Convicted in an EU member state and surrender requested: the options.
The European arrest warrant
Within the member states of the European Union, the legal figure of the European arrest warrant (abbreviated: EAW). This European framework decision, adopted by the Council of the European Union on June 13, 2002, aims to facilitate and unify the procedure for the surrender of persons between EU member states.
The premise of the European Arrest Warrant procedure is mutual trust between member states and mutual recognition of each other's arrest warrants.
A European arrest warrant can be issued both when a member state wishes to prosecute a person and when a member state wishes to execute the sentence of someone who has already been convicted.
In this article, we highlight the second situation, namely the situation in which the Surrender is requested of a person already sentenced to a sentence.
Surrender requested for a sentence imposed in the past
In practice, we often find that individuals -after having resided, lived and worked in Belgium for a long time- are faced with a European arrest warrant for a prison sentence imposed on them in a (distant) past by another member state.
For these individuals, it is often frightening when Spain, Poland or Portugal suddenly asks for their surrender. When they are led before the investigating judge and thus risk possible imprisonment. It often feels very unreasonable and unfair for these individuals to still be imprisoned after a period of, say, seven or eight years. Even more unreasonable is the feeling of potentially being handed over to a country where the person in question has not been for a long time.
Moreover, we frequently find that the person concerned is not aware that a prison sentence has been passed against him or her in that other country....
Unreasonable situation? Serving sentence in Belgium?
The law of December 19, 2003 on the European arrest warrant, which transposes the above framework decision, provides for such unreasonable situations in the possibility for Belgium to take over penalty enforcement (Article 4, 6° EAW Act). This provided that the person concerned is Belgian or resides in Belgium.
In practice, it is often better on many levels for the person whose surrender is requested for Belgium to take over the execution of the sentence. After all, that way he can remain in Belgium, which ensures that that person's social network and social existence does not suddenly disappear.
More importantly, if Belgium takes over penalty enforcement, the Belgian regulation regarding sentence enforcement applies to that sentence. For short prison sentences, this often means imposing an ankle bracelet (electronic monitoring) rather than serving an effective prison sentence.
Such punishment with electronic surveillance, in turn, is the ideal way for the person concerned to keep his or her job. After all, a person under electronic surveillance can work out a plan with the authorities to continue his or her work.
How do you convince the judge to allow your sentencing to take place in Belgium?
The decision on taking over penalty enforcement is solely a judicial power and is taken by the investigative courts in Belgium.[1]
The practical bottom line is that the person whose surrender is sought must convince the court that he has a sufficient strong bond has with Belgium. Criteria that are taken into account include: the nationality of the person concerned, the integration of that person into Belgian society and the impact of a possible surrender on the social reintegration of the person concerned.
If you find yourself in a situation where your surrender is requested, you would do well to consult a specialized attorney. Indeed, the law regarding surrender is complex but offers many possibilities.
Is your surrender requested or would you like to obtain more info on the procedure or steps to take? Then feel free to contact one of our specialists in complete discretion on the phone number 03 369 28 00.
[1] To the extent that the person when he appeared before the investigating judge did not agree to the simplified procedure in which he accepted the surrender himself.
