Prohibition of Sentence Aggravation as a Component of the Rule of Specialty
The following analysis of a decision by the Higher Regional Court of Hamburg regarding the rule of specialty in extradition matters with the United States is published in a bilingual format, with both a German and an English version.[1]
OLG Hamburg, Decision of August 17, 2023 – Ausl 63/22
I. Introduction
In the decision presented here, the Higher Regional Court of Hamburg addresses an extradition request from the United States for the purpose of criminal prosecution. The Court declared the extradition inadmissible due to a concrete threat of violation of the rule of specialty.
The rule of specialty essentially stipulates that a person extradited to the requesting state may only be prosecuted within the limits set by the extradition decision of the requested state. Fundamentally, the rule of specialty aims to protect the sovereignty of the requested state when providing mutual legal assistance. However, this particular decision also highlights the significant importance of the rule of specialty for the individual being pursued. The specific aspect of the rule of specialty discussed below, namely the inadmissibility of extradition when there is a concrete threat of aggravating sentencing by considering offenses not approved in the extradition process, is of special significance for advising individuals facing extradition as their legal counsel.
II. Underlying extradition proceedings
The decision of the Higher Regional Court of Hamburg was based on an extradition request by the United States for the purpose of criminal prosecution: The requested individual is accused in the United States of having, between 2018 and 2022, in collaboration with others, acquired or attempted to acquire, and/or conspired to do so, without the necessary authorization and by deceiving the competent U.S. authorities, dual-use goods and goods with “sensitive military technology” in the U.S., with the intention of delivering them to end-users in Russia, which allegedly occurred in some instances. Additionally, between 2020 and 2022, the individual is accused of having smuggled oil worth hundreds of millions of U.S. dollars from Venezuela, which was under a U.S. embargo, and of unlawfully causing U.S. financial institutions to carry out transactions worth millions through false representations.
Upon request from the Hamburg Public Prosecutor General’s Office, the Higher Regional Court initially ordered, on December 29, 2022, after receiving the formal extradition documents from U.S. authorities, formal extradition detention concerning only five specific offenses. According to these, the individual is charged in the United States with having, in collaboration with others, attempted between 2018 and 2019 to procure armaments or dual-use goods from U.S. companies under false pretenses to deliver them without the required authorization to end-users in Russia, or having conspired with accomplices to do so, with goods being actually delivered to Russia in only one instance.
During the course of the extradition proceedings, U.S. authorities provided supplementary information several times at the request of the Higher Regional Court, following initially insufficient details. This information included, among other things, clarification of the goods listed in the U.S. indictment dated September 26, 2022. After this clarification and obtaining a technical evaluation from the Federal Office for Economic Affairs and Export Control on April 25, 2023, the Hamburg Public Prosecutor General’s Office, in a letter dated April 27, 2023, requested that the extradition of the individual to the U.S. be declared admissible for a limited scope—specifically, three offenses related to conspiracy to export a total of five different goods—and inadmissible for all other charges.
The Higher Regional Court had already requested, in an order dated January 30, 2023, that U.S. authorities provide statements regarding the rule of specialty and reminded them in an order dated March 29, 2023, to respond to the requested statements. In a letter dated May 11, 2023, the Higher Regional Court further requested that U.S. authorities answer detailed questions concerning the rule of specialty. The U.S. Embassy responded with diplomatic notes dated March 30, 2023, and June 20, 2023, and a letter from the U.S. Department of Justice dated June 30, 2022.
Finally, in an order dated July 12, 2023, the Higher Regional Court requested the Hamburg Public Prosecutor General’s Office to ask the U.S. authorities to provide an assurance that any offenses not covered by the German decision on the admissibility of extradition would not be considered for harsher sentencing in the proceedings concerning the offenses for which extradition was declared admissible. The U.S. authorities responded with a diplomatic note by the U.S. Embassy dated August 3, 2023, referencing their understanding of the meaning and scope of the rule of specialty as agreed in Art. 22 of the Treaty between the Federal Republic of Germany and the United States of America Concerning Extradition („AuslV D-USA“), their longstanding case law, their sentencing practices, and the independence of the courts. The U.S. authorities argued, among other points, that „repeated criminal behavior,“ which could also involve acts for which extradition was not granted, is a significant factor in sentencing under U.S. law, and that „consideration of conduct outside the charged offense“ in sentencing for the indicted offense is consistent with U.S. legal provisions and does not constitute punishment for the considered but unindicted act but rather punishment solely for the indicted act. Therefore, according to U.S. authorities, the rule of specialty is not violated by such consideration in sentencing. They also indicated that the U.S. authorities are not authorized to prevent an independent U.S. court from applying these sentencing considerations.
