Extradition in Spain: How the Process Works and How to Defend Yourself

Extradition in Spain is one of the most complex and least understood criminal procedures. If you or a family member are being sought by another State, understanding how this process works can make a decisive difference.

This article explains, step by step, the phases of passive extradition proceedings in Spain, the legal grounds for opposing surrender, and the role of the defence at each stage.

What Is Passive Extradition in Spain?

Passive extradition is the procedure by which Spain surrenders a person present on Spanish territory to another State, at that State's request, so that the person may be investigated, tried, or serve a sentence already imposed.

Its legal sources are the Spanish Constitution, the Passive Extradition Act (Ley de Extradición Pasiva), international conventions, and bilateral treaties entered into by Spain, some of which date back more than a century.

A widespread misconception is that without a bilateral treaty, extradition cannot take place. That is incorrect. Spain extradites even its own nationals, and all proceedings arising from extradition requests are centralised before the Audiencia Nacional.

A further distinguishing feature sets extradition apart from all other criminal proceedings: the court does not assess whether the requested person is guilty or innocent. The defence focuses its strategy on the formal and legal grounds for opposing surrender, not on the merits of the underlying case.

Before and During Arrest

An extradition process does not necessarily begin with arrest. The requested person often knows they are being sought before any detention occurs, and at that point the defence has meaningful room to act.

The Interpol Red Notice

The Interpol Red Notice is the best-known channel for international requests, although most are not publicly accessible. The absence of a red notice in publicly available records does not mean one does not exist. Extradition may also be pursued through diplomatic channels, with no red notice involved.

Voluntary Appearance before the Audiencia Nacional

When the requested person is aware that a request has been made, a voluntary appearance before the Audiencia Nacional, arranged in coordination with their lawyer, is strongly advisable. It can prevent arrest at a police checkpoint and has a positive impact on the subsequent decision regarding pre-trial detention. An airport arrest creates the presumption that the person was actively fleeing the requesting State's justice, which can negatively affect everything that follows.

Remand in Custody or Conditional Release

Once the requested person is arrested, a hearing must take place within 72 hours to decide whether they will be held on remand or released pending the proceedings.

Remand means detention in a penal institution throughout the proceedings, which may last several months. Conditional release allows the person to await the outcome at liberty, typically subject to passport surrender and periodic reporting obligations.

At this hearing, the defence must establish the requested person's ties to Spain: family, employment, and social connections. Supporting documentation must be gathered quickly and presented to the judge. It is also important to correct a common misunderstanding: not opposing extradition does not mean being released. The two matters are entirely separate.

The Phases of the Extradition Process

Receipt of the Extradition Request

Following arrest, the proceedings do not advance until the requesting State formally submits its extradition request with all supporting documentation. Bilateral treaties set their own deadlines; subsidiarily, the Passive Extradition Act prescribes a maximum of 40 days. If that deadline passes without documentation and the person was held on remand, they must be transferred to conditional release.

The Governmental Phase

Before the case reaches the Audiencia Nacional, it passes through an initial administrative filter. The Ministry of Foreign Affairs forwards the request to the Ministry of Justice, which submits a proposal to the Government on whether the proceedings should continue through the judicial channel. This phase also carries a 40-day time limit, although in practice the administration may exceed it without procedural consequences.

The Judicial Phase before the Audiencia Nacional

Once the governmental phase is concluded, the case file reaches the Audiencia Nacional. The Examining Judge (Juez Central de Instrucción) summons the parties to a preliminary hearing at which the requested person must state whether they accept or contest the extradition.

If they consent, the proceedings end and surrender follows without further judicial steps. If they contest, the file is referred to the Criminal Chamber (Sala de lo Penal), where the Public Prosecutor, the requesting State's counsel (if appearing), and the defence submit written submissions. A subsequent oral hearing is held at which the parties argue their positions and the proposed evidence is examined.

In cases where surrender is difficult to avoid, well-crafted submissions can achieve a significant reduction in the offences for which extradition is ultimately granted, with very practical consequences for the requested person's situation in the destination country.

Grounds for Opposing Extradition in Spain

Spanish courts may refuse extradition on several grounds. A thorough understanding of these grounds is one of the keys to an effective defence.

•       Double criminality. The conduct must constitute a criminal offence both in the requesting State and in Spain, legally and factually. Complex situations arise in practice: conduct that amounts to an administrative or civil matter in Spain, descriptions so generic that no equivalent offence can be identified, or treaties with closed lists of extraditable offences.

•       Statute of limitations. If the offence is time-barred under Spanish law or the law of the requesting State, extradition may be refused.

•       Non bis in idem. A person cannot be extradited for conduct in respect of which they have already been tried or pardoned in Spain. This principle applies to the underlying facts, not to the request itself: if extradition was previously refused on formal grounds, the requesting State may renew its request once those deficiencies have been remedied.

•       Reciprocity. Spain may refuse extradition if the requesting State does not provide assurances that it would act in the same way in response to a Spanish request.

•       Political offences. Spain does not extradite for offences of a political nature, with the exception of terrorism.

•       Discriminatory prosecution. If there are well-founded reasons to believe that the request conceals persecution on grounds of race, nationality, religion, or political opinion, surrender may be refused.

•       Insufficient guarantees. Extradition will not be granted if there are no sufficient guarantees that the requested person will not face execution, torture, degrading treatment, or trial before an exceptional tribunal.

•       Asylum and international protection. Spain does not extradite persons who hold recognised refugee status or subsidiary protection.

•       Reservation of the right to prosecute. In certain circumstances, Spain may refuse surrender and reserve the right to prosecute the requested person itself, bringing the foreign proceedings to Spain.

Appeals and Final Decision

If the court order grants extradition, the requested person has several avenues to challenge it:

•       Application for reconsideration (súplica) before the Full Criminal Chamber of the Audiencia Nacional.

•       Nullity of proceedings application.

•       Constitutional appeal (recurso de amparo) before the Constitutional Court (Tribunal Constitucional).

•       Application to the European Court of Human Rights, which may grant interim measures to suspend surrender while the case is under examination.

Once the judicial decision is final, the file returns to the Government for the ultimate decision on surrender. The Council of Ministers may refuse extradition on grounds of sovereignty, national security, or public order, although this power is rarely exercised and is closely tied to the prevailing diplomatic context.

Finally, the speciality principle guarantees that the requesting State may only prosecute the person for the offences that formed the basis of the extradition request. If additional charges are brought in the destination country, immediate action is required, with the support of trusted local lawyers on the ground.

Conclusion

Extradition in Spain is a complex procedure that combines judicial and governmental phases, strict deadlines, and grounds for opposition that must be argued with precision.

Key points to keep in mind:

•       Extradition is possible even without a bilateral treaty.

•       The defence does not address guilt or innocence, but the formal and legal grounds for opposing surrender.

•       Voluntary appearance and evidence of ties to Spain can be decisive from the very outset.

•       Judicial challenges are available up to European level to contest an extradition order.

At Fukuro Legal, extradition is a central part of our international practice. We handle proceedings involving multiple jurisdictions and maintain a network of trusted lawyers in different countries, enabling us to offer coordinated and effective representation from first contact to final resolution.

If you or a family member are involved in extradition proceedings in Spain, contact us for a consultation. You may also wish to read our article on the European Arrest Warrant to understand the differences from the extradition procedure between EU Member States.