When a country requests a person who is in Spain, the first thing many people don’t know is that not all requests work the same way. Being requested by France is not the same as being requested by the United States, neither in deadlines, nor in safeguards, nor in who decides. And that difference, which seems technical, is what determines how your case is defended. Let’s look at it clearly.
What is the difference between extradition and a European Arrest Warrant?
The fundamental difference lies in who requests you and how the surrender is decided. The EAW applies between European Union countries and is a purely judicial procedure; classic extradition applies with countries outside the EU and combines the judicial stage with the intervention of the government.
Put simply: the EAW is from judge to judge, fast and based on mutual recognition between European judicial systems. Extradition is a procedure between states, slower, with treaties involved and the final word shared between a court and the government. Both can end with the surrender of the person, but the path to get there is very different.
When does the European Arrest Warrant apply?
The European Arrest Warrant applies when the requesting country is a member state of the European Union. It is governed by Law 23/2014 on the mutual recognition of criminal decisions in the EU and is based on mutual trust between European judicial systems.
Its main features are speed and mutual recognition. The deadlines are counted in days and weeks, not months, and the grounds to refuse surrender are limited and set out in law. There is no political assessment of convenience: the court carries out a review of legality and, if no ground for refusal applies, the surrender is processed. If you want to see in detail how this mechanism works, I explain it step by step in the article on the European Arrest Warrant.
When does classic extradition apply?
Classic extradition applies when the requesting country is outside the European Union. It is governed by the international treaties (bilateral or multilateral) that Spain has with that country and, in the absence of a treaty, by Law 4/1985 on Passive Extradition and the principle of reciprocity.
Passive extradition (when Spain is the requested country) is a mixed procedure that combines three stages: two governmental (at the beginning and at the end) and one judicial in the middle.
- First governmental stage. The Ministry of Justice refers the request to the Government and the Council of Ministers decides whether the procedure continues. Already at this point it can refuse to continue on grounds of sovereignty, and that refusal can be appealed before the Third Chamber of the Supreme Court. Only if it admits it does the matter pass to the judicial authority.
- Judicial stage. The Audiencia Nacional examines whether the surrender is legally admissible: whether there is a treaty, whether the act is a crime in both countries, whether there are sufficient procedural safeguards and whether any ground for refusal applies.
- Final governmental stage. Even if the court admits the extradition, the Council of Ministers can refuse it on grounds of the principle of reciprocity or reasons of security, public order or other essential interests of Spain. What the government cannot do is surrender someone if the court has rejected it: its power is purely negative.
That three-stage structure is the big difference from the EAW, and it gives more time, but also more uncertainty.
Why does your defence change depending on the mechanism?
It changes because the playing field is different. In an EAW the defence is built against the clock, on very specific grounds for refusal and extremely short deadlines. In an extradition there is more time, but also more actors: the court, the government and, often, several countries and treaties involved.
In my experience, the most costly mistake is approaching both procedures with the same mindset. Determining from the very first moment whether the request comes from inside or outside the European Union shapes the whole strategy: the applicable deadlines, the grounds for objection available and the procedural moment at which they must be raised. It is a field where the European and international dimension is decisive, and that is why it is best entrusted to someone with specific experience in extradition and European arrest warrants.
Whether it is an EAW or an extradition, the common factor is time. Every day counts to gather documentation, spot defects in the request and raise the objection at the right procedural moment.
This article is for informational purposes and does not constitute legal advice. Every case has specific circumstances that can completely change the analysis. If you need concrete guidance on your situation, consult a criminal defence lawyer.
