What is an extradition and which countries have an Extradition Convention with Spain?
An extradition can be defined as the act by which a State delivers a person (accused or convicted of committing a crime) to another State that requests it, to be tried or to serve a sentence that has been previously imposed in the requesting State.
There are two types of extradition: active and passive
- Active extradition: that in which one State requests to another, the delivery of a person accused of committing a crime in the first one.
- Passive extradition: that which occurs when a State, in response to the (active) request of another State, surrenders (extradite) the person who is the subject of the request.
How is extradition regulated in Spain?
Extradition (requirements, conditions and procedure) is regulated exclusively by international conventions and by the laws of the States involved, as established in article 13 of the Spanish Constitution and article 1 of the Passive Extradition Law in force since March 21, 1985.
It must be taken into account that extradition will only be granted in accordance with the principle of reciprocity. The Spanish Government may require a guarantee of reciprocity from the requesting State.
Within the legal regime of extradition there are international treaties, bilateral treaties signed between Spain and other countries, as well as rules of domestic law.
Each State has the power to institute its internal rules regarding extradition.
It can allow it, prohibit it, make it more flexible with regard to its nationals or foreigners residing or passing through its territory. It is commonly accepted that, with the exception of mutual recognition rules between European countries, extradition rules are regulated by bilateral agreements (only between two countries) or multilateral agreements (between more than two countries).
The treaties signed with other countries refer both to themselves and to the laws of the States involved in the extradition process (requestor and requested) as a regulatory framework, in order to establish a division of competences between international norms and internal norms.
Extradition agreements between Spain and other countries
European Convention on Extradition (CEEX)
The Council of Europe Convention (CEEX) on extradition was signed in 1957 but entered into force in 1963. Among the signatory countries there are several that are not part of the European Union such as Armenia, South Korea, Monaco, United Kingdom, South Africa or Switzerland. There are also other conventions on extradition such as the Montevideo Convention of 1933 or the Inter-American Convention on Extradition of 1981.
As we have mentioned, each country is entirely at its discretion in concluding these multilateral agreements, to regulate this matter in its internal legal system and to sign bilateral treaties. Thus, for example, Spain has signed numerous bilateral extradition agreements with countries from other continents such as Argentina, Australia, Bolivia, Brazil, Canada, Colombia, Cuba, Ecuador, the United States, Liberia, Morocco, Mexico, Paraguay, Peru, Uruguay and Venezuela, among others.
In any case, in addition to the signing of the rules described above, the so-called principle of reciprocity also governs, regulated in art. 13.3 of the Spanish constitution: there is a reciprocal obligation to carry out extraditional deliveries.
Therefore, a country could refuse to extradite its nationals if the claimant State does not surrender its own if it were in a similar situation.
Countries with which Spain does not have an extradition agreement
Angola, Antigua and Barbuda, Afghanistan, Saudi Arabia, Bahamas, Bahrain, Bangladesh, Barbados, Belize, Botswana, Burkina Faso, Bhutan, Burundi, Cambodia, Cameroon, Congo, North Korea, Chad, Comoros, Ivory Coast, Dominica, Egypt, Ethiopia, Fiji, Philippines, Ghana, Grenada, Guinea Bissau, Equatorial Guinea, Guyana, Haiti, Indonesia, Iraq, Iran, Cayman Islands, Solomon Islands, Seychelles Islands, Turks and Caicos Islands, Jamaica, Japan, Jordan, Kenya, Kyrgyzstan, Kuwait, Laos, Lebanon, Libya, Madagascar, Malaysia, Maldives, Mauritius, Micronesia, Mongolia, Mozambique, Myanmar, Nauru, Nepal, Nigeria, Oman, Pakistan, Papua New Guinea, Qatar, Samoa, Saint Kitts and Nevis, Saint Vincent and Grenadines, Saint Lucia, Senegal, Singapore, Syria, Somalia, Sri Lanka, Sudan, Suriname, Thailand, Tanzania, Tajikistan, Tonga, Trinidad and Tobago, Turkmenistan, Tunisia, Tuvalu, Uzbekistan, Vanuatu, Vietnam, Yemen, and Zambia, among others.
For what types of crimes can extradition be requested?
In accordance with the principle of double criminality liability, the punishable act that motivates the extradition process must be classified as a crime in both, the requesting and requested states.
The only limit that exists to “extraditable” crimes is that —in accordance with another general principle— extradition is not usually granted when it is motivated by so-called political crimes. Terrorism-related crimes are usually excluded from this category. Specifically, for example, art. 4 of the Spanish Passive Extradition Law does not grant extradition in cases of political and military crimes and expressly excludes within this category terrorism, crimes against humanity and attempts against the life of the Head of State or a member of his or her family.
The European Arrest Warrant (EAW)
Within the European Union, there is a cooperation procedure between jurisdictional authorities that replaces the much more complex and time-consuming extradition process. We will talk about the EAW process in a later article.