Under the principle of specialty, which is codified in numerous bilateral extradition treaties and regional extradition schemes, an extradited person shall not be proceeded against, sentenced, detained, re‑extradited, or subjected to any other restriction of personal liberty in the territory of the requesting State for any offence committed before surrender other than offence for which extradition was granted or any other offence in respect of which the requested State consents.
Specialty serves as a safeguard against prosecutions in the requesting State: the only exception to the application of this guarantee of specialty, at least under Italian law, is an express waiver by the person whose extradition is requested.
In international extradition cases involving US as requesting State it is worthy to consider the possible failure of the United States of America to comply with this principle of specialty (or speciality rule) in the context of extradition proceedings in which the U.S. qualifies as a requesting state, rsulting in a possibile violation of extradition conventions / the right to a fair trial.
Well, the circumstance that the United States of America does not ensure compliance, once the surrender has been ordered, with the principle of specialty, even in the absence of waiver of the same by the extradite, emerges from an examination of the well-established jurisprudence on the subject assumed by the Courts of the United States of America, from which specifically three different circumstances that violate the principle of specialty emerge, namely that:
1. the U.S. may charge and try a person even for offenses non included in the extradition request;
2. the person extradited to the U.S. has no right to raise the non-compliance of the guarantee of specialty, vesting this exception solely in the requested state of the extradition proceedings, a state to whose jurisdiction, however, the extraditee is no longer subject, once in U.S. territory after surrender, resultin in a lack of effective judicial remedy;
3. the U.S. Judicial Authority may use offenses not included in the extradition request as indices to determine - and increase - the sentence against the extradited person.
1. Violation of the principle by challenge and trial (also) for offenses other than those for which extradition was requested
As for the trial for offenses other than those covered by the extradition request, U.S. courts may conduct the arraignment (and trial with possible punishment) of another offense than the one covered by the extradition request, extending the tempus commissi delicti or if they are facts covered by the “same nature of the crime,” i.e., substantially unified in the same criminal design, according to Italian categories.
See, on the subject, the following judgments:
- U.S. v. Ficcioni, 462 F.2d 475, 481-82 (2d Cir. 1972), which found no violation of the rule of specialty when the defendant was extradited on the basis of a charge involving a conspiracy extending from 1968 to 1969 and the subsequent charge involving a conspiracy extending from 1970 to 1972 and additional substantive offenses;
- U.S. v. Paroutian, 299 F.2 d 486, 490-91 (2d Cir. 1962) which found no violation when a defendant was extradited from Lebanon for narcotics trafficking, but was ultimately tried on two separate counts (receiving and concealment of heroin) not covered by the original indictment and noted that “the Lebanese, fully informed of the facts, would not [have] considered that [the defendant] was being tried for nothing more than ... narcotics trafficking.”
- United States v. Rossi, 545 F.2 d 814, 815 (2d Cir. 1976) (per curiam) found no violation where the extradition was related to a conspiracy from 1969 to 1972, but the indictment involved a conspiracy from 1965 to 1973;
- United States v. Sturtz, 648 F. Supp. 817, 819 (S.D.N.Y. 1986) that “A superseding indictment charging crimes of the same nature as the crime for which the fugitive was extradited does not violate the doctrine.” (citing Rossi, 545 F.2d at 815); see also United States v. Puentes, 50 F.3d 1567, 1576 (11th Cir. 1995), finding no violation where the superseding indictment extended the conspiracy period by three years;
- United States v. Andonian, 29 F.3 d 1432, 1435-37 (9th Cir. 1994), finding no violation where the superseding indictment added substantive acts to the conspiracy charge for which the defendant had been extradited, in addition to the substantive counts;
- United States v. Abello-Silva, 948 F.2d 1168, 1174-76 (10th Cir. 1991), where no violation was found where the subsequent indictment contained additional facts.
2. Lack of effective judicial remedy for the extradited person
The lack of effective jurisdictional guarantee for the individual (art 6 ECHR) emerges first of all from a reading of what was ruled in the Suarez vs. United States (2015), which has become a real precedent in the subsequent U.S. case-law on the matter.
This is a ruling on an extradition proceeding brought at the request of the U.S. to the State of Colombia and concluded with the surrender of the extradite Mr. Yesid Rios Suarez to the United States of America, in which he challenged the failure to comply with the principle of specialty even following diplomatic assurances (“diplomatic notes”) provided by the U.S. to Colombia during the proceedings, it seems clear what the German Court summarized in the ruling referred to so far.
