The extradition request to Spain in the absence of a treaty: legal framework and main complications

When a State requests the surrender of a person to Spain in the absence of a bilateral or multilateral treaty regulating such cooperation, the procedure becomes much more uncertain, delicate and complex. In the absence of an agreed framework between States, the Passive Extradition Law (PEL) and the Spanish Constitution (SC) set the limits, but the margin of discretion – especially in the governmental phase – is significantly extended. 

This scenario is not exceptional. There are dozens of countries with which Spain has not signed an extradition agreement, which poses numerous legal and diplomatic challenges: from respect for the fundamental rights of the defendant to the political assessment of the surrender. In this article we analyse which countries are in this situation, what principles govern the procedure in these cases, and what complications may arise throughout the process. 

1.- With which countries does Spain not have extradition agreements?

On the European continent, Spain does not have extradition agreements in force with Belarus, Vatican City and Kosovo (not recognised by Spain). Although in the case of Russia both countries have signed the European Convention on Extradition, since 2022 Spain has de facto suspended extraditions to the country in response to the invasion of Ukraine. 

In the Americas, there are no extradition treaties with Antigua and Barbuda, Bahamas, Barbados, Belize, Dominica, Grenada, Guyana, Haiti, Jamaica, St. Kitts and Nevis, St. Vincent and the Grenadines, St. Lucia, Suriname, Trinidad and Tobago. 

In Africa, the list is longer: Angola, Benin, Botswana, Burkina Faso, Burundi, Cameroon, Central African Republic, Chad, Comoros, Republic of Congo, Democratic Republic of Congo, Ivory Coast, Eritrea, Eswatini, Ethiopia, Gabon, Gambia, Ghana, Guinea, Guinea-Bissau, Equatorial Guinea, Kenya, Lesotho, Libya, Madagascar, Malawi, Mali (both countries have only signed a Convention against Transnational Organized Crime in 2008), Mozambique, Namibia, Niger (both countries have only signed a police cooperation agreement in 2015), Rwanda, São Tomé and Príncipe, Senegal, Seychelles, Sierra Leone, Somalia, Sudan, South Sudan, Tanzania, Togo, Tunisia (both countries have only signed an agreement on cooperation, security and the fight against crime in 2019), Uganda, Djibouti, Zambia and Zimbabwe. 

On the Asian continent, Spain does not have extradition agreements with Afghanistan, Saudi Arabia (both countries have only signed a police cooperation agreement), Bahrain, Bangladesh, Brunei, Bhutan, Cambodia, North Korea, Iraq, Iran, Japan, Jordan, Kyrgyzstan, Kuwait, Laos, Lebanon, Malaysia, Maldives, Mongolia, Myanmar, Nepal, Oman, Pakistan, Palestine, Qatar, Singapore, North Korea, Syria, Sri Lanka, Taiwan, Tajikistan, Thailand (both countries have only signed a cooperation agreement on the enforcement of criminal sentences in 1983), Timor-Leste, Turkmenistan, Uzbekistan and Yemen. 

Finally, in Oceania, Spain has not signed extradition treaties with Fiji, Kiribati, Marshall Islands, Micronesia, Nauru, Palau, Papua New Guinea, Solomon Islands, Samoa, Tonga, Tuvalu and Vanuatu. 

2.- What is the legal framework when the requesting State has not signed an extradition treaty or convention with Spain? 

In the absence of a bilateral or multilateral extradition treaty, the following sources of law should be considered:  

2.1. The Spanish Constitution

Passive extradition is enshrined in the Spanish Constitution (SC) in Article 13.3 SC, which requires that “extradition shall only be granted in compliance with a treaty or the law, in accordance with the principle of reciprocity”. 

2.2. Passive Extradition Law

In development of the constitutional provision, the Spanish Parliament passed Law 4/1985 of 21 March 1985 on Passive Extradition (PEL). The guiding principles of the PEL are:   

• Reciprocity: this universally accepted principle in international law establishes that a State will grant another State treatment similar to that which the latter grants to the former in order to promote international cooperation (Article 1 PEL). 

• Speciality: the defendant can only be tried for the acts for which the requested State authorised his extradition (Article 21 PEL). 

• Dual criminality: the offences for which the requesting State requested extradition must also be criminally punishable in the Kingdom of Spain (Article 2 PEL). 

• Prohibition of extraditing nationals: despite the silence of the SC, the PEL does establish that “[n]o extradition of Spanish nationals shall be granted” (Article 3.1 PEL). And the Constitutional Court raised this prohibition to constitutional rank when there is no treaty with the requesting state that does allow the extradition of nationals (STC 205/2012). However, the PEL also assesses whether the extradition was obtained by fraudulent means.  

• Bis in idem: the Constitutional Court links the principle of non bis in idem (Article 4.5 PEL) to Article 24.1 SC of effective judicial protection, preventing double jeopardy (STC 3/2019). 

3.- What are the guarantees of the passive extradition procedure in Spain in the absence of an extradition treaty? 

3.1. Reinforced judicial control

The extradition process, whether or not an extradition treaty or convention exists, will be governed by the procedural rules established in the PEL. This procedure consists of a first phase of formal governmental control; a second phase of reinforced judicial control; and a third and final phase in which, if the judicial control is passed, the final decision will be taken by the Spanish government, which may refuse surrender for political, diplomatic or national interest reasons. 

