Tincu v Public Prosecutor Of Liege (Belgium)

A public prosecutor may qualify as an issuing judicial authority for European arrest warrant purposes where the prosecutor is sufficiently independent of the executive. EU law does not require the prosecutor to exercise an individual discretion in every conviction-warrant case, provided that the statutory conditions for issuing the warrant must be assessed and effective judicial protection exists at least at one relevant stage.

In an Article 3 ECHR extradition challenge, generic evidence about prison conditions must be assessed alongside reliable, individualised evidence concerning the requested person. Clear and specific assurances about detention conditions may rebut an asserted real risk where there is no evidential basis for rejecting them.

The applicant sought permission to appeal against District Judge Coleman’s order for his extradition to Belgium to serve a two-year sentence imposed in absentia for theft of electric cabling.

Before the district judge, the applicant relied only on Article 3 ECHR and challenged Belgian prison conditions. On appeal he relied on fresh evidence and added a challenge under section 2(2) of the Extradition Act 2003, contending that the Belgian public prosecutor was not a judicial authority within Article 6 of the Framework Decision 2002/584. The central issues were whether there was a real risk of Article 3 ill-treatment and whether the conviction warrant was validly issued.

1. Permission refused. The court refused permission to appeal on both grounds and certified that the decision could be cited in future cases.
2. Issuing judicial authority. The concept of an issuing judicial authority under Article 6 of the Framework Decision is autonomous in EU law. It is not confined to judges or courts and may include prosecutors, but the relevant prosecutor must be sufficiently independent of the executive. The Belgian constitutional and statutory material, together with the assurances provided, showed no real possibility of executive interference in the prosecutor’s decision to issue this conviction warrant.
3. The judgment in OG and PI did not establish that a judicial decision was required at both stages of the European arrest warrant process. It required effective judicial protection at least at one of the two levels. Here, the warrant was based on a conviction and sentence imposed by a court, and the prosecutor had to assess statutory criteria, including the conviction, the sentence, the applicant’s absence from Belgium and the absence of opposition. EU law did not require an individual prosecutorial discretion in every case, and the minimum four-month sentence threshold supplied by Belgian law addressed proportionality.
4. Article 3 ECHR. The relevant legal principles were not disputed. The court placed particular weight on evidence concerning the conditions this applicant would actually face, rather than predominantly generic or historic material. The Belgian authorities gave specific assurances concerning transfer to Lantin prison, individual cell space, sanitary facilities and out-of-cell activities. There was no evidential basis for going behind those assurances.
5. The enactment of Belgian legislation safeguarding prisoners’ minimum rights during industrial action was a material development. Taking that legislation, the individual assurances and the evidence as a whole into account, the applicant had not displaced the presumption that Belgium would comply with Article 3 ECHR.

• High Court (Administrative Court): permission to appeal against District Judge Coleman’s extradition order was refused. The court also certified the decision for citation in future cases.
• District Judge Coleman: on 19 October 2018, ordered extradition under section 21(3) of the Extradition Act 2003 and rejected the Article 3 challenge.