Grounds for Refusing a European Arrest Warrant in Spain: What the Case Law Actually Says
Every week I receive the same question from people wanted under a European Arrest Warrant (EAW): is there any way for the Spanish judge to refuse to surrender me?
The short answer is yes, but with fundamental nuances. The EAW was designed in 2002 to streamline criminal cooperation within the European Union. That streamlining means the grounds for blocking it are set out exhaustively by law, are to be interpreted restrictively, and the case law of the Court of Justice of the European Union (CJEU) has precisely delimited their scope.
Drawing on real case law from the Audiencia Nacional — the body with jurisdiction in Spain over these proceedings — and from the CJEU itself, we analyze which grounds for refusal work in practice, which tend to be dismissed, and what evidence proves essential to stop a surrender.
The legal framework: Framework Decision 2002/584/JHA and Law 23/2014
In Spain, the European Arrest Warrant is regulated by Law 23/2014, of 20 November, on the mutual recognition of criminal judgments within the European Union, which transposes Framework Decision 2002/584/JHA.
The law distinguishes two categories of grounds for refusal:
- Mandatory grounds for refusal (Art. 32): The judge must apply them of their own motion. They include the ne bis in idem principle (having already been tried for the same acts), being under the age of criminal responsibility in Spain, or the offense or sentence having become time-barred under Spanish law where Spain has jurisdiction to try the case.
- Optional grounds for refusal (Art. 48): Applied at the court's discretion depending on the case. These include the absence of dual criminality (in cases not excluded from that requirement), the requested person being Spanish or resident in Spain where the warrant seeks enforcement of a sentence, or the existence of pending criminal proceedings in Spain for other acts.
In practice, the Audiencia Nacional applies the principle favoring surrender and dismisses most challenges unless the grounds relied upon are proven with documentary rigor.
1. The statute of limitations on the offense or the sentence
Article 32.1.b) of Law 23/2014 requires surrender to be refused where the warrant relates to acts over which the Spanish authorities have jurisdiction and, had the conviction been handed down in Spain, the offense or the penalty would have become time-barred under the Spanish Criminal Code.
| Order of the Audiencia Nacional (First Section) No. 926/2020, of 17 December 2020 (ECLI:ES:AN:2020:5664A) «Del contenido del formulario se deduce con claridad [...] que el quebrantamiento de la condena [...] se produjo el 18 de junio de 2001, fecha desde la que ha estado en libertad hasta su detención el 29 de octubre de 2020. Siendo así, concurre el motivo de denegación de la entrega establecido en el artículo 32.1, apartado b), de la Ley 23/2014.» (The court held that the breach of the sentence occurred on 18 June 2001, and the person remained at liberty until his arrest on 29 October 2020; the ground for refusal under Article 32.1.b) of Law 23/2014 therefore applied.) |
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In the case cited, Portugal requested the surrender of a person convicted of drug trafficking who breached his supervised release in 2001 and remained at large, though his whereabouts were known, for almost twenty years. The Chamber refused surrender because Spain held jurisdiction (as the territory of destination of the substance, under Article 23.4.d) of the Organic Law on the Judiciary) and the limitation periods for the sentence (Article 133.1 of the Criminal Code) had elapsed.
The criterion set by the CJEU
The CJEU (Judgment C-481/23) requires that the conditions for raising the statute of limitations concur strictly cumulatively:
- The offense must have become time-barred under the legislation of the executing State.
- The executing State must hold effective jurisdiction to try the acts.
The CJEU further notes that the European Arrest Warrant excludes the dual-criminality check for the list of 32 serious offenses set out in Article 20 of the Framework Decision.
