Extradition is provided for in the Constitution itself, specifically in art. 13.3 :
Extradition may only be granted in compliance with a treaty or law, in accordance poland telegram with the principle of reciprocity. Political crimes are excluded from extradition, and acts of terrorism are not considered as such.
Article 13.3 of the Constitution mentions the scope of application of extradition, which would be the following:
Extradition agreements :
It applies to all those to whom the European Convention on Extradition of 13 December 1957 applies.
In those countries where there is no Convention, the principle of reciprocity will apply.
We must bear in mind that the extradition procedure does not apply to the 27 countries that make up the European Union, but rather the European Arrest Warrant, better known as the Euro- arrest Warrant, is in force . We will discuss the differences between the Euro-arrest Warrant and extradition later on.
It is important to know that there are two types of extradition, active and passive :
The first is extradition from the requesting State, that is, when the courts or tribunals request the extradition of a suspected criminal. This is regulated by the Criminal Procedure Act.
Passive extradition is the extradition from the requested State. It is included in Law 4/1985, of March 21, called Passive Extradition.
The extradition process
Active extradition
We already know what it consists of. It is a request from one State to another for the delivery of a subject for prosecution or for the fulfillment of a sentence in that country. In Spain this procedure is mixed since it has administrative and judicial phases.
Extradition may be requested, according to art. 826 LECrim:
Of Spaniards who, having committed crimes in Spain, have taken refuge in a foreign country.
Spaniards who, having attacked the external security of the State abroad, have taken refuge in a country other than the one in which they committed the crime.
To foreigners who, having to be judged in Spain, have taken refuge in a country other than their own.
To determine whether or not extradition is appropriate, one must refer to the International Treaties in whose territory the alleged criminal is located. Failing that, the customary law in force in the territory to whose nation extradition is requested will be applied and, subsidiarily, the principle of reciprocity will be applied .
Extradition is requested by the Judge or Court through a request addressed to the Ministry of Justice (hence the mixed nature of the process). The request must be accompanied by the extradition order, the report of the Public Prosecutor's Office and the proceedings that justify this request. This referral will be made through the President of the respective High Court of Justice .
Passive extradition
From the point of view of the Spanish State, for extradition to proceed, it is necessary that the facts be those which, under Spanish law and that of the requesting State, provide for a penalty or security measure whose duration is not less than one year of deprivation of liberty, or four months of deprivation of liberty, if it involves the fulfillment of a sentence or security measure.