Two divisions of the Audiencia Nacional

Asylum and Refugee Protection Against Extradition in Marbella

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Asylum and refugee protection applications linked to surrender proceedings

When the person claimed by a foreign State argues that the criminal proceedings underlying the extradition request actually conceal persecution on grounds of politics, religion, nationality, membership of a particular social group, or political opinion, Spanish law grants an autonomous avenue of protection of the highest practical relevance: an application for asylum or subsidiary protection under Ley 12/2009 (Spain's Asylum and Subsidiary Protection Act). At RAKH ABOGADOS we coordinate this application with the extradition defence before the Sala de lo Penal of the Audiencia Nacional (Spain's National Court, with jurisdiction over serious and cross-border crimes), since both proceedings, although heard by different bodies, form two sides of a single strategy to protect the person claimed.

The principle of non-refoulement as the central pillar

The ultimate basis of this area of law is the principle of non-refoulement, enshrined in Article 33.1 of the 1951 Geneva Convention Relating to the Status of Refugees and set out in Article 5 of Ley 12/2009: no person may be returned, expelled or extradited to a country where their life or liberty would be at risk on account of race, religion, nationality, membership of a particular social group or political opinion, or where there is a real risk of torture or inhuman or degrading treatment. This principle, which also has treaty status under Article 3 of the European Convention on Human Rights, operates as an absolute and unconditional limit on international criminal cooperation, one that no extradition treaty can override.

The right to suspension of extradition (Art. 18.1.d and Art. 19.2 of Ley 12/2009)

Article 18.1.d) of Ley 12/2009 grants applicants for international protection the right to suspension of any return, expulsion or extradition process that might affect them, and Article 19.2 specifies that the protection application will suspend enforcement of the ruling in any pending extradition proceedings until a final decision is reached. Case law from the Audiencia Nacional has clarified the exact scope of this provision: filing an asylum application does not automatically halt the entire judicial processing of the extradition file, but it does, in every case, prevent the physical surrender from being carried out until there is a final, unfavourable decision on the protection application. This is a distinction of enormous practical importance: the investigation and the extradition hearing can proceed, but the person claimed cannot be handed over to the requesting State until their asylum application has been finally resolved.

The dual jurisdiction within the Audiencia Nacional

One of the most significant technical particularities of this area is that both proceedings, despite concerning the same facts and the same person, are heard before different divisions of the same court: the Sala de lo Penal (Criminal Division) hears the extradition proceedings under Ley 4/1985 (Spain's Extradition Act), while the Sala de lo Contencioso-Administrativo (Administrative Litigation Division) of the Audiencia Nacional is the body competent to rule on appeals against decisions refusing to admit, or denying, international protection. Coordinating litigation strategy before both divisions — avoiding contradictory rulings and making use, in each proceeding, of the documentary evidence generated in the other — requires deep knowledge of both jurisdictions, and is one of the most specialised services we offer in this field.

Is it too late to apply for asylum after extradition has been judicially granted?

One of the questions most frequently raised is whether, once the Sala de lo Penal of the Audiencia Nacional has ruled that extradition is appropriate, it is already pointless to apply for international protection. The answer is no: a judicial grant of extradition neither prevents nor conditions the subsequent recognition of refugee status, since these are autonomous proceedings with different requirements and purposes. That said, filing the asylum application as early as possible — ideally from the very moment the extradition request becomes known — is always the more prudent strategy, since a late application may raise doubts about the credibility of the account of persecution being invoked, a factor that the authorities and the courts expressly take into account.

Asylum grounds linked to the criminal prosecution itself

In the extradition context, asylum grounds are often built around the use of the foreign criminal proceedings as a mechanism of repression: the charging of ordinary offences — fraud, currency evasion, disturbance of public order — against political opponents, businesspeople in conflict with those in power, journalists or activists, when the true reason for the persecution is their political or religious activity or their membership of a particular social group. Establishing these facts requires robust documentary evidence: reports from international human rights bodies, decisions of human rights courts, opinions from UNHCR, and a detailed analysis of judicial independence and procedural safeguards in the requesting State — matters we handle in close coordination with the extradition defence.

Our strategy

Early filing of the asylum application: we recommend filing it from the very moment the extradition request becomes known, avoiding the risk that a late application might undermine the credibility of the account of persecution.
Coordination between the Sala de lo Penal and the Sala de lo Contencioso-Administrativo: we build a unified litigation strategy before both bodies, avoiding contradictory rulings and reinforcing each proceeding with the evidence generated in the other.
Establishing the real risk of persecution: we gather the necessary international documentary evidence — human rights reports, UNHCR opinions, comparative case law — to support the international protection application.
Monitoring the suspension of enforcement: we ensure the guarantee under Article 19.2 of Ley 12/2009 is effectively respected, preventing any attempt at physical surrender while the asylum application remains pending a final decision.

Are you the subject of an extradition request and do you believe the underlying criminal proceedings conceal political, religious or other protected persecution? Coordination between the extradition defence and the asylum application must be put in place from the very outset. At RAKH ABOGADOS we combine experience before both divisions of the Audiencia Nacional to protect your rights, throughout Spain.

Frequently asked questions

If I file an asylum application, is my extradition process suspended?

See answer in Frequently Asked Questions →

Glossary

Non-refoulement (principle of non-return)

A principle, set out in Art. 33.1 of the 1951 Geneva Convention, Art. 5 of Ley 12/2009 and Art. 3 of the ECHR, which prevents a person from being returned, expelled or extradited to a country where their life or liberty would be at risk on grounds of race, religion, nationality, membership of a particular social group or political opinion, or where there is a real risk of torture or inhuman or degrading treatment.

See in the Glossary →