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19 DECEMBER 2003. - European arrest warrant law

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER 1^er. - Preliminary provision
Article 1^er. This Act regulates a matter referred to in Article 77 of the Constitution.
CHAPTER II. - General principles
Art. 2. § 1^er. The arrest and surrender of persons sought for the exercise of criminal proceedings or for the execution of a penalty or measure of deprivation of liberty between Belgium and other Member States of the European Union are governed by this Act.
§ 2. The arrest and surrender are carried out on the basis of a European arrest warrant.
§ 3. The European arrest warrant is a judicial decision issued by the competent judicial authority of a Member State of the European Union, called the judicial authority to issue, with a view to the arrest and surrender by the competent judicial authority of another Member State, called the enforcement authority, of a person sought for the exercise of criminal proceedings or for the execution of a penalty or a measure of deprivation of liberty.
§ 4. The European arrest warrant contains the following information:
1 the identity and nationality of the wanted person;
2° the name, address, telephone and fax number and email of the issuing judicial authority;
3° the indication of the existence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same force entering the scope of this provision;
4° the nature and legal qualification of the offence, particularly in relation to Article 5, § 2;
5° the description of the circumstances under which the offence was committed, including the time and place of its commission and the degree of participation in the offence of the person sought;
6° the sentence imposed, if it is a final judgment, or the scale of penalties provided for by law for the offence;
7° to the extent possible, the other consequences of the offence.
The European arrest warrant is established in the forms prescribed in the annex to this Act.
§ 5. The European arrest warrant sent to the competent authority of another Member State must be translated into the official language or in one of the official languages of the Implementing State or in one or more other official languages of the institutions of the European Communities that this State accepts under a declaration made to the General Secretariat of the Council of the European Union.
§ 6. The European arrest warrant sent to the Belgian authorities must be translated into Dutch, French or German.
Art. 3. A European arrest warrant may be issued for acts punishable by the law of the Member State issuing a custodial sentence or a measure of custodial security of not less than twelve months or, where a sentence has occurred or a security measure has been imposed, provided that it is not less than four months.
CHAPTER III. - The execution of a European arrest warrant from another Member State
Section 1^re. - The conditions of execution
Art. 4. The execution of a European arrest warrant is refused in the following cases:
1° if the offence that is the basis of the arrest warrant is covered by an amnesty law in Belgium, provided that the facts have been prosecuted in Belgium under Belgian law;
2° if it results from the information available to the judge that the person sought has been permanently tried for the same facts in Belgium or in another Member State provided that, in the event of a conviction, the penalty has been incurred or is currently being executed or cannot be executed according to the laws of the Member State of condemnation, or when the person concerned has been subject to the same action in Belgium or in another Member State of another final decision for another purpose
3° if the person who is the subject of the European arrest warrant cannot yet be, under Belgian law, held criminally responsible for the facts at the origin of the European arrest warrant because of its age;
4° where there is a limitation of public action or punishment under Belgian law and that the facts fall within the jurisdiction of Belgian courts;
5° if there are serious reasons to believe that the execution of the European arrest warrant would have the effect of violating the fundamental rights of the person concerned, as enshrined in Article 6 of the Treaty on the European Union.
Art. 5. 1. Enforcement is denied if the fact that is at the basis of the European arrest warrant is not an offence under Belgian law.
§ 2. The preceding paragraph does not apply if the act constitutes one of the following offences, provided that it is punished in the issuing State with a custodial sentence of not less than three years:
1st participation in a criminal organization;
2° terrorism;
3° deals with human beings;
4° sexual exploitation of children and child pornography;
5° illicit trafficking in narcotic drugs and psychotropic substances;
6° illicit trafficking in weapons, ammunition and explosives;
7° corruption;
8° fraud, including fraud affecting the financial interests of the European Communities within the meaning of the Convention of 26 July 1995 on the protection of the financial interests of the European Communities;
9° laundering of proceeds of crime;
10° false monnayage and counterfeit of the euro;
11° cybercrime;
12° crimes against the environment, including illicit trafficking in endangered animal species, and illicit trafficking in endangered species and plant species;
13° assists in the irregular entrance and stay;
14° wilful homicide, serious injuries and injuries;
15° illicit trafficking in human organs and tissues;
16° kidnapping, sequestration and hostage taking;
17° Racism and xenophobia;
18° organized or with weapon;
19° Illicit trafficking in cultural property including antiques and art;
20° scam;
21st racket and extortion of funds,
22° counterfeit and hacking of products;
23° falsification of administrative documents and traffic of false;
24° falsification of means of payment;
25° illicit trafficking in hormones and other growth factors;
26° illicit trafficking in nuclear and radioactive materials;
27° traffic of stolen vehicles;
28° rape;
29° voluntary fire;
30° crimes within the jurisdiction of the International Criminal Court;
31° diversion of aircraft or vessels;
32° sabotage.
