Practical Guide: Passive Extradition in Spain

By Álvaro Heredia, PhD in Criminal Law, colegiado n.º 10846 (ICA Málaga) (bar member no. 10846, Malaga Bar Association) — RAKH ABOGADOS, Marbella

This guide offers direct, well-founded answers to the most complex questions on extradition in Spain. Each criterion is backed by real rulings of the Audiencia Nacional (Spain's National High Court, with jurisdiction over serious cross-border and organised crime) and its ROJ reference for verification in the CENDOJ (Spain's national case-law database).

What is extradition and how does it differ from the European Arrest Warrant?

Extradition is the legal mechanism through which Spain surrenders a person to a State that is not a member of the European Union (such as Russia, the United States, or the United Arab Emirates) for prosecution or to serve a sentence. If the request comes from an EU Member State, the applicable instrument is the European Arrest Warrant (Orden Europea de Detención y Entrega, or "euroorden"), which is governed by a faster, simplified procedure.

What rules apply to passive extradition in Spain?

Under Article 13.3 of the Spanish Constitution, the legal framework is built on:

The European Convention on Extradition, signed in Paris (1957): Ratified by Spain in 1982.

Law 4/1985, on Passive Extradition (LEP): As the supplementary state statute governing the procedure.

The Criminal Procedure Act (Ley de Enjuiciamiento Criminal) and Bilateral Treaties: Applicable depending on the requesting country.

How is the extradition procedure structured in Spain?

The process consists of two clearly defined phases:

Governmental Phase: The request is received through diplomatic channels at the Ministry of Foreign Affairs and passed on to the Ministry of Justice. The Council of Ministers decides whether to authorize the judicial route.

Judicial Phase: The file is referred to the Central Investigating Court (Juzgado Central de Instrucción) to take the requested person's statement and to rule on pre-trial detention. Subsequently, the Criminal Chamber of the Audiencia Nacional determines whether the surrender is legally appropriate.

Who has the final say on the surrender of the requested person?

The final decision is political in nature. Even if the Audiencia Nacional declares the extradition appropriate, the ultimate power to carry out the surrender rests with the Government of Spain. If the Audiencia Nacional declares it inappropriate, the Government is bound to refuse it.

Can Spain refuse extradition if the requested person is a Spanish citizen?

Yes. Article 6.1.a) of the European Convention allows the surrender of nationals to be refused under the principle of reciprocity.

Case-law criterion: In AAN 1098/2019 (Section 2), the Audiencia Nacional refused Russia's request to extradite a citizen who had obtained Spanish nationality by residence before the events took place, after formally renouncing his nationality of origin before the Civil Registry of Marbella. It is essential to prove that the nationality was granted before the extradition process began.

What is the principle of double criminality?

It requires that the acts charged be classified as a criminal offense both in the requesting country and under Spanish law, examined individually for each offense.

Case-law criterion: In AAN 1631/2021 (Plenary), the Audiencia Nacional authorized extradition to Russia for the offense of drug sale (equivalent to Article 368 CP), but refused it with respect to possession for personal use, since that conduct is not a criminal offense in Spain.

What offenses are excluded from extradition?

Offenses of an exclusively political, military, or fiscal nature are expressly excluded, as are offenses that do not carry a minimum prison sentence of one year.

Case-law criterion: In AAN 10086/2021, the surrender to Russia of a Belgian citizen wanted for irregular trading in precious stones and tax evasion was refused, since these were considered offenses of a tax nature and therefore not extraditable.

What happens if the requesting country provides for life imprisonment?

Spain will not surrender a person if they would be exposed to inhuman or degrading punishment. However, a life sentence does not automatically bar surrender if the country of origin formally guarantees that it will be reviewed.

Case-law criterion: In AAN 5941/2020 (Plenary), applying the doctrine of the ECtHR (Hutchinson v. United Kingdom), the Audiencia Nacional made surrender to Russia conditional on that State providing guarantees that the sentence would not inevitably be for life and would be subject to periodic review mechanisms.

Is it enough to allege deficiencies in the prison system of the requesting country?

Generic allegations are not sufficient. Case law of the CJEU and the Constitutional Court requires proof of a real, serious, and specific risk to the requested person. In AAN 5941/2020, an objection based solely on general reports about Russian prisons was dismissed, since no individualized threat had been shown.

What is the current situation regarding extraditions requested by Russia?

They are currently suspended de facto at the administrative stage.

Case-law criterion: In AAN 7517/2025 (Section 3, 3 October 2025), the provisional filing of an extradition case was confirmed following the decision of the Ministries of Justice and Foreign Affairs not to process requests from the Russian authorities, owing to the international situation and Russia's exclusion from the Council of Europe. However, since this is a provisional filing, the case may be reopened if the diplomatic context changes.

How should an arrest warrant or extradition request be approached?

The defense strategy must be set before the first appearance before the Central Investigating Court. Critical issues such as the person's personal situation (liberty or pre-trial detention), their ties to Spain (arraigo), verification of nationality, or the requirement of international guarantees must be articulated and supported by documentary evidence from the very first moment.

Why is the advice of a specialized lawyer indispensable?

Extradition proceedings do not assess the guilt of the individual, but rather the strict compliance with formal requirements, international treaties, and fundamental rights. At RAKH ABOGADOS we have extensive experience in international judicial cooperation, managing Europol/Interpol alerts, and specialized defense before the Audiencia Nacional, with a high success rate in complex proceedings.