The Hamburg Public Prosecutor General’s Office maintained its request for admissibility as stated on April 27, 2023 (see above), in its order dated August 11, 2023, and argued that while the U.S. authorities had not provided the requested assurance and could not do so due to the independence of the U.S. courts and the prevailing legal understanding there—that the rule of specialty does not encompass harsher sentencing for acts for which extradition was not granted—this general sentencing practice of U.S. courts was irrelevant in this case. It was only necessary to ensure adherence to the rule of specialty under German law in the specific instance. This could be achieved by conditioning the Higher Regional Court’s decision on admissibility, which would then necessarily become part of the subsequent decision on the approval of extradition by the federal government and, thus, legally binding under international law. It is assumed that U.S. courts would observe such a reservation of specialty.
The legal counsel of the individual sought repeatedly requested that the extradition be declared entirely inadmissible.
III. The decision of the Higher Regional Court of Hamburg of August 17, 2023
On August 17, 2023, the Higher Regional Court of Hamburg declared the extradition request by the United States for the individual in question to be entirely inadmissible.[2]
To begin with, the Court reasoned that a substantial part of the extradition request was inadmissible due to the lack of dual criminality. Other allegations were dismissed for being insufficiently specified.
For the purpose of this analysis, however, the particularly interesting part of the extradition decision is where extradition was denied despite sufficient specificity and the assumption of dual criminality (namely, as a violation of the German Foreign Trade and Payments Act, AWG) because it was not guaranteed that the requesting state would observe the prohibition of sentence aggravation as a component of the rule of specialty (below 1.), for which there were concrete indications in this case (below 2.).
1. The Higher Regional Court begins by referring to Art. 22 AuslV D-USA, where the rule of specialty is expressly agreed upon for extraditions between Germany and the U.S.[3]
The Court then conducts a thorough interpretation of Art. 22 AuslV D-USA, concluding correctly that this provision also prohibits considering offenses for harsher sentencing purposes when extradition for those offenses has been denied.[4] As a standard for the interpretation which is primarily based on international law, the Court cites the principle of international law-friendly interpretation under the German Constitution, which aims to avoid conflicts with Germany’s international obligations. The Court also cites the principle of bona fide (good faith), meaning the interpretation of international treaties in accordance with the ordinary meaning of their terms in their context and in light of their objectives and purposes.[5] The actual interpretation then proceeded in two steps:
The starting point is the wording of Art 22 AuslV D-USA, which states that a person who has been extradited under the treaty
“shall not be proceeded against, sentenced or detained with a view to carrying out a sentence or detention order for any offense committed prior to his surrender other than that for which he was extradited, nor shall he be for any other reason restricted in his personal freedom”.
This can be understood as a prohibition on prosecution and enforcement.
In the first step, the Higher Regional Court recognized that beyond this wording, there is also a prohibition against punishing the extradited individual for another offense. This prohibition on punishment is self-evident, as expressly noted by the Court, and forms part of the recognized core of the rule of specialty.[6] This interpretation is also not disputed by the requesting state, the United States.
However, the Higher Regional Court then goes further—contrary to the explicit position of the U.S. authorities: it concluded that even the consideration of unapproved offenses for harsher sentencing in the adjudication of the extradition offenses constitutes a violation of the aforementioned prohibition on punishment. Thus, a prohibition of sentence aggravation is recognized as part of the rule of specialty.[7] The Court correctly defended this conclusion against the U.S. authorities‘ argument that the consideration of another offense for harsher sentencing should not be viewed as punishment for the unapproved offense but as part of the punishment for the extradition offense. The Higher Regional Court finds that this reasoning cannot be applied to the rule of specialty, whose scope is—in the words of the Court—primarily determined by its inherent purpose and its customary and recognized configuration in international law.[8] Otherwise, the prohibition on punishment could be easily circumvented if an offense could lead to an increased penalty for another offense, which would contradict the essence of the rule of specialty.