§ 3. With regard to taxes, customs and currency, the execution of the European arrest warrant may not be refused on the ground that the Belgian law does not impose the same type of taxes or taxes or does not contain the same type of regulation in respect of taxes or taxes, customs and currency as the legislation of the issuing State.
§ 4. For the purposes of paragraph 2, 14°, the facts of abortion referred to in section 350, paragraph 2, of the Criminal Code and the facts of euthanasia referred to in the law of 28 May 2002 on euthanasia are not considered to be covered by the notion of voluntary homicide.
Art. 6. The execution may be refused in the following cases:
1° where the person who is the subject of the European arrest warrant is prosecuted in Belgium for the same fact as the person who is at the basis of the European arrest warrant;
2° where a Belgian judicial authority has decided either not to prosecute the offence under the European arrest warrant or to terminate it;
3° if it results from the information available to the judge that the person concerned has been permanently tried for the same facts by a non-member State of the European Union, provided that, in the event of a conviction, the penalty has been incurred or is currently being executed or cannot be executed according to the laws of the State of Convict;
4° if the European arrest warrant has been issued for the purposes of enforcement of a penalty or a security measure, when the person concerned is Belgian or resides in Belgium and the competent Belgian authorities undertake to execute this penalty or security measure in accordance with Belgian law;
5° when the European arrest warrant concerns offences that:
- were committed in whole or in part in Belgian territory or in a place assimilated to its territory;
- were committed outside the territory of the issuing Member State and Belgian law does not authorize the prosecution of the same offences committed outside Belgian territory.
Art. 7. When the European arrest warrant has been issued for the purposes of enforcement of a penalty or security measure imposed by a default decision, and if the person concerned has not been personally cited or otherwise informed of the date and place of the hearing that led to the decision rendered by default, the surrender may be subject to the condition that the judicial issuing authority give assurances deemed to be sufficient to guarantee the person who has made a decision
The existence of a provision in the law of the issuing State which provides for an appeal and the indication of the conditions for the exercise of that remedy, from which it appears that the person may actually exercise it must be considered sufficient assurances within the meaning of paragraph 1.
Art. 8. When the person who is the subject of a European arrest warrant for the purposes of prosecution is Belgian or resides in Belgium, the handover shall be subordinated to the condition that the person, after being tried, be returned to Belgium to suffer the penalty or the security measure that would be imposed against him in the issuing State.
Section 2. - The enforcement procedure
Sub-Section 1^er. - The arrest.
Art. 9. § 1^er. A report pursuant to the provisions of Article 95 of the Schengen Agreement of 19 June 1990 on the phasing out of common border controls is a European arrest warrant.
§ 2. As long as the report does not contain all the information required by the European arrest warrant, the report must be followed by a transmission of the original of the European arrest warrant referred to in Articles 2 and 3 or a certified true copy.
Art. 10. The wanted person may be arrested on the basis of the report referred to in Article 9 or on the production of a European arrest warrant. The arrest is subject to the conditions of section 2 of the Act of 20 July 1990 on preventive detention.
Sub-Section 2. - The order of the investigating judge
Art. 11. § 1^er. Within twenty-four hours after the actual deprivation of liberty, the person concerned shall be presented to the examining magistrate, who shall inform him:
1° of the existence and content of the European arrest warrant;
2° of the opportunity offered to consent to its surrender to the judicial issuing authority;
3° of the right to choose a lawyer and an interpreter. Counsel's assistance follows the relevant Belgian law rules. The same applies to the possible assistance of an interpreter.
This information is referred to in the transcript.
§ 2. The investigating judge then hears the person concerned about the fact that he or she is being detained and his or her observations on this matter.
§ 3. At the end of the hearing, the examining magistrate may order the detention or detention, on the basis of the European arrest warrant and taking into account the factual circumstances referred to in the arrest warrant and those invoked by the person.
