Frequently Asked Questions

Passive extradition is where a third State directs a request to Spain for the surrender of a person; it is the procedure that carries the greatest safeguards and is governed by Law 4/1985 on Passive Extradition. Active extradition is the reverse process: it is the Spanish State itself that requests another country to surrender a person who has been charged, is under investigation, or has been convicted and is outside its territory, with a mixed nature — judicial at its origin, governmental in its handling abroad — governed by articles 824 to 833 of the LECrim (Spanish Criminal Procedure Act).

The procedure is frequently initiated through an Interpol Red Notice. Once the person sought is arrested, they must be brought before the on-duty Central Investigating Court within a maximum of twenty-four hours. Within the following seventy-two hours, the personal-status hearing under article 505 of the Criminal Procedure Act is held, at which the person's family, work, and social ties in Spain are presented in order to request provisional release instead of pre-trial detention, or the substitution of detention by less onerous measures such as passport surrender, periodic reporting, or bail.

It follows a succession of phases with strict time limits: 24 hours to be brought before the court after arrest; 72 hours for the personal-status hearing; 40 non-extendable days for the requesting State to file the formal extradition request (if it fails to do so, pre-trial detention lapses); 8 days for the Ministry of Justice to submit a reasoned proposal to the Government and 15 days for the Government to decide whether the matter proceeds through the courts; a maximum of 80 days of pre-trial detention without a ruling, after which release must be ordered; up to 30 days of pre-trial investigation if the person sought opposes the extradition; and 3 non-extendable days from the hearing for the Court to rule by reasoned order on whether the extradition proceeds, pursuant to article 14.1 of Law 4/1985.

As a general rule, no: article 3.1 of Law 4/1985 bars the extradition of Spanish nationals, unless the nationality was acquired fraudulently with the purpose of preventing surrender. The Constitutional Court has clarified that the fraud must occur in the acquisition of the nationality itself, not in its later use, and has refused to infer it merely from ambivalent use of passports. This is a discretionary ground for refusal set out in article 5 of Law 4/1985.

It requires that the act for which a person is sought constitute an offense both under the requesting State's law and under the Spanish Criminal Code. It is not satisfied by a mere nominal coincidence of the offense: it requires a substantial correspondence between the objective and subjective elements of the offense under both legal systems.

An application for international protection does not automatically halt the judicial processing of the extradition case, but it does prevent the physical surrender of the person as long as there is no final, unfavorable ruling on the asylum claim. Under articles 18.1.d) and 19.2 of Law 12/2009, an asylum application suspends, until a final decision is reached, the execution of the ruling in any pending extradition proceeding. In addition, the Criminal Division of the Audiencia Nacional (Spain's National High Court, with jurisdiction over certain serious and cross-territorial offenses) hears extradition matters while the Administrative Litigation Division hears appeals on international protection: these are separate, independent proceedings.

A Red Notice is the request that the Interpol General Secretariat circulates, at the request of a member country's National Central Bureau, so that law enforcement worldwide can locate and provisionally arrest a person pending their extradition or surrender, following a prior compliance review by the General Secretariat itself. A diffusion is the decentralized equivalent: it is published directly by the requesting country's National Central Bureau, without that prior compliance review. Against either, recourse can be had to the Commission for the Control of Interpol's Files (CCF), an independent body that oversees the processing of personal data in the Organization's systems, before which access, rectification, or erasure of data may be requested, as well as urgent provisional measures.

Yes. Interim measures under Rule 39 of the Rules of Court allow the enforcement of a domestic ruling to be suspended where it could cause serious and irreparable harm, such as an extradition carrying a real risk of torture or inhuman treatment under article 3 of the Convention. Failure to comply with a Rule 39 interim measure constitutes, in itself, an autonomous violation of the right of individual petition recognized in article 34 of the Convention.

The principle of ubiquity applies, established by the Non-Jurisdictional Plenary Agreement of the Second Chamber of the Supreme Court of 3 February 2005: the offense is committed in every jurisdiction where any element of the offense took place. In investment fraud committed through computer means with connections to different locations, the courts have supplemented this criterion with the principle of functionality.

