International Criminal Law Specialists in Marbella
International criminal law
International Criminal Law today constitutes, more than a specialism, the natural setting in which a substantial part of serious crime unfolds. The free movement of people and capital, the delocalisation of economic crime, the emergence of crypto-assets as a form of wealth outside classical banking intermediation, and the transnational structure of criminal organisations themselves, have all meant that determining the applicable law, the competent authority and the procedural route is no longer a preliminary matter but frequently becomes the very core of the defence.
For that reason, ignorance of this framework does not translate into a less complete defence but into a defence that is technically unworkable: a lawyer who does not know the applicable international instrument cannot scrutinise the regularity of measures taken under it, cannot spot the absence of a required precondition, and cannot identify the ground for refusal that the treaty itself makes available to the person sought. The case file then contains steps whose lawfulness counsel is not in a position to challenge, and the defence is confined to the domestic aspects of a case whose architecture is international.
RAKH ABOGADOS takes on lead counsel work in this field on a principle we do not depart from: the matter is handled personally by counsel, a doctor of Criminal Law, from the study of the case file through to the hearing.
Guiding principles of International Criminal Law
This field is built on a set of principles that operate as criteria for attributing jurisdiction and as limits on the exercise of States' ius puniendi (power to punish). Knowing them is not an academic exercise: in practice, correctly invoking one or another determines whether a case is heard in Spain or in a third State, with all the consequences that carries for sentencing and for procedural safeguards.
Principle of territoriality and principle of ubiquity
The general rule of attribution, set out in article 8.1 of the Civil Code and article 23.1 of the Ley Orgánica del Poder Judicial (Spain's Organic Law on the Judiciary): the Spanish courts have jurisdiction over offences committed on Spanish territory, regardless of the offender's nationality. Applying it becomes more complex where the conduct is split across several jurisdictions, a case in which the principle of ubiquity applies, established by the non-jurisdictional plenary agreement of the Second Chamber of the Tribunal Supremo of 3 February 2005, under which an offence that occurs in a place other than where it produces its effects can be investigated in either place, giving jurisdiction to both the courts of the place of the act and those of the place of the result. This principle has become critically important for computer offences of a shifting and itinerant nature, as reflected in Judgment 308/2017 of 14 July of the First Section of the Audiencia Provincial (Provincial Court) of Lérida.
Principle of active personality
Set out in article 23.2 of the Ley Orgánica del Poder Judicial, this allows the Spanish courts to hear matters concerning acts committed outside national territory where the person responsible is Spanish, or a foreign national who acquired Spanish nationality after the act was committed, provided the requirements of dual criminality, a formal complaint or criminal report, and the absence of any prior trial are met. Its practical importance is greatest in extradition matters: once the surrender of a national has been refused, this principle prevents impunity and results in the matter being handed over to the Spanish authorities, applying the maxim aut dedere aut iudicare (either extradite or prosecute).
Principle of passive personality and the real or protective principle
Article 23.3 of the Ley Orgánica del Poder Judicial gives the Spanish courts jurisdiction over certain acts committed outside national territory where essential State interests are harmed — treason, offences against the Crown, currency counterfeiting, attacks on Spanish authorities abroad, among others — regardless of the offender's nationality and without requiring dual criminality.
Principle of universal jurisdiction
Set out in article 23.4 of the Ley Orgánica del Poder Judicial, as currently worded following the reform carried out by Ley Orgánica 1/2014, this gives the Spanish courts jurisdiction over certain offences of universal reach — genocide, crimes against humanity, terrorism, piracy, illegal drug trafficking, human trafficking, among others — subject to the connecting factors the law itself lays down. Its current regime, considerably narrower than the original wording, calls for a rigorous review of whether the connecting preconditions are met, and their absence results in the case being closed for lack of jurisdiction.
Principle of dual criminality
A cross-cutting precondition for international criminal cooperation: the conduct behind the request must constitute a criminal offence both under the law of the requesting State and under that of the requested State. This requirement is not satisfied merely because the nomen iuris (legal label) coincides: it calls for substantial correspondence between the objective and subjective elements of the offence. Its absence is a mandatory ground for refusing surrender, and has accounted, in the recent practice of the Sala de lo Penal (Criminal Chamber) of the Audiencia Nacional (Spain's National Court, with jurisdiction over serious and cross-border crimes), for some of the few decisions refusing extradition.