§ 4. The examining magistrate may, on his or her own motion, upon requisition of the public prosecutor or at the request of the person concerned, leave the person in liberty by imposing on him or her to respect one or more conditions, until the final decision on the execution of the European arrest warrant is reached.
These conditions must be of a nature to ensure that the person concerned does not commit new crimes or offences, does not subtract from the action of the justice, nor can he or she remove evidence or collusion with third parties.
During the proceedings, the investigating judge may, on his or her own motion or on the requisition of the King's Prosecutor, impose one or more new conditions, remove, modify or extend, in whole or in part, conditions already imposed. It may dispense from the observation of all conditions or some of them.
The data subject may request the withdrawal or modification of all or part of the conditions imposed; it may also ask to be exempted from the conditions or some of them.
When conditions are not observed, the examining magistrate may issue a warrant of arrest, under the conditions laid down in the Act of 20 July 1990 on preventive detention.
§ 5. The examining magistrate may also require the prior and full payment of a bail, to which he sets the amount.
The bond is paid to the Caisse des dépôts et consignations, and the Public Prosecutor's Office, in the light of the receipt, enforces the release order.
The bail is returned after the final decision on the execution of the European arrest warrant, if the person concerned has remained permanently in Belgian territory during the proceedings.
Bailing is granted to the State as soon as the person concerned, without a legitimate excuse, has left the Belgian territory without informing the Belgian judicial authorities or has escaped the execution of the European arrest warrant.
§ 6. If the person is released by application of §§ 4 or 5, the examining magistrate immediately informs the public prosecutor who, in turn, informs the judicial authority of issue.
§ 7. The reasoned order is served to the person concerned within 24 hours referred to in § 1^er. It is not subject to appeal.
Art. 12. § 1^er. Immediately after the first hearing, the person concerned may communicate freely with his lawyer.
§ 2. If the person concerned has not chosen a lawyer, or chooses none at the end of the hearing provided for in Article 11, the investigating judge shall inform the College's staff member or his delegate who shall appoint a lawyer to be appointed as an ex officio officer in accordance with Article 508/21 of the Judicial Code.
Sub-Section 3 The procedure for consent of the person
Art. 13. § 1^er. If the person concerned consents to his or her surrender, such consent shall be given to the Crown Prosecutor in the presence of his or her lawyer, after she has been informed of the consequences of his or her consent, including the fact that he or she causes the waiver of the speciality rule.
§ 2. It's a report. The minutes are written in such a way that the person concerned voluntarily consents and is fully aware of the consequences that result.
§ 3. In the event of the consent of the person concerned and subject to the control carried out by the investigating judge on the basis of article 14, the King's prosecutor decides to execute the European arrest warrant.
§ 4. Consent may intervene at any stage of the proceedings. It may be revoked by the person until the effective handover.
Sub-Section 4. - Decision on the execution of the European arrest warrant
Art. 14. § 1^er. If, at the hearing referred to in Article 11, the investigating judge finds the existence of a manifest cause to refuse the execution of the European arrest warrant, on the basis of Articles 3 to 6, he immediately makes a reasoned decision of non-execution.
§ 2. The Public Prosecutor ' s Office may appeal the non-execution decision to the Indictment Chamber within 24 hours, which runs from the date of the decision.
§ 3. In the absence of an appeal within twenty-four hours of the decision not to execute the European arrest warrant in accordance with paragraph 1, the order made under Article 11, shall cease its effects.
§ 4. Within fifteen days of the appeal, the Indictment Chamber decides on the appeal, the Attorney General, the person concerned assisted or represented by his or her lawyer heard. In order to decide, it shall proceed with the verifications provided for in Article 16, § 1^er.
§ 5. At least 24 hours before the appearance, the place, day and hour of the appearance is indicated in the register referred to in Article 17, § 2, and the Registrar shall give notice, by fax or by registered letter to the position, to the person concerned and his lawyer.
The file is made available to the person concerned and his lawyer during the last working day before the appearance.
This provision may be made available to the person concerned and his or her lawyer in the form of certified copies in accordance with the Registrar.
The file is again available to them during the morning of the day of appearance if the day before was not a working day; in this case, the indictments in the Chamber will take place in the afternoon.
§ 6. The appeal decision is communicated immediately to the Attorney General and is served on the person concerned within 24 hours.
§ 7. The appeal decision may be appealed under the conditions set out in section 18.