Specifically, the United States Court of Appeals for the second circuit (i.e., the Judicial Authority which, in the U.S., has jurisdiction to decide about matters pertaining to a person surrendered on the basis of extradition proceedings) states the following: "Based on international comity, the principle of specialty generally requires that the country requesting extradition adhere to any limitation on prosecution placed by the surrendering country. Although the rule of specialty typically applies in cases where the defendant is being tried for an offense not covered by the applicable extradition treaty or agreement, it “also applies in the sentencing context.”
Since “the cauldron of circumstances in which extradition agreements arise involves the foreign relations of the United States . . . a district court must delicately balance its discretionary sentencing decision with the principles of international comity in which the rule of specialty fits." However, this Court has never “definitively decided whether a defendant has standing to challenge his conviction for violation of the terms of the treaty or decree authorizing his extradition,” or whether the right to challenge is held exclusively by the extraditing nation. [...] Because the prudential standing rule requires that an individual “‘assert his own legal rights and interests, and may not base his claim for relief on the legal rights or interests of third parties,’” Rajamin, 757 F.3d at 86 (quoting Warth, 422 U.S. at 499), we must first determine who has legal rights or interests based on the orders and the Diplomatic Note that obtained Suarez's extradition.
For the purposes of our analysis, extradition documents such as Diplomatic Notes imply the same international legal rights as treaties, as “a violation of [an] extradition agreement may be an affront to the surrendering sovereign.” Baez, 349 F.3d at 92; see Fiocconi v. Attorney General of the United States, 462 F.2d 475, 479-80 (2d Cir. 1972) (holding that the rule of specialty is a general principle of international law that applies with equal force to extraditions concluded by treaty and custom). Ingeneral, ʺinthe absence of protest or objection by the offended sovereign, [a defendant] has no standing to raise the violation of international law as an issue." United States v. Reed, 639 F.2d 896, 902 (2d Cir. 1981). This is because international agreements, including treaties, “do not create privately enforceable rights in the absence of express wording to the contrary,” Mora v. New York, 524 F.3d 183, 201 (2d Cir. 2008), or some other indication “that the intent of the drafters of the treaty was to confer rights that could be vindicated in the manner required by the individuals concerned,” id. at 203.”
“Under international law, the principle of specialty has been regarded as a privilege of the asylum state, designed to protect its dignity and interests, rather than as a right accruing to the accused.” Shapiro v. Ferrandina, 478 F.2d 894, 906 (2d Cir. 1973). “The purpose of the rule was to prevent the United States from violating its international obligations.” Fiocconi, 462 F.3d at 480. These concerns apply equally whether a defendant objects on the basis of the specialty rule or on the interpretation of an extradition treaty or diplomatic note. Since “[t]he provisions in question are designed to protect the sovereignty of states, ... it is clear that it is the offended states that must determine in the first instance whether a violation of sovereignty has occurred or whether redress is required." United States ex rel. Lujan v. Gengler, 510 F.2d 62, 67 (2d Cir. 1975). Any individual rights Suarez may have under the terms of his extradition are “only derived through the State].” Id. (internal quotation marks omitted). Therefore, Suarez would have prudential standing to raise the issue of violation of the terms of his extradition only if the Colombian government first made an official objection".
It should be noted that the “Suarez rule” regarding the principle of specialty and the lack of the extradited person's right to invoke its observance was reaffirmed even later than the Suarez ruling , and in particular in the ruling United States v. Loera dd. 25.01.2022 concerning the extradition proceedings carried out at the request of the United States to the State of Mexico regarding Mr. Joaquin Archivaldo Guzman Loera.
In that pronouncement, quite similarly to what was ruled in the Suarez judgment, replzing to the exception made by Mr. Guzman Loera after the surrender regarding the failure to comply with the principle of specialty,[1] the Court points out that "[t]he Treaty does not confer an individual right to enforce violations of the Treaty. In Barinas, we explained that “[i]nternational treaties establish rights and obligations between states - parties - and generally not between states and individuals, notwithstanding the fact that individuals may benefit from the existence of a treaty.” 865 F.3d at 104-05 (quoting Mora v. New York, 524 F.3d 183, 200 (2d Cir. 2008)).
