Preliminary questions
The extraditional system in Spain is mixed, that is, governmental-judicial. In the preamble of Law 4/1985, of March 21, on Passive Extradition, extradition is conceived as: «act of sovereignty in relation to other States, it is the function of the Executive Power, under the rule of the Constitution and the Law, without prejudice to its technical, criminal and procedural aspect that the Courts have to resolve in each case with the intervention of the Public Prosecutor’s Office».
The extradition procedure consists of the following phases:
i) In a first, of an administrative nature, the Government of the nation (the Council of Ministers) at the proposal of the Ministry of Justice, in view of the documentation received, decides whether or not to proceed with the continuation of the judicial procedure .
ii) The second phase, of a judicial nature, takes place before the Central Investigating Courts and the Sections of the Criminal Chamber of the National Court, and which ends with an act by which the extradiction is accessed or denied, against which can only be appealed before the Criminal Chamber.
iii) In the third, governmental phase, the Council of Ministers, in the event of a judicial resolution favorable to extradition by the National High Court, will decide on the surrender of the person sought by the requesting State, taking into account the principle of reciprocity. or reasons of security, public order or other essential interests for Spain, without any recourse against the Government Agreement.
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Extraditional application and documentation
The Passive Extradition Law, in art. 7 establishes that the extradition request must be accompanied by:
a) The conviction or the order of indictment and imprisonment or similar resolution according to the legislation of the requesting country with a summary of the facts and the place and date on which they were carried out.
b) How much data are known about the identity, nationality and residence of the claimed subject and, if possible, their photograph and fingerprints.
c) Copy of the legal texts stating the applicable penalty.
d) If the act is punishable by any of the penalties referred to in number 6 of article 4., the requesting State will give assurances, sufficient in the opinion of the Spanish Government, that such penalties will not be carried out.
In fact, the requirements established by the Passive Extradition Law in force in Spain are similar or coincide with the different Treaties, proof of this is the instrument of ratification of April 21, 1982, of the European Extradition Convention, made in Paris on December 13, 1957, in which art. 12 it is established that:
Application and attached documents
1. The request will be formulated in writing and will be made through diplomatic channels. Another route may be arranged by direct agreement between two or more contracting parties.
2. In support of the application, the following shall be submitted:
a) The original or authentic copy, either of an enforceable conviction decision, or of an arrest warrant or any other document that has the same force, issued in the manner prescribed by the law of the requesting Party.
b) A statement of the facts for which the extradition is requested, indicating as accurately as possible the time and place of its perpetration, its legal classification and the references to the legal provisions that were applicable to them; Y
c) A copy of the applicable legal provisions or, if this is not possible, a statement on the applicable law, as well as the most precise possible affiliation of the person claimed, and any other information that allows to determine their identity and nationality.
Fundamentally, it can be seen that basically the same requirements are required with minimal dissimilarities, which we can extend to the Treaties signed by Spain with other States.
As a corollary to the foregoing, the plurality and disparity of the Treaties does not prevent the processing of the extradition from being initiated, in most cases, without major problem; However, there is a percentage of irregularities or exceptions that may affect the processing, I mean:
i) There is no description of the facts or their presentation is insufficient.
ii) The identification of the claimed person is not complete, it is insufficient.
iii) The required legal texts are not sent.
iv) The translation is not submitted.
v) The photocopies of the documentation sent are practically illegible.
vi) They are not duly signed or authenticated as required.
In line with what has been stated, art. 12.4 Passive Extradition Law contemplates the possibility of completing the information provided by stating that:
«The Judge, ex officio, at the request of the Prosecutor or the defendant, may agree to complete the information provided with the necessary data regarding the identity of the defendant and the factual and legal assumptions justifying the extradition request, being able to indicate a period that in no case will exceed thirty days. The decisions of the Judge, in this matter, will be appealable in accordance with the provisions of the previous section ».
This article, from my point of view, requires a leisurely reading, because a superficial reading may lead us to believe that the additional information must be requested after the appearance, however, I consider a better strategy to request the affirmative complements in advance or require them in the view itself.