Art. 15. If the investigating judge considers that the information provided by the issuing Member State in the European arrest warrant is insufficient to allow the decision on the surrender, he requests the urgent provision of the necessary additional information and may set a deadline for their receipt, taking into account the need to comply with the deadline set out in Article 16, § 1^er.
Art. 16. § 1^er. Within fifteen days of the arrest, the board's board, on the report of the investigating judge, the King's attorney and the person concerned assisted or represented by his lawyer heard, ruled by a reasoned decision on the execution of the European arrest warrant.
In order to decide, the board's room checks whether:
1° the conditions of Article 3 are met;
2° there is no need to apply one of the reasons for refusal under sections 4 to 6;
3° in the case where the European arrest warrant deals with a fact contained in the list of Article 5, § 2, the behaviours, as described in the European arrest warrant, correspond well to those found in this list;
4° the guarantees provided for in articles 7 and 8.
§ 2. At least 24 hours before the appearance, the place, day and time of the appearance is indicated in a special registry held at the Registry and the Registrar shall give notice, by fax or by registered letter to the post, the person concerned and his lawyer.
The file is made available to the person concerned and his lawyer during the last working day before the appearance.
This provision may be made available to the person concerned and his or her lawyer in the form of certified copies in accordance with the Registrar.
The file is again available to them during the morning of the day of appearance if the day before was not a working day; In this case, the board's room appearance is held in the afternoon.
§ 3. The decision on the execution of the European arrest warrant is communicated immediately to the King's Prosecutor and is served on the person concerned within 24 hours. The notice of service shall contain a warning to the person concerned of the right granted to appeal and of the period in which that right must be exercised.
§ 4. The decision on the execution of the European arrest warrant indicates that the person concerned may not be prosecuted, convicted or deprived of liberty for an offence committed before his surrender other than that which has motivated his surrender, in accordance with the provisions of the law of the issuing State taken in accordance with articles 27 and 28 of Framework Decision 2002/584/JAI of 13 June 2002 on the European arrest warrant and the procedures for reorganization between Member States.
§ 5. If the board does not rule within the time limit set out in paragraph ler, the investigating judge orders the release of the person, unless the public prosecutor appeals within 24 hours of the order before the board of indictment in accordance with section 17.
Art. 17. § 1^er. The person concerned and the Public Prosecutor ' s Office may appeal the decision of the Board to the Indictment Chamber. The appeal must be filed within 24 hours, which runs against the Public Prosecutor's Office on the day of the decision and against the person concerned on the day it is served.
§ 2. The appeal is filed by a statement to the court of first instance and registered in an open register.
§ 3. At least 24 hours before the appearance, the place, day and hour of the appearance is indicated in the register referred to in § 2 and the Registrar shall give notice, by fax or by registered letter to the position, the person concerned and his lawyer.
The file is made available to the person concerned and his lawyer during the last working day before the appearance.
This provision may be made available to the person concerned and his or her lawyer in the form of certified copies in accordance with the Registrar.
The file is again available to them during the morning of the day of appearance if the day before was not a working day; in this case, the indictments in the Chamber will take place in the afternoon.
§ 4. Within fifteen days of the statement referred to in § 2, the Indictment Chamber shall rule on the appeal by a reasoned decision, the Attorney General, the person concerned assisted or represented by his or her lawyer heard. In order to decide, it shall proceed with the verifications provided for in Article 16, § 1^erParagraph 2.
If there is no decision within this period, the person concerned shall be released.
§ 5. The appeal decision is communicated immediately to the Attorney General and is served on the person concerned within twenty-four hours. The notice of service shall contain a warning to the person concerned of the right granted to him to obtain in cassation and the term in which he is to be exercised.
Art. 18. § 1. The appeal decision may be appealed by the Public Prosecutor's Office and the person concerned within twenty-four hours, which runs against the Public Prosecutor's Office on the day of the decision and against the person concerned on the day it is served.
§ 2. The file is transmitted to the Registry of the Court of Cassation within 24 hours of the appeal. The means of cassation may be described either in the notice of appeal or in a writing filed on that occasion or in a memorandum to be sent to the Registry of the Court of Cassation no later than the fifth day after the date of the appeal.
§ 3. The Court of Cassation shall rule within fifteen days of the date of the appeal.
§ 4. After a decision of cassation with reference, the board of indictments to which the case is dismissed shall rule within fifteen days from the judgment of the Court of Cassation.
