→ 🇧🇪 Belgium

The case concerned an execution European Arrest Warrant issued by Belgium for the enforcement of a custodial sentence. The requested person had not appeared in person at the Belgian proceedings, but the EAW stated that he had chosen domicile at his lawyer’s office and that the lawyer had appeared at three hearings and actually conducted the defence. Relying on the Khuzdar and Höldermann judgments, the District Court of Amsterdam held that article 12(b) OLW was satisfied, since a summons or notice served on a lawyer authorised to conduct the defence and designated to receive service may amount to notification to the requested person. The Court also held that, although the requested person had Dutch nationality, he had expressly declined to rely on the optional refusal ground under article 6a OLW, so the Court did not examine whether surrender could be refused on social reintegration grounds. Finally, an individual detention guarantee concerning detention conditions in Belgium was provided and found sufficient, and surrender was allowed.

The case concerned a European Arrest Warrant issued by the Belgian Federal Prosecutor’s Office for the surrender of a Dutch national for the purposes of prosecution. The requested person opposed surrender on the basis of detention conditions in Belgium, arguing that the individual assurances concerning the prison in Mechelen were insufficient in light of overcrowding, sanitation concerns, staff shortages and risks of violence among detainees. The Amsterdam District Court held that the additional assurances provided by the Belgian authorities removed the previously identified general real risk of inhuman or degrading treatment, since Belgium specifically guaranteed placement in a cell with no more than one other detainee and separated sanitary facilities. The Court also refused to make surrender conditional on a return guarantee under Article 6 OLW, finding that the requested person had not shown sufficiently strong ties with the Netherlands to justify execution of any future sentence there. The surrender to Belgium was therefore allowed

Under the EAW framework, the executing judge is not required to carry out an autonomous assessment of the evidentiary basis. In particular, the reference to “serious indications of guilt” has been removed from Article 17(4) of the relevant law; therefore, their absence does not constitute a legitimate ground for refusing surrender, not even on a discretionary basis. Moreover, precisely the elimination of any autonomous assessment of serious indications of guilt has led to a significant reduction in the documentation accompanying the European Arrest Warrant, with the consequence that a ground of appeal cannot be based on the alleged insufficiency of the supporting documentation.