Extradition is the procedure by which a state or nation, upon receipt of a formal request by another state or nation, turns over to that second jurisdiction an individual charged with or convicted of a crime in that jurisdiction.

Thus, extradition is aimed at achieving the return of the accused or convicted individual to the state that seeks him.

In Spain, extradition is regulated mainly by the Passive Extradition Act (Ley de Extradición Pasiva 4/1985), the Criminal Procedure Act and by applicable international treaties.

Yes it is. Therefore, it is worth treating the matter seriously. 

Extradition is an issue of a great legal complexity. Although strictly speaking, extradition is not a criminal procedure, vital issues for the sought person such as his freedom or imprisonment, or his submission to justice and prison systems which are often more severe than the Spanish, are at stake. Moreover, there is an added difficulty in the procedure taking place in a country and in a language that the person involved does not necessarily know. 

In practice, most extradition requests are granted. Extradition will only be refused in case we are able to demonstrate that any of the circumstances referred to in point 7 exist. Therefore, the capacity and effectiveness of the lawyers representing the sought person are key success factors. 

Thus, it is highly recommended to count on experienced, reliable lawyers.

In Spain, a passive extradition procedure starts when a foreign state requests the Spanish authorities to deliver an individual they are seeking for, who finds itself in Spanish territory.

In practice, a high percentage of extradition cases find their origin in international arrest warrants that have been previously issued by the requesting state through institutions such as INTERPOL. From the moment an international arrest warrant is issued by a certain country, the affected individual is sought also in the rest of the countries belonging to the concerned institution. 

Thus, if a fugitive from another country comes to Spain, and someone checks his identity, he will probably be arrested by the Spanish police on the basis of the international arrest warrant. After that, the Spanish authorities will inform the requesting country that the person they seek has been captured. From that moment, and within forty days, the State that issued the international arrest warrant should formally request the Spanish authorities to extradite the person. Said request should contain a number of documents stating the purpose of the request. 

If the State fails to submit a formal request within forty days from the arrest, the person will be released. If the request is duely submitted, the procedure continues.

An extradition procedure is only implemented if the case displays a certain magnitude. Therefore:

• If the person is sought to be judged at the requesting State, it is required that the minimum sentence that can be imposed be one year of prison.
• If the person has already been convicted, the sentence given should be of at least four months in prison.

Anytime after the person sought is arrested, the judge may order his release (imposing or not a bail or any other precautionary measure, such as the obligation to report periodically to the court). The judge may also order that the individual remain in remand. This often depends on the severity of the case. 

Meanwhile, the extradition procedure is developed in three phases: 

• The first phase is political and takes place before the Government. The Cabinet discusses the request of the applicant State and decides, within eight days from its receipt, whether to authorize the proceeding or not. If the Government refuses to give the green light to the request, that implies the issue ends there. However, it is common that the Goverment authorizes its continuation, which leads us to the second phase. 
• The second phase is judicial and takes place before the Madrid-based National High Court (Audiencia Nacional). Undoubtedly, this is the most critical part of the process, as in most cases the opinion of the Audiencia Nacional will be decisive. This judicial phase is divided into two parts, being the first one a preliminary investigation. The judge in charge will accumulate evidence that will be examined by other judges later on. During this phase, the prosecuted person is summoned to appear before the judge at least once, in order to express whether or not he agrees to be extradited. Following this appearance, the judge decides whether to put him on probation -with or without protective measures-, or whether he should remain in prison. After this preliminary phase is completed, the case is submitted to one of the sections of the Criminal Division of the Court, composed of three judges. This Section will analyze the materials provided by the investigating judge, and will set a date for the pending extradition hearing. This is the key moment of the whole process, since a few days after the hearing, the Board will decide whether or not to grant extradition. If extradition is denied, that will mean the end of the process. If extradition is granted, the decission is still subject to appeal. In that case, the ultimate decission belongs to the Plenary of the Criminal Division at the Audiencia Nacional. However, practice shows that most often, the Plenary upholds the decision of the Section.
• The third and final phase is governmental again. In view of the decision of the National High Court to grant extradition, the Government will have the final say. It may authorize or refuse it serving reasons of national security, public order or other political interests. In most cases, it will confirm the decision of the High National Court.

The duration of the extradition procedure in Spain depends on the complexity of the case and how busy the Courts involved are. 

However, it is possible to estimate a lapse of 5 to 9 months from the moment the sought individual is arrested until the final decision of the authorities is firm.

The Spanish Passive Extradition Act pinpoints a number of cases in which extradition will be refused. Namely, extradition shall not be granted if it is to pursue one the following offenses: 

1. Political offenses. Acts of terrorism, crimes against humanity as well as attacks to the life or health of a Head of State or a member of his family are not considered as such.
2. Military offenses, under certain circumstances.
3. Crimes committed through the media in the exercise of freedom of expression.
4. Crimes that are only prosecutable ex parte, except for rape, statutory rape, abduction and indecent assault. 

Furthermore, no extradition shall be granted: 

1. When the person sought is to be judged by a court of Exception.
2. When, according to the Spanish law, or to the requesting State one, the criminal liability is extinguished (for example, when the offense is prescribed).
3. When the person has been, or is being tried, in Spain for the same facts that serve as a basis for the extradition request.
4. When the requesting State gives no assurance that the person in question shall not be given a death penalty or submitted to injurious, or inhuman or degrading treatment.
5. When the person sought has been granted asylum.
6. If there is a solid reason for the Court to believe that the request for extradition, theoretically motivated by an ordinary criminal offense, has in reality been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality or political opinions, or in the case when the situation of that person might be aggravated by such considerations. 
7. When the person is under the age of 18 at the time when the extradition is requested and posseses his habitual residence in Spain, if it is considered that extradition may impede that person´s social reintegration. 

Subsequently, the lawyer taking charge of the defence should mainly focus on proving the occurrence of any of these circumstances.

If different countries request the extradition of the same person, either for the same offense or for different ones, the Government of Spain will decide which country is extradition to be granted to. To do so, it will take into account different circumstances: whether or not there is an extradition treaty with any requesting country, the severity of the crime, where was it committed, which of the countries requested the extradition first, the nationality of the person sought and the possibility of subsequent extraditions.

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