The jurisdiction of a country, where its laws are enforceable, is limited by its frontiers. This has lured the dreams of all the criminals, of all kinds and conditions, who has not planned, at least in his head, to rob a bank and hide in Brazil? But the diplomacy between the countries has little by little filled this void, a simple treaty is enough to derail all our dreams of hiding ourselves and our booty forever in a safe place.
The procedure for the extradition regulated in the Spanish Procedure Criminal Act (in Spanish Ley de Enjuiciamiento Criminal, henceforth LECrim) has the goal of ending with this problem, it is a procedure to claim to a third state the return to our territory either of a supposed criminal who has to be tried according to the Spanish law, or of a criminal who has been already convicted and should be in a Spanish jail. The LECrim has placed this procedure along the special procedures of its Book IV, but is it in reality a special procedure, an autonomous and independent procedure? No, in my opinion it is another denominated special procedure which only completes the Abbreviated Procedure, the procedure more used in the practice, or taking into account that this derives from the Ordinary Procedure, then the regulation of both of them. It is akin to the procedure regulated in the Title I of the Book IV, that develops the way in which has to be obtained the authorization of the parliament or senate when has to be subjected to a criminal procedure one of its members, or to those regulated in the Title IV and V, the former establishes the rules to try the crimes of slander and calumny, and the latter when a crime is committed using the media, as the press, the radio or internet. Procedures which only add some particularities to the Abbreviated Procedure.
In this case, the procedure for the extradition is a mechanism of international cooperation between the government and judicial organs of two countries. It tries to avoid that a criminal remains unpunished by escaping the jurisdiction of the country where he has committed a crime, in other words, fleeing to other country before he is convicted or jailed in the place where he committed a crime.
Being a mechanism of international cooperation, there must exist reciprocity between the intervening states, which will be two, the state that asks for the extradition and the state that must execute such order of extradition. The reciprocity implies the existence of the same rights and duties between both states, then, in theory, the extradition of a criminal only can be obtained when the Spanish state should execute an extradition order from the state to which is being demanded the return of a criminal.
In order to exist such level of cooperation between states, doubtless a treaty has to be signed, an agreement which has transformed this attitude of cooperation into law, in Spain this attainment has been achieved through the art. 96 of the Spanish Constitution (in Spanish Constitución Española, henceforth CE). Due to the existence of two parties, one will be in some cases the applicant and the other the executioner, and vice versa, there exist two different procedures of extradition, the active extradition and the passive extradition, the former is the procedure of extradition regulated in the LECrim, and the latter is when the Spanish state has to respond to an order of extradition coming from a third country, which is regulated by the Passive Extradition Act (in Spanish Ley de Extradición Pasiva, henceforth LEP).
– The procedure of active extradition of the LECrim:
In the above introduction I have tried to stress the importance of the existence of a Treaty, without it we can conclude that the cooperation between two states is yet in a rudimentary state. Therefore, the first thing we have to take into account is that, what is established in the LECrim is only of complementary application, either for filling the gaps which may exist in such treaty, or for the cases of an absolute lack of it.
According to the art. 824 LECrim, who has the competence to initiate the procedure of active extradition is the Public Prosecutor, he has to ask for the extradition of the committed for trial or of the convicted by firm sentence to the Judge or Tribunal knowing the case. This seems to leave out of the procedure of active extradition the private crimes, the crimes of slander and calumny. Nevertheless, this restraint which is initially established by the article 824, is afterwards surmounted by the art. 829 LECrim, where is expressly envisaged the possibility that the Judge or Tribunal knowing the case may agree ex officio or at the request of a party, through a motivated resolution, to solicit the extradition to the Government for being fulfilled the requisites of the article 826 and article 827 LECrim. This should imply that, not only the Judge or Tribunal knowing the case may solicit the extradition ex officio, but also at the request of the private or popular prosecution. The art. 829 LECrim and the art. 828 LECrim confirm too that, who has the competence to solicit the extradition to the Government is the Judge or Tribunal knowing the case, since it is not previously mentioned anywhere.
