Extradition from Spain - Defence Strategies

While presumably far from the thoughts of most expats living in this country, understanding your rights and the legal process of extradition from Spain to the UK can become vitally important should you find yourself in the position of having been arrested in Spain on charges originating in the UK (or elsewhere in the world).

Indeed, the legal landscape for extradition between Spain and the UK has undergone significant changes. Here's what you need to know:

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If you were arrested in Spain on a UK-issued European Arrest Warrant (EAW) on or before December 31, 2020, your case continues under the EAW process, as specified in Article 62(1)(b) of the Withdrawal Agreement. However, for arrests after January 1, 2021, new arrangements apply under the Trade and Cooperation Agreement (TCA).

• Part 3 of the Extradition Act 2003 provides the domestic legal basis for UK extradition requests to EU Member States, including Spain

• Title VII of the EU-UK Trade and Cooperation Agreement (TCA) sets out the current arrangements

• The Spanish Audiencia Nacional in Madrid handles all extradition proceedings

When Spanish authorities arrest you on a UK extradition request (now called a TaCA warrant under Section 142 of the Extradition Act 2003), you have several immediate rights:

• The right to an interpreter
• The right to legal representation
• The right to be informed of the charges against you
• The right to contact your embassy or consulate

Legal tip: Exercise these rights immediately. Don't try to explain your situation to the police without a lawyer present.

Challenge Document Validity

Under Article 95 of the TCA, all documentation must meet strict requirements. Your legal team should scrutinize:

• Whether all documentation is properly translated
• If the arrest warrant meets the requirements under Section 142 of the Extradition Act 2003
• Whether the identity details are accurate
• If the offence meets the dual criminality requirement under Article 598 of the TCA

Human Rights Considerations

Spanish courts must consider human rights under Article 604 of the TCA. Strong defence options can include:

• Medical conditions that make travel or detention dangerous
• Family circumstances that would make extradition disproportionate
• Prison conditions in the UK that might violate Article 3 of the European Convention on Human Rights

Time Limitations

Under Article 600 of the TCA, strict timeframes apply:

• The final decision on execution must be made within 60 days of arrest
• This can be extended by 30 days in exceptional circumstances
• Surrender must occur within 10 days of the final decision

Nationality Defence

Article 601 of the TCA provides important protections:

• Spain may refuse to extradite its own nationals
• In such cases, Spain must consider prosecuting the offence domestically if requested by the UK
• For Spanish citizens, authorities may agree to extradition with a guarantee of return to serve any sentence under Section 153C of the Extradition Act 2003

The extradition hearing takes place at the Audiencia Nacional in Madrid, following procedures under both Spanish law and the TCA:

Initial Appearance

• You'll be asked if you consent to extradition
• The court will decide on provisional liberty or detention
• Your lawyer can request time to prepare your defence

Main Hearing

• The prosecution presents the UK's request under Article 597 of the TCA
• Your defence team presents objections
• The court must consider proportionality

Decision Phase

• The court must issue a reasoned decision
• Appeals are possible to the Spanish Supreme Court
• Final decisions require governmental approval

The TCA introduces specific provisions that might help your defence:

Proportionality Test (Article 597)

• Courts must consider if surrender would be disproportionate
• They evaluate the seriousness of the offence
• They assess likely penalties
• They must consider less coercive alternatives

Life Sentences (Article 604)

• Spain may require guarantees about review of life sentences
• The UK must provide assurances about sentence review mechanisms

Speciality Rule (Article 105)

• You can only be prosecuted for offences listed in the warrant
• Additional charges require Spain's consent
   

Gather Supporting Evidence Early

• Medical records
• Family situation documentation
• Employment history
• Community ties

Consider Alternative Resolution

• Voluntary return to the UK
• Video link appearances where possible
• Negotiation with UK authorities

Financial Preparation

• Secure funds for legal representation
• Consider potential bail requirements
• Plan for travel costs if released

A recent case involved a British businessman facing fraud charges in the UK. His defence team successfully argued that:

• His established business in Spain employed local workers
• He had significant family ties, including children in Spanish schools
• He suffered from a medical condition requiring specialized treatment

The court ordered his release on bail while fighting extradition, demonstrating how multiple defence strategies can work together.
 

Sometimes, fighting extradition might not be your best option:

• If the evidence against you is overwhelming
• When voluntary return could lead to better treatment
• If delay might result in harsher consequences

If you're facing extradition:

• Contact a specialized lawyer immediately
• Don't make statements without legal advice
• Start gathering supporting documentation
• Consider your family and business arrangements
• Explore all defence options before making decisions

Facing extradition from Spain to the UK is serious, but you have legal options. Success often depends on quick action, experienced legal representation, and a well-planned defence strategy. Remember, each case is unique, and what works in one situation might not work in another.

Need help with extradition matters? Seek legal advice promptly to protect your rights and explore all available defence strategies.

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Does Britain have an extradition treaty with Spain?

Yes, Britain and Spain have an extradition agreement. Previously, extradition between the two countries was governed by the European Arrest Warrant (EAW) framework, which simplified the process within the EU. Since Brexit, the Trade and Cooperation Agreement between the UK and the EU now regulates extradition. This agreement maintains streamlined procedures, ensuring continued cooperation between Britain and Spain for extraditing individuals accused or convicted of serious crimes.

What countries can you not be extradited back to the UK?

The UK cannot typically extradite individuals from countries with which it lacks formal extradition treaties. These include nations such as North Korea, Somalia, Afghanistan, Lebanon, Syria, Algeria, Libya, and Iraq. The absence of treaties often stems from political instability, strained diplomatic relations, or differing legal systems. Without a treaty, extradition requests are handled on a case-by-case basis and are far less likely to succeed.

Can someone be extradited from Spain?

Yes, someone can be extradited from Spain under specific conditions. Spanish law allows extradition only if the conduct in question is considered a crime in both Spain and the requesting country (dual criminality) and carries a minimum prison sentence of one year. Additionally, Spain does not extradite its own citizens, but may prosecute them domestically for crimes committed abroad. Extradition requests are evaluated by Spanish courts to ensure they comply with national and international legal standards, including human rights protections.

Can I be extradited to the UK?

Yes, you can be extradited to the UK if there is an extradition agreement between the UK and the country where you are located. The UK’s extradition process typically requires that the alleged offence is recognized as a crime in both countries (dual criminality) and meets minimum sentencing thresholds. The decision is also subject to legal reviews to ensure compliance with human rights and due process standards. Extradition treaties or agreements, such as the UK's arrangements with EU nations or its bilateral treaties with countries like the U.S., govern the specifics of these requests.