SPAIN Law and Practice Contributed by: Daniel Jimenez García and Álvaro Martín Talavera, SLJ Abogados
• confiscation orders; • pecuniary sanctions; and • the European Investigation Order.
Chamber refuses extradition, the Government can - not grant it. Extradition of Spanish Nationals The general rule is that Spanish nationals may not be extradited (Article 3.1, Passive Extradition Act 4/1985). However, this Act applies only where treaties do not provide otherwise and the Constitution permits extradition in accordance with a treaty or statute and on the basis of reciprocity. Within the EU, this prohibition does not apply. The European Arrest Warrant allows Spain to surrender its nationals to other Member States. However, surrender may be conditional on the person returning to Spain to serve their sentence. Grounds for Refusing Extradition In Spain, the grounds for extradition refusal are as follows: • Spanish courts have jurisdiction over the offence; • the offence is political in nature (excluding terror - ism, crimes against humanity and attacks on heads of state); • the person would be tried by a special or excep - tional court; • criminal liability has been extinguished under Spanish law or the law of the requesting state. • the person has already been tried or is being tried in Spain for the same conduct; • the requesting country does not guarantee that the person will not face the death penalty, torture or inhuman treatment; • the person has been granted asylum in Spain. Extradition may also be refused if the offence was committed outside the requesting country’s territory and Spain would not prosecute a similar offence com - mitted outside its own territory. Prohibited Countries Spain does not maintain a list of countries to which extradition is prohibited. Extradition is assessed on a case-by-case basis.
The European Investigation Order allows one Member State to request investigative measures from anoth - er, such as obtaining witness statements, accessing bank accounts or gathering documents. Recognition is largely automatic and there are fixed deadlines for execution. From August 2026, the European e-evidence Regu - lation will allow courts to request data directly from digital service providers in other Member States. Requests must be fulfilled within short timeframes. There will be no need for judicial approval in the Mem - ber State where the provider is located. Outside the EU, mutual legal assistance is provided through bilateral or multilateral treaties. Extradition is addressed in 1.6 Extradition and Pro- hibited Destinations . 1.6 Extradition and Prohibited Destinations Extradition Requirements For extradition to be granted, the following require - ments must be met: • the conduct must be a criminal offence in both Spain and the requesting country; • the offence must carry a sentence of at least one year’s imprisonment; and • there must be a treaty with the requesting country or that country must provide assurances of reci - procity (that it would act the same way if Spain made a similar request). Procedure • Judicial phase: The National Court processes the request. The Central Investigating Court carries out preliminary steps and the Criminal Chamber decides whether the legal requirements are met. • Executive phase: If the Chamber approves extra - dition, the Council of Ministers makes the final decision. The Government may refuse extradition on grounds of sovereignty, security or public policy, even if the court has approved it. However, if the
182 CHAMBERS.COM
Powered by FlippingBook