European arrest warrant and extradition requests in Spain

Key rules

• First appearance: After arrest you must be brought before the Audiencia Nacional's investigating court within 72 hours.
• Consent: Consenting to surrender speeds things up but is in principle irrevocable, so decide with your lawyer first.
• Non-EU requests: Even if the court approves, the Council of Ministers makes the final decision.
• Legal help: You are entitled to a lawyer, an interpreter and free legal aid if you cannot afford one.

The short version

Both a European arrest warrant and a non-EU extradition request are decided by the Audiencia Nacional, Spain's national court in Madrid. You have a lawyer, an interpreter and a hearing in both. The two routes differ in who has the last word. Get a Spanish criminal defence lawyer as soon as you can.

European arrest warrant

Police arrest you on the warrant. Within 72 hours you must be brought before the Juzgado Central de Instrucción of the Audiencia Nacional, with a lawyer and an interpreter. The judge tells you what the warrant says and asks whether you consent to be handed over. The prosecutor and you are heard, and the judge decides whether you stay in detention or are released with conditions.

If you consent: the judge decides on surrender, usually within about 10 days.

If you do not consent: a hearing is held. The Sala de lo Penal of the Audiencia Nacional decides, normally within 60 days of your arrest. That can be extended by 30 days.

Appeal: you can appeal the Sala's decision only to the full chamber, the Pleno de la Sala de lo Penal.

Handover: after the final decision, you must be handed over within 10 days. This can be extended.

Extradition request from a non-EU country

These requests follow Spain's extradition law and any treaty with the country asking. The Ministry of Justice receives the request, checks it and passes it on. You are then arrested, or released with conditions, and brought before the same Juzgado Central de Instrucción. The Sala de lo Penal holds a hearing and rules on whether the legal conditions are met. You can appeal that ruling to the full chamber.

If the court finds extradition admissible, the Council of Ministers (the government) takes the final political decision. You can challenge that decision before the Supreme Court. Treaty terms differ from country to country, so ask your lawyer what applies to yours.

Grounds for refusal include:

• political or military offences
• a risk of torture, or of the death penalty without guarantees
• trial by exceptional courts
• offences below the minimum penalty threshold
• the time limit for prosecution having run out
• Spanish nationality, in general, unless the other country grants Spain the same in return

Your rights

• To be told what the warrant or request says.
• To a lawyer in Spain and an interpreter.
• To have your consulate told of your arrest.
• For a warrant, to a lawyer in the country that issued it, who helps your Spanish lawyer.
• To free legal aid if you cannot afford a lawyer.
• To a hearing before the judge.
• To have your detention conditions reviewed by the judge.

Consent or opposition

Consent speeds things up but is, in principle, irrevocable. It may also waive the specialty rule, which normally limits the other country to trying you for the offences in the warrant. Decide with your lawyer before the hearing. The checklist and warnings below cover the practical points.

Timeline and deadlines

• You are arrested by police on the warrant: at the start

• You are brought before the Juzgado Central de Instrucción of the Audiencia Nacional, with a lawyer and an interpreter, and asked whether you consent to surrender: within 72 hours of arrest

• A hearing is held and the Sala de lo Penal decides if you do not consent: normally within 60 days of arrest, extendable by 30 days

• You can appeal the Sala's decision to the full chamber (Pleno de la Sala de lo Penal): after the decision

• You are handed over to the issuing country: within 10 days after the final decision, subject to extension

Checklist

• Ask to be told the content of the warrant or extradition request against you.

• Ask for a lawyer in Spain and for an interpreter before you speak to the judge.

• Ask for your consulate to be notified of your arrest.

• Decide with your lawyer whether to consent to surrender or to oppose it, before the hearing.

• Ask your lawyer whether to appeal to the full chamber if the Sala rules against you.

• For a non-EU request, ask your lawyer to check the grounds for refusal, such as political offences, risk of torture, or the death penalty without guarantees.

What to watch out for

• Consent is hard to undo: If you consent to surrender, you cannot normally take it back, and you may give up the specialty rule, which limits what you can be tried for. Speak to your lawyer in private before you answer the judge, and only consent if you understand what you give up.

• A court approval is not the end in a non-EU case: Even if the Audiencia Nacional finds extradition admissible, the Council of Ministers takes the final decision, so the case can still move on after the hearing. Ask your lawyer about challenging the government decision before the Supreme Court.

• Missing a refusal ground: Surrender can be refused on grounds in the law, such as a risk to fundamental rights, political or military offences, risk of torture, the death penalty without guarantees, trial by exceptional courts, or time limits for prosecution. Grounds you do not raise may not be considered. Give your lawyer every fact about the case and the conditions you would face, so the grounds can be argued at the hearing.

• Detention conditions: The judge decides whether you are held or released with measures, and the same judge reviews your detention conditions. Ask your lawyer to raise any problem with your detention before the judge.

Frequently asked questions

Can I agree to be surrendered under a European arrest warrant?

Yes, you can consent to surrender before the judge, and consent is irrevocable in principle. It speeds up the process, because the judge decides on surrender usually within about 10 days. Consent can also mean you waive the specialty rule, so talk to your lawyer first.

Can the decision of the Audiencia Nacional be appealed?

Yes, the decision of the Sala de lo Penal on a European arrest warrant can be appealed, but only to the full chamber (Pleno de la Sala de lo Penal). Ask your lawyer about the deadline for that appeal as soon as the decision is issued.

Who makes the final decision in a treaty extradition to a non-EU country?

The Council of Ministers makes the final political decision, but only if the Audiencia Nacional first finds extradition admissible. That government decision can be challenged before the Supreme Court. The court decision itself can be appealed to the full chamber of the Sala.

Will Spain extradite me if I am a Spanish national?

Spanish nationals are generally not extradited to non-EU countries unless there is reciprocity with the requesting country. This is one of several grounds for refusal, so ask your lawyer which ones fit your case.