Legal framework, verified jurisprudence, and defense strategy before the National High Court.

The Extradition Treaty between Spain and El Salvador: current legal framework

Relations in matters of extradition between the Kingdom of Spain and the Republic of El Salvador are governed by the bilateral Treaty signed in Madrid on March 10, 1997, published in the Official State Gazette on February 13, 1998, and in effect since February 4, 1998. As a supplementary measure, Law 4/1985, of March 21, on Passive Extradition (LEP), the Spanish Constitution (Article 13.3), and the international commitments undertaken by Spain in matters of human rights, in particular the European Convention on Human Rights (ECHR), are applicable.

The Treaty establishes, as a starting point, a reciprocal obligation to surrender requested persons for prosecution or to serve a sentence. However, this obligation is not absolute. The bilateral instrument itself incorporates clear and binding limits that the National High Court applies with full rigor.

Grounds for refusal provided for in Article 7.1 of the Treaty

Article 7.1 of the Treaty contemplates the following grounds for mandatory refusal of extradition, among others:

• Section d): when there are justified grounds for considering that the application is for the purpose of persecution on grounds of race, religion, nationality, or political opinions.
• Section f): when there are justified grounds to consider that the rights of the person sought may be violated, in particular the guarantees of due process and the right to a fair trial.
• Prescription of the offense or the penalty under the law of either Party.
• Non bis in idem: when the person has already been judged or is being prosecuted in the requested State for the same acts.

Article 7.2: Principle of Non-Impunity

Article 7.2 of the Treaty provides for a reinforced cooperation mechanism of enormous strategic value: when extradition is denied for any of the causes in Article 7, the requested Party, at the request of the requesting Party, shall submit the matter to its competent authorities so that, if permitted by its legal system, the exercise of criminal prosecution may be considered.

This precept reflects the bilateral commitment to the principle of non-impunity: denial does not equate to closing the case, but rather to activating an alternative avenue for criminal prosecution which, if properly articulated, can be more effective than extradition itself.

The dominant criterion of the National High Court: violation of human rights

Recent case law from the National High Court has consolidated an unequivocal trend: the majority of extradition denials to El Salvador are based on the risk of violation of the fundamental rights of the requested person, directly linked to the state of emergency in effect in the Central American country uninterruptedly since March 2022.

Order of the Fourth Section of the Criminal Chamber (May 2024)

In a ruling by the Fourth Section of the Criminal Chamber of the National High Court, in line with the Public Prosecutor's Office's request, the court denied the extradition of a citizen wanted by El Salvador for belonging to a criminal organization, upon finding that there was an exceptional situation arising from the prolonged state of emergency. The Chamber considered that proceeding with the handover would imply endorsing possible situations of serious risk to the life and physical integrity of the requested individual.

The car's foundation was based on the following elements:

1. The objective and reliable determination of the existence of an exceptional or extraordinary situation, resulting from the proclaimed and reiterated state of emergency in the Republic of El Salvador.
2. Amnesty International's April 2023 statement, which denounced the systematic commission of serious human rights violations since the approval of the state of exception.
3. Recent newspaper articles revealing, according to the Chamber, a situation of human rights bankruptcy in the requesting country.
4. The personal circumstances of the claimant and their connection to the organizations that motivated the declaration of the state of emergency.

The legal basis invoked was Article 7.1, subparagraphs (d) and (f), of the bilateral treaty.

Constitutional Court Doctrine: Requirement of Specificity

It is legally essential to specify that the Constitutional Court has established a rigorous standard for denial on human rights grounds: the claimant's allegations cannot be merely generic regarding the country's situation, prisons, or respect for human rights. Determined and concrete elements must be provided that reasonably support the argument.

This standard requires professional, rigorous, and individualized evidentiary construction. Generic defense does not work. Effective defense does.

International Evidence: IACHR, Amnesty International, and Verified Documentation

The context of El Salvador is documented by multiple international organizations whose authority the National Court itself has recognized as valid sources of proof. The main reports are:

Report of the Inter-American Commission on Human Rights (IACHR, June 2024)

In 2024, the IACHR published a specific report (OEA/Ser.L/V/II, Doc. 97/24) on the state of exception and human rights in El Salvador, in which it documented:

• Delay in judicial review of arrests.
• Ineffectiveness of the habeas corpus remedy.
• Lack of evidentiary basis to support the charges.
• Abuses in the imposition of pretrial detention.
• Holding massive judicial hearings.
• Limitations on the exercise of the right to defense and judicial guarantees.

In August 2025, the IACHR reiterated its concern about the excessive extension of the state of exception, documenting over 88,000 people detained since March 2022 and approximately 7,000 documented cases of human rights violations, including arbitrary detentions, torture, and the deaths of over 400 individuals deprived of liberty in state custody.

Amnesty International (2023)

Amnesty International's April 2023 statement denounced the commission of serious human rights violations systematically since the approval of the state of exception. This document was expressly cited by the National High Court as the basis for its denial decision.

These reports are not mere opinions. They are documentary evidence that the National High Court has accepted as the basis for its resolutions.

The principle of non-refoulement in Spanish extradition practice

The National High Court has integrated the principle of non-refoulement, inherent in international human rights law, into its extradition practice as an inviolable limit on surrender. This principle, enshrined in Article 3 of the European Convention on Human Rights and developed by the case law of the European Court of Human Rights (ECtHR), prohibits the surrender of a person to a state where there is a real risk of:

• Torture.
• Inhuman or degrading treatment.
• Processes without minimum due process guarantees.

