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Extradition lawyer: extradition from Spain to Mexico

If you have been arrested in Spain because Mexico is requesting your surrender, or you fear this may happen because of an arrest warrant (orden de aprehensión) or an Interpol notice, it is advisable to act from the very first moment. The proceedings are decided in Madrid, before the Audiencia Nacional (Spain's National High Court), and the treaty with Mexico sets short time limits for provisional arrest. We speak English. Call +34 91 521 29 49 or, outside office hours, +34 626 07 14 65 (24-hour emergencies and WhatsApp). You can call us with no obligation.

Call: +34 91 521 29 4924-h emergencies: +34 626 07 14 65

C/ Conde de Xiquena 5, 28004 Madrid, Spain · since 1982

The extradition treaty between Spain and Mexico

The applicable instrument is the treaty on extradition and mutual assistance in criminal matters between the Kingdom of Spain and the United Mexican States, signed in Mexico City on 21 November 1978 (BOE (Spain's Official State Gazette) No. 145, of 17 June 1980), in force since 1 June 1980. It has been amended by:

  • the Protocol of 23 June 1995 (BOE of 7 August 1996, in force since 1 September 1996), and
  • the Second Protocol of 6 December 1999 (BOE of 3 April 2001, in force since 1 April 2001).

On matters the treaty does not regulate, the domestic law of each country applies (art. 25); in Spain, Ley 4/1985 on Passive Extradition (Spain's Passive Extradition Act).

The essentials of the text in force:

  • Offences: acts punishable in both countries by imprisonment with a maximum of more than one year. If extradition is requested to serve a sentence, at least six months must remain to be served (art. 2).
  • Nationals: both countries have the power to refuse the extradition of their nationals, with nationality assessed at the time of the decision (art. 7). In Spain, Ley 4/1985 prohibits the extradition of Spanish nationals (art. 3.1). If a national is not surrendered, the case is referred to the judicial authorities so that, where appropriate, the person can be tried in their own country.
  • Capital punishment: if the offence can be punished by death in the requesting country, extradition is only granted if that country gives sufficient assurances that the sentence will not be carried out (art. 12).
  • Limitation periods: extradition is not granted if criminal liability has been extinguished by lapse of time or for any other reason under the law of either country (art. 10).
  • Provisional arrest: it may be lifted if the formal request and its supporting documents do not arrive within 45 days, and it may in no case exceed 60 days (art. 19.5).
  • Channel of transmission: the formal request is sent through diplomatic channels (art. 14); an urgent request for arrest, by the fastest means that leaves a written record (art. 19.2).
  • Speciality: the person surrendered cannot be tried for different earlier acts without the consent of the country that surrendered them, unless, being free to leave, they remain for more than 45 days (art. 17).
  • Surrender: if extradition is granted, surrender must take place within 60 days of notification of the decision; if Mexico does not collect the person in time, they are released (art. 21).

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. The treaty itself allows provisional release with measures to prevent absconding (art. 19.4).
  2. Formal request from Mexico within the treaty time limit.
  3. Government phase: the Government decides whether the proceedings continue through the courts.
  4. Hearing before the judge with a lawyer and an interpreter: consent or objection.
  5. Hearing before the Sala de lo Penal (Criminal Division) of the Audiencia Nacional and, against its order (auto), a recurso de súplica (appeal for reconsideration) before the full court (Pleno).
  6. Decision by the Government, if the court declares surrender admissible.

Be careful with consent: since 2001, if the person consents to extradition, Mexico may receive them without further formalities and the rule of speciality does not apply (art. 19 bis). In other words, they could be tried there for other acts. This is a decision that should not be taken without legal advice.

Grounds for opposing extradition to Mexico

  • Spanish nationality at the time of the decision.
  • Jurisdiction of the Spanish courts: Spain may refuse extradition when, under its laws, it has jurisdiction to try the offence (art. 8 of the treaty; art. 3.1 of Ley 4/1985).
  • Res judicata in Spain for the same acts (art. 9).
  • Limitation periods under Spanish or Mexican law (art. 10).
  • Conviction in absentia: surrender only takes place if Mexico guarantees that the person will be heard in their defence and will have access to legal remedies (art. 11).
  • Special (extraordinary) court: no one is surrendered to be tried by a court of that kind (art. 13).
  • Political offence, or a request motivated by race, religion, nationality or political opinion (art. 4); terrorism and the offences under the multilateral conventions cited in art. 4 are not considered political.
  • Double criminality and minimum penalty. For tax, customs and exchange-control offences, since 1996 it is sufficient that the act corresponds to an offence of the same nature in Spain (art. 6).
  • Time limits: if the formal request did not arrive within 45 days, release should be requested; the absolute maximum is 60.

An important warning: the Second Protocol added that, in the proceedings in Spain, grounds of objection already raised before the Mexican authorities cannot be put forward, and that Spain cannot assess records of the Mexican courts except to show that the request does not comply with the treaty (art. 15.2 and 15.3). The defence in Spain must focus on the requirements of the treaty and of Spanish law.

What to do if you are arrested

  • Ask for a lawyer you trust; do not make any statement on the merits of the case.
  • Do not consent to surrender without legal advice: with Mexico, consenting means losing the protection of the rule of speciality.
  • Provide evidence of your ties to Spain and of your nationality.
  • If you have already defended yourself before the Mexican courts, tell us: it changes the strategy in Spain.

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

I have Mexican and Spanish nationality. Can I be surrendered to Mexico?

The treaty allows Spain to refuse the extradition of its nationals, and Ley 4/1985 prohibits it for Spanish nationals. Nationality is assessed at the time of the decision and does not help if it was acquired to avoid surrender. In dual-nationality cases, the documentation should be examined as soon as possible.

How long can I be held while waiting for Mexico's request?

The treaty allows provisional arrest to be lifted if the formal request does not arrive within 45 days and prohibits it from exceeding 60 days.

What happens if I agree to go to Mexico voluntarily?

Since the Second Protocol, consent allows surrender without further formalities and disapplies the rule of speciality: you could be tried for other acts in addition to those in the request.

Can I be extradited for a tax offence?

Yes, if the act corresponds in Spain to an offence of the same nature and reaches the minimum penalty. The fact that Mexico has different taxes is not a ground for refusal (art. 6).

Can I argue in Spain that I already defended myself in Mexico and was not heard?

The treaty limits the possibility of raising in Spain grounds of objection already put forward before Mexico (art. 15.2). The requirements of the treaty and of Spanish law can still be raised, such as limitation periods, nationality or the lack of guarantees.

Speak to an extradition lawyer today

You can call us with no obligation. If someone has been arrested, call at any time on +34 626 07 14 65 (WhatsApp too). We speak English.

Call: +34 91 521 29 49Tell us about your case

Official sources