Accordingly, “[an] extradited person is not entitled to complain of noncompliance with an extradition treaty, unless the ‘treaty [contains] language indicating ’that the intent of the drafters of the treaty‘ was that such benefits ’could be claimed‘ through private enforcement.’” Id. at 105 (quoting United States v. Garavito-Garcia, 827 F.3d 242, 247 (2d Cir. 2016) (citing United States v. Suarez, 791 F.3d 363, 367 (2d Cir. 2015)). “‘[S]peciality has been viewed as a privilege of the asylum state, designed to protect its dignity and interests, rather than as a right accruing to the defendant.’” Id. (quoting Shapiro v. Ferrandina, 478 F.2d 894, 906 (2d Cir. 1973)).” .
As clearly evident from their reading, the U.S. pronouncements recalled thus far are concerned with the broader core of the principle of specialty, i.e., the prohibition against subjecting the surrendered person to trial for offenses that are different (and predate the surrender) from the offenses that are the subject of the extraditional request when those different offenses are the subject of separate criminal proceedings against the same person.
3. Determination of sentence by the court taking into account crimes unrelated to the extraditional request
However, there is a further aspect on which it is necessary to focus, which also relates to the failure of the United States of America to comply with the principle of specialty, and which emerges from a reading of the U.S. jurisprudence on the subject, namely the circumstance that, under U.S. law, it is possible, when determining the penalty against a person tried (and convicted) following extraditional surrender, to increase that sentence by reason of the charge against such person of other offenses not included in the extraditional request, which - even when not the subject of a specific charge against the extradited person - are charged against him or her at the time of the determination of the sentence against him or her, which for that reason becomes higher.
See in this regard the following U.S. decisions:
- Lazarevich v. US dd. 23.06. 1998, dealing with the case of Mr. Dragisa Lazarevich, an extradite surrendered by the Netherlands solely for the crime of “false statements on the passport applications of his two children,” while his surrender had been refused for the different crime (albeit the subject of an extraditional request) of “child abduction.” who - once surrendered - had been tried and sentenced to a sentence higher than that for the crime of “false statements” because of the alleged commission of the crime of “child abduction”, despite the fact that surrender, for that crime, had not been granted by the Netherlands . The U.S. Judicial Authority, in rejecting Lazarevich's proposed appeal, expounds that "The Extradition Treaty between the United States and the Netherlands incorporates the doctrine of specialty. It provides that a person 'extradited under this Treaty shall not be detained, tried or punished in the territory of the requesting State for an offense other than that for which extradition has been granted." Netherlands-Extradition, Art. XV, June 24, 1980, U.S.-Neth., 35 U.S.T. 1334, 1342 (the Treaty). The doctrine of specialty embodies the principle of international comity: “to protect its nationals in judicial proceedings abroad, the United States guarantees that it will honor the limitations placed on judicial proceedings in the United States.” United States v. Andonian, 29 F.3d 1432, 1435 (9th Cir. 1994) (citation omitted). The protection of the doctrine of specialty “exists only to the extent that the ceding country so desires.” SEC v. Eurobond Exchange, Ltd., 13 F.3d 1334, 1337 (9th Cir. 1994) (quoting United States v. Najohn, 785 F.2d 1420, 1422 (9th Cir. 1986)). Lazarevich was neither detained nor tried on child abduction charges. The question is whether he was punished for child abduction. Because of child abduction, Lazarevich's base offense level and criminal history category were increased. These increases in turn led to a longer sentence. Therefore, Lazarevich argues that he was punished for kidnapping children in violation of the treaty. We reject Lazarevich's argument for the following reasons. The Supreme Court has held that “the use of evidence of related criminal conduct to enhance a defendant's sentence for a separate offense within the authorized statutory limits does not constitute punishment.” Witte v. United States, 515 U.S. 389, 399, 115 S. Ct. 2199, 132 L. Ed. 2d 351 (1995); see United States v. Watts, 519 U.S. 148, 117 S. Ct. 633, 634, 638, 136 L. Ed. 2d 554 (1997) (reversing two Ninth Circuit cases that held that “sentencing courts could not consider defendants' conduct underlying charges for which they had been acquitted.”).” ;
