Fundamental rights

In Belgium, two European Arrest Warrants (EAW) were being processed for the enforcement of prison sentences imposed in other countries , one from Romania (4 years for human trafficking, against a Romanian citizen residing in Belgium) and the other from Greece (5 years, against a Belgian citizen residing in Belgium). In both cases, Belgian authorities identified a serious issue: if they handed over these individuals, there was a real risk that, in the issuing State, they would end up in detention conditions that could violate fundamental rights, especially Article 3 of the European Convention on Human Rights, regarding inhuman or degrading treatment; and in the Greek case, Articles 3 and 5 are also mentioned, due to the mental condition of the individual and the impact on their deprivation of liberty.

In the Romanian case, furthermore, the Brussels Court of Appeal stated, do not extradite, but the sentence could be carried out in Belgium using a Belgian rule linked to Framework Decision (EU) 2002/584 (art. 4.6). The affected person appealed, arguing that if the surrender is denied for a "mandatory" reason linked to fundamental rights, it makes no sense to "hook" on a "discretionary" reason afterwards to end up executing the sentence in Belgium anyway. In the Greek case, the Public Prosecutor's Office argued the opposite, that in order to prevent impunity , when denying the EAW, consideration should be given to applying that art. 4.6.

The CJEU (Grand Chamber) clarifies that, if that risk is established and it refused under art. 1.3, the surrender procedure must be closed, and art. 4.6 cannot be subsequently used "as a complement" to order execution in Belgium of that foreign sentence, even if invoking the prevention of impunity. Belgium must act to prevent impunity, but the appropriate route is another one, Framework Decision (EU) 2008/909, requesting the issuing State on its own initiative to send the judgment and the certificate so that the sentence is executed in Belgium. This does not automatically oblige the issuing State to send the documentation, but its possible refusal must be compatible with effective judicial cooperation and taking into account the risk of impunity.