Articles 824 to 833 LECrim

Active Extradition from Marbella

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Active extradition proceedings: requests filed by Spain

Active extradition is the procedural counterpart of passive extradition: instead of a foreign State requesting the surrender of a person to Spain, it is Spain itself that requests another country to surrender a defendant, accused person, or convicted individual located outside its territory. This is a procedure of mixed nature — judicial at its origin, governmental in its external processing — governed by Articles 824 to 833 of the Criminal Procedure Act (Ley de Enjuiciamiento Criminal), whose initiation and correct technical drafting are decisive both for the prosecution seeking the fugitive's appearance and for the defense of the person sought, whose legal situation is directly conditioned by the quality of the file forwarded to the requested State.

Legal framework and cases in which it applies (Article 826 LECrim)

Article 826 LECrim confines active extradition to three specific cases: Spanish nationals who, having committed an offense in Spain, have taken refuge abroad; Spanish nationals who, having committed an offense abroad against the external security of the State, have taken refuge in a country other than the one where the offense was committed; and foreign nationals who, being subject to trial in Spain, have taken refuge in a country other than their own. The admissibility of the request is governed, in the first instance, by the international treaty in force with the State in whose territory the person sought is located and, failing that, by that State's written or customary law or by the principle of reciprocity.

Standing and initiation of the proceedings (Article 824 LECrim)

Article 824 LECrim grants the Public Prosecutor's Office (Ministerio Fiscal) the power to ask the Judge or Court handling the case to propose to the Government that it request the extradition of the defendant or of a person convicted by a final judgment. The private prosecution (acusación particular), as a party with standing in criminal proceedings, may likewise urge this request before the investigating court — a step we pursue proactively when representing victims or injured parties facing a suspect who has evaded Spanish justice by fleeing abroad. In every case, a prior judicial decision must underpin the request: an order for provisional imprisonment or a final conviction, without which a request for active extradition lacks legal grounds.

The suplicatorio: processing of the request (Articles 831 to 833 LECrim)

Once it has been decided that requesting extradition is appropriate, the Judge or Court forwards the request in the form of a suplicatorio (a formal request forwarded through the Ministry of Justice) addressed to the Ministry of Justice, unless the treaty applicable with the requested State authorizes the judicial body to approach it directly. The suplicatorio must be accompanied by a literal transcript of the extradition order, the report or submission of the Public Prosecutor's Office, and all case proceedings necessary to justify the request in accordance with the ground under Article 826 LECrim on which it is based. The Ministry of Justice then channels the request through diplomatic channels to the Spanish representation in the country where the person sought is located, initiating from that point a phase of international judicial assistance whose pace and outcome depend, to a large extent, on the legal system and willingness to cooperate of the requested State. The technical and documentary quality of the file forwarded — precise translation, thorough evidencing of the facts and of the applicable legal classification, and strict compliance with the principle of double criminality — decisively determines the request's prospects of success before the foreign authorities.

Judicial review of the decision: the appeal

The decision of the Investigating Judge granting or refusing a request for extradition may be appealed. This review is especially relevant from the perspective of the private prosecution when the court refuses the request on the ground that the requirements of Article 826 LECrim have not been established — a scenario in which we file the corresponding appeal before the Provincial Court (Audiencia Provincial) or before the Criminal Chamber of the Audiencia Nacional, depending on which body is handling the main proceedings.

The parallel route: the active European Arrest Warrant

When the person sought is located in another European Union Member State, active extradition proceedings give way to the European Arrest Warrant in its active form, governed by Law 23/2014 of 20 November: the Spanish Judge or Court issues the warrant directly, without the need for governmental processing through diplomatic channels, and the judicial authority of the executing State rules on the surrender in accordance with the principle of mutual recognition, within timeframes considerably shorter than those of classic extradition proceedings. Determining from the outset whether the person sought is located within or outside a European Union country is essential to pursuing the correct procedural route from the very first moment.

Our involvement: private prosecution and defense of the person sought

RAKH ABOGADOS handles this area from a dual perspective. As representatives of the private prosecution, we urge the investigating court to grant a request for active extradition when the suspect has evaded justice by fleeing abroad, taking great care over the technical and documentary quality of the file to be forwarded to the requested State, as this is the single most decisive factor for the request's success. As defense counsel for the person sought, or for their family in Spain, we analyze the judicial decision underpinning the request to assess challenging it, coordinate with counsel in the country where the corresponding passive proceedings are being conducted, and advise on avenues for voluntary surrender or for negotiating the terms of appearance before Spanish justice when such a strategy proves more beneficial to the client's interests than resisting extradition.

Do you need to request the active extradition of a person who has evaded Spanish justice, or are you — or a family member — the subject of an extradition request initiated by a Spanish court from abroad? At RAKH ABOGADOS we combine procedural experience before the Audiencia Nacional (Spain's National High Court, with jurisdiction over serious cross-border and organized crime) and international coordination to represent your interests throughout Spain.

Glossary

Active extradition

A procedure in which Spain itself requests another country to surrender a defendant, accused person, or convicted individual located outside Spanish territory, of mixed nature — judicial at its origin, governmental in its external processing — governed by Articles 824 to 833 LECrim.

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