Principle of speciality
Once surrender has been granted, the requesting State may only try the surrendered person for the specific acts that were the subject of the request, unless that person expressly consents or the requested State later authorises otherwise. Expressly invoking this principle, and placing on record that it has not been waived, is a mandatory step for the defence at the hearing under article 12 of Ley 4/1985.
The non bis in idem principle in its international dimension
This prevents a person being tried twice for the same acts in different jurisdictions, with the scope given to it by article 54 of the Convention Implementing the Schengen Agreement, article 50 of the Charter of Fundamental Rights of the European Union, and article 4 of Protocol No. 7 to the European Convention on Human Rights.
Principle of reciprocity
This applies on a subsidiary basis in the absence of a treaty, under article 13.3 of the Spanish Constitution and article 1 of Ley 4/1985, and it is for the requesting State to establish it. It is of the greatest importance in relations with States with which Spain has no treaty in force.
Principle of non-refoulement and the limits set by fundamental rights
No cooperation principle applies unconditionally. Article 3 of the European Convention on Human Rights, as consistently interpreted by the European Court of Human Rights, bars surrender where there is a real risk of exposure to torture or to inhuman or degrading treatment — a limit that article 4.6 of Ley 4/1985 incorporates into domestic law as a mandatory ground for refusal.
Cooperation instruments
Within the European Union
Cooperation is built on the principle of mutual recognition: the European Arrest Warrant, governed by Framework Decision 2002/584/JHA and by Ley 23/2014 of 20 November; the European Investigation Order, under Directive 2014/41/EU and Ley 3/2018 of 11 June, which has largely replaced the classic letter rogatory between Member States; joint investigation teams; and Eurojust coordination in cases of conflicts of jurisdiction or where concerted action is needed.
Outside the European area
Cooperation is grounded in the European Convention on Extradition of 13 December 1957 and its Additional Protocols, in the applicable bilateral treaties, in sectoral multilateral instruments — most notably the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 20 December 1988 and the Palermo Convention against Transnational Organized Crime of 15 November 2000 — and, failing those, in Ley 4/1985 and the principle of reciprocity. Judicial assistance is channelled through a letter rogatory under article 177 of the Ley de Enjuiciamiento Criminal.
At the level of police cooperation
Through the channels of Europol — particularly its European Cybercrime Centre (EC3) — and of Interpol, whose system of notices and diffusions, and most notably the red notice, frequently forms the material origin of the proceedings and the defence's first line of action.
FAQ, glossary and comparisons
Glossary
Comisión rogatoria (letters rogatory)
The classic instrument of international judicial assistance (art. 177 LECrim, Spain's Criminal Procedure Act), through which a Spanish judge requests the judicial authority of another country to carry out an investigative step outside Spanish territory, used when a faster European instrument such as the European Investigation Order does not apply.
See in the Glossary →Justicia universal (principle of universal jurisdiction)
A principle, set out in art. 23.4 LOPJ (Spain's Organic Law on the Judiciary) following its reform by Organic Law 1/2014, that allows Spanish courts to hear certain offenses with international scope (genocide, crimes against humanity, terrorism, piracy, drug trafficking, human trafficking, among others) regardless of where they were committed, within a regime that is now restricted since that reform.
See in the Glossary →European Investigation Order
A judicial cooperation instrument of the European Union (Directive 2014/41/EU and Law 3/2018, of 11 June) that has largely replaced the classic letters rogatory for carrying out investigative steps between Member States.
See in the Glossary →Personalidad activa (principle of active personality)
A principle, set out in art. 23.2 LOPJ, that allows Spanish jurisdiction to hear acts committed outside national territory when the person responsible is Spanish (or has become a Spanish national after the act), requiring dual criminality, a criminal complaint, and the absence of a prior prosecution abroad.
See in the Glossary →Personalidad pasiva o principio real (principle of passive personality / protection)
A principle, set out in art. 23.3 LOPJ, that gives jurisdiction to Spanish courts when essential interests of the State are harmed — treason, offenses against the Crown, currency counterfeiting, attacks against Spanish authorities abroad, among others — without requiring dual criminality.
See in the Glossary →Territorialidad (principle of territoriality)
A principle, set out in art. 8.1 of the Civil Code and art. 23.1 LOPJ, under which Spanish jurisdiction hears offenses committed on Spanish territory, regardless of the nationality of the offender.
See in the Glossary →