European arrest warrant is a judicial decision given in a Member State of the European Union for the arrest and surrender by another Member State of a person requested for the exercise of criminal prosecution or executing a sentence or a measure involving deprivation or detention order under closed-centre for minors.
(Act 23/2014. Article 55)
When the offence on which the European arrest warrant is based is punished with a sentence or a security measure involving deprivation of liberty for life, the implementation of the European arrest warrant by the Spanish judicial authority shall be subject to the condition that the issuing Member State has provisions in its legislation for a review of the sentence or the application of clemency measures to which the person is entitled in view of the non-implementation of the penalty or measure.
Also, when the person who is the subject of the European arrest warrant for the purpose of criminal prosecution has a Spanish nationality or is resident in Spain, the surrender may be dependent, after a hearing, on the condition that he/she will be returned to Spain.
Mandatory grounds of refusal
(art. 48.1 Act 23/2014)
The Spanish executing judicial authority shall refuse the execution of the European arrest warrant in the following cases:
- When the requested person has been pardoned in Spain of the penalty imposed by the same facts on which the European arrest warrant is founded and it was prosecuted by the Spanish jurisdiction.
- When the free stay in Spain for the same acts has been agreed.
- When on the person who is the subject of the European arrest warrant has gone, in another Member State of the European Union, a final decision on the same facts that definitely prevents further criminal proceedings.
- When the person who is the subject of the European arrest warrant has been finally judged by the same facts in a third non-member State of the European Union, provided that in the event of sentence, the sanction has been served or is in those moments being implemented or not longer be enforced under the law of the sentencing State.
-When the person who is the subject of the European arrest warrant still cannot be, because of his/her age, considered criminally responsible for the acts on which the order is based, in accordance with Spanish law.
(Art.32 Act 23/2014)
-When it was ordered in Spain or in another State different form the issuing one a final, denunciatory or acquittal decision, against the same person and in respect of the same facts, and its implementation would contravene the principle of non bis in idem in the terms provided by law and international conventions and treaties to which Spain is a party and even if the sentenced person had been subsequently pardoned;
- When the order or decision relates to acts for whose prosecution Spanish authorities are competent and, sentencing by a Spanish judicial authority had been issued, the penalty imposed had been affected by statute of limitations in accordance with Spanish law;
-When the form or certificate which must accompany the application for the adoption of measures is incomplete or manifestly wrong or does not correspond to the measure, or if the certificate is missing,
-When there is an immunity that prevents the implementation of the decision.
(Art.33 Act. 23/2014)
Decision rendered in the absence of the person concerned:
The Spanish judicial authority shall also refuse the implementation of the order or decision that have been transmitted when the defendant did not appear at the trial resulting decision unless the same record, in accordance with the other requirements of the procedural law of the issuing State, any of the following circumstances:
a) That, in sufficient time, the defendant was summoned in person and informed of the date and place fixed for the trial to which that decision is derived, or he/she received such official information by other means that record their actual knowledge and besides, he/she was informed that a decision may be handed down in the case of default.
b) That, being aware of the date and place fixed for the trial, the defendant appointed lawyer for his/her defence at trial, and was indeed defended by him/her in the celebrated trial.
c) That, after being served with the decision and being expressly informed of his/her right to a retrial or appeal with the possibility that this new process, which would be entitled to appear, a decision contrary to the initial was dictate, the person expressly stated that he/she did not impugn the decision, or request the opening of a retrial or appeal within the time provided therefore.
Optional grounds of refusal
Art.48.2 Act 23/2014
The Spanish executing judicial authority may refuse the execution of the European arrest warrant, in the following cases:
a) When the person who is the subject of the European arrest warrant is subject to criminal proceedings in Spain for the same act that led to the European arrest warrant.
b) When the European arrest warrant has been issued for the purpose of executing a sentence or measure involving deprivation being the requested person a Spanish citizen, unless it consents to fulfil the same in the issuing State. Otherwise, the sentence must be served in Spain.
c) When the European arrest warrant relates to acts which have been committed outside the issuing State and the Spanish law does not allow prosecution of such offences when committed outside its territory.
d) The Spanish judicial authority may also refuse recognition and enforcement of a decision when it is imposed by an offence other than those that prevent from double criminality control and that is not an offence under Spanish law.