Case C‑261/22

GN

v

Procuratore generale presso la Corte di appello di Bologna

(Request for a preliminary ruling from the Corte suprema di cassazione)

Judgment of the Court (Grand Chamber) of 21 December 2023

(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)

1. Questions referred for a preliminary ruling – Expedited preliminary ruling procedure – Conditions – Circumstances justifying swift processing – None – Large number of persons or legal situations potentially concerned by the questions referred – Uncertainty as regards the consequences for the custody of the applicant’s children arising from the decision bringing the main proceedings to an end

   (Statute of the Court of Justice, Art. 23a; Rules of Procedure of the Court, Art. 105(1))

   (see paragraphs 28-30)

2. Judicial cooperation in criminal matters – Framework decision on the European arrest warrant and the surrender procedures between Member States – Surrender of convicted or suspected persons to the issuing judicial authorities – Obligation to respect fundamental rights and fundamental legal principles – Right to respect for private and family life – Obligation to take into consideration the best interests of the child – 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 – Real risk of breach of the fundamental rights of the persons concerned on account of those conditions – Presumption that those rights are respected – Verification by the executing judicial authority – Scope

   (Art. 4(3), first subpara., TEU; Charter of Fundamental Rights of the European Union, Arts 7 and 24(2) and (3); Council Framework Decision 2002/584, as amended by Framework Decision 2009/299, Art. 1(2) and (3))

   (see paragraphs 38-46, 52, 53, 55, 57, operative part)

Résumé

In June 2020, the Belgian authorities issued a European arrest warrant (EAW) in respect of GN for the purpose of enforcing a custodial sentence handed down for the offences of trafficking in human beings and facilitating illegal immigration, committed in 2016 and 2017.

On 2 September 2021, GN was arrested in Bologna (Italy). At the time of her arrest, she was pregnant and in the company of her son who was under three years of age and who lived with her. In the light of her situation, the Corte d’appello di Bologna (Court of Appeal, Bologna, Italy) unsuccessfully requested the Belgian authorities to provide it with information concerning, inter alia, the detailed arrangements for enforcement, in Belgium, of sentences imposed on mothers living with minor children and concerning the measures envisaged in relation to those children.

By judgment of 15 October 2021, that court refused to surrender GN on the ground that, in the absence of a satisfactory response to that request for information, it was uncertain that Belgian law makes provision for custodial arrangements protecting the rights of mothers and their young children to an extent that is comparable to the law in force in Italy.

Hearing an appeal on a point of law against that refusal decision, the Corte suprema di cassazione (Supreme Court of Cassation, Italy), the referring court, states that neither the provisions of the Italian law in force ( 1 ) nor Framework Decision 2002/584 ( 2 ) refers, as a ground for refusing to execute an EAW, to the situation where the requested person is the mother of young children living with her. It is nevertheless uncertain whether it may refuse to execute an EAW on the ground that the surrender of the mother of young children to the issuing Member State would risk undermining her right to respect for private and family life and the best interests of her children, as protected, respectively, by Articles 7 and 24 of the Charter of Fundamental Rights of the European Union (‘the Charter’). ( 3 )

In its judgment, the Court of Justice, sitting as the Grand Chamber, rules that Framework Decision 2002/584, ( 4 ) read in the light of the Charter, ( 5 ) precludes the executing judicial authority from refusing to surrender the person who is the subject of an EAW 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 and of disregard for the best interests of her children 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.

Findings of the Court

First of all, the Court states that Framework Decision 2002/584 does not provide for the possibility of refusing to execute an EAW on the sole ground that the requested person is the mother of young children living with her. Having regard to the principle of mutual trust between the Member States, there is a presumption that the conditions of detention of the mother of young children and of the care of those children in the Member State issuing the EAW are appropriate to such a situation.

Nevertheless, Framework Decision 2002/584 ( 6 ) is not to have the effect of modifying the obligation to respect the fundamental rights guaranteed by the Charter, and, in the present case, more specifically, those enshrined in Article 7 and Article 24(2) and (3) thereof. Thus, first, the obligation to take account of the best interests of the child applies also in the context of an EAW issued in respect of the mother of young children, which, while not addressed to those children, has significant consequences for them. Second, 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, those interests having to be assessed by taking into account all the specific circumstances. Moreover, the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life.

It follows that the executing judicial authority may refrain, exceptionally, from giving effect to the EAW if there is a real risk that the execution of that warrant would result in a breach of the abovementioned fundamental rights. However, a lack of certainty on the part of that authority as regards the existence, in the issuing Member State, of conditions comparable to those existing in the executing Member State concerning the detention of mothers of young children and the care of those children cannot permit the inference that that risk has been established. That authority is required to ascertain, in the context of a two-step examination, first, whether there are systemic or generalised deficiencies in those conditions in the issuing Member State, or deficiencies in those conditions affecting more specifically an objectively identifiable group of persons, and second, whether there are substantial grounds for believing that, on account of those conditions and in the light of their personal situation, the persons concerned by an EAW will run a real risk of breach of their fundamental rights.

If the executing judicial authority considers that it does not have available to it all the information necessary to take a decision on the surrender, it must request the issuing judicial authority to furnish supplementary information and the issuing judicial authority is required to furnish those. In order not to bring the operation of the EAW to a standstill, those authorities must engage in sincere cooperation. ( 7 )

Consequently, it is only where the executing judicial authority considers, having regard to all the information available to it, including the possible absence of assurances provided by the issuing judicial authority, that the execution of the EAW is liable to give rise to a real risk of breach of the fundamental rights at issue of the persons concerned that that authority must refrain from giving effect to that EAW.

( 1 ) Legge n. 69 – Disposizioni per conformare il diritto interno alla decisione quadro 2002/584/GAI del Consiglio, del 13 giugno 2002, relativa al mandato d’arresto europeo e alle procedure di consegna tra Stati membri (Law No 69 laying down provisions to bring domestic law into line with Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States) of 22 April 2005 (GURI No 98 of 29 April 2005, p. 6), in the version resulting from decreto legislativo n. 10 (Legislative Decree No 10) of 2 February 2021 (GURI No 30 of 5 February 2021), and applicable to the facts of the main proceedings.

( 2 ) Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1), as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 (OJ 2009 L 81, p. 24) (‘Framework Decision 2002/584’).

( 3 ) Article 7 of the Charter concerns the right to respect for private and family life, while Article 24(2) provides that, ‘in all actions relating to children, … the child’s best interests must be a primary consideration’. Article 24(3) provides that ‘every child shall have 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’.

( 4 ) Article 1(2) and (3) of that framework decision.

( 5 ) Article 7 and Article 24(2) and (3) of the Charter.

( 6 ) Article 1(3) of that framework decision.

( 7 ) The principle of sincere cooperation is laid down in the first subparagraph of Article 4(3) TEU.