2. Nationality and settled residency: differences between standing trial and enforcing a sentence
Article 48.2.b) of Law 23/2014 allows surrender to be refused if the requested person is a Spanish national or resides in Spain, provided the European Arrest Warrant was issued for the enforcement of a custodial sentence and the person does not consent to serve it in the issuing State.
| KEY DIFFERENCE ON SETTLED RESIDENCY Fundamental rule: This ground only applies when the European Arrest Warrant seeks the enforcement of a final conviction. It does not operate when the warrant is issued to bring the person to trial. |
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| Order of the Audiencia Nacional (Third Section) No. 586/2023, of 21 December 2023 (ECLI:ES:AN:2023:12086A) «En el caso de autos, ningún documento se ha aportado acreditativo del arraigo [...] En cualquier caso, tratándose de enjuiciamiento y no de cumplimiento, en modo alguno se denegaría la entrega.» (No document was submitted evidencing settled residency; in any event, as the warrant concerned standing trial rather than serving a sentence, surrender could not be refused on that ground.) |
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By contrast, in the Order of the Audiencia Nacional (Fourth Section) No. 267/2024, of 3 June 2024 (ECLI:ES:AN:2024:4136A), surrender to Romania was refused so that the requested person could serve, in Spain, a final sentence of 5 years and 11 months' imprisonment, since this was a case of enforcement of a sentence with settled residency documentarily proven.
Documentation required to prove settled residency
- Employment history and Social Security contribution records.
- Lease agreement or property deed.
- Historical municipal registration (empadronamiento).
- Personal income tax returns or proof of tax payments.
- Family record book or school enrolment certificates for dependent children.
3. Formal defects in the warrant form
Article 32.1.c) of Law 23/2014 provides for refusal if the form is incomplete or manifestly incorrect. The Audiencia Nacional, however, applies a minimal formal standard: identification of the requested person, the issuing authority, the existence of an enforceable decision, the legal classification, and a brief description of the acts (Art. 36 of Law 23/2014). Minor errors or discrepancies in sentencing between countries are curable and do not lead to refusal of surrender.
4. Pending criminal proceedings in Spain
Having an open case in Spanish territory does not automatically constitute a ground for refusal. Under Article 56 of Law 23/2014, the Spanish judge may order the suspension of surrender or a temporary surrender while the local case concludes or the sentence imposed in Spain is served. The Spanish proceedings temporarily halt the requested person's departure but do not annul the European warrant.
5. Claiming lack of knowledge of the proceedings (absence of notification)
A claim of having had no knowledge of the case in the country of origin likewise does not invalidate the warrant. Order of the Audiencia Nacional (Third Section) No. 399/2023, of 8 September 2023 (ECLI:ES:AN:2023:9839A), held that the European Arrest Warrant is the legal instrument designed precisely to bring an untraceable suspect before the issuing court. Any lack of notification must be raised before the investigating court of the issuing country once the person has appeared before it.
Summary of grounds for refusal
| Ground invoked | Type of refusal | Condition for it to succeed |
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| Statute of limitations on the offense/sentence | Mandatory (Art. 32.1.b) | Spain must have jurisdiction and the period must have elapsed under the Spanish Criminal Code. |
| Settled residency in Spain | Optional (Art. 48.2.b) | Only in European Arrest Warrants for enforcement of a final conviction, with full documentary evidence. |
| Pending case in Spain | Suspensive (Art. 56) | Temporarily suspends or postpones surrender; does not refuse the warrant. |
| Defects in the form | Mandatory (Art. 32.1.c) | Only if essential, non-curable data is missing (Art. 36). |
Crediting time spent in pre-trial detention
Article 45.1 of Law 23/2014 requires that the period of deprivation of liberty suffered abroad during the processing of the European Arrest Warrant be deducted from the total sentence (Order of the Audiencia Nacional No. 351/2022, of 19 July 2022). This deduction is automatic within the EU framework, unlike the regime governing ordinary extradition with third countries.
Recommendations when facing a European Arrest Warrant
1. Immediate documentary submission: Obtain official certificates of municipal registration, employment, and tax payments from the earliest stage.
2. Determining the purpose of the warrant: Precisely verify whether the European Arrest Warrant is issued for standing trial or for the enforcement of an executory sentence.
3. Analysis of the statute of limitations under the Spanish Criminal Code: Compare the limitation periods and Spain's jurisdiction over the acts.
If you require technical assistance in handling a European Arrest Warrant before the Audiencia Nacional, it is advisable to obtain specialized advice in International Criminal Law to properly frame the relevant arguments from the first appearance.