Yes, it can constitute a criminal breach of trust (apropiación indebida). The courts have upheld convictions for criminal breach of trust involving bitcoins deposited in the wallet of an exchange platform where the depositary disposed of them without authorization.

Because traditional fraud under article 248.1 of the Criminal Code requires a deception that causes a determining error in the victim herself, who then disposes of her own assets. In banking phishing, it is the criminals themselves who access the account and order the unconsented transfer by manipulating the computer system, which fits within the computer fraud offense of article 248.2.a) of the Criminal Code.

This is the figure known as a "money mule" or "cyber-mule." Its classification ranges between necessary cooperation in fraud, handling stolen goods (receptación), or money laundering, and is most often resolved as money laundering through gross negligence where there was reasonable suspicion as to the illicit origin of the money, though not certain knowledge: whoever accepts into their account an amount from criminal activity and helps conceal it by transferring it to a third party commits money laundering through gross negligence.

The offense of computer damage (article 264 of the Criminal Code) protects another person's data, programs, or electronic documents themselves. The offense of system obstruction (article 264 bis of the Criminal Code) punishes obstructing or interrupting the operation of another person's computer system, which is the typical form taken by denial-of-service (DDoS) attacks.

Yes. Article 264 ter of the Criminal Code punishes, as an autonomous preparatory act, producing, acquiring for use, importing, or supplying to third parties computer programs or passwords and access codes designed to commit these offenses, without any need for them to actually be used.

Yes. The offense of discovery and disclosure of secrets is consummated as soon as the perpetrator accesses another person's data — that is, as soon as they become aware of it and have it at their disposal — since that alone breaches the privacy protected by article 197 of the Criminal Code, without any need to actually read or disseminate it.

Since 30 December 2024, Regulation (EU) 2023/1114 (MiCA) replaces the former registration regime with the Bank of Spain with a licensing regime under the supervision of the CNMV (Spain's National Securities Market Commission). Before MiCA, providers of virtual-currency-to-fiat exchange and wallet custody services were already subject to Law 10/2010 on the prevention of money laundering, following its amendment by Royal Decree-Law 7/2021.

No: possession for personal consumption or shared consumption falls outside criminal liability because it lacks the element of promoting, encouraging, or facilitating consumption by others that the offense under article 368 of the Criminal Code requires. Indicators taken into account include the quantity in relation to the proven daily consumption, the presence of scales or packaging/dosing materials and dosing bags, accounting notes or divided cash, and habitual-user status confirmed by a forensic-medical or toxicological report.

To distinguish an organization from mere joint offending, the Constitutional Court requires the cumulative presence of a plurality of persons, the use of suitable means, a previously agreed criminal plan, a division of roles, a degree of hierarchy, and persistent, sustained activity over time, aimed at carrying out not a single criminal act but several distinct and varied criminal operations — a single operation, however complex, is not enough.

Cultivation for strict personal consumption is not an offense due to the absence of promoting or facilitating consumption by others, within certain limits of quantity and correlation with proven personal consumption. As for cannabis social clubs, the Supreme Court has held that organized, institutionalized cultivation and distribution of cannabis among a group, carried out with a view to ongoing persistence, does meet the requirements of the offense under article 368 of the Criminal Code where it becomes institutionalized, allows stockpiling for several months, or remains open to new members, thereby exceeding the boundaries of non-punishable shared personal consumption.

The Supreme Court's Non-Jurisdictional Plenary Agreement of 19 October 2001 set as a reference five hundred daily consumption doses of each specific substance, based on a report by the National Institute of Toxicology. For substance reduced to pure content, the reference thresholds are: 750 grams for cocaine, 300 grams for heroin, 240 grams for MDMA, and 90 grams for amphetamines. A margin of error of 5% in weighing and purity is also recognized, applying the in dubio pro reo principle.

Article 65.1.d) of the Organic Law on the Judiciary requires two cumulative conditions: that an organization, group, or gang exist, and that the effects of the offense extend across territories belonging to different Provincial Courts (Audiencias Provinciales). When both are present, jurisdiction lies with the Central Investigating Courts and the Criminal Division of the Audiencia Nacional.

