By Miguel Gálvez
The principle of reciprocity requires that the country requesting extradition also grants it to Spain in similar cases.
Its importance, fundamental in any extradition procedure, is enshrined in the Spanish Constitution of 1978 itself, which, in Article 13, states:
“Extradition shall only be granted in compliance with a treaty or the law, taking into account the principle of reciprocity.”
This reciprocity must be twofold: political and legal.
Political reciprocity is based on International Relations and it is up to the Spanish Government, which is responsible for foreign policy and the only one that is fully aware of the greater or lesser success of its extradition requests, to assess it in terms of the general interest.
If the requesting country has undermined Spain’s national interests with its previous actions in this area, the Government can therefore refuse extradition. Consider, for example, the claims of ETA members to countries such as Cuba or Venezuela. At the end of the day, this is a political decision.
Analysing legal reciprocity, on the other hand, is a matter for the Court, and this is where the defence lawyer of the requested person can break the extradition and have the surrender to the foreign authorities refused.
The mere existence of an International Treaty for Extradition signed between Spain and the requesting State reveals the existence of reciprocity. The treaty may be bilateral (see the 1997 Convention with Morocco) or multilateral (Rome Statute of the International Criminal Court, 1988).
In the absence of a Treaty, the High Authorities of the claimant State will have to express in writing, in so-called Notes Verbales, their credible commitment to act in the same way with regard to Spain’s extraditional claims. It is part of the work to check that this requirement is met. In the refusal to extradite former minister and political leader Komi Koutché to Benin, the absence of such a declaration was one of the arguments at stake.
It happens in practice that the existence of a treaty is not always sufficient. It is not unusual that the Treaty establishes the most absolute reciprocity and that, in reality, when the domestic laws of the claimant state are examined, the opposite is true.
In our office we have obtained refusals of surrender precisely for this reason. Such is the case of extraditions to Cuba and Ecuador due to the nationality of the person whose extradition is requested.
These States, either in their Extradition Treaty with Spain or in declarations by their diplomatic authorities, maintain reciprocity on this matter: they will extradite the requested person to Spain even if he or she is a national (Cuban, Ecuadorian).
However, an in-depth study of their constitutional and legal norms, as well as the jurisprudence of their courts, shows that they do not consent to the extradition of their nationals under any circumstances. Consequently, Spain is not obliged to extradite Spaniards to these third countries.
It is by alleging the lack of this essential principle of reciprocity that we managed to refuse the extradition of our clients to Cuba and Ecuador.
Furthermore, reciprocity has an aspect, not without controversy in the Extradition Courts and Prosecutor’s Offices themselves, linked to compliance with minimum standards of human rights and the modern judicial process. Spain, bound by its democratic and international commitments to respect human rights, can and should demand the same of the requesting country. It is the task of the private defender of the defendant to draw attention to Spain’s solemn responsibility in this respect.
In conclusion, the principle of reciprocity is a basic pillar of extradition and the extradition lawyer must operate with its effect on the procedure.
CHABANEIX CRIMINAL LAWYERS
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