- Davis vs. Us dd. 09.01.1992, dealing with the case of Mr. Joel D. Davis, an extradite surrendered by Israel for the crimes of “conspiracy to commit murder,” “fraud,” and “arson,” who - once surrendered and tried - was convicted and, in the judgment against him, reference was made to alleged conduct of “tax fraud” used to support the conviction, which was not included in the extraditional request. In the face of the relevant exception raised by Mr. Davis, the U.S. Court-after pointing out that “Courts are divided on the question of whether or not an individual defendant has standing to raise the issue of violation of the principle of specialty” (an issue later resolved, as is well known, in the negative by the Suarez ruling mentioned above)-refuses on procedural grounds to consider the exception raised by Mr. Davis, pointing out that “having raised no objection to the district court regarding the introduction of this conduct, Davis has waived his right to appeal on this issue”, and thus upholding the conviction pronounced even for crimes not included in the extradition request against Davis (and thus in the subsequent rendition pronouncement);
- Garcia vs. Us dd. 10.04.2000, dealing with the case of Mr. Edgar Arnold Garcia, an extradite delivered from Canada for the crimes of “conspiracy to distribute marijuana, possession of marijuana and use of a firearm” who - once delivered and tried - was convicted and, in the sentence against him, reference was made to additional charges of marijuana transfer (which took place in Louisiana), different from those covered by the extradition request, as well as a charge of murder, further not included in the extradition request. Once again, the U.S. Court finds such prosecutorial demeanor to be entirely legitimate and not violative of the principle of specialty: "The only question before this court is whether the consideration of these two conducts in the sentencing (the murder and the conducts that occurred in Louisiana) violated the provision of the Extradition Treaty between the United States and Canada that ‘an extradited person...shall not be detained, tried or punished...for an offense other than the offense for which extradition was granted.’ As this is an issue involving the interpretation of a treaty, the matter is subject to plenary review by this Court. United States v. Puentes, 50 F.3d 1567, 1575 (11th Cir. 1995). The principle thus stated in the treaty is known as the “doctrine of specialty.” In other words, the question is whether the application of the Sentencing Guidelines in this case resulted in the defendant being punished for offenses other than those for which extradition was granted. The short answer is that the defendant was not punished for offenses other than those for which he was extradited because, under our law, consideration of other conduct in the sentencing process is legally and conceptually part of the punishment for induced offenses and within the limits established for such offenses. The principle of specialty, as interpreted in our law, does not provide for the extradition offense to be treated in isolation at any of its stages. Thus, for example, a charge existing at the time of extradition may legitimately be replaced after extradition by a charge for greater drug quantities. United States v. Puentes, 50 F.3d 1567 (11th Cir. 1995). See also United States v. Abello-Silva, 948 F.2d 1168 (10th Cir. 1991); United States v. Rossi, 545 F.2d 814 (2d Cir. 1976); United States v. Paroutian, 299 F.2d 486 (2d Cir. 1962). Similarly, the doctrine of specialty does not control the evidentiary procedural rules of U.S. courts. For example, it is not violated by the admission of evidence of crimes for which a defendant has not been extradited, if such evidence is relevant to the crime charged. [...] Regarding the doctrine of specialty and the U.S. law governing sentencing , the doctrine of specialty does not limit the scope of evidence of other crimes that may be considered in the sentencing process. Thus, the distinction is between evidence of other crimes as a matter relevant to determining the sentence for the extradited crime and evidence of other crimes for the purpose of obtaining conviction for those other crimes. Only the latter path is prohibited by the doctrine of specialty.” ;
- most recently, Neftali Mejia-Duarte vs US dd. 02.07. 2019, dealing with the case of Mr. Sergio Neftali Mejia-Duarte, extradited surrendered from Honduras for the crime of “conspiracy to distribute cocaine” committed “after Feb. 27, 2012, ” who - once surrendered and tried - was convicted and, in the sentence against him, he was charged with additional offenses of cocaine dealing committed prior to February 2012, as well as a charge of voluntary manslaughter, facts that concurred in determining the sentence against him (which, for that reason, was higher): "The parties agree that the extradition order allowed Mejia-Duarte to be tried only for facts occurring after February 2012. The only issue before us is whether the treaty prevents the United States from determining his sentence based on events that occurred during or before that month. The meaning of a treaty is subject to “plenary review.” United States v. Puentes, 50 F.3d 1567, 1575 (11th Cir. 1995). Treaty states that “no person shall be tried for any crime or offense other than that for which he was surrendered.” Treaty with Honduras, supra, at art. IV. This provision embodies the so-called rule of specialty, according to which “the requesting state, which obtains the surrender of a person, may prosecute him only for the crime for which he was surrendered by the requested state, or it must grant him the opportunity