Self-laundering occurs when the same person who committed the predicate offense reintroduces the proceeds into the legal circuit. It requires a specific intent: merely possessing, using, or converting assets of illicit origin is not enough — for example, possessing stolen jewelry is not, on its own, self-laundering — the specific purpose of integrating those assets into the legal economic system must also be present, always respecting the principle that no one may be punished twice for the same act (ne bis in idem).

Yes, under its negligent form set out in article 301.3 of the Criminal Code, but the negligence does not lie in how the transaction was carried out, but in the lack of diligence in finding out or suspecting the illicit origin of the money. It is also required that the breach of the duty of care be serious — severe, manifest, and not merely incidental — a minor administrative irregularity is not enough; the standard of diligence required is calibrated according to the person's position and knowledge, and is not reserved solely for parties bound by Law 10/2010.

The second paragraph of article 301.1 of the Criminal Code raises the penalty to the upper half of the range, up to 6 years' imprisonment, where the laundered assets come from the drug trafficking offenses under articles 368 to 372 of the Criminal Code — an aggravation that also extends to human trafficking, urban-planning offenses, bribery, influence peddling, embezzlement, and other offenses against public administration. As a relevant evidentiary factor, the defendant's connection with persons, groups, or organizations engaged in drug trafficking is treated as an essential indicator, though it is not enough on its own: an objectively verifiable certainty is required, not a mere probability or suspicion.

Money laundering is the process by which assets of criminal origin are integrated into the legal economic system with the appearance of having been lawfully acquired. Handling stolen goods, or receptación (article 298 of the Criminal Code), by contrast, requires that the predicate offense be against property or the socioeconomic order — unlike money laundering, which admits any predicate offense — and consists of helping the offenders benefit from the proceeds of the offense, or receiving, acquiring, or concealing those proceeds: where the conduct seeks personal benefit from the proceeds, it is handling stolen goods; where it seeks to disguise their illicit origin so as to reintroduce them into the legal economic system, it is money laundering.

Article 305 of the Criminal Code requires an evaded tax liability exceeding 120,000 euros per tax and tax period. There is also an aggravated form under article 305 bis of the Criminal Code, carrying 2 to 6 years' imprisonment, where the evaded amount exceeds 600,000 euros, where the fraud is committed within a criminal organization or group, or where intermediary persons, fiduciary arrangements, or tax havens are used. The evaded amount is calculated independently for each tax, period, and tax authority, without adding together amounts from different taxes or authorities.

Yes. Article 305.4 of the Criminal Code sets out an absolutory excuse that relieves of criminal liability anyone who regularizes their tax position by acknowledging and paying the debt in full — including interest — before being notified of the start of a tax audit, or before the Public Prosecutor's Office, the Abogacía del Estado (the State Legal Service, the body of state lawyers who represent and defend the Spanish State in legal proceedings), or the investigating judge directs proceedings against them. Furthermore, the tax offense is not exhausted by the mere non-payment of amounts due: case law requires an element of mendacity, that is, a maneuver to conceal or distort the tax base.

The distinguishing criterion is whether the loss of assets is final or not. Criminal breach of trust (apropiación indebida) requires the perpetrator to carry out an unlawful act of disposal that exceeds the powers conferred by the title under which the asset was received, giving it a final destination other than the one agreed. Criminal mismanagement (administración desleal), by contrast, punishes the abuse of management powers over another person's assets without any need for an irrecoverable loss of assets to occur, and does not require the manager to have a specific intent to profit.

Yes, since the 2010 and 2015 reforms of article 31 bis of the Criminal Code, the criminal liability of legal persons is a liability of their own, founded on an "organizational deficiency," not automatic vicarious liability for another's act. The absence of a culture of respect for the law must manifest itself in concrete forms of oversight and control; an effective criminal compliance system — risk identification, decision-making protocols, a supervisory body with autonomous powers, a whistleblowing channel, a disciplinary system, and its periodic review — can operate as a defense against criminal liability.

It can be, as a form of criminal mismanagement known as "asset stripping": the sale of corporate assets to related persons or companies at a price manifestly below market value. The criminal mismanagement offense under article 252 of the Criminal Code requires the concurrence of four elements: holding management powers, exceeding them in their exercise, an economically assessable loss, and a direct causal link between the two.