The Court further noted that its interpretation of the rule of specialty is not mandated by peremptory norms of international law and is, therefore, subject to the contracting parties‘ freedom to stipulate.[9] Since no deviating regulation was made in the extradition treaty between Germany and the U.S., this did also not contradict the Court’s interpretation.
2. However, the described prohibition of sentence aggravation as part of the rule of specialty should only render extradition inadmissible if there is concrete concern that it would not be sufficiently observed after the extradition of the individual.[10] The Court, therefore, examines the substantial evidence suggesting such concrete indications: The crucial aspect in this regard are the sentencing practices of the U.S. courts, which, according to the Higher Regional Court, is “highly likely” to threaten a specific violation of the rule of specialty. The Court then references the decisions of U.S. courts that led it to fear that the individual, if convicted, would be punished not only for the extradited offenses but also for the offenses for which extradition was denied due to lack of criminality under German law.[11] Additionally, the statements provided by the U.S. authorities confirmed this jurisprudence and unequivocally expressed that, according to U.S. legal understanding, it does not constitute a violation of the rule of specialty if additional offenses committed by the individual are considered for harsher sentencing in the proceedings for the extradition offenses.
The specific risk identified by the Higher Regional Court could, however, not be mitigated by the condition proposed by the Hamburg Public Prosecutor General’s Office (see above) that offenses for which extradition was declared inadmissible should not be considered when determining the severity of penalties for extraditable offenses. While such a unilateral reservation by the requested state is permissible within narrow limits, it can only be equated with a legally binding assurance from the requesting state if it is equally legally binding. This was not considered to be the case here, since significant doubts remained, even with the proposed condition, whether U.S. courts would fully respect the rule of specialty. The Court referred to the requested assurance from the U.S. authorities that offenses for which extradition was denied would not be considered for harsher sentencing in proceedings for offenses for which extradition was deemed admissible. Since the U.S. authorities had refused to provide such an assurance and instead pointed specifically to their contrary conviction regarding the scope and significance of the rule of specialty, there was a clear statement with an unequivocal position. Based on this, even when considering the principle of mutual trust that applies in extradition matters, the Higher Regional Court deemed it impossible that the proposed condition would provide sufficient guarantee that U.S. courts would, contrary to U.S. legal views, not consider offenses for which extradition was declared inadmissible for harsher sentencing.
Based on all these considerations, the Higher Regional Court consequently declared the extradition request from the United States for the individual in question to be entirely inadmissible.
IV. Evaluation and practical implications
When affected by an extradition request you are typically confronted with the rule of specialty at a very early stage in the extradition process: When being brought before the judge at the local court, it is standard practice for the individual to be informed not only that they may waive this principle—which in most cases is completely unknown to them up until this point—but also that
“such a waiver may be in their interest for reintegration, as it allows the requesting state to address all charges against them in a single proceeding”
(as is commonly stated in hearing minutes). This advocacy for waiving a fundamental principle of extradition law—especially when directed at a person who often has only learned a few hours prior that they are facing criminal charges in another country—seems rather cynical; particularly when considering the complex legal questions surrounding the rule of specialty. If the individual fortunately resists this early temptation, ensuring that they will indeed only be prosecuted and potentially punished for the offenses underlying the extradition request, should extradition occur, often becomes one of the most critical aspects of their defense as the extradition process progresses. In other words: it is crucial to ensure that the rule of specialty is taken seriously at least in the subsequent stages of the extradition proceedings.
It is therefore to be welcomed that the Higher Regional Court of Hamburg, in the decision presented here, clarifies that the principle of specialty also prohibits the consideration of offenses not approved in the extradition process for harsher sentencing in the adjudication of extradition offenses and that a concrete threat of violating this aspect leads to the complete inadmissibility of extradition.
