawyers in spain are needed to ensure that each of these points, including the judicial budgets, are fully respected. We have for example the Komi Koutché case, for which the extradition from Spain to the Republic of Benin was requested under allegations of financial crimes. The Chabaneix Lawyers team succeeded in having the extradition denied by the National High Court for breach of the principle of dual criminality; this is an example of a case in which extradition was believed to be imminent and was denied due to the team of lawyers, hence the emphasis of hiring an excellent team of lawyers like Chabaneix Lawyers to handle extradition cases, since it strongly depends on this whether it proceeds or is denied.

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