§ 5. If the appeal is rejected, the decision of the indictment board on the execution of the European arrest warrant is immediately enforceable.
Art. 19. § 1^er. When, in specific cases, the European arrest warrant cannot be executed within sixty days of the arrest of the person concerned, the Public Prosecutor's Office shall immediately inform the person concerned and the judicial issuing authority, indicating why. In such cases, the deadline may be extended by 30 days.
§ 2. When, in exceptional circumstances, the final decision on the execution of the European arrest warrant was not taken within 90 days from the date of the arrest of the person, the Public Prosecutor shall inform the Federal Prosecutor, who in turn informs Eurojust, specifying the reasons for the delay.
§ 3. The deadlines provided by articles 16, § 1^er, 17, § 4, and 18, § 3 are suspended during the time of the surrender granted to the request of the person concerned or his lawyer.
Art. 20. § 1^er. The order of the investigating judge under Article 11 shall be effective until the decision on the execution of the European arrest warrant has become final.
§ 2. The investigating judge may, under the conditions provided for in Article 11, §§ 4 to 6, and after hearing the person concerned assisted or represented by his lawyer, release the person concerned at any time of the proceedings, until the decision to execute the European arrest warrant has become final.
§ 3. If the investigating judge fails to decide within 15 days of a request for release of the person concerned or if the request is rejected, the person concerned may apply to the board of the board.
§ 4. The final decision to carry out the European arrest warrant constitutes the title of detention until the person's actual surrender to the issuing State.
However, the final decision to execute the European arrest warrant may provide for the release under conditions or on bail of the person concerned under the conditions laid down in Article 11, §§ 4 and 5, and until the person is effectively released to the issuing State.
Sub-Section 5. - Communication of the decision
Art. 21. The Public Prosecutor's Office immediately means the final decision on the execution of the European arrest warrant to the person concerned and the issuing judicial authority.
Sub-Section 6. - The surrender of the wanted person
Art. 22. § 1^er. The Public Prosecutor's Office agrees to a date of surrender, as soon as possible, with the competent authority of the issuing State. This date is at least ten days after the decision to execute the European arrest warrant. The data subject is immediately informed.
§ 2. In case of force majeure preventing the surrender of the person concerned within the time limit provided in § 1^er, the public prosecutor immediately contacts the competent authority of the issuing State to agree on a new date of delivery. This new date comes no later than 10 days after the expiry of the period referred to in § 1^er. The data subject is immediately informed of the new date.
§ 3. The discount takes place within ten days of the new agreed date.
§ 4. Upon expiry of the deadlines referred to in § 1^er at 3, if the person is still in custody, she is released.
Art. 23. § 1^er. The Public Prosecutor's Office may, in exceptional circumstances, temporarily overwhelm the surrender for serious humanitarian reasons, for example, where there are valid reasons to believe that it would clearly endanger the life or health of the person concerned.
§ 2. The execution of the European arrest warrant takes place as soon as these reasons have ceased to exist. The Public Prosecutor's Office immediately informs the judicial issuing authority and agrees with it a new date of surrender. This new date occurs no later than 10 days. The data subject is immediately informed.
§ 3. In this case, the discount takes place within ten days of the new agreed date.
§ 4. Upon the expiry of the period referred to in § 3, if the person is still in detention, the person is released.
Art. 24. § 1^er. By derogation from what is provided for in Article 22, the Public Prosecutor's Office may defer the surrender of the person concerned so that it may be prosecuted in Belgium or, if it has already been convicted, so that it may serve a sentence incurred by reason of a fact other than that covered by the European arrest warrant.
The execution of the European arrest warrant takes place as soon as these reasons have ceased to exist. The public prosecutor immediately informs the judicial authority of the issuing State and agrees with it a new date of surrender. This new date occurs no later than 10 days.
In this case, the discount takes place within 10 days of the new agreed date.
Upon the expiry of the period referred to in paragraph 3, if the person is still in custody, the person is released.
§ 2. Instead of deferring the surrender, the Public Prosecutor's Office may temporarily hand over the person concerned to the issuing State under conditions to be determined jointly with the competent authority of the issuing State.
Art. 25. All information relating to the duration of the detention of the person concerned under the execution of the European arrest warrant is transmitted by the Public Prosecutor's Office to the issuing judicial authority at the time of delivery.