to leave.” United States v. Isaac Marquez, 594 F.3d 855, 858 n.1 (11th Cir. 2010) (citing United States v. Herbage, 850 F.2d 1463, 1465 (11th Cir. 1988)). United States v. Garcia, 208 F.3d 1258 (11th Cir. 2000), cert. granted, judgment reversed on other grounds, 531 U.S. 1062, 121 S. Ct. 750 (2001), rules out Mejia-Duarte's argument that he could not be convicted for events that occurred during or before February 2012. Defendant Garcia was indicted and extradited to the United States for conspiracy to distribute drugs, possession of drugs, and use of a firearm in connection with the conspiracy and possession. Id. at 1260. In imposing the defendant's sentence, the district court took into account conduct not charged in the indictment, namely other drug offenses and a homicide. Id. We affirmed the sentence in the face of the defendant's challenge to the specialty rule. Id. at 1261. We explained that the specialty rule prevents “evidence of other crimes for the purpose of obtaining punishment for those other crimes,” but not “evidence of other crimes as a germane issue in determining punishment for the extradited crime.” Id. We further explained that “[t]he consideration of other conduct in the sentencing process is legally and conceptually part of the punishment for the crimes induced and within the limits established for those crimes.” Id. It is that simple".
The circumstance that the U.S. legal system does not respect the guarantee of specialty is also confirmed by the Federal Constitutional Court of Germany (Bundesverfassungsgericht), which, in a recent ruling on extradition proceedings at the request of the United States of America (Southern District of New York) pending before the Frankfurt Court of Appeals, points out precisely how - according to the provisions of the U.S. legal system (and in particular according to the provisions of the aforementioned U.S. Suarez v. United States,) - it is not possible for the individual extradite, once surrendered, to invoke compliance with the principle of specialty in the event of violation of the same by the U.S. Judicial Authority, but on the contrary that this exception can only be raised by the Authorities of the requested State (and thus, in this case, Germany).
The Court, having ascertained this circumstance, overturns the decision of the Territorial Court that had rendered a judgment in favor of extradition, declaring this decision to be inconsistent with the German Constitution insofar as it violated the fundamental rights of the extraditee.
Specifically, this is Judgment No. 175 dd. 24.03.2016 in which the Court, insofar as it is of interest, observes the following (informal translation from German to Italian by the writer, paragraphs 33 to 52): "It is a violation of Article 19(4) of the Basic Law for the Higher Regional Court and the Federal Government to disregard a decision of the U.S. court in this matter, according to which, from the viewpoint of the United States, it is for the Federal Republic of Germany to subsequently challenge under international law whether the United States must adhere to a specific individual guarantee or to the principle of speciality when deciding on admissibility.
The interpretation of Article 22 AuslV D-USA took on a completely different content with the Suarez decision. The conditions that the requested state imposes on the requesting state have the character of individual protection insofar as they are based on conditions and obstacles that are themselves individual in nature. This applies in any case to dual criminality as a prerequisite for extradition. Specialty also has at least an individual protection character, as evidenced by the fact that the person to be extradited may waive it. It is therefore part of the content of Article 19(4) of the Basic Law, just like the other conditions for extradition under common law. Therefore, the Court of Appeals should not have hidden behind the future possibilities of action required by foreign policy, especially since the appellant does not have the possibility of requesting the German executive to intervene in court as soon as he is no longer under the jurisdiction of the German judiciary. [...]
It is true that in extradition proceedings it must generally be presumed that the requesting state adheres to the principles of the indispensable protection of fundamental rights and international law. [...] However, this presumption can be overturned by contrary facts ( see BVerfGE 109, 13 <35 s.>; 109, 38 <61>). This is the case if there are factual indications that, in the case of extradition, the indispensable principles of constitutional law or the indispensable level of protection of fundamental rights or the binding minimum standard of international law under Article 25 of the Basic Lawwill not be respected. In such a case, the court deciding on the admissibility of extradition is required to verify, on a case-by-case basis, whether the aforementioned limits to extradition traffic have actually been complied with. This may also require investigations into the legal situation and practice of the requesting state (see BVerfG, decision of the Second Senate of December 15, 2015 - 2 BvR 2735/14 -, juris, paras. 71, 74). [...]
