Article 7 - Respect for private and family life
Article 24 - The rights of the child
Key facts of the case:
Reference for a preliminary ruling – Judicial cooperation in criminal matters – European arrest warrant – Framework Decision 2002/584/JHA – Article 1(3) – Article 15(2) – Surrender procedure between Member States – Grounds for non-execution – Charter of Fundamental Rights of the European Union – Article 7 – Respect for private and family life – Article 24(2) and (3) – Taking into consideration the best interests of the child – Right of every child to maintain on a regular basis a personal relationship and direct contact with both parents – Mother of young children living with her.
Outcome of the case:
On those grounds, the Court (Grand Chamber) hereby rules:
Article 1(2) and (3) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, read in the light of Article 7 and Article 24(2) and (3) of the Charter of Fundamental Rights of the European Union,
must be interpreted as precluding the executing judicial authority from refusing to surrender the person who is the subject of a European arrest warrant on the ground that that person is the mother of young children living with her, unless, first, that authority has available to it information demonstrating that there is a real risk of breach of that person’s fundamental right to respect for her private and family life enshrined in Article 7 of the Charter of Fundamental Rights and of disregard for the best interests of her children, as protected by Article 24(2) and (3) of that charter, on account of systemic or generalised deficiencies in the conditions of detention of mothers of young children and of the care of those children in the issuing Member State, and second, there are substantial grounds for believing that, in the light of their personal situation, the persons concerned will run that risk on account of those conditions.
19 By judgment of 15 October 2021, the Corte d’appello di Bologna (Court of Appeal, Bologna) refused to surrender GN to the Belgian judicial authorities and ordered her immediate release. According to that court, in the absence of any response from the Belgian judicial authorities to its questions, it was uncertain that the legal order of the issuing Member State provides for custodial arrangements comparable to those of the executing Member State, which protect the mother’s right not to be deprived of her relationship with her children and her right to care for them, and which ensure that children receive the necessary maternal and family assistance, as guaranteed by the Italian Constitution and by Article 3 of the Convention on the Rights of the Child and Article 24 of the Charter.
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23 That said, according to the referring court, the European arrest warrant is a matter that has been fully harmonised. In those circumstances, that court is uncertain whether Framework Decision 2002/584 prohibits the executing judicial authority from refusing to execute the European arrest warrant in respect of a mother of young children where her surrender is incompatible with her right to respect for private and family life as well as with the best interests of her children. If that is the case, the referring court is uncertain whether that framework decision is compatible with Article 7 and Article 24(3) of the Charter, read in the light, in particular, of the case-law of the European Court of Human Rights on Article 8 ECHR.
31 By its first question, the referring court asks, in essence, whether Article 1(2) and (3) of Framework Decision 2002/584, read in the light of Article 7 and Article 24(2) and (3) of the Charter, must be interpreted as precluding the executing judicial authority from refusing to surrender the person who is the subject of a European arrest warrant on the ground that that person is the mother of young children living with her.
32 In the light of the referring court’s statements, the first question should be understood as being based on the premiss that, in the case in the main proceedings, the person who is the subject of the European arrest warrant has two young children living with her, in whose interests it is to continue to maintain on a regular basis a personal relationship and direct contact with their mother. In that context, that court is uncertain whether it may refuse to execute that arrest warrant, on the basis of Article 1(3) of Framework Decision 2002/584, read in conjunction with Article 7 and Article 24(2) and (3) of the Charter, on the ground that that person’s surrender could deprive her of such a relationship and such contact with her children.
40 In that regard, it must be borne in mind that, first, Article 7 of the Charter enshrines the right of every person to respect for his or her private and family life, and second, Article 24(2) of the Charter provides that, in all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.
41 As is apparent from Article 3(1) of the Convention on the Rights of the Child, to which the explanations relating to Article 24 of the Charter expressly refer, Article 24(2) of the Charter also applies to decisions which, like a European arrest warrant issued in respect of the mother of young children, are not addressed to those children but have significant consequences for them (see, to that effect, judgment of 11 March 2021, État belge (Return of the parent of a minor), C‑112/20, EU:C:2021:197, paragraphs 36 and 37).
42 The mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life (judgment of 14 December 2021, Stolichna obshtina, rayon ‘Pancharevo’, C‑490/20, EU:C:2021:1008, paragraph 61). Article 24(3) of the Charter states that every child has the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests. As asserted by the Procuratore generale presso la Corte d’appello di Bologna (Prosecutor General at the Court of Appeal, Bologna), the Council of the European Union and the European Commission, determining the best interests of the child comes within the scope of an assessment that must take account of all the specific circumstances (see, by analogy, judgments of 26 March 2019, SM (Child placed under Algerian kafala), C‑129/18, EU:C:2019:248, paragraph 73; of 14 January 2021, Staatssecretaris van Justitie en Veiligheid (Return of an unaccompanied minor), C‑441/19, EU:C:2021:9, paragraphs 46 and 60; and of 11 March 2021, État belge (Return of the parent of a minor), C‑112/20, EU:C:2021:197, paragraph 27).
43 While it is primarily for each Member State, in order to ensure the full application of the principles of mutual trust and mutual recognition which underpin the operation of the European arrest warrant mechanism, to ensure, subject to final review by the Court, that the requirements inherent in the fundamental rights enshrined in Article 7 of the Charter and Article 24(2) and (3) thereof are safeguarded, by refraining from any measure capable of undermining them, the existence of a real risk that the person in respect of whom a European arrest warrant has been issued and/or his or her children would, if that person is surrendered to the issuing judicial authority, suffer a breach of those fundamental rights is nevertheless capable of permitting the executing judicial authority to refrain, exceptionally, from giving effect to that European arrest warrant on the basis of Article 1(3) of Framework Decision 2002/584 (see, to that effect, judgments of 22 February 2022, Openbaar Ministerie (Tribunal established by law in the issuing Member State), C‑562/21 PPU and C‑563/21 PPU, EU:C:2022:100, paragraph 46, and of 31 January 2023, Puig Gordi and Others, C‑158/21, EU:C:2023:57, paragraphs 72 and 96).
57 In the light of all the grounds set out above, the answer to the first question is that Article 1(2) and (3) of Framework Decision 2002/584, read in the light of Article 7 and Article 24(2) and (3) of the Charter, must be interpreted as precluding the executing judicial authority from refusing to surrender the person who is the subject of a European arrest warrant on the ground that that person is the mother of young children living with her, unless, first, that authority has available to it information demonstrating that there is a real risk of breach of that person’s fundamental right to respect for her private and family life enshrined in Article 7 of the Charter and of disregard for the best interests of her children, as protected by Article 24(2) and (3) of the Charter, on account of systemic or generalised deficiencies in the conditions of detention of mothers of young children and of the care of those children in the issuing Member State, and second, there are substantial grounds for believing that, in the light of their personal situation, the persons concerned will run that risk on account of those conditions.
