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Extradition lawyer: extradition from Spain to the United States

If you or a family member has been arrested in Spain because the United States is requesting your surrender, usually on the basis of an arrest warrant from a federal or state court or an Interpol notice, the proceedings are decided in Madrid, before the Audiencia Nacional (Spain's National High Court), and the time limits start running from the arrest. What is done at the first hearing before the judge matters: you will be asked there whether you consent to surrender, and the judge decides whether you remain in custody or are released. 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 the United States

Extradition with the United States is governed by the Extradition Treaty between Spain and the United States of America signed in Madrid on 29 May 1970 (BOE (Spain's Official State Gazette) No. 220, of 14 September 1971), amended by three supplementary treaties:

  • Supplementary Treaty of 25 January 1975 (BOE of 27 June 1978).
  • Second Supplementary Treaty of 9 February 1988 (BOE of 1 July 1993).
  • Third Supplementary Treaty of 12 March 1996 (BOE of 8 July 1999).

Since 1 February 2010, the Agreement on Extradition between the European Union and the United States of 25 June 2003 has also applied. On 17 December 2004 Spain and the United States signed an instrument that publishes the integrated text of all these rules (BOE No. 22, of 26 January 2010). That integrated text is the one applied today, and on matters it does not regulate, Ley 4/1985 on Passive Extradition (Spain's Passive Extradition Act) governs.

The most relevant points of the treaty for a person whose extradition is requested:

  • Offences: extradition is available for acts punishable in both countries by more than one year of imprisonment or, where there is already a conviction, when the sentence imposed exceeds four months (art. II). The offence does not need to have the same name in both countries.
  • Spanish nationals: neither country is obliged to surrender its own nationals. Spain could do so only provided its own domestic legislation does not prohibit it (art. IV), and Ley 4/1985 prohibits the extradition of Spanish nationals (art. 3.1). If extradition is refused on grounds of nationality, the United States may ask for the case to be tried in Spain.
  • Death penalty: Spain may only surrender a person on condition that the death penalty is not imposed or, if imposed, is not carried out (art. VII). In its declaration to the 2010 text, Spain undertook to refuse extradition if the United States does not accept that condition.
  • Limitation periods: unlike the general rule in Spanish law, the treaty allows extradition even if the offence is time-barred under Spanish law; only the limitation period under United States law counts, and Spain must accept the US statement on that point (art. II bis). A Spanish amnesty does not prevent surrender either.
  • Provisional arrest: in urgent cases, the United States may request arrest before sending the formal request, including through Interpol. The person must be released if, within 45 days of the US embassy being informed of the arrest, the formal request and its supporting documents have not arrived (art. XI).
  • Channel of transmission: the formal request is sent through diplomatic channels; if the person is already under arrest, it is enough to deliver it to the Spanish Embassy in Washington (art. X.H).
  • Speciality: the person surrendered cannot be tried in the United States for other earlier acts, or re-surrendered to a third country, without Spain's consent, unless they remain there for more than 45 days after being free to leave or return voluntarily (art. XIII).

How the procedure works

  1. Arrest and appearance before a judge within a maximum of 24 hours, before the Sección de Instrucción del Tribunal Central de Instancia (the central investigating court) in Madrid. The judge decides on remand in custody or release subject to conditions.
  2. Formal request from the United States within the treaty's 45-day time limit.
  3. Government phase: the Ministerio de Justicia (Ministry of Justice) makes a proposal and the Government decides whether the proceedings continue through the courts (art. 9 of Ley 4/1985).
  4. Hearing with a lawyer and an interpreter, at which you are asked whether you consent or object.
  5. Hearing before the Sala de lo Penal (Criminal Division) of the Audiencia Nacional, which rules by means of an order (auto); this can be challenged by a recurso de súplica (appeal for reconsideration) before the full court (Pleno).
  6. Final decision by the Government if the court declares extradition admissible. If the court refuses it by final ruling, the person is released.

Be careful with consent: the treaty allows a person who consents before the judge to be surrendered without waiting for the documentation, and that consent may include a waiver of the rule of speciality (art. XVI bis). Do not consent without first discussing it with your lawyer.

Grounds for opposing extradition to the United States

Every case is different, but these are the points we review first:

  • Spanish nationality at the time the court decides, provided it was not acquired in order to avoid surrender.
  • Double criminality: the act must also be an offence in Spain carrying the minimum penalty required. The conduct described in the US charge must be compared with the Spanish Código Penal (Criminal Code), not just the name of the offence; conspiracy and attempt only count if they are punishable in both countries by more than one year (art. II.B).
  • Sufficient documentation: if the person has not been convicted, the request must be accompanied by the arrest warrant and by the information that would justify committal for trial had the acts been committed in Spain; extradition may be refused if the warrant appears manifestly unfounded (art. X.D).
  • Proceedings or a judgment in Spain for the same acts, or an acquittal or a sentence already served in a third country (art. V).
  • Guarantees regarding the death penalty (art. VII) and regarding inhuman or degrading punishment or treatment (art. 4.6.º of Ley 4/1985).
  • Political nature of the acts, or persecution on grounds of race, religion, nationality or political opinion, subject to the exclusions in art. V.B.
  • Treaty time limits: if the formal request did not arrive in time, release should be requested.
  • Concurrence with a European arrest warrant: if another EU country is seeking the same person, the Ministerio de Justicia decides, taking into account, among other factors, nationality, the place where the acts were committed and their seriousness (art. XIV).

What to do if you are arrested

  • Ask for a lawyer you trust and do not make any statement on the merits until you have spoken to them.
  • Do not consent to surrender at the first hearing without legal advice.
  • Gather evidence of your ties to Spain (home, work, family in Spain) and documentation of your nationality: these help in seeking release and may be grounds for refusal.
  • If you have open criminal cases in Spain, tell us: they may postpone surrender or make it subject to conditions.

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 practised criminal law since 1978 and has headed the firm since 1982, a few minutes from the Audiencia Nacional. More information on our extradition lawyer in Spain page.

Frequently asked questions

Does Spain extradite Spanish nationals to the United States?

No. The treaty does not oblige either country to surrender its nationals and only allows it if domestic law does not prohibit it; Ley 4/1985 prohibits it (art. 3.1). The United States may ask for the acts to be tried in Spain.

Could I be sentenced to death if I am surrendered?

Spain only surrenders a person on condition that the death penalty is not imposed or is not carried out, and it must refuse extradition if the United States does not accept that condition. If the United States accepts it, it is bound to comply with it.

The offence would already be time-barred in Spain. Is that a defence?

With the United States, usually not: the treaty states that extradition is granted even if the offence is time-barred under Spanish law, and it only looks at the limitation period under US law (art. II bis).

How long does the United States have to send the formal request?

45 days from the time its embassy is informed of the arrest. If the request does not arrive in time, the person must be released, although the proceedings may be reopened if the request arrives later.

Can I await the outcome of the proceedings at liberty?

It is possible. The judge may order release subject to measures such as periodic reporting to the court, surrender of the passport or bail (art. 8.3 of Ley 4/1985). To request it, you must show ties to Spain.

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