None the less, this way of asking for the extradition by the Public Prosecution (and why not, by the private or popular prosecution) to the Judge or Tribunal knowing the case in order that it should solicit the extradition to the Government, or ex officio by such Judge or Tribunal to the Government, may be altered in the cases where in a Treaty is expressly envisaged another method, for example by enabling the Judge or Tribunal knowing the case a direct contact with the state which should execute the order of extradition (art. 832 LECrim). This is the way currently utilized by the countries which are members of the European Union, through the called European arrest warrant, regulated in Spain by the Law 23/2014, that is in part a transposition of the Council Framework Decision 2002/584/JHA.
Besides, the art. 824 LECrim restricts the extradition to two cases, it can be only solicited for the committed for trial or convicted by firm sentence. In other words, against the supposed criminal has to have been agreed the committal for trial (art. 384 LECrim) if the crime is being tried according to the rules of the Ordinary Procedure, or the supposed criminal has to have been imputed with a crime (art. 775 LECrim), if the rules followed are those of the Abbreviated Procedure (art. 757 LECrim). To the above, we have to add that against the supposed criminal the Judge or Tribunal has to have agreed his imprisonment (art. 825 LECrim). On the other hand, for firm sentence we have to comprehend a sentence against which there is not appeal.
Notwithstanding the above, the articles regulating the procedure of active extradition of the LECrim do not mention the possibility which exists, that the Government rejects the proposal of the Judge or Tribunal, even when the requisites of the LECrim are met, for example due to political interests.
– Law 4/1985 of 21 March, of Passive Extradition:
The CE says in its art. 13.3: “The extradition will be only granted fulfilling a treaty or the law, attending to the reciprocity principle. The politics crimes, not being included in them the acts of terrorism, are excluded from the extradition”.
The LEP is also applied when either there is not a treaty between a third country and Spain, or when the gaps left by a treaty has to be filled, therefore, the LEP plays a complementary role in determining whether a subject claimed should be extradited. Let us see how is defined this procedure of extradition by a Spanish Court, AAN 3033/2022: “the procedure of extradition is a summary procedure, of causes previously established, which according to the STC 5/06/2006, “it is not equiparable to the criminal procedure”, thereby the STC 292/2005, of 10/11/2005 (FJ 3º) says that “in it, it is neither decided on the possible innocence or guilt of the subject claimed, nor agreed a conviction, but just verified the fulfillment of the requisites and guarantees envisaged in the norms for agreeing the handing over of the subject affected”.
Therefore, the procedure of passive extradition serves only to assess whether the requisites established in a treaty or the law are met in order to agree the extradition of a claimed subject, but it does not serve to determine the innocence or guilt of such subject. In a procedure of this sort, it is not a surprise that the principle of reciprocity plays a very important role, either when the extradition is agreed according to a treaty or when it is agreed according to the law, the principle of reciprocity should be applied, which as we have seen above, implies that must exist the same duties and rights to both states.
This is how the LEP begins, establishing in its first article its character supplementary with respect a treaty, and stressing that a extradition can only be granted if the principle of reciprocity is fulfilled.
After underscoring this character supplementary and the importance of the principle of reciprocity, in its second article appears another principle which can be regarded as important too, the principle of double incrimination, it says: “The extradition can be granted for those facts for which the Spanish laws and the laws of the claiming state establish a punishment or a measure of security of at least one year of deprivation of liberty; or when the claim has as aim the fulfillment of a conviction or a measure of security of at least of four months of deprivation of liberty for facts also classified as crimes by the Spanish law.” Therefore, the principle of double incrimination consists in the classification as crimes of the facts for which is claimed a subject, by the laws of Spain and the claiming state. Besides, the LEP marks a minimum threshold, the facts must be punished with at least one year of deprivation of liberty in both countries, or if the claim is for the fulfillment of a conviction, it has to be of at least four months of deprivation of liberty for fact also classified as crimes by the Spanish law.
The scope of the principle of double incrimination has been specified by the Spanish jurisprudence, for example the AAN 2831/2022 dice: “Indeed, the principle of double incrimination, included in the fundamental right to the criminal legality, consists in the classification as crime of the fact for which is claimed the extradition and its punishment by a determined severity by the laws of both countries, but it is demanded neither identity between the norms of such states, nor between their punishments, it is enough with being fulfilled the applicable norms.”
Nevertheless, the fulfillment of the above requisites does not mean that a extradition must be granted. The third article of the LEP says: “Neither the extradition of Spaniards nor of foreigners for crimes which correspond to try to the Spanish courts will be granted”.
