Extradition lawyer: extradition from Spain to China

The extradition treaty between Spain and China

The applicable instrument is the Extradition Treaty between the Kingdom of Spain and the People's Republic of China done at Madrid on 14 November 2005 (BOE (Spain's Official State Gazette) No. 75, of 28 March 2007), in force since 4 April 2007. No subsequent amendments are recorded in the BOE. On matters the treaty does not regulate, Ley 4/1985 on Passive Extradition (Spain's Passive Extradition Act) applies; the treaty itself refers to domestic law for the decision on the request (art. 10).

Key points:

• Offences: acts that are offences in both countries and are punishable by more than one year of imprisonment; if extradition is requested to serve a sentence, at least six months must remain (art. 2).
• Nationals: this is a mandatory ground for refusal: a person who is a national of the requested State at the time the request is received is not surrendered (art. 3.d). If extradition is refused on that ground, the case is submitted to the authorities of the requested State for prosecution, if China so requests (art. 5).
• Death penalty: extradition is refused if the offence is punishable by death under Chinese law, unless China provides guarantees, considered sufficient by Spain, that the death penalty will not be imposed or, if imposed, will not be carried out (art. 3.h).
• Life imprisonment: if the offence is punishable by life imprisonment, China must provide the text of the rules on reduction of that sentence (art. 7.3).
• Limitation periods: extradition is refused if the criminal action or the penalty is time-barred or has been extinguished under Spanish law (art. 3.e).
• Provisional arrest: it ends if the formal request does not arrive within 40 days of the arrest; the time limit may be extended by a further 15 days at China's justified request (art. 9.4).
• Channel of transmission: through the authorities designated by each country and, until then, through diplomatic channels (art. 6). An urgent request for arrest may be sent through Interpol (art. 9.1).
• Speciality: the person surrendered cannot be tried for different earlier acts, or surrendered to a third country, without Spain's consent, unless they do not leave China within 30 days of being free to do so, or return voluntarily (art. 14).

How the procedure works

1. Arrest and appearance, within 24 hours, before the Sección de Instrucción del Tribunal Central de Instancia (the central investigating court) in Madrid, which decides on remand in custody or release subject to conditions.
2. Formal request from China within 40 days (extendable to 55), signed or sealed and translated into Spanish, with the arrest warrant or the judgment and the legal texts on the offence, the penalty and limitation periods (art. 7).
3. Government phase before the Ministerio de Justicia (Ministry of Justice) and the Government.
4. Hearing with a lawyer and an interpreter: consent or objection.
5. Hearing before the Sala de lo Penal (Criminal Division) of the Audiencia Nacional and a recurso de súplica (appeal for reconsideration) before the full court (Pleno). If the information is insufficient, Spain may request additional information, which China must send within 45 days, extendable by a further 15; if it does not, it is presumed to have abandoned the request (art. 8).
6. Decision by the Government, if the court declares extradition admissible. Once it is granted, if China does not collect the person within 15 days of the agreed date, the person must be released (art. 11.2).

Grounds for opposing extradition to China

• Guarantees regarding the death penalty (art. 3.h): whether they exist, what they contain and whether Spain considers them sufficient.
• Inhuman or degrading treatment and the conditions of the proceedings: Ley 4/1985 also requires guarantees against penalties that harm physical integrity or inhuman or degrading treatment (art. 4.6.º).
• Persecution on grounds of race, sex, religion, nationality or political opinion, or the risk that the person's position in the proceedings may be prejudiced for those reasons (art. 3.b, mandatory).
• Political offence (art. 3.a); terrorism and offences excluded by international agreements are not political offences.
• Spanish nationality when the request is received (art. 3.d).
• Limitation periods under Spanish law (art. 3.e).
• Res judicata or proceedings concluded in Spain (art. 3.f) and conviction in absentia without a guarantee of a new trial (art. 3.g).
• Humanitarian reasons: Spain may refuse extradition if, because of age, health or other circumstances, it would be incompatible with humanitarian considerations (art. 4.c).
• Proceedings in Spain for the same acts or trial in a third State (art. 4.a and 4.b, discretionary).
• Time limits under arts. 8 and 9.

What to do if you are arrested

• Ask for a lawyer you trust and do not make any statement on the merits.
• Do not consent to surrender without legal advice.
• Gather evidence of your ties to Spain, of your state of health and of any relevant personal or family circumstances.
• Keep all the documentation on the proceedings in China and on your situation (political or religious activity, previous complaints, etc.): it may help to prove the grounds for refusal.

Our experience

We have won extradition cases requested by the United States, Mexico, Brazil, Venezuela, China, Morocco and Algeria, among other countries. Out of discretion towards our clients, we do not publish most of them.

Jaime Sanz de Bremond has been a criminal lawyer since 1978 and has headed the firm, in Madrid, since 1982. More information on our extradition lawyer in Spain page.

Frequently asked questions

Official sources

• Treaty of 14 November 2005, BOE No. 75, of 28 March 2007, pp. 13402-13405: https://www.boe.es/buscar/doc.php?id=BOE-A-2007-6512
• Ley 4/1985 on Passive Extradition: https://www.boe.es/eli/es/l/1985/03/21/4/con