Overview
Belgium is an EU member state and part of the European Arrest Warrant system. The legal basis is Framework Decision 2002/584/JHA and Sections 78 ff. IRG. Extradition traffic between Germany and Belgium is statistically significant — close to the border (North Rhine-Westphalia, Rhineland-Palatinate, Saarland), with regular cases from white-collar crime, drug crime and violent crime.
Two country-specific points of review shape the defense: first, detention conditions — the OLG Cologne and other Higher Regional Courts have repeatedly required concrete assurances following the ECtHR judgment of 16 May 2017 and the CPT report of 8 Mar 2018. Second, the problem of judgments in absentia: Belgium is known for judgments in absentia (jugement par défaut), which often provide an insufficient basis for EAWs.
The leading authority is BVerfG 2 BvR 2009/22 of 15 Feb 2023: the minimum particulars required in the EAW under Section 83a IRG are a mandatory precondition of admissibility. An insufficient description of the alleged offense leads to setting the decision aside.
Legal basis
Extradition to Belgium is governed primarily by Framework Decision 2002/584/JHA on the European Arrest Warrant, transposed in the Eighth Part of the IRG (Sections 78 ff. IRG). On the Belgian side the Loi du 19 décembre 2003 relative au mandat d'arrêt européen applies.
On the German side, the Higher Regional Courts are competent in the admissibility proceedings (Section 29 IRG); the granting decision is made by the General Public Prosecutor's Office (Section 79(2) IRG). On the Belgian side, the juge d'instruction issues the national arrest warrant; the EAW is issued by the public prosecutor's office attached to the cour d'appel. The courts of review are the chambre des mises en accusation and the Cour de cassation.
For German citizens, Article 16(2) of the Basic Law in conjunction with Section 80 IRG applies. Belgian arrest warrants require indices sérieux (plausible grounds for suspicion); the minimum penalty is one year of imprisonment.
Country-specific issues in Belgium
BVerfG, decision of 15 Feb 2023 — 2 BvR 2009/22: The Federal Constitutional Court set aside the decision of the OLG Düsseldorf of 28 Oct 2022 (III-3 AR 56/22) — the requested person's right to effective legal protection under Article 47(1) of the EU Charter had been violated. Core finding: the minimum particulars under Section 83a IRG are a mandatory precondition of admissibility. In the case of organized or serial offenses, the structures, the requested person's involvement and the nature of the offenses must be presented in sufficiently delimited form.
ECtHR judgment of 16 May 2017: Belgium was convicted on account of inadequate detention conditions — among other things, because of insufficient cell size and sanitary shortcomings in Antwerp and Merksplas (under 3 m² per detainee, lack of running water, forced exposure to passive smoking).
CPT report of 8 Mar 2018: Considerable differences between facilities — the new prison at Leuze-en-Hainaut meets standards, while older facilities show overcrowding and outdated infrastructure.
Judgments in absentia (jugement par défaut): Belgian law recognizes the opposition as a remedy with a 15-day time limit running from service. The Higher Regional Court of Zweibrücken (Palatinate) refused extradition for the enforcement of a Mechelen judgment in absentia on account of a bar to extradition — leading authorities: BVerfG NJW 1991, 1411; BGHSt 47, 120. Section 83 IRG requires an assurance of a retrial.
Remedies against extradition detention: In Belgium the defense has no suspensive remedy — detention is reviewed within fixed time limits by the chambre du conseil and the chambre des mises en accusation.
Detention conditions and the human-rights review
Detention conditions in Belgian prisons display structural deficiencies. By judgment of 16 May 2017, the ECtHR convicted Belgium on account of insufficient cell size, a lack of basic sanitary facilities and forced exposure to passive smoking in the Antwerp and Merksplas facilities. The CPT report of 8 Mar 2018 confirmed the considerable differences between modern and older facilities.
Overcrowding affects in particular the maisons d'arrêt in Brussels, Liège, Namur and Antwerp. Newer facilities such as Leuze-en-Hainaut and Marche-en-Famenne offer standards meeting the European minimum requirements.
In defense practice, in Belgium EAW cases — particularly where the person is to be assigned to overcrowded facilities — concrete assurances must be obtained from the Belgian authorities: the specific facility, cell floor space, occupancy, sanitary facilities, and smoking/non-smoking accommodation. Following the ECtHR case law, the OLG Cologne has consistently made such inquiries.
Lines of defense
The defense in Belgium EAW cases follows a multi-track pattern:
- Section 83a IRG (BVerfG 2 BvR 2009/22 of 15 Feb 2023): review of the formal minimum particulars. In the case of serial or organized offenses, substantiated submissions on the offense structures are required — insufficient particulars lead to inadmissibility.
- Aranyosi/Căldăraru (detention conditions): a two-stage review — ECtHR 16 May 2017 and CPT 8 Mar 2018 as an objective factual basis; an individual review of the facility specifically envisaged.
- Muršić v. Croatia (ECtHR, 7334/13): the 3 m² threshold.
- Section 83 IRG (judgments in absentia): in the case of a jugement par défaut, an assurance of an effective retrial (BVerfG NJW 1991, 1411; BGHSt 47, 120). Standard submission: the practical availability of the opposition within 15 days.
- Section 80 IRG (extradition of Germans): review of the connection to the place of the offense and the assurance of return.
- Dual criminality: outside the list catalogue of Article 2(2) of the EAW Framework Decision, a substantive review — in particular in the case of specifically Belgian offenses.
- Rule of specialty (Section 83h IRG): limitation of prosecution to the offenses granted.
- Assurance regarding the specific prison: following ECtHR 16 May 2017 and CPT 2018, regularly a substantiated objection.
- Constitutional complaint with an urgent application (Section 32 BVerfGG): prospects of success are substantial in the case of formal Section 83a IRG deficiencies following 2 BvR 2009/22; where detention conditions are challenged, they are likewise not negligible.
Legal representation in Belgian extradition proceedings
An extradition case is a specialized mutual-legal-assistance procedure that goes beyond classic criminal defense. Engaging a defense lawyer specialized in extradition law at an early stage is regularly decisive — not only after the formal extradition arrest warrant has been issued, but already from the moment of an arrest based on an Interpol notice, an SIS alert or a European Arrest Warrant.
As a Certified Specialist in Criminal Law with a focus on extradition law, I advise and represent affected persons nationwide before the competent Higher Regional Courts and in constitutional complaint proceedings before the Federal Constitutional Court.