Extradition from Spain: How to Defend Against a Warrant or Extradition Request

Written by Javier Rincón Bernal & Manuel Rincón Bernal — Criminal Defence Lawyers · RINBER (25 years of practice)

Being arrested in Spain on an extradition request or a European Arrest Warrant is frightening, especially when the charges relate to another country and the process is conducted in a language you may not fully understand. For families, the first question is always the same: will they be sent abroad, and how fast? Extradition is not automatic. Spanish law gives the requested person real procedural rights and several grounds to oppose surrender, but the deadlines are short and the key decisions are made in the first days.

What extradition from Spain means legally

Spain handles two different surrender systems, and knowing which one applies is the first step in any defence:

• European Arrest Warrant (EAW): used between EU member states and governed in Spain by Law 23/2014 on mutual recognition of criminal decisions in the European Union. It is a purely judicial procedure with strict time limits.
• Classic (passive) extradition: used for requests from non-EU countries such as the United States or Latin American states (surrender to the United Kingdom now follows the separate warrant system of the EU-UK Trade and Cooperation Agreement). It is governed by Law 4/1985 on Passive Extradition and the applicable bilateral or multilateral treaty, and combines judicial and governmental phases.

In both systems, jurisdiction lies exclusively with the Audiencia Nacional in Madrid, wherever in Spain the arrest took place. Local courts in Malaga, Marbella or Alicante only deal with the initial detention and immediately transfer the case.

The requesting state does not have to prove guilt. The Spanish court checks whether the legal requirements for surrender are met: that the conduct is a crime, that the request is complete, that no bar to surrender applies and that the person’s fundamental rights are protected.

For a Spanish-language guide to the passive extradition procedure before the Audiencia Nacional, including the grounds for opposing surrender, see our page on abogado de extradiciones.

The procedure step by step: from arrest to decision

• Arrest: usually by the National Police or Guardia Civil after a SIRENE alert, an Interpol red notice or a direct request. Arrests often happen at airports, hotels or during routine police checks.
• First appearance: the person must be brought before a Juzgado Central de Instrucción of the Audiencia Nacional, often by videolink, within the legal time limit (no later than 72 hours). You have the right to a lawyer, an interpreter and to be informed of the warrant and its contents.
• Consent or opposition: at this hearing you are asked whether you consent to surrender. Consent speeds everything up and is generally irrevocable, so it should never be given without legal advice.
• Custody decision: the judge decides whether you remain in custody or are released with measures such as passport surrender, a residence requirement and regular court appearances.
• Hearing and decision: under an EAW the court must normally decide within 60 days of arrest (extendable by 30 days); where consent is given, within 10 days. In classic extradition, the Criminal Chamber of the Audiencia Nacional rules after a full hearing, and the Spanish Government has the final say.
• Appeal: decisions can be appealed within the Audiencia Nacional and, where fundamental rights are at stake, taken to the Constitutional Court.

Courts, police units and where cases are handled

Although the decision is always taken in Madrid, the practical side of an extradition case in Spain involves several bodies:

• Audiencia Nacional (Juzgados Centrales de Instrucción and Sala de lo Penal) in Madrid, which rules on surrender.
• Local duty courts (Juzgados de Guardia) in the place of arrest, which handle the first formalities.
• National Police International Cooperation units, SIRENE Spain and Interpol Madrid, which process alerts and coordinate the physical handover.
• Prisons such as Soto del Real or Estremera near Madrid, or regional centres such as Alhaurín de la Torre in Malaga province, where remanded persons may be held.

A defence lawyer experienced before the Audiencia Nacional is essential, because procedure, deadlines and case law there differ from ordinary criminal courts.

Defence strategies and your rights

Every case is different, but the most common grounds to oppose or limit extradition include:

• Defects in the request: missing information, an unclear description of the facts or no enforceable decision behind the warrant.
• Double criminality: in classic extradition, and for EAW offences outside the list of 32 categories, the conduct must also be a crime under Spanish law.
• Ne bis in idem: you cannot be surrendered for facts already finally judged.
• Limitation: the offence or sentence may be time-barred, particularly where Spanish courts also have jurisdiction.
• Trials in absentia: surrender can be refused or made conditional if you were convicted without being properly summoned or represented.
• Residence in Spain: for EU warrants, residents and nationals may ask to serve any sentence in Spain instead of abroad.
• Human rights guarantees: risk of inhuman prison conditions, unfair trial or, in some non-EU cases, disproportionate sentences can justify refusal or require assurances.

Alongside opposition, a lawyer will fight for release while the case is decided, using evidence of family, work and property ties in Spain.

Why speed matters

The first hearing, often within a day or two of arrest, shapes the whole case: it is where consent is given or refused, where custody is decided and where the first defence arguments are raised. Evidence of residence and roots in Spain, contact with lawyers in the requesting country and a careful reading of the warrant all need to happen immediately. Families who call a specialist extradition lawyer on the day of arrest give the defence the best chance of release and of successfully opposing surrender.

Frequently asked questions

Can I be released on bail while my extradition case is decided?

Yes, it is possible. The Audiencia Nacional may grant provisional release with conditions such as surrendering your passport, living at a fixed address and reporting regularly to a court or police station. Strong ties to Spain are the key factor.

Should I consent to surrender?

Only after speaking to a lawyer. Consent makes the process much faster but usually cannot be withdrawn, and it can mean giving up grounds of opposition that might have stopped or delayed the surrender.

Does an Interpol red notice mean I will be extradited?

No. A red notice is a request to locate and provisionally arrest a person. The requesting country must still send a formal extradition request, which the Spanish courts will examine on its merits.

How long does extradition from Spain take?

A European Arrest Warrant is usually resolved within weeks to around three months. Classic extradition to a non-EU country, with its judicial and governmental phases, commonly takes several months and sometimes longer.

Written by

Javier Rincón Bernal

Founding partner · Criminal defence lawyer · Member of the Málaga Bar (ICAMálaga) since 1999

Over 25 years of criminal defence. High-profile cases covered by TVE, Antena 3 and La Sexta, and appeals before the Supreme Court.

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