Extradition lawyer: extradition from Spain to Venezuela

The extradition treaty between Spain and Venezuela

The applicable instrument is the Extradition Treaty between the Kingdom of Spain and the Republic of Venezuela done at Caracas on 4 January 1989 (BOE (Spain's Official State Gazette) No. 294, of 8 December 1990), in force since 30 September 1990. It replaced the treaty of 22 January 1894. No protocols or subsequent amendments are recorded in the BOE. On matters the treaty does not provide for, Ley 4/1985 on Passive Extradition (Spain's Passive Extradition Act) applies.

Key points:

• Offences: acts punishable in both countries by a custodial penalty or security measure whose maximum duration is not less than two years. If extradition is requested to serve a sentence, at least six months must remain (art. 2). This threshold is higher than that of Spanish law, which requires one year.
• Nationals: if the person is a national of the requested country, that country may refuse extradition in accordance with its own law; nationality is assessed at the time of the decision and does not count if it was acquired fraudulently to prevent surrender (art. 8). Spanish law prohibits the extradition of Spanish nationals (art. 3.1 of Ley 4/1985). If extradition is refused on that ground, Venezuela may ask for the case to be tried in Spain.
• Asylum: the treaty does not restrict asylum; Spain may refuse to extradite a person granted asylum in accordance with its law (art. 9). Ley 4/1985 requires extradition to be refused if the person has been granted asylum status (art. 4.8.º).
• Death penalty and life imprisonment: extradition is not granted for acts punishable by death, life imprisonment or penalties that harm physical integrity or expose the person to inhuman or degrading treatment, unless Venezuela guarantees that the person will not be executed and that the maximum penalty will be the one immediately below life imprisonment (art. 11).
• Limitation periods: extradition is not granted if the penalty or the criminal action has been extinguished under the law of either country (art. 10.b).
• Provisional arrest: Venezuela has 40 days from the date of arrest to submit the formal request; if it does not, release may be ordered, and Venezuela may not request arrest again without submitting the formal request (art. 24).
• Channel of transmission: diplomatic channels, or the central authority designated by each country (art. 15).
• Speciality: the person surrendered cannot be tried for different earlier acts without Spain's authorisation, unless they remain in Venezuela for more than 30 days while free to leave, or return voluntarily (art. 13).

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 Venezuela within 40 days, with the judicial decision, the legal texts, the rules on limitation periods and, where applicable, the guarantees under art. 11 (art. 15).
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. If the person consents in writing, after being informed by the judge, surrender may take place by means of a reasoned judicial decision (art. 17).
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). Venezuela may appoint a representative to be heard in the proceedings (art. 27.2).
6. Decision by the Government, if the court declares extradition admissible.

If extradition is refused for reasons other than mere formal defects, Venezuela cannot request it again for the same act (art. 20).

Grounds for opposing extradition to Venezuela

• Asylum status granted in Spain.
• Political or related offence, or a request submitted in order to persecute the person on account of their race, religion, nationality or political opinion, or where their situation may be aggravated for those reasons (art. 6). The treaty excludes from the concept of political offence an attack on a head of State or Government and the acts of terrorism it lists.
• Special (extraordinary) or "ad hoc" court: no one is surrendered who has been convicted by, or is to be tried by, a court of that kind (art. 10.a).
• Conviction in absentia: surrender only takes place if Venezuela guarantees that the trial respected the minimum rights of the defence (art. 12).
• Guarantees regarding the penalty (art. 11) and regarding inhuman or degrading treatment.
• Limitation periods under Spanish or Venezuelan law.
• Minimum penalty of two years and double criminality.
• Spanish jurisdiction: Spain may refuse extradition if it has jurisdiction to try the acts under its law (art. 5.2).
• Res judicata in Spain for the same acts (art. 10.c).
• 40-day time limit for the formal request.
• Health: surrender may be postponed if the transfer would seriously endanger the person's life or health (art. 19.2).

What to do if you are arrested

• Ask for a lawyer you trust and do not make any statement on the merits.
• If you have asylum, international protection or a pending application, keep the documentation to hand: it may be decisive.
• Gather evidence of your ties to Spain and of your nationality.
• Keep all the documentation from the proceedings in Venezuela (summonses, decisions, news reports on the case).

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 4 January 1989, BOE No. 294, of 8 December 1990, pp. 36433-36435: https://www.boe.es/buscar/doc.php?id=BOE-A-1990-29697
• Ley 4/1985 on Passive Extradition: https://www.boe.es/eli/es/l/1985/03/21/4/con