European Arrest Warrant Use In Banking Fraud-Related Crimes - Spain

1. Legal Framework

EU Basis: Framework Decision 2002/584/JHA on European Arrest Warrant and surrender procedures.

Spanish Transposition: Ley 23/2014 de 20 de noviembre, de reconocimiento mutuo de resoluciones penales en la Unión Europea - BOE No 282 of 21 November 2014. Title II regulates EAW. In force 11/12/2014. It also includes proportionality test for issuing warrants.

Spain's executing authority: Audiencia Nacional - Central Investigating Courts (Juzgados Centrales de Instrucción) and Criminal Chamber. All EAWs concerning abroad go through Audiencia Nacional.

Banking fraud falls under 32 list offences where double criminality check is NOT required if punishable by at least 3 years in issuing state (Art 2(2) FD, Art 20 Ley 23/2014):

• participation in criminal organisation
• fraud, including that affecting financial interests of EU
• laundering of proceeds of crime
• corruption
• forgery of means of payment
• computer-related crime

So for most banking fraud, Spanish judge cannot refuse for lack of double criminality.

2. How EAW Works for Banking Fraud in Spain

Spain as Issuing State:

Spanish banks are frequent victims of large OCGs opening accounts with forged IDs. Example: Eurojust 23 May 2018 - Spanish Central Investigating Court of Audiencia Nacional and Romanian DIICOT investigation into OCG of mainly Romanian nationals. Members opened numerous bank accounts in various Member States using forged identity documents. Through those accounts, via Amazon and Airbnb, defrauded more than €8 million. Five people arrested in Romania on basis of Spanish EAWs, 33 detained in Spain.

Procedure:

1. Juzgado Central de Instrucción issues national warrant + EAW
2. SIS II alert
3. Arrest in other EU state
4. Surrender within 60 days (10 days if consent)

Spain as Executing State:

Spain receives EAWs from other states for fraud committed in Spain but sentenced abroad, or Spaniards who flee.

Key refusal grounds relevant to banking fraud:

• Art 3(2) - ne bis in idem (double jeopardy)
• Art 4 - territoriality exception
• Art 4a - in absentia convictions (Melloni doctrine)

3. Detailed Case Laws

Case 1: CJEU C-164/22 - Ministerio Fiscal v Juan - 21 September 2023 - PRELIMINARY REFERENCE FROM AUDIENCIA NACIONAL - Serious Fraud & Pyramid Scheme - Landmark on ne bis in idem

Facts: Spanish national Mr Juan set up marketing of investment products concealing fraudulent pyramid scheme operating both in Spain and Portugal. Main activity same in both.

• Spain: Serving prison sentence of 11 years 10 months for serious fraud and money laundering imposed by judgment 2018 final in 2020.
• Portugal: Tribunal Judicial da Comarca de Lisboa issued EAW for 6 years 6 months for serious fraud for same scheme but different victims/period.

Spanish Audiencia Nacional asked CJEU: Does ne bis in idem (Art 3(2) FD) prevent surrender because already convicted in Spain for same acts?

CJEU Held: Prohibition of double jeopardy does NOT preclude execution. Concept of 'same acts' = set of concrete circumstances inextricably linked together. Court said although modus operandi similar, facts differed - different victims, different companies, different time periods. Spanish and Portuguese facts not identical.

Ethical banking principle: Cross-border banking fraud can be prosecuted separately in each state where harm occurred. No safe harbour by being convicted in one state.

For Spanish banks: If fraudster defrauds Santander Spain and Santander Portugal, both can issue EAW, no ne bis in idem block.

Case 2: CJEU C-481/23 Sangas - 10 April 2025 - VAT Fraudster Must Be Surrendered to Spain

Facts: Romanian authorities refused to execute Spanish EAW issued by Audiencia Nacional for VAT fraud because act not punishable under Romanian law at that time, and warrant intended only to ensure presence at resumed proceedings.

CJEU Held 10 April 2025: Execution of EAW cannot be refused if intended solely to ensure requested person present at resumed criminal proceedings in issuing state, nor if no jurisdiction for acts under executing state law.

Impact: Reinforces Spain's ability to get banking/VAT fraudsters back even if Romanian law wouldn't prosecute same VAT scheme.

Case 3: C-399/11 Melloni - 26 February 2013 - Bankruptcy Fraud - Most Famous Spanish EAW Case

Facts: Italian Court of Appeal of Bologna issued EAW 8 June 2004 for surrender of Mr Melloni, Italian national living in Spain, condemned in absentia in Italy to 10 years imprisonment for bankruptcy fraud (banca rotta fraudolenta).

Audiencia Nacional 12 September 2008 decided to execute EAW and surrender. Melloni appealed to Tribunal Constitucional (Spanish Constitutional Court) arguing in absentia conviction violates Art 24 Spanish Constitution right to fair trial.

Tribunal Constitucional referred to CJEU.

CJEU Grand Chamber Held: EU law allows surrender even if convicted in absentia, provided person was informed or will get retrial right in issuing state (Art 4a). Spanish Constitution cannot impose higher protection that would frustrate FD effectiveness.

Then STC 26/2014: Spanish Constitutional Court modified its case law in response to Melloni, lowering standard of protection.

For banking fraud: Confirms Spain must surrender persons convicted of bankruptcy fraud/financial fraud in absentia, crucial for Italian-Spanish banking cases.

Case 4: AM v Examining Magistrate's Court No 4 Murcia, Spain - 16 April 2014 - Money Laundering

Facts: Appellant Spanish national accused of involvement in conspiracy to launder money which was proceeds of crime. Spanish judicial authority sought extradition via EAW, living in UK with three children.

UK High Court examined proportionality under Art 8 ECHR vs fraud seriousness. Allowed extradition but noted EAW for money laundering (banking-related) must pass proportionality test under Ley 23/2014 amendments.

Case 5: Eurojust - Spain-Romania OCG 2018 - Practical Use

As cited: 14 arrested in Spain, 5 in Romania on Spanish EAWs for fraud, forgery, money laundering using forged IDs to open bank accounts across EU. Modus: Amazon, Airbnb fraud €8m+. Demonstrates EAW as tool to dismantle cross-border bank account opening fraud networks.

Case 6: Two Dutch Citizens Extradited to Spain - Pyramid Scheme Fraud 2024

Case reported by Fukuro Legal: Two Dutch citizens detained, extradited to Spain under EAW to be investigated for alleged fraud Art 248.1 Spanish Penal Code and membership in criminal organization Art 570. Part of pyramid scheme fraud investigation. Granted provisional release after.

Shows Spain using EAW for Art 248 estafa (fraud) qualified as banking fraud when exceeds €250k.

4. Procedure and Defences Specific to Spain

Issuing:
Under Ley 23/2014 Art 37, Spanish judge must assess proportionality: seriousness, whether less restrictive measure possible. For banking fraud < €50k, often Euro Order of Investigation preferred over EAW.

Executing:

• Time limit: Decision 60 days, extendable 30
• Lawyer in both states (dual representation)
• Right to consent / not consent to specialty rule
• Specialty rule Art 27 FD - cannot prosecute for other offences before surrender without consent, relevant when bank fraud plus tax fraud.

Recent Trend 2024-25:
Spain has increased EAWs for:

• Phishing, Bizum fraud, authorized push payment fraud - Art 248-249 CP
• Crypto investment fraud posing as banking products - CNMV reports
• VAT carousel fraud using Spanish banks

Failure to surrender: If Audiencia Nacional refuses due to ne bis in idem incorrectly, Commission can start infringement. C-164/22 clarifies Spanish courts must interpret 'same acts' narrowly.