Section 3. - Delivery of objects
Art. 26. § 1^er. At the request of the judicial issuing authority or its own initiative, the board's board shall decide whether to seize and remit the objects:
1° that may be used as evidence or
2° that were acquired by the person concerned because of the offence.
The board shall order the restitution of objects that do not relate directly to the fact imputed to the person concerned and shall decide, if any, on the claim of third-party holders or other entitled persons.
§ 2. The surrender of the objects referred to in § 1^er is carried out even if the European arrest warrant cannot be executed as a result of the death or escape of the data subject.
§ 3. When the objects referred to in § 1^er may be seized or forfeited on Belgian territory, the Belgian judicial authorities concerned may, if the objects are required for the purposes of an ongoing criminal procedure, keep them temporarily or hand them over to the issuing Member State subject to restitution.
Section 4. - Special cases
Art. 27. ler. When the person who is the subject of a European arrest warrant has previously been extradited to Belgium from a State outside the European Union and that this person is protected by the provisions relating to the speciality of the arrangement under which it has been extradited, the Public Prosecutor's Office shall promptly inform the person concerned and the Minister of Justice, so that the latter shall immediately request the consent of the State from which the person concerned has been extradited.
§ 2. The deadlines referred to in sections 16 to 19 begin to run until the day the speciality rules cease to apply.
Art. 28. § 1^er. When the person concerned enjoys a privilege or immunity in Belgium, the deadlines referred to in Articles 16 to 19 begin to run only if and from the day that such privilege or immunity has been lifted.
§ 2. When the lifting of privilege or immunity falls under a Belgian authority, the Public Prosecutor's Office shall forthwith request that authority.
§ 3. When the lifting of privilege or immunity falls under an authority of another State or an international organization, the examining magistrate shall suspend proceedings pending the lifting of privilege or immunity on the initiative of the issuing judicial authority. He informs the judicial issuing authority.
Art. 29. § 1^er. If several Member States have issued a European arrest warrant against the same person, the King's Prosecutor shall inform the Federal Prosecutor and seize the Council Chamber so that it may proceed with the choice of the European arrest warrant, which shall be continued.
§ 2. The Council Chamber shall rule within fifteen days, on the advice of the Federal Prosecutor and taking due account of all the circumstances and, in particular, of the relative gravity and place of commission of the offences, of the respective dates of the European arrest warrants and of the fact that the warrant has been issued for the prosecution or enforcement of a sentence or deprivation of liberty.
§ 3. The Federal Prosecutor may request Eurojust's opinion on the choice to be made.
§ 4. The Public Prosecutor's Office immediately communicates to the various judicial authorities issuing the decision on the choice of European arrest warrant, which will be continued.
Art. 30. § 1^er. In the event of a conflict between a European arrest warrant and an extradition request submitted by a third country, the Public Prosecutor's Office shall promptly inform the Federal Prosecutor and the Government, with the communication of the comments of the examining magistrate, so that the Government may decide whether to give priority to the European arrest warrant or the extradition request.
§ 2. The decision shall be taken, on the advice of the Federal Prosecutor and the observations of the examining magistrate, within thirty days of the information by the Public Prosecutor's Office, taking due account of all the circumstances, in particular those referred to in article 29, paragraph 2, as well as those referred to in the applicable convention.
§ 3. The deadlines referred to in Articles 16 to 19 begin to run until the date of the decision referred to in § 2.
§ 4. If the government decides that it is necessary to give priority to the European arrest warrant pursuant to § 1^er but that the competent judicial authority decides not to execute the latter, the Public Prosecutor's Office shall inform the Government of the latter in order to allow the prosecution of the extradition proceedings.
Art. 31. § 1^er. If, after surrender of the person, the competent authority of the issuing State wishes to pursue, condemn or deprive the person of liberty for an offence committed before the surrender other than that which has motivated the surrender, the board which has given the person shall decide under the conditions provided for in article 16 of this Act.
To this end, the person being given will be able to be represented by his lawyer in Belgium if it is not possible for him to appear personally before the Belgian judge.
§ 2. The decision shall be taken no later than 30 days after receipt of the application.
CHAPTER IV. - The issuance of a European arrest warrant by a Belgian judicial authority
Art. 32. § 1^er. Where there is reason to believe that a person sought for criminal prosecution is in the territory of another Member State of the European Union, the examining magistrate shall issue a European arrest warrant in accordance with the forms and conditions provided for in Articles 2 and 3. The European arrest warrant issued for criminal prosecution can only be issued on the conditions imposed by the Act of 20 July 1990 on pretrial detention.
