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Extradition is defined as the procedure by which a State transfers to another State a person who is under investigation or has been convicted, for the purpose of undergoing judicial proceedings or serving a previously imposed sentence. This mechanism is regulated by bilateral or multilateral agreements and is based on the principle of reciprocity, which establishes the obligation of both States to cooperate in these procedures, always under certain previously agreed conditions.
There are two types of extradition: passive extradition and active extradition. Passive extradition is regulated by Law 4/1985 of 21 March 1985 on Passive Extradition. In this case, it is required that both the Spanish legislation and that of the requesting State provide for a sentence or security measure whose duration is not less than one year or, failing that, four months of deprivation of liberty, as established in Article 2 of this law.
On the other hand, we have active extradition, which will be the subject of a more detailed analysis in this document. Active extradition is regulated by articles 824 to 833 of the Criminal Procedure Act. This type of extradition is carried out when it is requested by the Spanish State to another State, and the judge or court hearing the proceedings is competent to request it. The extradition request is made to the Government, which will be responsible for requesting the extradition of those accused or convicted by final judgement, provided that the request is appropriate in accordance with the applicable regulations. A prerequisite for requesting extradition is that a prison sentence or final conviction has been handed down, in accordance with the provisions of Articles 824 and 824 bis of the Criminal Procedure Act (Ley de Enjuiciamiento Criminal).
This same law establishes both the cases and the necessary requirements for the application of the extradition procedure. Thus, Article 826 of the Criminal Procedure Act provides that extradition may only be requested or proposed in the following cases:
1. of Spanish nationals who, having committed a crime in Spain, take refuge in a foreign country.
2. Spanish nationals who, having committed an offence abroad against the external security of the State, take refuge in a country other than the place where the offence was committed.
3. Foreign nationals who, having to be tried in Spain, take refuge in a country other than their own.
Likewise, Article 827 of the same law establishes that the request for extradition will proceed in the following cases:
1. In those cases provided for in the treaties in force with the state in whose territory the individual sought is located.
2. In the absence of a treaty, when the extradition proceeds in accordance with the written or customary law in force in the territory of the requested state.
3. In the absence of the two previous cases, when extradition is appropriate in accordance with the principle of reciprocity.
For its part, Article 828 of the Criminal Procedure Act provides that the judge or court hearing the case in which the absent defendant is being prosecuted in foreign territory shall have jurisdiction to request his extradition. This article concludes the active extradition procedure and initiates a new phase of international judicial assistance in criminal matters. To carry out this phase, it is necessary to make a request that complies with the requirements established in articles 831 to 833 of the Criminal Procedure Act, as set out in the Judgment of the Supreme Court, Third Chamber for Contentious-Administrative Matters, of 31 May 2005.
In accordance with the provisions of articles 811 and subsequent articles of the Criminal Procedure Act, the extradition request must be formulated in the form of a request for extradition addressed to the Ministry of Grace and Justice, unless an international treaty authorises a direct request by the judge hearing the case. This request must be accompanied by the literal testimony of the extradition order, as well as the report or request of the Public Prosecutor's Office and the procedural steps that justify the extradition request, as established in article 823 of the Criminal Procedure Act. Finally, in accordance with the provisions of Article 276 of the Organic Law of the Judiciary, this referral must be made through the President of the corresponding High Court of Justice.
One of the most important measures adopted in the European Union to minimise the disadvantages of the traditional extradition procedure is the European Arrest Warrant (EAW), commonly known as the Euro-Order, which has significantly streamlined the process of surrendering persons for criminal purposes between the Member States of the European Union. This instrument was approved in Spain by Law 3/2003, of 14 March, and has been in force since 1 January 2004. It is currently regulated by Law 23/2014, of 20 November, on the mutual recognition of criminal decisions in the European Union.
The case of Daniel Sancho is not the only one in which a Spanish citizen has been arrested in Thailand on charges of murder and dismemberment. A precedent can be found in the 2016 media event in Bangkok, when Artur Segarra kidnapped, tortured, asphyxiated and dismembered David Bernat, a Spanish consultant. Segarra discarded the remains of the body in the Chao Phraya River, which bears similarities to the actions confessed by Sancho, who also allegedly dismembered Colombian surgeon Edwin Arrieta on the island of Koh Phangan. Sancho, currently in custody, has cooperated with the Thai authorities in the reconstruction of the events and his case is being prosecuted.