Being the above two limits the more important, the fourth article of the LEP adds more cases according to which an extradition can be rejected, for example: when it is for political crimes, when the crime has prescribed, when the claimed subject has been tried or is being tried in Spain for the same facts which justify the extradition, when the claiming state does not guarantee that the claimed subject will not be subjected to punishments which attempt against its physical o psychic integrity, or when to the claimed person has been granted the condition of refugee. The prescription of the crimes will be according to the art. 131 of the Spanish Criminal Code (in Spanish Código Penal, henceforth CP), but the guarantee of “non bis in idem” is even more important, there will exist res judicata when there are identity of facts (objective) and of accused (subjective), and the criminal procedure has ended by firm sentence or acquittal on all charges. On the other hand, the granting of asylum impedes the extradition, but its request only suspends the extradition, in case of being granted, till there is a decision regarding the concession or not of the asylum.
Whereas the LECrim does not mention the possibility of being rejected the requests of extradition by the Government even when the requisites established by the law are fulfilled and it is done by a Spanish Judge or Tribunal, the LEP does mention this possibility in its sixth article. If the Court rejects the extradition this decision will be definitive, but if the Court grants the extradition because the requisites of the law are met, the Government will still have the possibility of rejecting it.
The extradition can be solicited by a third country either by means of diplomatic route, or directly by writing of the Minister of Justice of the claiming state to the Spanish Minister of Justice (art. 7 LEP). Indeed, when there exists a risk that the claimed subject might elude the justice leaving again another country, the claiming state may solicit the arrest of the claimed subject as a preventive measure (art. 8.1 LEP), in order to put him at the disposition of the Central Court of Instruction within 24 hours, for deciding whether it agrees the provisional detention (art. 8.2 LEP), or whatever measure which may impede the escape of the arrested, as the home surveillance or the order of not being absent from determined place without the authorization of the Judge (art. 8.3 LEP).
The provisional detention must be left without effect, if after 40 days, the claiming state does not submit in due form the request of extradition (art. 8.2 LEP). For what is not expressly envisaged in the LEP in case of provisional detention and the rights which may correspond to the arrested for extradition, the LECrim will be applicable (art. 10 LEP). Though the LECrim complements the LEP regarding the regulation of the provisional detention, and both laws seek the same goal, to avoid the escape of a supposed criminal, there exists a great difference between the provisional detention regulated in the LECrim and the provisional detention of the LEP. The former supposes the existence of important evidences which attribute a crime to the person who suffers it, the latter only means the fulfillment of the requisites established in the law or treaty.
– Law 23/2014 of 20 November, of mutual recognition of criminal resolutions in the European Union:
Within the ambit of the European Union, there has been even further advances towards the cooperation in criminal matters between the states which forms it.
The Law 23/2014 is an important milestone in that path to the harmonization of the regulations of the different members of the European Union, through it a complex compound of European norms with one goal has been transposed into national law, that the resolution agreed by a member of the European Union, should be recognized and executed by whatever member of the European Union on the grounds of the principle of mutual trust.
The slow means of communication through the Governments has been forsaken, and it has been replaced by direct communication between the judges and tribunals of the countries involved. The principle of double incrimination has been eliminated too for determined number of crimes, and the rejection of the recognition and execution of a resolution has been regulated as an exception.
Of all the sorts of judicial resolutions gathered in the Law 23/2014, for its relation with the procedure of extradition, we have to pay special attention to the European arrest warrant. This is regulated in the Title II, that begins with the article 34 offering a definition of it: “The European arrest warrant is a judicial resolution agreed by a state member of the European Union with the goal of the detention and hading over by other member state of a person who is claimed for the exercise of criminal actions or for the execution of a punishment or a measure of security of deprivation of liberty”.
Although the principle of double incrimination disappears regarding some crimes, the enumerated in the art. 20.1, for the others it still applies, although as an option, being not mandatory. In other words the Spanish state can make use of such principle in order to decide whether to extradite a subject (art. 47.2 Ley 23/2014) according to the request of a third country by means of an European arrest warrant.
The same will happen when the Spanish state is who has claimed the extradition of a subject, since the crimes exempted of the principle of double incrimination, as the possibility of applying such principle regarding other crimes, comes from the Council Framework Decision 2002/584/JHA.
Víctor López Camacho.
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