§ 2. Where there is reason to believe that a person sought for the purpose of carrying out a sentence or a security measure is in the territory of another Member State of the European Union, the Crown Prosecutor shall issue a European arrest warrant in accordance with the forms and conditions provided for in Articles 2 and 3.
If, in this case, the penalty or the security measure were imposed by a default decision, and if the person sought was not personally cited or otherwise informed of the date and place of the hearing that led to the default decision, the European arrest warrant indicates that the person sought will have the opportunity to object to Belgium and be tried in its presence.
Art. 33. § 1^er. The European arrest warrant is established in the forms prescribed in the annex to this Act.
§ 2. When the place where the person is located is known, the European arrest warrant may be sent directly to the enforcement judicial authority.
§ 3. The wanted person may, in any case, be reported in the Schengen Information System.
§ 4. If the competent judicial enforcement authority is not known, the necessary research may be carried out through the points of contact of the European Judicial Network in order to obtain this information from the enforcement State.
§ 5. The transmission of the European arrest warrant can be made by the following routes:
1st priority by the Schengen Information System;
2° through the secure telecommunications system of the European judicial network;
3° if it is not possible to use the Schengen Information System by Interpol services;
4° by any other safe means to obtain a written trace of it, under conditions allowing the execution member State to verify its authenticity.
Art. 34. The Public Prosecutor's Office or, where applicable, the examining magistrate may, at any time, transmit all additional information relevant to the enforcement authority.
Art. 35. When the person sought is granted a privilege or immunity in the enforcement State, and the lifting of privilege or immunity falls under an authority of another State other than that of execution or an international organization, the Public Prosecutor's Office shall inform the Minister of Justice of the matter so that Belgium may apply to the State or the international organization concerned.
Art. 36. Any period of detention resulting from the execution of a European arrest warrant is deducted from the total duration of deprivation of liberty to be suffered in Belgium as a result of the imposition of a sentence or measure of deprivation of liberty.
Art. 37. § 1^er. A person who has been handed over on the basis of a European arrest warrant issued by a Belgian judicial authority may not be prosecuted, convicted or deprived of liberty for an offence committed before being handed over other than the person who has motivated his release.
§ 2. § 1^er does not apply in the following cases:
1° where, having had the opportunity to do so, the person concerned did not leave the Belgian territory within 45 days of its definitive expansion, or returned to it after leaving it;
2° the offence is not punishable by deprivation of liberty;
3° the criminal procedure does not give rise to the application of a measure restricting its individual freedom;
4° where the person concerned incurs a non-custodial sentence or measure, including a monetary penalty or a subsidiary imprisonment, even if that penalty or measure is likely to restrict his or her individual freedom;
5° where the person concerned has given his or her consent to his or her surrender, if any at the same time as the person has waived the speciality rule;
6° where the person concerned has expressly waived, after surrender, the speciality rule for specific facts prior to surrender. The renunciation is made before the King's attorney and is made a report. It is worded in such a way that the person concerned voluntarily and fully aware of the consequences that result. The person concerned has the right to be assisted by a lawyer.
If, outside of the cases referred to in paragraph 1^er, the investigating judge, the King's prosecutor or the court, as the case may be, wishes to prosecute, condemn or deprive the person surrendered, for an offence committed before the surrender other than that which has motivated the surrender, a request for consent must be submitted to the judicial enforcement authority, accompanied by the information referred to in Article 2, § 4, as well as, if any, a translation.
Art. 38. § 1^er. A person who has been handed over to Belgium under a European arrest warrant may, without the consent of the implementing Member State, be surrendered to another Member State other than the Implementing State under a European arrest warrant issued for an offence committed before its surrender, in the following cases:
1° where, having had the opportunity to do so, the person concerned did not leave the Belgian territory within 45 days of its definitive expansion, or returned to it after leaving it;
2° when the data subject agrees to be handed over to another Member State other than the enforcement State under a European arrest warrant. Consent is given before the King's Attorney and is recorded in a report. It is worded in such a way that the person concerned voluntarily did so and being fully aware of the consequences thereof. The person concerned has the right to be assisted by a lawyer.
§ 2. Apart from the cases referred to in § 1^era request for consent must be submitted to the judicial enforcement authority, together with the information referred to in Article 2, § 4, and a translation.