The procedure followed in Segarra's case was different. After committing the murder, he fled to Cambodia, but was identified by a Spanish couple who recognised him thanks to images in the media. He was subsequently extradited to Thailand, where he was sentenced to death in 2017. After unsuccessful appeals to the Court of Appeal and the Supreme Court, his situation changed in 2021, when King Maha Vajiralongkorn commuted his death sentence to life imprisonment during his traditional annual clemency ceremony, after he confessed to his crime.
While this case sets a precedent, there are further differences between the two cases, as Artur Segarra does fall within the scope of article 826.1 of the Criminal Procedure Act. This means that, in his situation, he could be extradited for a previous crime for which he fled Spain, not for the crime committed in Thailand. However, as there is no extradition treaty between Thailand and Spain, it is not possible to extradite him directly for these acts either. Sancho will therefore have to follow the same procedure as mentioned above, based on the agreement on cooperation in the enforcement of criminal sentences signed between the two countries. This means that, after serving at least 8 years in a Thai prison, he could request his transfer to the Spanish justice system to serve the rest of his sentence in Spain.
This case established a relevant precedent for similar cases, such as that of Daniel Sancho. Although Thailand applies severe sentences, including the death penalty, the process of commutation and transfer of sentences is common, as stated in article 5 of the treaty between the two countries. Segarra has already spent several years in prison before his transfer to Spain began. He has currently been in a Thai prison for eight years and is expected to be transferred to Spain later this year.
This precedent could influence the judicial treatment of Sancho's case. Given the cooperation between Thailand and Spain, and Thai judicial procedures, it is expected that, following his conviction in the Asian country, a similar process will be initiated for Sancho to serve part of his sentence in Spain, once the deadlines stipulated in the criminal cooperation agreement between the two countries are met.
The agreement in force between Spain and Thailand, signed on 7 December 1983, regulates cooperation in the execution of criminal sentences between the two countries. This agreement allows a person sentenced in one of the countries to be transferred to the other to serve his sentence, provided that certain requirements are met.
In the case of Daniel Sancho, this agreement would be applicable only if the offence for which he has been convicted is also considered a crime in Spain, as is the case, although it is not necessary for there to be an exact coincidence in the legal classification. However, the sentence must be final, something that has not yet happened, as Sancho has the possibility to appeal. If his conviction is upheld, extradition would depend on him having more than one year left to serve, which seems likely if the life sentence is upheld.
An analysis of the Thai Penal Code shows that Thai law does not make a clear distinction between murder and manslaughter. Article 288 states that anyone who kills another person will be punished with a penalty ranging from 15 to 20 years imprisonment, or even the death penalty, which shows a significant disparity between possible sentences.
Although some media have mentioned the possibility of Sancho facing life imprisonment, the Thai Penal Code does not specifically mention this penalty, but it is assumed that judges can impose it as an intermediate alternative between the maximum penalty of 20 years and the death penalty. In fact, although the code does not contemplate it, there is a history of life sentences in Thailand for serious crimes, and the Spain-Thailand agreement itself mentions it.
There are also aggravating circumstances that could imply the mandatory imposition of the death penalty, such as premeditation or the commission of particularly cruel or inhuman acts. In the case of torture, torture is usually applied when committed by public officials, which reduces the likelihood of Sancho being sentenced to death on this ground. However, premeditation is broadly defined in Thai law, which leaves open the possibility that he could be sentenced to death.
As for extradition to Spain, it is not possible for Sancho to be sent for trial in his country of origin, as there is no extradition treaty between Spain and Thailand, nor does he fall within the cases covered by the Criminal Procedure Act. However, the agreement on cooperation in the execution of criminal sentences allows that, once a final sentence has been passed in Thailand, his transfer to serve the sentence in Spain can be negotiated, as long as he adapts to Spanish legislation. However, if he were sentenced to death, this option would be ruled out, as the agreement only allows for transfer in cases of life imprisonment. In addition, the agreement states that Sancho would have to serve at least eight years in a Thai prison before being transferred to Spain.
In accordance with the above, Daniel Sancho would not be in a position to request his extradition, given that there is no extradition treaty in force between the two States involved, nor does his case fall under the provisions set out in Article 826 of the Criminal Procedure Act. However, he could be transferred to the Spanish justice system to complete his sentence in Spain, as there is a bilateral agreement between the two countries on cooperation for the enforcement of criminal sentences signed between the two countries in 1983.
In order for Daniel Sancho to request such a transfer, he must comply with the requirements set out in Article 2 of the aforementioned treaty, which establishes the conditions under which the transfer can proceed:
1. Dual criminality: The offence for which you have been convicted must constitute a crime in both countries, although the circumstances of the offence (such as value or quantity in cases of theft) need not be identical.
2. Citizenship: The convicted person must be a citizen of the receiving State.
3. Exclusions: The convicted person must not have committed crimes against the security of the state, the head of state, or crimes related to the smuggling of antiquities or cultural heritage.
4. Length of sentence: At the time of application for transfer, at least one year must remain to be served.
5. Final sentence: The sentence must be final, with no legal proceedings pending in the transferring State.
6. Minimum duration: The sentenced person must have served the minimum part of the sentence according to the law of the transferring State.
7. Possible refusals: The transfer may be refused if the transferring State considers that it represents a threat to its sovereignty or if the sentenced person is also a national of that State.
On the basis of the above, Daniel Sancho could apply for transfer once he has served the minimum part of his sentence, which in this case is 8 years, given that he meets the conditions listed above.
The transfer procedure follows the following steps: First, the sentenced person must be informed about the conditions of the agreement. Subsequently, the formal request for transfer must be made by the receiving State to the transferring State. In assessing the request, factors such as the likelihood that the transfer will be conducive to the social rehabilitation of the sentenced person, the seriousness of the offence, and mitigating or aggravating circumstances will be taken into account. It is relevant to note that the agreement includes life sentences, determinate sentences or supervision measures, as is the case of Daniel Sancho, who has been sentenced to life imprisonment. In addition, the transferring State must provide the receiving State with detailed information on the offence, sentence, time served and sentence reductions applied. If necessary, the receiving State may require additional information. Finally, a place for the surrender of the sentenced person will be agreed and it will be verified that the consent to the transfer is given voluntarily.
In addition, the treaty provides for a procedure for the enforcement of the sentence, regulated by Article 5, which establishes the following:
1. The sentence shall be enforced in accordance with the laws of the receiving state, including the possibility of conditional release or reduction of the sentence. In this case, the sentence shall be in accordance with the highest sanction existing in Spain, which is permanent revisable imprisonment.
2. The transferring State may grant pardons, and the receiving State shall be obliged to respect this decision.
3. The receiving State may not extend the length of the sentence.
4. The receiving State shall bear the costs related to the transfer and the enforcement of the sentence.
5. The parties shall exchange regular reports on the situation of transferred sentenced persons, including their release or any change in their legal situation.
In conclusion, extradition plays a key role in international criminal justice cooperation, allowing the transfer of individuals between countries to face charges or serve sentences imposed by courts. This process is divided into two main types: passive extradition, regulated by Law 4/1985, which is applied when a country requests the surrender of a person who has been convicted in another country, and active extradition, regulated by the Criminal Procedure Act, which occurs when Spain requests another country to surrender a person who has been prosecuted or convicted in Spain.
In the case of Daniel Sancho, despite the absence of a specific extradition treaty between Spain and Thailand, there is a bilateral agreement that regulates cooperation in the execution of criminal sentences. This agreement, signed in 1983, allows the transfer of sentenced persons between the two countries to serve their sentences, provided that certain requirements are met, such as the existence of a final conviction and the double criminality of the offence in both countries. Sancho could, therefore, request to be transferred to Spain to complete his sentence, once he has served a minimum time in prison in Thailand.
This agreement reflects how international cooperation mechanisms, such as bilateral agreements on the enforcement of sentences, can offer solutions in complex legal situations, even in the absence of a direct extradition treaty. Thus, the available legal framework allows for the adaptation and resolution of difficult cases, facilitating justice and cooperation between countries.
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