Speciality and Extradition (Spezialität) – Lawyer Frankfurt

Extradition-law Speciality  (Para 13)

In Germany, if a suspect is surrendered by a foreign state, investigative and prosecutorial measures in Germany may only concern the offences for which extradition was expressly authorised. For any other offences, prosecution is barred unless the extraditing state grants subsequent consent (“Nachtragsbewilligung”). Until such consent is issued, limitation periods are suspended. See our overview of extradition under German law (IRG).

Extradition  (Para 153)

In complex white-collar matters with multiple acts (e.g. serial fraud), the speciality principle can considerably narrow prosecutorial options. Under the European Convention on Extradition (EuAlÜbk) Art. 14(1), the EU Framework Decision on the European Arrest Warrant (EAW) Art. 27(2), and Art. LAW.SURR.105(2) of the EU-UK Trade and Cooperation Agreement, the surrendered person may initially be subjected only to measures relating to the acts underlying the extradition (or acts committed after surrender).

Comparable provisions appear in bilateral treaties (e.g. with Canada, the USA and India). Even without a treaty, speciality is typically required; German higher-court case law counts it among the general rules of international law (Art. 25 Basic Law). In practice it is advisable to seek a comprehensive authorisation from the requested state and to involve other investigating authorities early (cf. RiVASt guidance). A mere mention of conduct in the request or arrest warrant is insufficient.

According to German procedural doctrine, “act” (Handlung) follows the same-act concept of § 264 StPO. If the procedural act is the same and extraditable, prosecution may extend to all legal assessments of that act—irrespective of how the requesting and requested states ultimately classify it. Note however: speciality applies only if the person was actually extradited, not where they voluntarily appear without a surrender procedure. For context on arrests and detention, see arrest warrant, pre-trial detention, risk of flight and presentation before the investigating judge.

Core instruments at a glance

• European Convention on Extradition (Art. 14 EuAlÜbk)
• EU Framework Decision on the European Arrest Warrant (Art. 27 EAW FD)
• EU–UK Trade and Cooperation Agreement (LAW.SURR.105)
• Selected bilateral treaties (e.g. USA, Canada, India)

EAW Area – CJEU’s Approach  (Para 154)

Within the EAW system, the Court of Justice of the EU recognises an autonomous and more legally than factually defined notion of the act, resulting in a somewhat narrower speciality protection. Departing from a broader factual view in ne bis in idem, the CJEU gives priority to the legal characterisation and tolerates limited time/place deviations if they neither change the nature of the act nor would have led to refusal. Adjustments to the subject-matter are acceptable if the conduct remains in the same catalogue category (Art. 2(2) EAW FD).

Germany has not issued a general waiver under Art. 27(1) EAW FD. Consequently, speciality is—as a rule—inapplicable only to measures below the threshold of deprivation of liberty (Art. 27(3)(a)–(c) EAW FD). For the broader procedural context, see our guides on German criminal procedure and access to case files.

Practical Scope of Speciality  (Para 154a)

Speciality only blocks liberty-restricting measures such as the enforcement of a sentence or investigative detention—this includes an arrest notice for custody. It does not prevent opening an investigation, issuing a judgment, or even issuing a detention order as such; the bar applies at the stage of enforcement. Accordingly, an arrest warrant may be issued but not enforced without consent; similar considerations apply to “Überhaft”.

Aggregate sentencing is barred where a component sentence is not enforceable due to speciality—even when a prior sentence was suspended on probation (revocation would reintroduce deprivation of liberty). The same applies to including a fine if this would ultimately result in detention for non-payment.

Waiver and Disposition  (Para 155)

The pursued person may dispose of speciality protection only where the applicable law grants such power (e.g. § 41(2) IRG). Absent a statutory basis, even an explicit individual waiver cannot replace a subsequent request; speciality ultimately safeguards the sovereignty of the extraditing state, which defines the scope of permissible prosecution. A later waiver after surrender (“Spezialitätsverzicht”) can make a subsequent request or waiting period unnecessary under the relevant instruments. Voluntary re-entry in full knowledge of the consequences also ends speciality (e.g. in relation to Switzerland under Schengen rules).

Simplified Extradition and US Treaties  (Para 156)

Depending on the requested state’s law, consent to simplified extradition may be combined with a speciality waiver. Under the EAW FD, the EU–UK TCA, and the 3rd Protocol to the EuAlÜbk, there is no automatic waiver—a specific declaration is required, unless the requested state’s law provides otherwise. In contrast, the German–US treaty framework allows broader waiver effects in simplified procedures. For substitute imprisonment related to fines, see § 83h(2) No. 4 IRG.

Selected Case Law – Practical Outcomes for Defence

• BGH 4 Feb 2013 – 3 StR 395/12 (LG Hannover): Where a prior sentence is not enforceable due to missing foreign consent, it must not be included in a new aggregate sentence. Defence should challenge any attempted inclusion.
• BGH 1 Aug 2023 – 5 StR 201/23 (LG Berlin): If surrender covered only specific acts, speciality precludes forming a youth aggregate sentence that absorbs a different, non-consented judgment.
• BGH 19 Jul 2023 – 2 StR 46/22 (LG Gießen): In one trial with multiple acts where only some were covered by the surrender, no aggregate sentence may be formed across uncovered acts; if needed, decide aggregate sentencing later once consent is obtained.
• BGH 18 Jun 2024 – 4 StR 155/24 (LG Dortmund): A breach of speciality is not a procedural bar. It creates an enforcement obstacle and forbids liberty-restricting measures in the trial phase. Judgments may stand; enforcement must wait until consent/waiver.

Facing extradition detention or an arrest warrant? Our criminal defence boutique in Frankfurt acts swiftly—challenging detention grounds (e.g. flight risk), demanding early access to files and immediate judicial review.

FAQ – Speciality Principle in Extradition (Germany)

What does the speciality principle mean in practice?

After surrender, German authorities may prosecute and enforce only for offences covered by the foreign authorisation. Other offences require subsequent consent. Investigations or even a conviction can proceed, but enforcement is blocked until consent is obtained.

Does speciality stop an arrest warrant or trial?

It does not stop the issuance of a warrant or the trial. It prevents enforcement of liberty-restricting measures (e.g. custody) unless the extraditing state consents.

How does the CJEU’s view under the EAW affect me?

In the EAW system, the “act” is defined more by legal characterisation. Minor time/place deviations may be tolerated if the nature of the act remains the same and surrender would not have been refused. This can narrow defence arguments on speciality, but careful case analysis often reveals room to object.

Can I waive speciality?

Only where the applicable law allows it. Some regimes require a specific waiver declaration. A later, informed waiver can make new prosecution/enforcement permissible without a formal subsequent request.

What should I do immediately after arrest?

Exercise your right to silence and instruct a specialist criminal law lawyer in Frankfurt without delay. Ask counsel to check detention grounds (pre-trial detention, flight risk) and the scope of the foreign authorisation.

Where can I read more?

Our in-depth guide: Extradition under German Law (IRG) and general criminal defence in Germany or the Frankfurt Airport Arrest and Extradition Guide.