§ 3. A person who has been handed over to Belgium under a European arrest warrant may not be extradited to a third State without the consent of the competent authority of the Member State from which the person concerned has been handed over.
CHAPTER V. - Transit
Art. 39. § 1^er. Belgium allows the transit through its territory of a wanted person who is the subject of a surrender, provided that he has received information on:
- the existence of a European arrest warrant;
- the identity and nationality of the person subject to the European arrest warrant;
- the nature and legal qualification of the offence;
- description of the circumstances of the offence, including the date and place.
§ 2. Where a person who is the subject of a European arrest warrant for prosecution is a Belgian national or resides in Belgium, the transit may be subject to the condition that the person, after being tried, be returned to Belgium to suffer the penalty or the security measure that would be imposed against him in the issuing State. The person concerned is heard on this subject.
§ 3. Where the transit of a national or a person residing in Belgium is requested for the purpose of carrying out a penalty or a security measure, it may be refused if the competent Belgian authorities undertake to enforce that penalty or security measure in accordance with Belgian law. The person concerned is heard on this subject.
Art. 40. § 1^er. The Minister of Justice is the authority responsible for receiving the transit requests and documents necessary for this purpose, as well as any other official correspondence concerning these requests.
§ 2. The transit request and the information provided for in section 39 may be transmitted by any means to maintain a written record of the transit request. The Minister of Justice makes his decision known by the same process.
Art. 41. § 1^er. The use of the scheduled non-stop airway is permitted without formality.
§ 2. However, when a fortuitous landing occurs, sections 39 and 40 are applicable.
Art. 42. Sections 39 and 40 also apply where a transit involves a person who is extradited from a third State to a Member State.
CHAPTER VI. - Final provision
Art. 43. § 1^er. Apart from the cases referred to in section 40, the Federal Public Service Justice shall assist, if requested, the competent judicial authorities for the execution of this Act.
§ 2. The competent judicial authorities shall inform, without delay, the Federal Public Service Justice of any difficulties encountered in the application of this Law, either on the occasion of the execution in Belgium of a foreign European arrest warrant or of the execution by a Member State of a European arrest warrant issued by a Belgian judicial authority.
CHAPTER VII. - Transitional provision
Art. 44. § 1^er. This Act applies to the arrest and surrender of a person sought under a European arrest warrant between Belgium and the Member States of the European Union from 1 January 2004. Requests for surrender prior to that date will continue to be governed by existing instruments in the field of extradition.
In relations with the competent French authorities, this Act will apply to the arrest and surrender of a person sought under a European arrest warrant for acts committed after 1^er November 1993.
In relations with the competent Italian and Austrian authorities, this Act will apply to the arrest and surrender of a person sought under a European arrest warrant for acts committed after 7 August 2002.
§ 2. When a person was arrested before 1^er January 2004 on the basis of a request for provisional arrest for extradition and that the application for extradition was not sent to Belgium before 31 December 2003, the pre-trial detention remains valid and the situation of the person is governed by this Act. The deadlines referred to in Articles 16 to 19 begin to run from 1^er January 2004.
§ 3. In relations with Member States that have not transposed the Framework Decision 2002/584/JAI of the Council of the European Union of 13 June 2002 on the European arrest warrant and the procedures for surrender between Member States, the Law of 15 March 1874 on extraditions or existing instruments in the field of extradition remain applicable.
Promulgation of this law, let us order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 19 December 2003.
ALBERT
By the King:
The Minister of Justice,
Ms. L. ONKELINX
Seal of the state seal:
The Minister of Justice,
Ms. L. ONKELINX
____
Note
(1) References for 2003/2004.
House of Representatives.
51-279 - 2003/2004
Number 1: Bill.
No. 2-5: Amendments.
Number 6: Report.
No. 7: text adopted by the commission.
No. 8: Amendment.
No. 9: Supplementary report.
No. 10: Text adopted by the Commission
No. 11: Text adopted in plenary and transmitted to the Senate.
Full report: 4 December 2003.
Documents of the Senate.
3-395 - 2003/2004
No. 1: Project transmitted by the House of Representatives.
No. 2: Amendments.
Number three: Report.
No. 4: Text corrected by the commission.
No. 5: Amendments.
No. 6: Text adopted in plenary and subject to Royal Assent.
Annales du Sénat : 17 et 18 décembre 2003 .

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