Since July 2014, it has been bar to extradition under accusation EAWs if the requesting state has failed to make the relevant decisions. The aim is to avoid extraditees facing long periods of pre-trial detention, waiting in custody whilst the requesting state continues to investigate the offence and possibly not take it trial at all. But the High Court has yet to consider which are the relevant decisions in Belgium.

Section 12A

Section 12A of the Extradition Act 2003, sets out a two-stage process. First, the Requested Person has to show “reasonable grounds to believe” that the requesting state has not already decided to charge them (i.e. alleged an offence) or to put them on trial and, if not, this is not just because the Requested Person is in the UK. If that stage is passed, the requesting state has to prove to the criminal standard that the decisions have in fact been made or, if not, the only reason is because the Requested Person is in the UK.

However, it has not been simple to determine which decisions are the relevant ones, as other jurisdictions have completely different criminal procedures. The explanatory note encourages the courts to continue to take a “cosmopolitan” approach, and the High Court has been forced to consider the details of foreign legislation.

Belgian procedure

In Belgium, there are three decision-makers involved in pre-trial procedure. The prosecutor will send the case to an Investigating Magistrate (juge d’instruction), who is the only one with the power to issue a warrant (as there will need to be in every EAW case). The Investigating Magistrate can then issue both a domestic warrant under art. 34, Act on Pre-Trial Detention 1990 if there are “serious indications of guilt” (art. 3) and an EAW.

The Investigating Magistrate can question the suspect before notifying them that the investigation is over and the case has been sent to the chambre du conseil (Art. 127, Belgian Procedural Code), which decides whether the case will proceed to trial and, if so, in which court it will be heard.

Comparison with Italy and Germany

There is currently no High Court decision about which of the above decisions may constitute the equivalent of a decision to charge or to try in England and Wales. There is a strong argument that the decision to charge is made by the Investigating Magistrate and the decision to try by the chamber du conseil.

However, the High Court has already made interesting decisions in respect of Italy and Germany. In Doci v Italy, the court decided that a decision to request pre-trial detention under the Italian “immediate” procedure was a decision to charge (para. 36) and the decision of the judge (“GIP”) to commit the case for trial is a decision to try.

In Din v Germany, the court held that a decision to lodge an indictment by a prosecutor was a decision to try, even though a court similar to the Belgian chambre du conseil would still have to decide whether to open the main proceedings.

Is Belgium different?

But what is different about the Belgian framework is that the Investigating Magistrate appears to be able to send the case to the chambre du conseil even in the Requested Person’s absence, unlike the Italian “immediate” procedure which cannot take place without him or her being there.

The High Court’s previous interpretation of section 12A has meant it has not proved as strong a bar to extradition as many had hoped. Nevertheless, with the correct set of facts, the Belgian system may yet provide a foothold for some Belgian Requested Persons to resist a premature extradition and avoid a long wait for trial.

Mark is a barrister specialising in crime, extradition, family and civil work. He appeared regularly in the High Court (Admin) in relation to extradition appeals, as well as in criminal matters in the Crown Court for both the prosecution and defence. He is also experienced in proceeds of crime and prison proceedings.