Specialty: Arresting an elusive ‘right’ in European extradition law
| Published date | 01 March 2021 |
| DOI | 10.1177/2032284420976994 |
| Author | Alex Tinsley |
| Date | 01 March 2021 |
| Subject Matter | Articles |
Article
Specialty: Arresting an
elusive ‘right’ in European
extradition law
Alex Tinsley
Barrister, 9 Bedford Row, UK
Abstract
Specialty (a near-universal rule of extradition law whereby a person extradited cannot be pro-
secuted or punished for matters other than those for which they were extradited) is viewed
traditionally as a tool to protect the sovereignty of the extraditing state, rather than as an individual
right. A review of international material shows a dispute as to the existence of a rule or principle of
specialty in customary international law and emphasises themes such as enforceability and standing
of individuals to plead violations. Against that backdrop, the European situation is characterised by
the presence of broad specialty rules which are not always implemented in legislation by requesting
states, leading to refusal of extradition in some cases. Arguably, combinations of the EU law duty of
conforming interpretation and European human rights law principles may offer tools to overcome
such situations, approaching protection of specialty ‘rights’ whatever the original doctrinal ratio-
nale. If they do not, and international cooperation is further undermined by ineffective specialty
protection, EU legislation or the development of soft law standards may be a useful way forward.
Keywords
Extradition, specialty, European convention on extradition, European arrest warrant, sovereignty,
absence of direct effect, arbitrary detention
Introduction
Suppose that a person is extradited to face trial for a mundane criminal charge, but, once extradited,
they are detained and tried for a politically sensitive sedition allegation, without the extraditing
state’s consent. This situation is, objectively, worrying, because the extradition process appears to
have been abused to expose a person to something for which his extradition might well have been
refused. Two perspectives exist on this paradigm scenario. From one point of view – the one which
Corresponding author:
Alex Tinsley, 9 Bedford Row, London WC1R4AZ, UK.
E-mail: alex.tinsley@9bedfordrow.co.uk
New Journal of European Criminal Law
ªThe Author(s) 2020
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DOI: 10.1177/2032284420976994
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NJECL
2021, Vol. 12(1) 23 –35
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