Surrender and risk of human rights violation

Surrender and risk of human rights violation

When a particular person is wanted by an EU member state, be it for the purpose of executing a pronounced sentence or as part of an ongoing criminal investigation, that member state can issue a European Arrest Warrant ("EAW") and deliver it to the other EU member states.

If it then turns out that the wanted person is effectively residing in another EU member state, that member state must determine whether to surrender (read: extradite, in the specific, European context) the wanted person to the seeking member state.

Or else, the member state where the wanted person resides should determine whether the execution of the European Arrest Warrant is refused or ordered.

Normal practice

If you are an individual residing in Belgium and are wanted by another EU member state, you will first and foremost be arrested by the Belgian authorities after they receive the EAW from the other member state.

After arrest, you will be questioned by the Belgian police, who will ask you brief questions about the facts contained in the EAW. The police may also already briefly question you about the consent to surrender and the principle of speciality (see below).

Afterwards, you will have to appear before the investigating judge who will question you again and at the same time ask whether or not you agree to be surrendered to the country you are seeking.

If you agree to the surrender, there is the short procedure, after which you will be taken to the searching country without much delay.

If you do not agree, the lengthy procedure You will have to appear before the pre-trial chamber, which will make a final decision on the possible execution of the EAW (regardless of whether you initially opposed it), after which you can lodge an appeal and cassation.

Also, the investigating judge will ask you if you waive the protection of the specialty principle (which, by the way, is implicit if you agree to surrender).

A waiver would mean that you could be prosecuted or imprisoned in the searching country not only on the basis of the facts contained in the EAW but also for other facts that predate the preparation of the EAW.

Not surprisingly, waiving the protection of the specialty principle can have a serious, often negative impact on your legal situation.

Finally, the investigating judge will assess whether, pending your surrender or pending the outcome of the lengthy proceedings, you should remain in prison, live under electronic surveillance or be released on conditions.

If you are wanted by Belgium and you reside in another EU member state, the above scenario will occur - logically - in that other EU member state.

In case you end up in Belgium after the short or long procedure, as part of an ongoing investigation, you will be extensively interrogated here by the Belgian police, who have been dealing with the same investigation.

Afterwards, in 99% of cases, you will be arraigned before the investigating judge who will decide whether or not to issue a warrant for your arrest, after which the standard procedure regarding pretrial detention will begin.

Grounds for refusal in Belgium

If, as part of the lengthy procedure, the Belgian authorities must rule on your surrender to another EU member state, they must first verify the extent to which there is a ground for refusal.

In this regard, there are two types of grounds for refusal: mandatory and optional grounds for refusal.

The mandatory grounds for refusal are:

• Amnesty for facts for which surrender is sought;
• Wanted person has already been acquitted or convicted for the same facts in Belgium or other EU member state;
• Minority;
• Statute of limitations on the penalty (claim); and
• Serious risk of human rights violation in the seeking state.

The optional grounds for refusal are:

• Wanted person is already being prosecuted in Belgium for offenses for which surrender is requested;
• A Belgian authority decided not to prosecute the wanted person for the relevant facts;
• Wanted person has already been acquitted or convicted for the same facts in a non-EU country;
• Wanted person is a Belgian;
• The EAW relates to acts committed (i) in whole or in part in Belgium or (ii) committed outside the territory of the searching state while Belgian law does not provide for prosecution when such acts are committed abroad.

It is at this stage that a lawyer can verify with you whether the execution of the EAW can or even should be refused.

In any case, it is interesting to note that European legislation - which forms the basis of the EAW rules - does not include an explicit, mandatory ground for refusal when there is a risk of a violation of human rights, while Belgium has made this a mandatory ground for refusal; just as Belgium has also made the statute of limitations of the sentence (prosecution) a mandatory ground for refusal, while according to EU legislation this is only an optional ground for refusal.

Mandatory ground for refusal in case of risk of human rights violation

Although this ground for refusal in Belgium obliges legal authorities to refuse to execute an outstanding EAW, it is used with particular caution.

Indeed, the European Union is based on the principle of trust, which means that EU member states can normally assume that European human rights are respected in each member state.

However, reality has overtaken this ideology on several occasions, with the result that the ground for refusal has been successfully invoked on a number of occasions.

This was the case, for example, when there was a risk of torture or inhumane treatment (in violation of Article 3 of the European Convention on Human Rights) for the wanted person in the searching EU Member State.

The same applies when the wanted person in the searching state must fear for his life.

Less unanimous are the EU member states when it comes to a risk of a violation of the right to a fair trial; a right to which exceptions are apparently allowed, as evidenced by the fact that surrenders to Poland (where the right to a fair trial is structurally flouted) are not routinely denied.

Refusal when risk of violation of right to private life

Recently, the Italian Court of Cassation turned to the EU's highest court, the Court of Justice of the European Union, asking whether a risk of a violation of the right to a private life also prevents the EAW from being ordered.

More specifically, that Italian Court was confronted with a situation where the wanted person was a mother, whose children were still very young, and taking a mother away from such young children, according to the European Court of Human Rights, is - under certain circumstances - a violation of the right to a private life.

The question now, then, is how the EU Court of Justice will interpret this new clash between the principle of trust and human rights will be resolved: will the principle of trust be further eroded so that (harsh) realities can be met, or will this basic principle of the EU be stubbornly hammered on at the expense of human rights.

The answer is not as obvious as one might think

If your surrender is requested by another EU member state, you are being surrendered to Belgium or you simply want more information about this, please feel free to contact us at info@bannister.be or 03/369.28.00.