The examination carried out by the Frankfurt am Main Court of Appeals on compliance with the specialty principle, the validity of which in extradition proceedings with the U.S. was also agreed upon by an international treaty in Article 22 AuslV D-USA, does not meet constitutional requirements. The principle of specialty that applies to extradition proceedings is one of the general rules of international law [...] German courts are therefore obliged under Article 25 of the Basic Law to verify whether compliance with this principle is actually guaranteed by the authorities and courts of the requesting state ( cf. BVerfG, decision of the 3rd Chamber of the Second Senate of February 8, 1995 - 2 BvR 185/95 -, NJW 1995, p. 1667; BVerfG, decision of the 1st Chamber of the Second Senate of November 9, 2000 - 2 BvR 1560/00 -, NStZ 2001, p. 203 <204>). [...]
In its decision of December 22, 2015, the Court of Appeals correctly found that the United States had not generally challenged compliance with the principle of specialty in the Suarez decision. However, concrete indications emerge from this decision that the U.S. courts, particularly the court of appeals having jurisdiction over the appellant's case, will no longer consider the assertion of the specialty principle-unlike past experience-without further ado, but only after a corresponding challenge by the country to which the United States has assured the validity of the specialty principle in general or in the specific individual case. In this case, it was necessary to examine in detail whether compliance with the principle of specialty could actually be expected in the case at hand. [...]
Contrary to the view of the Court of Appeals in its decision of December 22, 2015, the information provided to the United States in the form of the order of November 12, 2015, that an additional request would be required if the U.S. authorities wished to extend their charges against the complainant beyond the offenses specified in the authorization, does not - in and of itself - allow for any concrete conclusions to be drawn about the future behavior of the United States. Nothing else appears from the explicit reference to the validity of the principle of specialty in the November 5, 2015 authorization. The assertion to the requesting state of the existence of a legal obligation to comply with the principle of specialty is not sufficient in the context of the necessary verification of actual compliance with the principle of specialty".
The decision of the highest German court, therefore, confirms the failure of the U.S. authorities to comply with the principle of specialty, clarifying that:
- according to the U.S. legal system (and in particular what has been established by the relevant case law) the principle of specialty is not a guarantee whose compliance (or non-compliance) can be invoked before the U.S. Judicial Authority by the defendant once surrendered, but only through an application made by the authorities of the requested State, authorities however to whose jurisdiction, evidently, the extradite is no longer subject once surrendered to the foreign State;
- such a mechanism operates even if, in the course of the extradition proceedings, the United States had already given assurances that the principle of speciality would be respected (an assurance which, moreover, ex lege, would not even be due), assurances which, therefore, are not, by themselves, sufficient to ensure effective respect for that principle;
- this mechanism also operates with reference to any “individual guarantee” that has been given by the United States in the course of the extradition proceedings (e.g.: about the release of the precautionary pre-sentence, about ensuring specific care in the event of particular health conditions of the extradite, etc.), compliance with which - once again - is therefore not ensured in the event of surrender, but is subject to a subsequent explicit request (not by the extradite himself, but rather) by the State that ordered the extradite's surrender;
- even in the event that the requested state makes such a request in order to enforce the principle of specialty and any individual guarantees given by the United States in the course of the extradition proceedings, there is no legal obligation on the U.S. to comply with such a request, compliance with which is bound only to the principle of international good faith, good faith which - the German Federal Constitutional Court specifies - is presumed until, as in the present case, evidence to the contrary emerges showing a foreign state's failure to respect the assurances given regarding the rights of individuals;
- for all these reasons, the Court concludes, the U.S. regulatory framework regarding compliance with the guarantees given in the course of passive extradition proceedings, including compliance with the principle of speciality, is not in conformity with the German Constitution, as it does not ensure adequate protection of the rights of the extradite.
Since the Italian legal system considers the principle of specialty as a real guarantee - applicable in any passive extraditional procedure - for the protection of the extradite, who in fact is the only person entitled to decide whether or not to renounce it by a statement made on the record during the identification hearing and to whose respect the foreign state is bound, without the law even providing for the need on the part of the requesting state to provide a specific guarantee of compliance with this principle, since the obligation of such compliance should (the conditional is a must) derive directly from the law and from the international treaty which, as in the present case, provides for this principle.
Well, on the contrary, it is clear - by means of the allegation of specific and undoubted elements such as judgments pronounced by the U.S. Judicial Authority as well as a judgment of the German Federal Constitutional Court - that the guarantee of the principle of specialty, although sanctioned in the course of the extradition proceedings (in the face of the failure of the extradite to renounce the same), is not then respected, following the surrender, by the United States of America.