The concrete application of the rule of specialty thus once again becomes the pivotal question in extradition cases.[12] In relevant cases, the handling of the prohibition of sentence aggravation by the requesting state must always be clarified by the authorities involved in the extradition process, or this clarification must be demanded through appropriate motions and submissions by the legal counsel for the person sought. For even if this does not ultimately lead to the complete inadmissibility of the extradition, it is of considerable importance for the criminal proceedings pending in the requesting state that adherence to the rule of specialty—especially in its manifestation as a prohibition on sentence aggravation—is as well protected as possible through a clear commitment by the authorities of the requesting state to respect the limits established by it. Particularly in extradition cases involving states where draconian punishments are sometimes imposed, it can make a fundamental difference whether certain offenses may be considered in sentencing or not.
In practice, the greatest challenge for the defense is likely to be in examining and demonstrating that a violation of the rule of specialty by the requesting state is “specifically to be feared” or that there are “concrete indications” of such a violation. In extradition proceedings with the United States, it should indeed be possible to infer an ongoing concrete risk of violating the rule of specialty from the statements made by the U.S. authorities in the extradition proceedings before the Higher Regional Court of Hamburg, which is, for the time being, likely to result in the complete inadmissibility of extradition in comparable cases.[13] However, in extradition cases involving other states, any „concrete indications“ would still need to be thoroughly identified if they exist. Therefore, depending on the available language skills, it may be advisable for the defense to initially undertake its own research into the legal situation in the requesting state and its handling of the rule of specialty. Not least because it may also depend on the specific allegations expected to be brought against the individual in the requesting state—potentially extending beyond the extradition request itself—a reliable investigation is hardly feasible without support from a local defense attorney in the target state. Engaging such an attorney early on, if at all feasible, is strongly recommended. Since the outcome, as demonstrated impressively by the decision presented here, can result in the complete inadmissibility of an extradition, this additional effort may well be worthwhile.
[1] The footnotes mainly refer to the original German references.
[2] OLG Hamburg, Decision of August 17, 2023 – Ausl 63/22, juris, Mn. 11.
[3] A bilingual version of the extradition treaty can be accessed here: http://www.bgbl.de/xaver/bgbl/start.xav?startbk=Bundesanzeiger_BGBl&jumpTo=bgbl280s0646.pdf.
[4] OLG Hamburg, Decision of August 17, 2023 – Ausl 63/22, juris, mn. 16 ff.
[5] OLG Hamburg, Decision of August 17, 2023 – Ausl 63/22, juris, mn. 17 f.
[6] OLG Hamburg, Decision of August 17, 2023 – Ausl 63/22, juris, mn. 21 with further references.
[7] OLG Hamburg, Decision of August 17, 2023 – Ausl 63/22, juris, mn. 22 with further references.
[8] OLG Hamburg, Decision of August 17, 2023 – Ausl 63/22, juris, mn. 22.
[9] OLG Hamburg, Decision of August 17, 2023 – Ausl 63/22, juris, mn. 23; see also the comment by Trüg, NJW 2024, 159 (163) who presents the preferable view that it is indeed part of mandatory international law, at least with respect to extradition, to effectively protect the prohibition on punishment as a core component of the rule of specialty by ensuring that the aggravating consideration of offenses that have not been authorized for extradition is not subject to the discretion of the contracting parties.
[10] OLG Hamburg, Decision of August 17, 2023 – Ausl 63/22, juris, mn. 25 ff. with further references.
[11] OLG Hamburg, Decision of August 17, 2023 – Ausl 63/22, juris, mn. 28; for a detailed analysis of the sentencing for uncharged offences, in particular in connection with extradition proceedings under U.S. law and the relevant decisions of the U.S. courts, see the case analysis by Hiéramente, StV Spezial 2024, 22.
[12] See most recently, Federal Constitutional Court (BVerfG), Decision of March 24, 2016 – 2 BvR 175/16; an English abstract of the decision prepared by the Federal Constitutional Court can be accessed here: https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2016/03/rk20160324_2bvr017516en.html.
[13] Cf. the case analysis by Hiéramente, StV Spezial 2024, 22, who also points out that a change in the case law of the U.S. courts is not to be expected, and that a sustainable long-term solution could only be achieved through an amendment to the extradition treaty.