Only if there is criminal intent (dolo), not for simple negligence. The external auditor, as an outside participant to the corporate relationship (extraneus), can only be held liable as an instigator, a necessary cooperator, or an accessory — never as a principal — and negligent breach of professional lex artis is not enough for criminal liability without intent. In the Pescanova case, the Supreme Court overturned the conviction imposed on the external auditor by the Audiencia Nacional because the proven facts did not detail or specify the intentional commission of the offense.

Since Organic Law 1/2019 of 20 February, the threshold is 100,000 euros. Between 10,000 and 100,000 euros there is a mitigated form, carrying 3 months to 1 year's imprisonment or a fine. Below 10,000 euros, the conduct falls outside the scope of criminal law and is subject only to the administrative penalty regime under Law 38/2003, the General Subsidies Act. Article 308 of the Criminal Code punishes both the fraudulent obtaining of the subsidy and the diversion of funds already obtained to purposes other than those for which they were granted.

No. The Supreme Court has limited the offense under article 293 of the Criminal Code to cases in which directors deny or obstruct the right to information without citing any reason, cite a legally non-existent reason, or cite a legal reason in a manifestly abusive way. The conduct covered by this offense cannot be defined through an automatic rule that criminalizes anything that does not strictly comply with the requirements of commercial law; rather, it requires assessing the true intent and the harmful significance of the refusal.

Fraud rests on a deception that brings about the initial handover of the asset: the perpetrator's possession is tainted by the deception from the outset. Criminal breach of trust, by contrast, starts from an initial possession that is lawful and free of deception — received on deposit, commission, administration, or a similar title — which becomes criminal when the possessor incorporates it into their own assets or gives it a final destination other than the one agreed, exceeding the powers conferred by the title under which it was received.

Yes, if it exceeds 400 euros. Article 254 of the Criminal Code punishes with a fine of three to six months anyone who, having wrongly received money by the sender's error, denies having received it or, once the error is confirmed, fails to return it. Criminal liability falls on the recipient, not the bank: the institution that executes the transfer according to the account number provided by the person giving the order does not incur liability even if the account holder does not match the intended beneficiary.

As a general rule, no: simple delay or disagreement over the return of a rental deposit — classified by civil case law as an "irregular pledge" — is, in the vast majority of cases, a civil dispute. It can only be treated as criminal breach of trust when the refusal has no justifiable reason whatsoever and continues despite formal demands, requiring a definitive intent not to return the deposit without justification.

Yes, lower-court case law unambiguously classifies the non-return of rental vehicles as criminal breach of trust under article 253 of the Criminal Code. A leasing contract is likewise a suitable title for giving rise to criminal breach of trust where the lessee fails in their duty to return the assets once the contract has ended without exercising the purchase option.

Article 451 of the Criminal Code punishes aiding an offender (encubrimiento) with six months' to three years' imprisonment, in three forms: helping the offenders benefit from the proceeds of the offense without seeking personal profit; concealing, altering, or disposing of the body, effects, or instruments of the offense; or helping the offenders evade investigation or capture. Article 454 of the Criminal Code exempts from punishment anyone who aids their spouse or stable partner, ascendants, descendants, siblings, or relatives by affinity in the same degrees, except as regards the first form — helping them benefit from the proceeds of the offense.

Yes. The concept of a "false key" under article 239 of the Criminal Code is a normative one, not a literal one: it need not be a metal instrument and may be made of any material or opening/closing mechanism, provided it serves to open or close without causing breakage. It expressly equates magnetic or punch cards, remote controls, and any similar technological device.

The Supreme Court distinguishes three classic forms: proditory alevosía, equivalent to betrayal, which requires a previously arranged ambush or trap; sudden or unexpected alevosía ("surprise" alevosía), characterized by the unforeseen and abrupt nature of the attack; and alevosía through the victim's helplessness, which consists of consciously taking advantage of a situation of the victim's absolute defenselessness — minors, sleeping, unconscious, or incapacitated persons. The most recent case law has added a further, cohabitation-based form: a surprise attack on someone at ease in their own home, in the company of a person they trust.

