Can Morocco Suspend Extradition with Spain? What Does (and Doesn't) Change for Foreign Nationals Facing Criminal Proceedings
Morocco has announced that it is considering suspending application of its extradition treaty with Spain, citing failures in the effective surrender of persons wanted by its courts. The news has caused some confusion, as the same context has also brought up the criminal expulsion of foreign nationals and the repatriation of unaccompanied Moroccan minors. These are three distinct legal institutions, with different effects and requirements. It is worth distinguishing between them.
1. What is extradition, and why can it be suspended?
Extradition is a mechanism of international judicial cooperation: one State surrenders a person located within its territory to another State, so that the person may be tried or serve a sentence imposed by the courts of that second State.
In Spain, passive extradition (where Spain is the requested State) is governed by Law 4/1985 of 21 March on Passive Extradition, together with the bilateral treaty concluded with the requesting country — in this case, the extradition treaty between Spain and Morocco.
An essential feature of extradition is that it depends on the will of both States. It is an instrument of cooperation, not a unilateral obligation. This means that if Morocco decides to suspend its application, the practical effect is that this channel ceases to operate: Spain could no longer surrender persons wanted by Moroccan courts through this mechanism, nor would Morocco be obliged to surrender persons wanted by Spanish justice through the same route.
This does not mean that all criminal cooperation between the two countries disappears — other channels may exist (multilateral instruments for specific offences, for example) — but the specific, streamlined channel represented by the bilateral treaty would become inoperative.
2. Expulsion under Article 89 of the Criminal Code: a different institution
Article 89 of the Spanish Criminal Code (Código Penal, CP) governs a completely different institution: the substitution of a prison sentence with expulsion from Spanish territory, applicable to foreign nationals not legally resident in Spain who are convicted by a Spanish court.
The essential differences from extradition are:
- Who decides: expulsion under Art. 89 CP is decided unilaterally by a Spanish court, within criminal proceedings conducted in Spain. Extradition requires the agreement of two States.
- Who it applies to: Art. 89 CP applies to someone who has already been tried and convicted in Spain. Extradition concerns someone wanted for offences prosecuted or sentenced in the requesting State.
- Dependence on treaties: expulsion under Art. 89 CP does not depend on the existence or validity of any bilateral treaty with the destination country. Extradition, by definition, does depend on that treaty framework.
Consequently, a suspension of the extradition treaty with Morocco does not affect the application of Article 89 CP by Spanish courts. These are mechanisms that operate on different planes of the legal system.
3. Repatriation of unaccompanied minors: a third matter
The press has also begun to mention Morocco's demand that Spain swiftly return unaccompanied Moroccan minors currently in Ceuta and the rest of Spanish territory. This is a third institution, separate from both extradition and criminal expulsion: it is an administrative child-protection procedure, governed by immigration legislation and the principles of child protection, in which the best interests of the minor must be the determining criterion.
The fact that Morocco links this issue to the extradition debate does not mean the two share the same legal regime, nor that a suspension of the extradition treaty has any direct bearing on repatriation procedures for minors.
Conclusion
Morocco's announcement, if confirmed, would have a real but limited effect: it would close or hinder the channel for surrendering persons wanted in criminal proceedings between the two countries. It would not, however, affect the power of Spanish courts to substitute prison sentences with expulsion under Art. 89 CP, nor the procedures for the protection and repatriation of unaccompanied foreign minors, which follow their own rules.
Distinguishing between these three institutions is essential for correctly assessing the real scope of the news circulating in the media, and for any foreign national who may be affected by criminal proceedings in Spain, understanding which mechanism applies to their situation is the first step to knowing their rights.
