Extradition Specialist Lawyers in Marbella
Extradition specialist
RAKH ABOGADOS handles the defence of these proceedings before the Criminal Chamber of the Audiencia Nacional (Spain's National Court, with jurisdiction over certain serious and cross-border offences) applying a principle that governs every matter the firm handles: the case is carried personally by the lawyer, a doctor of Criminal Law, from the study of the file through to the hearing. In proceedings on which a client's liberty depends, delegation to associates — a common practice at large firms — is not an option.
Applicable legal framework
Extradition between Spain and a foreign State is governed, by reference from Article 13.3 of the Spanish Constitution, by the applicable international treaty — bilateral or multilateral — and, in its absence or on a supplementary basis, by Ley 4/1985, de 21 de marzo, de Extradición Pasiva (the Spanish Passive Extradition Act, "LEP"). In matters of cooperation between European Union States, extradition gives way to the European Arrest Warrant, regulated by Framework Decision 2002/584/JHA and by Law 23/2014 of 20 November, with its own system of safeguards derived from the principle of mutual recognition.
The firm has handled proceedings involving countries across three continents, including the Russian Federation, Morocco, Ukraine and European Union States, with documentation and communications translated into the client's language and an interpreter provided by the firm at every stage of the proceedings.
Types of extradition
- Active extradition: where Spain requests a third State to surrender a person for prosecution or to serve a sentence within Spanish territory.
- Passive extradition: — whose regime concentrates the greatest safeguards — where a third State submits a request for surrender to Spain.
It is this second type that is heard before the Criminal Chamber of the Audiencia Nacional and that demands the most specialised technical defence, owing to the asymmetry between the power of the requesting State and the position of the person sought.
Guiding principles of the procedure
Passive extradition rests on three principles that operate as preconditions for surrender:
Principle of legality
There can be no extradition without a basis in an international treaty or, failing that, in the domestic law of the requested State.
Principle of double criminality
The act underlying the request must constitute a criminal offence both under the law of the requesting State and under the Spanish Criminal Code. This requirement is not satisfied by a mere nominal coincidence of the offence: it requires substantial correspondence between the objective and subjective elements of the offence under both legal systems.
Principle of speciality
Once surrender has been granted, the requesting State may only prosecute the person surrendered for the specific acts that gave rise to the request, unless the person surrendered expressly consents or the requested State subsequently authorises prosecution for other acts.
Grounds for refusing surrender
The law and applicable treaties provide for mandatory grounds for refusal — which require the court to reject surrender — and discretionary grounds, whose assessment is left to the judgment of the Chamber.
Mandatory grounds for refusal (arts. 3 and 4 LEP)
- Where extradition of Spanish nationals is requested, or of foreign nationals for offences that fall within the jurisdiction of the Spanish courts under national law.
- Where extradition is requested for political offences (except terrorism), or for military offences.
- Where the person sought is to be tried by an exceptional or special court.
- Where criminal liability has been extinguished, under either Spanish law or the law of the requesting State.
- Where the person sought has been tried, or is being tried, in Spain for the same acts underlying the extradition request.
- Where the requesting State fails to guarantee that the person sought will not be executed or subjected to penalties affecting their physical integrity or to inhuman or degrading treatment.
- Where the person sought has been granted asylum status.
- Where the minimum threshold of seriousness is not met: extradition is not available for offences carrying a penalty, under the law of the requesting State, of less than one year's deprivation of liberty for prosecution, or four months for the enforcement of a sentence.
Discretionary grounds for refusal (art. 5 LEP)
Discretionary grounds for refusal include, among others, a persecutory purpose based on race, religion, nationality or political opinion; the minority of the person sought combined with their habitual residence in Spain, where surrender would compromise their social reintegration; and the Spanish nationality of the person sought, under the regime set out in Article 3.1 of Law 4/1985.
Requests may also be refused on a discretionary basis on humanitarian grounds, because of advanced age, state of health or national interest, or where the person sought is under eighteen years of age at the time of the extradition request, always subject to a prior proportionality assessment. Surrender may also be refused, under Article 3 of the LEP, where the offence was committed outside the territory of the requesting country, if Spanish law does not permit the prosecution of an equivalent offence committed outside Spain.
Extradition without a bilateral or multilateral treaty
Passive extradition finds its basis in Article 13.3 of the Spanish Constitution, which requires that extradition be granted only in compliance with a treaty or with the law, having regard to the principle of reciprocity. In the absence of a ratified treaty, proceedings fall under the Passive Extradition Act and take on a particularly delicate dimension:
- Greater governmental discretion: the absence of a cooperation channel endorsed by treaty increases the complexity of the procedure, and the weighing of the national interest — a matter for the Government under Article 97 of the Spanish Constitution — is carried out according to the interests of the Government in office.
- Refusal without need for reasoning: where no ratified treaty exists, Spain is not legally obliged to grant the request and may refuse surrender without needing to give legal reasons for its decision, with sovereignty, political expediency or reciprocity taking on particular importance.
- Heightened scrutiny of safeguards: Spain may refuse surrender where there is a risk of torture, the death penalty, a lack of procedural safeguards, or a breach of the prohibition on double jeopardy; this assessment is stricter where no treaty exists, since no minimum standards of cooperation have previously been agreed.
- Delays: the process may be considerably prolonged, generating legal uncertainty, depending on the domestic interpretation of the LEP and the availability of consular and judicial resources.
- Evidentiary and documentary difficulties: the evidence and documents provided by the requesting State may not conform to Spanish procedural standards, and where the facts do not properly fit within the Spanish criminal offence, refusal on the ground of lack of double criminality follows.