Yes, provided it passes the three-part test set by case law: absence of subjective lack of credibility (no improper motives), verisimilitude (corroborated by peripheral objective evidence), and persistence in the accusation (substantial consistency in the account, without requiring literal repetition). The most recent case law also distinguishes between credibility and reliability: a victim may come across as personally credible and yet provide information that does not meet the threshold of reliability due to a lack of internal coherence, an absence of corroboration, or incompatibility with objective evidence.

The dividing line is whether "medical treatment" was required beyond the initial medical attention, under article 147 of the Criminal Code. The treatment must be objectively necessary to achieve recovery — it is not enough for it to be given merely as a subjective matter — and it must go beyond the initial attention as a separate medical act; simple monitoring or purely precautionary tests are excluded. Sutures or a course of antibiotics or painkillers with a set dosage and duration, for example, do constitute medical treatment.

The exemption from the duty to testify under article 416 of the Criminal Procedure Act relieves from testifying anyone who is or has been bound to the person under investigation by marriage or a similar relationship of affection, but the Supreme Court has held that this right is incompatible with the position of the complainant herself as the victim of the events. Since Organic Law 8/2021, moreover, the exemption is excluded where the adult witness has already agreed to testify after being informed of their right, or where they have joined the proceedings as a private prosecutor.

From 0.60 milligrams of alcohol per liter of exhaled air, the criminal route under article 379.2 of the Criminal Code applies; between 0.25 and 0.60 mg/l (0.15 mg/l for professional or novice drivers) it is an administrative traffic offense. A margin of error of 7.5% is recognized for concentrations above 0.40 mg/l, under Order ICT/155/2020, and the result is expressed to two decimal places, always rounded down. In addition, the second measurement with an approved breathalyzer, taken at least ten minutes after the first, is mandatory, not optional.

Mere illegality is not enough to constitute the criminal offense of misconduct in public office (prevaricación) under article 404 of the Criminal Code: there must be a contradiction with the legal order so patent and gross that it admits no reasonable explanation. It is necessary that the arbitrary decision be issued knowing it to be unjust.

Yes. Bribery is an offense of mere activity: merely accepting the promise of future delivery of the bribe is enough for it to be consummated, without any need for the delivery to actually take place. Article 424 of the Criminal Code further extends liability to the private individual who offers or hands over the bribe.

The Supreme Court has held that a mendacious or simulated contract, or a mendacious invoice, does not constitute the offense of forgery by simulation under article 390.1.2º of the Criminal Code. Furthermore, ideological forgery committed by private individuals — failing to tell the truth in recounting the facts without altering the document itself or simulating its authenticity — has been decriminalized by article 392 of the Criminal Code, which expressly excludes that form where the perpetrator is not a public authority or official acting in the exercise of their duties.

The Supreme Court has rejected the idea that sporting events can be considered a "work" or artistic performance for the purposes of the intellectual property offense: those sequences cannot be interpreted as reaching the protection afforded by article 270.1 of the Criminal Code, which also requires a direct or indirect economic benefit that is real and evidenced through objective factors, not merely hypothetical.

Article 65 of the Organic Law on the Judiciary reserves to the Audiencia Nacional, among others: offenses against the Crown and senior State bodies; the largest economic offenses or those affecting a plurality of people across different Provincial Courts; terrorism; drug trafficking committed by criminal organizations with a reach beyond a single Provincial Court's territory; currency counterfeiting; offenses committed outside Spain that are prosecutable under Spanish jurisdiction; and passive extradition proceedings and European Arrest Warrant proceedings.

No. The cassation appeal is the last ordinary stage of Spanish criminal proceedings, but it is not a second appeal and does not allow the evidence taken at trial to be reassessed: any challenge must necessarily be brought through the statutorily defined grounds — infringement of the law, a procedural defect, or the violation of a fundamental right — and not through a fresh factual assessment of the case.

The time limit is four months from the final domestic decision, following the reduction brought about by Protocol No. 15 to the Convention, in force since 1 August 2022 (it was previously six months). It is a strict, non-extendable time limit, calculated from the date of the domestic decision, not from when the person concerned actually became aware of it. It is also necessary to have first exhausted domestic judicial remedies, including an amparo appeal before the Constitutional Court where applicable.