Vice‑President L Bay Larsen,
Presidents of Chambers K Jürimäe (Rapporteur), C Lycourgos, E Regan, F Biltgen, N Piçarra,
Judges PG Xuereb, LS Rossi, I Jarukaitis, A Kumin, N Jääskinen, N Wahl, I Ziemele, J Passer
Advocate General T Ćapeta
The Belgian judicial authorities issued a European arrest warrant (“EAW”), pursuant to Council Framework Decision 2002/584/JHA, for the purpose of enforcing a custodial sentence against the requested person, GN. At the time of her arrest in Italy, the requested person was living with her young child and was pregnant with a second child. She did not consent to her surrender to the Belgian judicial authorities. In the light of her situation, the Court of Appeal, Bologna, requested that the Belgian judicial authorities provide information concerning the detailed arrangements, in Belgium, concerning the detention of mothers of minor children and the care of the children. After no satisfactory response had been received, the court refused to surrender the requested person since it was uncertain whether the Belgian law provided for custodial arrangements that protected the rights of mothers and their young children to an extent that was comparable with the law in Italy. On the appeals by the requested person and the Prosecutor General at the Court of Appeal, the Italian Supreme Court noted that the Framework Decision did not refer to the situation of a mother living with young children as a ground for refusing to execute an EAW. However, the court was uncertain whether the Framework Decision, in particular the principle of mutual trust and recognition by member states set out in article 1(2) and the obligation to respect fundamental rights set out in article 1(3), allowed it to refuse to surrender to the issuing member state a requested person, who was a mother of young children, on the ground that such surrender risked undermining her right to respect for private and family life and the obligation to consider the best interests of her children, as protected, respectively, by article 7 and article 24 of the Charter of Fundamental Rights of the European Union (“the Charter”). In those circumstances, the Italian Supreme Court stayed the proceedings and referred to the Court of Justice of the European Union for a preliminary ruling the question, in essence, whether article 1(2) and (3) of the Framework Decision, read in the light of articles 7 and 24(2) and (3) of the Charter, precluded the executing judicial authority, in this case Italy, from refusing to surrender the person who was the subject of a European arrest warrant on the ground that that person was the mother of young children living with her.
On the reference—
Held, although Framework Decision 2002/584 did not provide that the executing judicial authority could refuse to execute a European arrest warrant (“EAW”) solely on the ground that the requested person was the mother of young children living with her, there was a presumption that the conditions of detention in the issuing member state were appropriate to such a situation, having regard to the principle of mutual trust and recognition between the member states under article 1(2) of the Framework Decision. Also, by virtue of article 1(3) of that Decision, the obligation to take account of the best interests of the child under article 24(2) of the Charter applied to a decision whether to execute the EAW, and the enjoyment by parent and child of each other’s company constituted a fundamental element of family life protected by article 7 of the Charter. It followed that, on the basis of article 1(3) of the Framework Decision, the executing judicial authority could, exceptionally, refuse to surrender the requested person if there was a real risk that execution of the warrant would result in a breach of those fundamental rights. However, a lack of certainty regarding the existence, in the issuing member state, of conditions comparable to those in the executing member state, did not mean that that risk had been established. If the executing judicial authority had evidence indicating that there was such a risk, on account of, inter alia, either systemic or generalised deficiencies in the conditions in the issuing member state of detention of mothers of young children or of the care of the children, that authority had to undertake a two-step assessment to determine: (i) if there was information demonstrating a real risk of breach of the Charter rights on account of such deficiencies, (ii) to what extent those deficiencies were liable to have an impact on the detention conditions of the particular requested person or of the care of their children, so that there was a real risk of a breach of their fundamental rights. If the executing judicial authority considered it did not have all the necessary information, it had to request the issuing judicial authority to urgently provide any supplementary information concerning the detention conditions, which the issuing authority had to provide. Accordingly, article 1(2) and (3) of Framework Decision 2002/584, read in the light of articles 7 and 24(2) and (3) of the Charter, exceptionally, allowed the executing judicial authority to refuse to surrender a requested person on the ground that that person was the mother of young children living with her, where that authority had substantial grounds for believing, based on information, that there was a real risk that the mother and/or children would suffer a breach of their fundamental rights under article 7 or article 24 of the Charter on account of deficiencies in the conditions of detention of such persons in the issuing member state (judgment, paras 37–49, 55, 57, operative part, para 1).
R Ghini, for the requested person, GN.
A Scandellari, deputy public prosecutor, for the Prosecutor General, Court of Appeal, Bologna.
G Palmieri, agent, and S Faraci for the Italian Government.
MZ Fehér and K Szíjjártó, agents, for the Hungarian Government.
MK Bulterman, JM Hoogveld and PP Huurnink, agents, for the Netherlands Government.
K Pleśniak and A Ştefănuc, agents, for the Council of the European Union.
S Grünheid and A Spina, agents, for the European Commission.