Extradition between Spain and the United States: What You Should Know If Facing This Process

Is Spain always obligated to surrender its citizens or residents to the U.S.? Are there cases where Spanish courts have said no?

The Procedure: Phases and Timelines

Spain and the U.S. signed a bilateral extradition treaty in 1970, later amended by agreements in 1975, 1988, and 1996, and updated in 2004 following the extradition agreement between the European Union and the United States. Since 2010, this framework has governed cooperation between the two countries.

The treaty allows a requested person to be surrendered either for prosecution or to serve a sentence, provided legal requirements are met. The offenses must be punishable by more than one year of imprisonment in both countries (dual criminality).

In Spain, the procedure follows a mixed system:

• The Audiencia Nacional (National Court) reviews the legality of the request and holds a hearing where the requested person may object.
• The final decision lies with the Government, which may approve or deny the surrender based on sovereignty, security, reciprocity, or national interest.

The process usually begins with an international arrest warrant (Interpol) issued by the U.S. The requested person is arrested in Spain and brought before the Central Investigative Court of the Audiencia Nacional within a maximum of 24 hours.

From there, the process unfolds in several phases:

• Initial Phase: The Ministry of Justice reviews the request and submits it to the Council of Ministers, which decides whether to initiate judicial proceedings.

• Judicial Phase:

1. 1. • The Central Investigative Court receives the case file and decides about precautionary measures.
      • A brief hearing is held before the Central Investigative Court where the requested person may consent to or contest the extradition.
      • If the requested individual refuses extradition, the Criminal Chamber of the Audiencia Nacional holds a trial and reviews arguments from the prosecution and defence and may request clarifications from the requesting state.
      • The Criminal Chamber issues a reasoned decision on whether the surrender is appropriate.

• Final Phase: If the Criminal Chamber deem the extradition appropriate, the case returns to the Council of Ministers, which makes the final decision.

During the proceedings, the defence may request release on bail or alternative measures to pre-trial detention, such as passport surrender or periodic court appearances. It is also possible to appeal to the Constitutional Court for violations of fundamental rights, although this is an exceptional remedy.

An Asymmetric Relationship

In theory, the treaty is based on cooperation and reciprocity. However, in practice, Spain accepts most U.S. requests, while Washington has rejected many Spanish petitions.

Even so, the Audiencia Nacional has established clear limits in cases where essential principles of Spanish law were violated. It has denied U.S. extradition requests on several occasions. Examples include:

• Lack of legal requirements: In 2007, a request was denied due to insufficient explanation of the accused’s involvement in the alleged offenses (wire fraud and money laundering).
• Spanish nationality and acts committed outside the U.S.: In 2015, the surrender of a Spanish citizen accused of conspiracy to falsify accounting records was denied.
• Non bis in idem: In 2020, extradition was denied for a Spanish national already being prosecuted in Spain for the same facts.
• Statute of limitations: In 2022, surrender was denied in a drug trafficking case.
• Lack of dual criminality: In 2022 and 2023, requests were rejected because the acts were not considered crimes under Spanish law.

These precedents show that not every U.S. request is automatically accepted, and there are effective avenues for defense.

Key Defense Strategies

In extradition proceedings to the United States, legal strategy is crucial. Key lines of defense include:

• Dual criminality: The acts must constitute a crime in both countries.
• Nationality: Spain is not obligated to extradite its nationals, except under reciprocity; this protection may also extend to EU citizens residing in Spain.
• Statute of limitations: When the offense or sentence is time-barred under Spanish law.
• Non bis in idem: Prohibition against being tried twice for the same facts.
• Political motivation: Applicable when there are signs the request masks political persecution.
• Procedural guarantees: Risk of inhumane treatment, lack of a fair trial, or trial by exceptional courts.
• Excluded offenses: The treaty prohibits extradition for political or purely military offenses.

Additionally, the defence may request:

• Alternative measures to pre-trial detention, such as bail or periodic appearances.
• Application of the principle of specialty, which limits prosecution in the U.S. to the offenses authorized by Spain.

Conclusion

Extradition between Spain and the United States is governed by detailed treaty that involves both judicial and governmental intervention. Although most requests are granted, our experience shows that the Audiencia Nacional does enforce the legal limits that allow for denial of surrender.

For anyone facing this process, technical and strategic legal defence is essential. Oliva-Ayala Abogados’ experience in Economic Criminal Law and extraditions enables us to design effective defences that combine legal expertise with the appropriate procedural strategy for each case.