European Arrest Warrant under Spanish Jurisdiction

Spanish applicable Law: Law 23/2014, of November 20, on mutual recognition of criminal resolutions in the European Union (Last amendment in July 2021)

Spanish Courts competent to review EAWs:

• Juzgado Central de Instrucción of the Audiencia Nacional.

• Juzgado Central de Menores de la Audiencia Nacional if the person claimed is a minor.

Both are based in Madrid. However, the urgent hearing on interim measures, such as PreTrial Detention, is usually held in the Court of the city where the person has been detained.

Content of the EAW in Spain: A standarized form must be used. It will contain, at a minimum: a) Identification and nationality of the person requested. b) Identification and contact details of the issuing judicial authority. c) Judicial decission or arrest warrant which bases the EAW. d) Nature and legal classification of the crime. e) Description of the facts and participation of the person requested. f) Penalty handed down (if there is already a final decission) or applicable Scale of penalties if the requested person has not yet been convicted, as well as other consequences of the crime (Civil liability, Restraining Orders, etc.). If decission surpasses 25 years of prison, the issuing State must undertake not to serve more than that term.

1.- EAW ISSUED BY SPANISH JUDICIAL AUTHORITIES.

1.1. Legal requirements to issue an EAW in Spain

A) In order to exercise criminal actions.

• Common european requirements (Penalty equal to or greater than 12 months in prison)

• Requirements to grant Pre-Trial Detention: A) Risk of fleeing; B) Risk of destruction of evidence, or C) Risk of causing harm to victims. (Art. 503 Law of Criminal Procedure LECrim)

B) In order to execute a final decission.

• Common european requirements (Penalty equal to or greater than 4 months of prison/security measure/internment measure)

• Neither substitution nor suspension of the prison penalty is possible according to Spanish Law. Basically if prison is below 2 years and it’s a first time offender; or in case of serious sickness, menthal deterioration or drug addiction ) (Arts. 71 and 80 of the Criminal Code)

1.2. Courts competent to issue an EAW.

Any Spanish criminal court. Public Prosecutor and the Private Prosecutor can and usually suggest it.

1.3. Appointment of defence lawyer. The person claimed in the Executing State can appoint a lawyer in Spain, even an state appointed lawyer under free legal aid. The request will be processed urgently. To request an urgent public defender, consult https://www.abogacia.es/servicios/colegio/centralita-de-guardias/

1.4. Handling of the requested person in Spain.

A) In order to exercise criminal actions: Urgent hearing to decide on the personal situation of the requested person (Art. 503 Law of Criminal Procedure).

B) In order to carry out a final prison decission/security measure/detention measure: Spanish Court must dictate a resolution of prison.

2.- EAW EXECUTION BY SPANISH JUDICIAL AUTHORITIES

2.1. Crimes subject to surrender.

A) In order to exercise criminal actions.

• When the prison penalty for the crime equals to or greater than 12 months of prison, and

• Double typification. (The legal denomination is irrelevant, the nature and elements of the criminal offences must be the ones to be taken into account)

B) In order to execute a prison decree/security measure/detention measure.

• When the final prison decission is equal to or greater than 4 months of prison, and

• Double typification.

However, double typification will not be necessary if the crime is listed in art. 20.1 of Law 23/2014¹ AND the prison penalty in the Issuing State is 3 years or less.

2.2 Grounds for denial of an EAW by the Spanish authorities.

A) Mandatory grounds:

• The requested person has been subject to a PARDON / FREE DISMISSAL / ANOTHER EQUIVALENT RESOLUTION in Spain or a third country for those same facts that prevent prosecution.

• The requested person has been tried for those acts in a state outside the EU and has served the decission, is currently serving it or it cannot be served.

• The requested person cannot be considered criminally responsible in Spain (In Spain: Minors under 14 years of age; People affected by to menthal illness or serious disability; and Public servants subject to special jurisdictions or inmunities in certain areas).

B) Optional grounds:

• The requested person is investigated in Spain for these same facts.

• The requested person is Spanish or resident in Spain and does not consent to serve the decission in the Issuing State. In this case, he will fulfill the sentence in Spain.

• The crimes have been committed outside the Issuing State and Spanish legislation does not allow these crimes to be prosecuted extraterritorially (Those crimes and requirements are enlisted in art. 23 of Ley Orgánica del Poder Judicial).

• The requested person has been tried in absentia, unless the Issuing State guarantees that he/she will be notified of the decission as soon as it is delivered, so that he/she has time to appeal it.

2.3. Procedure of execution of an EAW in Spain.

First.- Detention of the person. Maximum 72 hours (24 hours if you are a minor, 5 days if accused of terrorist organization).

Second.- Placement at the disposal of the Juzgado Central de Instrucción (Physycally or at distance): Mandatory information to the requested Person:

• The content of the EAW.

• Right to appoint an attorney in the issuing state.

• Possibility of consenting to its delivery. If the detainee consents to the surrender, this decision is IRREVOCABLE and implies the renunciation of the principle of specialty. The Court must ensure that this consent is free and informed. The subsequent order by which the delivery is agreed is not appealable. Delivery must be made within 10 days after consent.

Third.- Hearing of the detainee on the EAW. (Physycally or online): It can be celebrated in absentia. Evidence may be taken regarding the existence of causes for denial or conditioning of delivery, as well as personal precautionary measures. The resolution will be published in a maximum of TEN days. Direct appeal before la Sala de lo Penal de la Audiencia Nacional.

Fourth.- Hearing of the detainee about Pre Trial Detention. (Physycally or online): Right after the previous hearing, el Juzgado Central de Instrucción will also hold a hearing and will decide on the PTD or provisional release with precautionary measures of the person requested. This decission can also be appealed before la Sala de lo Penal de la Audiencia Nacional.

Fifth.- Decision on delivery. The final decision must be made within a maximum period of 60 calendar days from the detention, exceptionnally extendable for 30 calendar days more.

Sixth.- Suspension of delivery. If the requested person has any case pending trial or any penalty pending fulfillment in Spain, delivery may be suspended until they are met. In this case, a temporary delivery of the requested person can be agreed by Issuing and Executing judicial authorities.

Seventh.- Physical delivery to the Issuing State. 10 days maximum from the date of the judicial decision which agrees to deliver, extendable for the same period any given times. However, after the first extension the requested person must be released from PTD. Delivery may be suspended by: – Serious humanitarian reasons. E.g. the Covid 19 pandemic. – Having an open criminal case in Spain and held in provisional prison. – Already serving a prison sentence in Spain.

2.4. SPECIAL SITUATIONS.

A.- Requested person subject to two or more EAWs. Juzgado Central de Instrucción will decide, according with: – Severity of the crimes. – Dates of the EAWs. – Ground of the EAWs.

B.- Requested person subject to EAW and Extradition procedure. EAW must be suspended and prevalence will be determined by the Council of Ministers of Spanish Government

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