The Court has been categorical: in cases of danger of violation of fundamental rights, the Spanish authority is not indifferent to the fate of the extradited person, but rather must prevent the violation before it occurs. It is the Court, through judicial proceedings, that must preserve these rights, without leaving such a possibility to the Government in the event that it has agreed to the extradition.

Judicial review prevails over governmental decisions. This is a fundamental guarantee of the Spanish system that every claimant must know and that every defense must activate.

The instrumental use of criminal proceedings: corporate lawfare and selective prosecution

Beyond the classic alleged human rights violations, recent practice has revealed a reality that directly affects entrepreneurs, executives, and high-net-worth families: the use of criminal proceedings as an instrument of economic or political pressure, a phenomenon known in international legal scholarship as lawfare.

In the context of El Salvador, this phenomenon can manifest when the extradition request actually responds to:

• Corporate or contractual disputes in which one party instrumentalizes the criminal justice system.
• Disputes over strategic assets or internal political realignments.
• Selective persecution of businessmen who are inconvenient for certain interests.
• Criminal proceedings that lack a sufficient evidentiary basis and whose real purpose is not justice, but pressure.

From the perspective of Spanish law, the legal tools to combat these types of requests are specific:

5. Article 7.1.d) of the bilateral treaty: prohibits extradition when there are reasonable grounds to believe that the request seeks to prosecute the person for political or similar reasons.
6. Article 4 of Law 4/1985, on Passive Extradition, excludes extradition for political offenses, understood in a broad sense.
7. Article 5.1 of the LEP: extradition shall be refused if the request is motivated by considerations of race, religion, nationality or political opinions, or if the person's situation may be aggravated for such reasons.
8. ECHR case law: Strasbourg jurisprudence strengthens protection when it is established that the criminal proceedings in the requesting state do not meet the minimum standards of judicial independence and due process.

The concept of lawfare, although it does not appear as such in Spanish legislation, finds its direct legal anchoring in these provisions. The key lies in constructing the evidence that proves the instrumentality of the persecution.

Defense Strategy: How to Win an Extradition Case in Spain

An effective defense in extraditions linked to El Salvador must be structured on three complementary levels:

International evidence gathering

• Reports from international organizations (IACHR, Amnesty International, Human Rights Watch, OHCHR).
• Documentation on prison conditions and state of exception.
• Specialized human rights expert reports, prepared by credible experts before the National Court.
• Country reports from official sources (U.S. Department of State, EU reports).

2. Individualized risk analysis

The Constitutional Court requires that the defense not be limited to generic allegations. It is essential to demonstrate how the country's situation personally affects the claimant: their business profile, political exposure, history with Salvadoran authorities, the specific circumstances of the accusation, and the specific risk they face.

3. Deactivation of the source procedure

• Identification of procedural irregularities in the Salvadoran criminal case file.
• Evidence of selective persecution or political motivation.
• Technical argumentation of corporate lawfare with evidentiary support.
• Insufficient evidence for the request: imprecise description of facts, absence of reasonable indications of criminality.

VENFORT Lawyers: International criminal defense with strategic vision

VENFORT Abogados has developed a highly specialized practice in the defense of individuals sought for extradition by Latin American countries, with particularly relevant experience in the Spain-Central America and Spain-South America corridors. The firm operates from its offices in Madrid and Caracas and represents law firms and institutional clients in fifteen jurisdictions: Portugal, Andorra, France, the United Kingdom, Colombia, Panama, the Dominican Republic, the United States, Belgium, Angola, Dubai, Mozambique, and Singapore.

VENFORT's International Criminal Law Department offers unique and verifiable experience:

• Lawyers accredited to the International Criminal Court with over twenty years of experience.
• OFAC Sanctions Certificates from Florida International University.
• Negotiation and Leadership Training by Harvard and Yale.
• Intervention in highly complex extradition proceedings before the National High Court.
• Challenging INTERPOL Red Notices before the Commission for Control of INTERPOL's Files (CCF).
• Advising governments, foreign ministries, embassies, and diplomatic representations of Latin American and Scandinavian countries.
• Defense in high-profile international cases, including the Panama Papers, the 2009 financial crisis, and the Odebrecht case. Advising states in proceedings before the International Criminal Court, multinational corporations in mitigating legal impacts, and defense against lawfare.

His approach combines rigorous criminal technique before the National High Court, geopolitical understanding of the requesting country's context, and strategic client reputation management, three dimensions that in practice are inseparable.

VENFORT has advised, under strict confidentiality, diplomatic representations, chancellors' offices, attorney general's offices, and public ministries of various countries on the structuring of international criminal cooperation strategies, including the activation of conventional mechanisms such as Article 7.2 of bilateral treaties following the denial of extradition requests in Spain.

Conclusion: Extradition is no longer a formality, it is a strategic litigation.

Current practice demonstrates that extradition to El Salvador is not automatic, does not depend exclusively on the bilateral treaty, and requires a profound analysis of human rights, political context, and the individual circumstances of the person sought.

The key is not to argue solely about the imputed crime. It is to answer, with concrete and technically rigorous evidence, an essential question:

Can Spain guarantee that the person will be judged with full respect for their fundamental rights?

When the answer is negative, extradition must be denied. And when extradition is denied, the principle of non-impunity requires exploring alternatives that the Treaty itself provides.

For the entrepreneur, executive, or high-net-worth family facing an extradition request, effective defense not only protects the defendant's freedom: it protects their reputation, their assets, and their international standing.

VENFORT Abogados is prepared to accompany you on that path, with the technical rigor, proven experience, and immediate reaction capacity that these cases demand. Contact us.

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