Extradition and European Arrest Warrant lawyer in Alicante

Extradition and the European Arrest Warrant: how they differ

If another country wants you handed over to stand trial or to serve a sentence, there are two possible procedures, depending on which country is requesting you:

• European Arrest Warrant (EAW) (orden europea de detención y entrega, OEDE): when you are requested by another European Union Member State. It is a fast, judge-to-judge procedure with few grounds for opposition. It is governed by Act 23/2014 on the mutual recognition of criminal decisions in the European Union (Ley 23/2014).
• Passive extradition (extradición pasiva): when you are requested by a country outside the Union. It is governed by the applicable treaties and by the Passive Extradition Act 4/1985 (Ley 4/1985, de Extradición Pasiva), and the Government is also involved.

In both cases, even if you are arrested in Alicante, at a home on the Costa Blanca or at Alicante-Elche airport, the proceedings are handled by the National High Court (Audiencia Nacional) in Madrid. Depending on the stage, they are decided by the Investigation Section of the Central Court of First Instance, formerly the Central Investigating Court, or by the Criminal Division.

The European Arrest Warrant

When it applies

For 32 categories of offence (including drug trafficking, fraud, money laundering, cybercrime, organised or armed robbery and homicide), if the offence is punishable in the requesting country by a maximum sentence of at least three years, surrender is ordered without checking whether the act is also an offence in Spain (arts. 20 and 47 of Act 23/2014). In other cases, the maximum sentence must be at least twelve months, or the sentence to be served at least four months, and surrender may be made conditional on the act being an offence in Spain.

Time limits after arrest

• Within a maximum of 72 hours of arrest you must be brought before the central investigating judge (art. 50).
• The hearing takes place within a further 72 hours at most, with a lawyer and, if necessary, an interpreter. There you are asked whether you consent to surrender (art. 51).
• If you consent, the decision must be taken within 10 days. If you do not consent, a hearing is held within three days at most and the final decision must be taken within a maximum of 60 days of arrest, extendable by 30 days (arts. 51 and 54).
• The order issued by the judge after the hearing can be appealed to the Criminal Division of the National High Court (art. 51.8).

Be careful: consent to surrender is irrevocable. It is not advisable to give it without first speaking to your lawyer.

Grounds for opposing surrender

The law requires surrender to be refused, for example, if you have already been finally tried for the same acts in another Member State (with any sentence served or being served), if you were pardoned in Spain for those acts or if, because of your age, you would not be criminally liable in Spain (art. 48.1). It also allows surrender to be refused, among other cases, if you are already being prosecuted in Spain for the same acts or if the warrant seeks to have you serve a sentence and you are Spanish or resident in Spain: the sentence can then be served here (art. 48.2). There are also specific grounds for convictions handed down in your absence (art. 49).

If you are Spanish or resident in Spain and you are requested to stand trial, surrender can be made conditional on your being returned to serve any sentence in Spain if convicted (art. 55.2). You also have the right to appoint a lawyer in the requesting country, who works with your defence in Spain (art. 50.3).

Passive extradition to countries outside the European Union

Under Act 4/1985, extradition may be granted for acts punishable in both countries by at least one year in prison, or to serve a sentence of at least four months (art. 2). It is not granted, among other cases:

• To Spanish citizens (art. 3).
• For political offences, subject to the legal exceptions, or where the requesting country does not guarantee that the death penalty, penalties that violate bodily integrity or inhuman or degrading treatment will not be applied (art. 4).
• If criminal liability has been extinguished or you have already been tried, or are being tried, in Spain for the same acts (art. 4).
• If you have been granted asylum (art. 4).

The procedure has a governmental stage and a judicial stage. If you are arrested on an urgent request, you must be brought before a judge within 24 hours, and pre-trial detention is lifted if the country does not submit the formal request within 40 days (arts. 8 and 10). After the appearance and the hearing, the National High Court decides by order, which can be challenged by way of review (recurso de súplica) before the full Criminal Division (art. 15). Even if the judges declare extradition admissible, the Government can still refuse it (art. 6).

What we do if you are arrested on an international warrant

1. We attend the police station from the very first moment and explain, with an interpreter if necessary, what warrant has been issued against you and which country is requesting you.
2. We advise you before the hearing, above all before you decide whether to consent to surrender.
3. We study the warrant or extradition request: time limits, requirements, double criminality and grounds for refusal.
4. We apply for your release subject to precautionary measures, such as reporting to court or surrendering your passport, instead of pre-trial detention.
5. We coordinate the defence with the lawyer in the requesting country and appeal whatever is appropriate.

If the arrest takes place at the airport or affects you as a foreign resident, see also our page on criminal lawyer for foreign nationals and our guide on what to do if you are arrested at Alicante-Elche airport. If you need urgent assistance, call our 24-hour lawyer for people under arrest service.

Every case is different; after studying yours, we will give you a personalised written quote.