Commercial Litigation Partner Jacques Semmelman was quoted in an article by The Wire regarding US prosecutors' intent to seek a waiver of the rule of specialty in the extradition treaty between the United States and the Czech Republic concerning Indian national Nikhil Gupta. This rule typically restricts the prosecution of extradited individuals to the charges for which they were extradited. The Indian businessman, who was extradited in June 2024, is currently facing charges related to a plot involving former Research and Analysis Wing (RAW) officer Vikash Yadav to hire a hitman against Khalistani separatist lawyer Gurpatwant Singh Pannun in New York.
The US Department of Justice (DOJ) has expanded the charges against Gupta to include money laundering, which was not part of the original extradition agreement. "The fact that the issue of specialty has come up indicates that the US Attorney's Office intends to expand the charges," Jacques said. "It seems they are seeking a waiver from the foreign government." He added that the "language of 'waiver' typically doesn't arise in terms of what the court can order."
The Czech Justice Ministry has clarified that their extradition treaty with the United States does not inherently allow for a waiver of the rule of specialty, though domestic legislation could permit an extension of extradition upon formal request. However, no such request has been received regarding Gupta. "If the court rejects the defendant's attempt to dismiss additional charges on the grounds of specialty, that wouldn't normally be termed a waiver," Jacques stated. "A waiver typically means the contracting party – in this case, the Czech Republic – agrees to relinquish its rights as a government and waive its right to enforce the doctrine of specialty."
"One key issue that comes up is this: when a person is extradited from another country to the United States to face prosecution on specific charges, the question becomes whether the United States can expand the charges beyond those on which the person was surrendered, and who has the legal standing to raise this issue – the defendant or the foreign government," Jacques went on to explain. "Courts in the United States have been inconsistent on this issue, with no clear answer."
Commenting on the unusual approach taken by the Southern District of New York (SDNY) in this case, which typically proceeds by adding charges without seeking a waiver if the foreign government does not object, Jacques said, "It's unusual in my experience for the Southern District of New York (SDNY) to announce that they are seeking a waiver of the doctrine of specialty from a foreign government, as SDNY is typically known for disregarding it."
"US Prosecutors Plan to Seek Extradition Treaty Waiver For Expanded Charges Against Nikhil Gupta," The Wire, January 25, 2025
New York
