Passive Extradition Proceedings in Marbella

Preventive detention: the first 24 hours and the 40-day time limit

In practice, the proceedings frequently begin with an Interpol Red Notice that enables the person sought to be located and arrested — at a road checkpoint, at an airport, or during any ordinary police action — even before the requesting State files the formal extradition request. Article 8 of Law 4/1985 requires, for this emergency arrest, that the request evidence the existence of a final conviction or a final arrest warrant. Once arrested, the person sought must be brought before the on-duty Central Investigating Court within a maximum period of twenty-four hours. Within the following seventy-two hours, the personal-circumstances hearing under Article 505 of the Criminal Procedure Act (LECrim) is held, at which our defense sets out the family, employment, and social ties of the person sought in Spain in order to request provisional release rather than pre-trial detention and, where applicable, the substitution of detention for less onerous measures: surrender of the passport, periodic reporting, or bail. From that point, the requesting State has a non-extendable period of forty days to file the formal extradition request; if that period elapses without it, pre-trial detention automatically lapses.

The prior governmental phase: the filter of the Ministry of Justice

Once the formal request has been received — usually through diplomatic channels, via the Ministry of Foreign Affairs — a first admission phase opens, governed by Articles 9 and 10 of Law 4/1985: the Ministry of Justice has a period of eight days to submit a reasoned proposal to the Government as to whether the case should proceed through the judicial route, and the Government has fifteen days to decide, after which, absent an express ruling, the decision falls to the Ministry of Justice itself. This is an exclusively formal filter — a check of the documentation submitted and the external requirements of the request — in which the merits of the extradition claim are not examined, but whose correct processing within the statutory time limits we review in every case, since exceeding the maximum period of eighty days of pre-trial detention without a decision must result in the release of the person sought.

The judicial phase before the Audiencia Nacional: the hearing under Art. 12 LEP

Once continuation via the judicial route has been authorized, the duty Central Investigating Court summons the person sought, their lawyer, the Public Prosecutor's Office, and, where applicable, the representative of the requesting State, to the hearing under Article 12 of Law 4/1985. At this hearing, the person sought must state, giving their reasons, whether they consent to the extradition or intend to oppose it. Our defense recommends this decision only after an exhaustive analysis of the applicable treaty, the documentation submitted by the requesting State, and any grounds for refusal that may apply, since consent radically simplifies and speeds up the proceedings, whereas opposition opens an investigative phase of up to thirty days for taking evidence, followed by a hearing before the competent Section of the Criminal Chamber. Once this concludes, the Court must rule by reasoned order within a non-extendable period of three days:

"...el Tribunal resolverá, por auto motivado, en el plazo improrrogable de los tres días siguientes a la vista, sobre la procedencia de la extradición."

(The Court must rule, by reasoned order, within the non-extendable period of three days following the hearing, on whether the extradition should proceed.)

The appeal for reconsideration before the full Criminal Chamber

Against the order ruling on whether the extradition should proceed, only an appeal for reconsideration (recurso de súplica, an internal appeal for reconsideration heard by the same court) lies, which must be decided by the full Criminal Chamber of the Audiencia Nacional, with none of the judges who issued the order under appeal permitted to act as rapporteur — a guarantee of impartiality that the law itself expressly incorporates. This is the last avenue of judicial review on the merits of the case, and therefore the procedural moment at which we most intensively concentrate the technical reformulation of the grounds for opposition: double criminality, statute of limitations, risk of a breach of fundamental rights in the requesting State, or any other mandatory or discretionary ground for refusal provided for in the applicable treaty or in Law 4/1985 itself.

The final decision: the Council of Ministers

Unlike what happens in other judicial proceedings, the order declaring the extradition to proceed does not bring the matter to an end: Law 4/1985 preserves extradition as an act of sovereignty, the final decision on which rests with the Executive Power. The Government may therefore refuse the surrender on grounds of sovereignty, security, public order, or reciprocity even where the Audiencia Nacional has declared the extradition to proceed, although it may not grant it where the Court has refused it, a refusal that in that case is final and binding. This dual nature of the proceedings — judicial review of legality followed by a final political decision — constitutes one of the most notable particularities of Spanish passive extradition, and the Audiencia Nacional itself has highlighted its safeguarding function:

"...alcanza la categoría de mecanismo de tutela y garantía de los derechos y libertades de la persona..."

(The order held that the proceedings rise to the level of a mechanism for the protection and safeguarding of the person's rights and freedoms.)

The parallel route: the European Arrest Warrant

Within the European Union, the classic extradition procedure gives way to the European Arrest Warrant, governed by Framework Decision 2002/584/JHA and by Law 23/2014, of 20 November, built on the principle of mutual recognition between judicial authorities: the processing time is significantly shorter, the decision rests exclusively with the judicial authority — without the final governmental intervention typical of the classic extradition regime — and the catalogue of grounds for refusal, although narrower, keeps intact the essential safeguards of the person sought. Determining from the outset which of the two regimes applies — conventional extradition or the European Arrest Warrant — entirely shapes the procedural strategy to be followed.