The judicial phase implies that there is reinforced judicial control. On the one hand, the extradition request will be submitted to the Criminal Chamber of the National High Court in an oral hearing, after which it can refuse extradition if it finds formal flaws, lack of legal fit or risks to human rights, to the extent that if this body does not agree to extradition, the procedure will be terminated without the file being sent back to the government for the third phase. In addition, the Central Examining Judge (Juzgado Central de Instrucción) will ensure that the provisional detention of the requested person complies with the requirements of our domestic legislation, while the extradition process is underway.  

3.2. Right of defence and judicial protection 

The requested person enjoys the right of defence and legal assistance from provisional detention until the final decision (Article 24.1 SC). 

3.3. Presumption of innocence 

According to Article 24.2 SC, the defendant is presumed innocent until a final judgment declares him guilty; this principle reinforces the burden of proof at all stages. 

3.4. Right to an interpreter and notification of charges 

Article 24.2 SC and 5.2 ECHR also enshrine the right to be informed of the facts and reasons for detention in a language which he/she understands and to have access to an accredited interpreter if he/she does not understand the language. 

3.5. Equality and non-discrimination

Extradition respects the principle of equality and non-discrimination, in accordance with Article 14 SC, so that no person is treated differently on grounds of nationality, origin, sex, religion or any other personal circumstance. 

3.6. Non bis in idem principle

Article 4.5 of the PEL prohibits extradition when the defendant has already been tried or is being tried in Spain for the same acts. STC 3/2019 emphasises that this guarantee forms part of the right to effective judicial protection (Article 24.1 SC) in the transnational sphere. 

3.7. Compulsory and optional grounds for refusal 

The Spanish authorities will refuse extradition in the cases provided for in Articles 3 and 4 of the PEL:  

• When the extradition of Spaniards or foreigners is requested for offences that fall within the jurisdiction of the Spanish Courts, according to the national legal system. 

• When extradition is requested for political offences (except terrorism), or for military offences.  

• When the person sought is to be tried by an exceptional court.  

• When criminal responsibility has been extinguished, in accordance with Spanish legislation or that of the requesting State.  

• When the requested person has been tried or is being tried in Spain for the same facts that form the basis of the extradition request.  

• When the requesting State does not give the guarantee that the person sought for extradition will not be executed or that he/she will not be subjected to penalties that violate his/her physical integrity or to inhuman or degrading treatment.  

• When the requested person has been recognised as an asylum seeker.  

On the other hand, in accordance with Article 5 of the PEL, it may optionally reject those requests that merit it for humanitarian reasons, advanced age, state of health or national interest, or when the requested person is under eighteen years of age at the time of the extradition request, always after an assessment of proportionality. Furthermore, it may be refused in accordance with Article 3 of the PEL when the offence has been committed outside the territory of the country requesting extradition, if Spanish legislation does not authorise the prosecution of an offence of the same type committed outside Spain. 

3.8. Consular assistance

The Vienna Convention on Consular Relations (Article 36 VCCR) guarantees the requested person the right to communicate his or her situation to the consulate of his or her country and to receive assistance. 

4.- What complications can arise during extradition proceedings in the absence of a Treaty?

i) The absence of a defined co-operation process endorsed by a convention or treaty naturally leads to increased complexity in extradition proceedings based solely on the PEL, where the Government’s discretion is much greater.  

The government has the power to direct foreign policy (Article 97 SC). Therefore, although extradition processes are always subject to the national interest, the weighting of this will be based on the interests of the government.  

ii) Spain’s refusal without the need to give reasons for its decision 

When there is no ratified bilateral or multilateral treaty, the Kingdom of Spain is not legally obliged to accede to the extradition request. This implies that it can refuse surrender without the need to give legal reasons for its decision. Therefore, the principles of sovereignty, political convenience or reciprocity will be particularly relevant. 

iii) Lack of sufficient guarantees in the requesting state  

As explained above, Spain can refuse surrender if there is a risk of torture, death penalty or lack of procedural guarantees and the prohibition of double jeopardy. The judicial and governmental assessment of these guarantees will be much stricter in the absence of an extradition treaty or agreement than when there is one, as in the latter case both parties will have already recognised minimum standards of cooperation.  

iv) Delays  

The process can take considerable time, creating legal uncertainty for both the requesting state and the person concerned. Procedural times depend on: domestic interpretations of the PEL and the availability of consular and judicial means. 

v) Evidentiary and documentary difficulties 

Evidence and documents submitted by the requesting State may not conform to Spanish procedural standards. Moreover, if the facts are not adequately subsumed within the Spanish criminal offence (principle of dual criminality), the Criminal Chamber of the Audiencia Nacional could reject the extradition for reasons of legality. 

vi) Diplomatic conflicts 

Extradition in the absence of a treaty may be interpreted as interference in internal affairs, especially if the defendant is a national of the requesting country or if the case has political connotations. 

vii) Applying for asylum or international protection 

The person sought may apply for asylum or international protection in Spain, alleging political or religious persecution, or for reasons of sexual orientation, gender identity, etc. The filing of an asylum application automatically suspends the extradition process, in accordance with Law 12/2009 on Asylum. This suspension is maintained until there is a final decision on the application by the Asylum and Refugee Office (OAR) or, where appropriate, by the Judiciary. 

In short, the processing of an extradition request without a bilateral treaty requires a thorough legal analysis and a procedural strategy adapted to the particularities of the case. In these cases, the PEL and constitutional principles provide a solid framework of guarantees, but the procedure takes on a particularly delicate dimension, both because of political intervention and because of possible diplomatic conflicts or violations of fundamental rights. Expert defence is key to protecting the interests of the requested person.