Article 24 - The rights of the child
Key facts of the case:
Reference for a preliminary ruling — Police and judicial cooperation in criminal matters — Framework Decision 2002/584/JHA — European arrest warrant — Surrender procedures between Member States — Grounds for mandatory non-execution — Article 3(3) — Minors — Requirement to verify the minimum age at which a minor may be regarded as criminally responsible or assessment, in each individual case, of the additional conditions laid down by the law of the executing Member State in order specifically to prosecute or convict a minor.
Outcome of the case:
In view of all the foregoing, I propose that the questions referred for a preliminary ruling by the Hof van beroep te Brussel (Court of Appeal of Brussels, Belgium) be answered as follows:
4.) will go on to set out why I consider that Article 3(3) of that framework decision, read in the light of Article 24(2) of the Charter of Fundamental Rights of the European Union, ( 4 ) must be interpreted as meaning that the executing Member State may refuse to surrender a minor where, having regard to his age at the time of commission of the offence, no penalty can be imposed on him under the law of that State. On the other hand, the executing Member State must surrender the minor wherever, having regard to his age at the time of commission of the offence, the penalty which may be imposed in the issuing Member State corresponds, in nature and severity, to one which could equally have been imposed in the executing Member State.
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47) This feature of the criminal law relating to minors has such weight that, in my opinion, it is a matter of fundamental rights. Confirmation of this is found in Article 24(2) of the Charter, which 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’.
57) That said, the essential question remains whether, owing to his age, the minor is liable to have a penalty imposed on him. This fundamental question is raised by Article 3(3) of the framework decision, which makes it, if answered in the negative, a ground for mandatory refusal of surrender. That provision ensures absolute respect on the part of all Member States for one of the fundamental concepts of the law relating to minors. In so doing, it observes the fundamental right deriving inter alia from Article 24(2) of the Charter.
62) Accordingly, for all the foregoing reasons, I consider that Article 3(3) of Framework Decision 2002/584, read in the light of Article 24(2) of the Charter, must be interpreted as meaning that the executing Member State may refuse to surrender a minor where, owing to his age at the time of commission of the offence, no penalty can be imposed on him under the law of that State. On the other hand, the executing Member State must surrender the minor whenever, having regard to his age at the time of commission of the offence, the penalty which could be imposed in the issuing Member State corresponds, in nature and severity, to one which could equally have been imposed in the executing Member State.
64) In view of all the foregoing, I propose that the questions referred for a preliminary ruling by the Hof van beroep te Brussel (Court of Appeal of Brussels, Belgium) be answered as follows: