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The 1985 Passive Extradition Law in Spain is a piece of legislation that governs the process through which Spain may grant the extradition of individuals requested by other countries to face criminal charges. This law is pivotal for international cooperation in the fight against transborder crime and sets out the procedures and fundamental principles governing the extradition process. In this technical report, a detailed overview of the key aspects of the law will be provided, including its scope of application, fundamental principles, exceptions, procedures, timelines, procedural guarantees, and the recourse of protection.
The 1985 Passive Extradition Law applies to all extradition requests made by foreign countries under the principle of reciprocity. Spain grants extradition to a foreign country as long as that country is willing to grant extradition in similar situations. This principle fosters international cooperation and reciprocity in extradition matters. Both Spanish citizens and foreigners present in Spanish territory can be subject to an extradition request. The underlying principle is that Spain is willing to cooperate with other countries in seeking justice in cases of serious and cross-border crimes.
The law sets out several requirements that must be met for an extradition request to be granted:
This principle requires that the criminal act for which extradition is requested is considered a crime in both Spain and the requesting country. The judgment falls on the typicity, not on the guilt or punishability. In other words, the crime must be punishable in both countries. If an act is not a crime in Spain, extradition will not be granted on that ground.
The act must also be of a certain severity, being punishable in both legislations with a penalty or security measure lasting no less than one year of maximum imprisonment or for serving a sentence or security measure not less than four months of imprisonment.
The facts must have a minimum specificity, as established by the Criminal Chamber of the AN, Section 4th of May 24, 2018, and crimes induced by the inciting agent in advance will not be accepted (STS 5/2009, of January 8).
The law contemplates the possibility of refusing extradition if it is considered that the criminal process in the requesting country does not guarantee a fair and equitable trial. If the individual has been sentenced in absentia when our legislation does not allow it, extradition will only be granted if the diplomatic representation of the requesting country provides guarantees that the trial will be held again in their presence and adequately defended, respecting the right of every individual to be heard by an impartial court without undermining their defense options.
It is based on the premise that there is no better right to prosecute and sentence than the state of nationality of the claimed individual and the State's obligation to protect and guarantee the fundamental rights of its citizens. Especially if they have no ties with the requesting State and their prosecution is possible in Spain, which would violate the principle of proportionality. In any case, each situation must be analyzed case by case.
Extradition does not apply in cases where Spanish courts have jurisdiction due to a principle of sovereignty, meaning that a procedure is already open in Spain. Conversely, it may be denied if Spanish legislation did not allow for the prosecution of the same crime outside the country.
Extradition will not be granted for persons who violate the law for political reasons. However, the interpretation of what constitutes a political crime can be subject to controversy and judicial review. This ensures that individuals are not persecuted for ideological reasons, thereby safeguarding the ideals of freedom of expression and democracy against punitive excess. Terrorism, war crimes, and crimes against humanity are excluded.
Extradition will not be granted for military crimes or for those crimes that can only be committed at the behest of a party, except for crimes of rape, abduction, and dishonest abuses.
The Spanish Constitution, in its article 117.6, prohibits the court of exception as being contrary to the right to an ordinary judge predetermined by Law (art. 24.2 CE). It should be analyzed if the court was created after the facts and if there is government interference.
It requires that the facts have not expired according to Spanish legislation and the requesting state. This system prevents that in states where the prescription period is much longer than in Spain, and that in our view is disproportionate, our state has the capacity to reject extradition for not meeting our standards. Judicial decisions will be considered as interrupting acts, excluding acts of the Prosecutor's Office.
If the required person has already been tried in Spain or a process is underway for the same facts, this prevents extradition.
Spain will not grant extradition if there is a real risk that the requested person will be subjected to the death penalty, torture, or inhuman or degrading treatment in the requesting country. It is essential not only to make a general allegation of inhuman or degrading treatment but to specify how this affects the required citizen. Without this specification, the claim will not be successful.
No one can be extradited to a country where there is a serious risk of being subjected to a death penalty, inhuman or degrading treatment. However, it is important to stress that the request for asylum does not suspend the execution of extradition. Asylum granted in any European Union country has the same value in terms of rejecting extradition. If there are reasons to believe that there is an accusation based on discriminatory reasons such as race, religion, nationality, or political opinions, it may also be denied.
It constitutes a reason for opposition that the claimed person is over 14 years old and under 18 years old, has habitual residence in Spain, and granting extradition could complicate their social reintegration.
The extradition procedure according to the Passive Extradition Law follows a set of defined steps:
Formal Request: The extradition request must be submitted by the requesting country through diplomatic channels, detailing the individual sought, the criminal acts committed, the relevant legal provisions, and any other pertinent information to assist in the identification and apprehension of the person.
Provisional Arrest: Once the request is received, the competent judicial authority may issue a provisional arrest warrant. This warrant is temporary and ensures that the requested person is available for extradition.
Judicial Phase: Once the individual is arrested, they are brought before a competent judge who reviews the extradition request's validity and its conformity with the law. During this phase, the requested person has the right to legal representation and can present evidence or arguments against the extradition. After this, the judge will issue a decision on the extradition's admissibility.
Governmental Phase: If the judicial phase determines that the extradition is admissible, the case is referred to the Council of Ministers, which will make the final decision on whether to grant the extradition.
Execution: If the Council of Ministers decides to grant the extradition, the individual is handed over to the authorities of the requesting country.
The 1985 Passive Extradition Law provides several procedural guarantees to the individual requested for extradition, ensuring a fair and transparent process:
Right to Legal Representation: The individual has the right to appoint a defense attorney. If they cannot afford one, the State will provide a public defender.
Right to be Heard: The individual has the right to present evidence or arguments against their extradition.
Access to Information: The individual has the right to be informed about the extradition request and the charges against them.
Appeal Process: The individual has the right to appeal against any adverse decision during the extradition procedure.
If the individual feels that their rights have been violated during the extradition process, they have the right to recourse before the Constitutional Court. The individual can also appeal to international bodies such as the European Court of Human Rights if they believe their rights under international law have been violated.
The 1985 Passive Extradition Law in Spain establishes a comprehensive framework for managing extradition requests from foreign countries. By setting out clear procedures, requirements, exceptions, and safeguards, the law ensures that Spain cooperates with international partners in the fight against transborder crime while respecting the rights and dignity of individuals subject to extradition.
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