This failure to comply with the guarantee of specialty - which, it has been said, constitutes jus receptum in the U.S. entirely in accordance with the U.S. legal system, and therefore derives from what, for the U.S. Judicial Authority, is the mere application of the law - considered in conjunction with the impossibility for the extradited person to assert his or her right to compliance with this guarantee determines the existence of an autonomous cause of impediment to surrender, for two different orders of reasons.
First of all, the defense believes that the failure to respect the principle of specialty constitutes ex se a cause impeding the surrender, considering, as mentioned, that this is a guarantee whose respect is imposed in any extradition proceedings, and that on the contrary it is already known a priori that - once the surrender is made - it will not be respected by the U.S. Judicial Authority.
Moreover, it is clear from a reading of the German Federal Constitutional Court's pronouncement that such non-compliance incurs even in the face of a prior “diplomatic assurance” given by the U.S. Authorities about future compliance with the guarantee: this is because such an assurance alone is not sufficient to ensure effective compliance with the guarantee precisely because that guarantee, as mentioned, can legally be violated under U.S. law without the extradite being able in any way to object iure proprio to such a violation.
In other words, evidently, the U.S. Authorities will never be able to guarantee a violation - or non-application - of the law, a law in which the violation of the principle of specialty complained of here finds its source, which is why any “diplomatic assurance” will never be able to remedy what is a structuraldeficit of the U.S. legal system, which does not provide for exceptions of any kind.
To this element, which is already in itself indicative of an possibile ban cause for surrender, must be added the circumstance whereby not having an effective judicial remedy to remedy the violation of an individual right (such as the guarantee of specialty) determines a further violation of the fundamental right to a “fair trial,” as enshrined in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) as well as Article 111 of the Constitutional Charter.
Indeed, it is well known the well-established principle enshrined in the case law of the European Court of Human Rights that the right to a “fair trial” enshrined in Article 6 can be considered respected only if every individual has a “right of effective access to jurisdiction” (see Maresti v. Croatia, 2009, § 33; Reichman v. France, 2016, § 29), a corollary of the broader and more established principle that “[t]he Convention seeks to guarantee rights that are not theoretical or illusory, but concrete and effective” ( Artico v. Italy, 1980, § 33; more recently: Arnaboldi v. Italy, 2019, § 41).
In the specific case, as mentioned, according to the U.S. legal system the extraditee has no right to assert a violation of the guarantee of specialty, the presentation of such an exception being subordinate (which, moreover, is then by no means guaranteed to be upheld) to an express request made, after the surrender, by the Authorities of the requested State, Authorities to whose jurisdiction, however, the extraditee, once surrendered, is no longer subject.
This circumstance makes evident the absence of an effective right of access to jurisdiction on the part of the extradited person, moreover in relation to a right - the guarantee of specialty - the violation of which is to be considered of particular gravity insofar as it affects in peius the personal freedom of the extradited person.
Therefore, a violation of the extradited person's right to a “fair trial” in the sense outlined above must be considered integrated, a violation which, in turn, determines the existence of the cause preventing the surrender provided for in Article 705, paragraph 2, letter a) of the Italian Code of Criminal Procedure, which rules that “The court of appeals shall in any case pronounce a sentence contrary to extradition: a) if, for the crime for which extradition has been requested, the person has been or will be subjected to proceedings that do not ensure respect for fundamental rights”, fundamental rights among which - evidently - includes the right to a “fair trial,” in the sense outlined so far, as protected by Art. 6 ECHR and Art. 111 of the Constitution.
[1] “ Guzman argues that the prosecution has violated the doctrine of specialty, a principle of international law that requires that an extradited defendant ‘may be tried only for one of the offenses described in the [extradition] treaty and for the offense with which he is charged in the extradition proceedings.’” United States v. Rauscher, 119 U.S. 407, 430 (1886). Guzman challenges his extradition in two ways. First, after Mexico had agreed to extradite him to the United States to stand trial on charges brought in the Western District of Texas and the Southern District of California, the government, according to the indictment, fraudulently obtained Mexico's waiver of the doctrine of specialty to transfer him to the District of New York to stand trial on charges brought in that district. Second, it alleges that Mexico did not agree to the harsh conditions of his pretrial detention".