- Diplomatic conflicts: extradition without a treaty may be interpreted as interference in internal affairs, particularly where the person sought is a national of the requesting country or the case has political overtones.
Handling an extradition request without a bilateral treaty requires meticulous legal analysis and a procedural strategy tailored to the particularities of the case. Having expert defence is essential to protecting the interests of the person sought.
Experience with the Russian Federation
RAKH ABOGADOS has a well-established track record defending Russian and Slavic nationals, having succeeded in suspending and refusing extradition on 5 occasions, and offering a comprehensive service that includes its own technical translation and interpreters at every judicial stage. The current situation involving the Russian Federation calls for an even more sophisticated defence owing to a radical change in circumstances.
Impact of Russia's withdrawal from the Council of Europe
Russia's withdrawal from the Council of Europe has reduced external oversight and access to the European Court of Human Rights, creating a risk that the person sought will be left without an effective remedy. The Audiencia Nacional, in decisions such as Order (Auto) 644/2025 of 3 October, has already considered the suspension of judicial cooperation with Russia owing to its armed aggression against Ukraine, in some cases allowing for the provisional discontinuance of proceedings.
We invoke key judicial precedents, such as the "Sergey T." case or the "Nekrich case", in which surrender to Russia was refused owing to the vulnerability of the persons sought to possible political pressure on judges in the destination country and the risk of a violation of Article 6 of the European Convention on Human Rights.
Ties to Spain are not a ground for refusal
It is settled case-law of the Plenary [Chamber]: this ground does not appear in Articles 3, 4, 7, 9 and 10 of the Convention, nor in Articles 3, 4 and 5 of the LEP. It operates within the pre-trial detention measures under Article 503 of the LECrim and as a factor to be weighed, not as a ground of opposition.
Spanish nationality
Article 3.1 of the LEP provides that Spanish nationals shall not be extradited, and that status is assessed at the time of the decision, as is also the case under Article 6.1(c) of the Convention. The exception is where nationality was acquired fraudulently for the purpose of preventing surrender. The Constitutional Court has clarified that the fraud must occur at the time of acquisition, not in its subsequent use, and has refused to infer it from the ambivalent use of passports. This gives rise to the aut dedere aut iudicare principle (Latin: "extradite or prosecute"): where surrender is refused, Spain must submit the matter to its own courts (Article 6.2 of the Convention, Article 23.2 of the LOPJ, the Spanish Judiciary Act), with the resulting change of forum and its strong, direct impact on sentencing.
Limitation period
Article 4.4 of the LEP: it is sufficient that liability has become time-barred under either Spanish law or the law of the requesting State. This must be raised in the submission under Article 13 of the LEP and reiterated on appeal ("súplica").
Experience with the United Arab Emirates and Saudi Arabia
International criminal cooperation with the Gulf States presents a particularity that demands specific preparation: the absence of an applicable multilateral convention with Spain and the current lack of a bilateral extradition treaty with either the United Arab Emirates or the Kingdom of Saudi Arabia mean that any request directed to the Kingdom of Spain falls under the supplementary regime of Ley 4/1985, de 21 de marzo, de Extradición Pasiva (the Spanish Passive Extradition Act), and the principle of reciprocity set out in Article 13.3 thereof, with the particularity that it is for the requesting State to prove that reciprocity.
The firm has handled proceedings connected with this geographical area, acting during the investigation phase and in the preliminary steps ahead of the extradition hearing before the competent Central Investigating Court and before the relevant Section of the Criminal Chamber of the Audiencia Nacional, with the technical approach characteristic of this firm.
Frequently asked questions, glossary and comparisons
Frequently asked questions
What is the difference between active extradition and passive extradition?
See answer in Frequently Asked Questions →Can Spain extradite a Spanish citizen?
See answer in Frequently Asked Questions →What is the principle of double criminality in an extradition procedure?
See answer in Frequently Asked Questions →Glossary
Ties to Spain (in extradition)
The family, employment and social ties of the person sought in Spain are not, in themselves, a legal ground for refusing extradition. They operate as a factor to be weighed within the pre-trial detention measures under Article 505 of the LECrim (in seeking provisional release or its substitution by less onerous measures), but not as a ground of opposition to the merits of the extradition.
See in the Glossary →Double criminality (principle of)
Principle requiring that the act for which a person is sought constitute an offence both under the requesting State's law and under the Spanish Criminal Code, a mere nominal coincidence of the offence not being sufficient: it requires substantial correspondence between the objective and subjective elements of the offence under both legal systems.
See in the Glossary →Speciality (principle of)
Rule under which, once the surrender of a person sought has been granted, the requesting State may only prosecute that person for the specific acts that gave rise to the extradition request, unless the person surrendered expressly consents or the requested State subsequently authorises prosecution for other acts.
See in the Glossary →Spanish nationality (obstacle to extradition)
Article 3.1 of Law 4/1985 generally bars the extradition of Spanish citizens, unless nationality was acquired fraudulently for the purpose of preventing surrender — fraud which, according to the Constitutional Court, must occur at the time nationality is acquired, not in its subsequent use.
See in the Glossary →Reciprocity (principle of)
Principle, set out in Article 13.3 of the Spanish Constitution and applicable on a supplementary basis under Article 1 of Law 4/1985, that permits extradition or cooperation with a State that has no bilateral or multilateral treaty with Spain, it being for the requesting State to prove that reciprocity.
See in the Glossary →Comparisons
Classic extradition versus the European Arrest Warrant
Where the person sought is within the European Union, the classic extradition procedure gives way to the European Arrest Warrant (EAW), a more streamlined mechanism based on mutual recognition between judicial authorities.
See full comparison →