Criminal proceedings against Procuratore generale presso la Corte di appello di Bologna.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2023:1017
• Date: 21 December 2023
• Docket Number: C-261/22
• Celex Number: 62022CJ0261
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling

Provisional text

JUDGMENT OF THE COURT (Grand Chamber)

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)

In Case C‑261/22,

REQUEST for a preliminary ruling under Article 267 TFEU from the Corte suprema di cassazione (Supreme Court of Cassation, Italy), made by decision of 19 April 2022, received at the Court on 19 April 2022, in the criminal proceedings against

GN,

interested party:

Procuratore generale presso la Corte d’appello di Bologna,

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, L. Bay Larsen, Vice-President, K. Jürimäe (Rapporteur), C. Lycourgos, E. Regan, F. Biltgen and N. Piçarra, Presidents of Chambers, P.G. Xuereb, L.S. Rossi, I. Jarukaitis, A. Kumin, N. Jääskinen, N. Wahl, I. Ziemele and J. Passer, Judges,

Advocate General: T. Ćapeta,

Registrar: C. Di Bella, Administrator,

having regard to the written procedure and further to the hearing on 28 March 2023,

after considering the observations submitted on behalf of:

– GN, by R. Ghini, avvocato,

– the Procuratore generale presso la Corte d’appello di Bologna, by A. Scandellari, sostituto procuratore della Repubblica,

– the Italian Government, by G. Palmieri, acting as Agent, and by S. Faraci, avvocato dello Stato,

– the Hungarian Government, by M.Z. Fehér and K. Szíjjártó, acting as Agents,

– the Netherlands Government, by M.K. Bulterman, J.M. Hoogveld and P.P. Huurnink, acting as Agents,

– the Council of the European Union, by K. Pleśniak and A. Ştefănuc, acting as Agents,

– the European Commission, by S. Grünheid and A. Spina, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 13 July 2023,

gives the following

Judgment

1 This request for a preliminary ruling concerns, first, the interpretation of Article 1(2) and (3) and Articles 3 and 4 of 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’), and second, the validity of those provisions having regard to Articles 7 and 24 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

2 The request has been made in the context of the execution, in Italy, of a European arrest warrant issued by the Belgian judicial authorities in respect of GN, with a view to enforcing a custodial sentence in Belgium.

Legal context

International law

3 The Convention on the Rights of the Child was adopted by the General Assembly of the United Nations on 20 November 1989 (United Nations Treaty Series, Vol. 1577, p. 3).

4 Article 3(1) of that convention provides:

‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.’

European Union law

5 Recital 6 of Framework Decision 2002/584 is worded as follows:

‘The European arrest warrant provided for in this Framework Decision is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council referred to as the “cornerstone” of judicial cooperation.’

6 Article 1 of that framework decision, entitled ‘Definition of the European arrest warrant and obligation to execute it’, provides:

‘1. The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.

2. Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision.

3. This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 [TEU].’

7 Article 3 of that framework decision lists the grounds for mandatory non-execution of the European arrest warrant and Articles 4 and 4a list the grounds for optional non-execution thereof.

8 Article 7 of that framework decision, entitled ‘Recourse to the central authority’, provides, in paragraph 1 thereof, that each Member State may designate a central authority or, where its legal system so provides, more than one central authority to assist the competent judicial authorities.

9 Article 15 of Framework Decision 2002/584, entitled ‘Surrender decision’, provides:

‘1. The executing judicial authority shall decide, within the time limits and under the conditions defined in this Framework Decision, whether the person is to be surrendered.

2. If the executing judicial authority finds the information communicated by the issuing Member State to be insufficient to allow it to decide on surrender, it shall request that the necessary supplementary information, in particular with respect to Articles 3 to 5 and Article 8, be furnished as a matter of urgency and may fix a time limit for the receipt thereof, taking into account the need to observe the time limits set in Article 17.

3. The issuing judicial authority may at any time forward any additional useful information to the executing judicial authority.’

10 Article 17 of that framework decision sets out the time limits within which the decision to execute a European arrest warrant must be taken as well as the related procedures.

11 Under Article 23 of that framework decision, entitled ‘Time limits for surrender of the person’:

‘1. The person requested shall be surrendered as soon as possible on a date agreed between the authorities concerned.

2. He or she shall be surrendered no later than 10 days after the final decision on the execution of the European arrest warrant.

…

4. The surrender may exceptionally be temporarily postponed for serious humanitarian reasons, for example if there are substantial grounds for believing that it would manifestly endanger the requested person’s life or health. The execution of the European arrest warrant shall take place as soon as these grounds have ceased to exist. The executing judicial authority shall immediately inform the issuing judicial authority and agree on a new surrender date. In that event, the surrender shall take place within 10 days of the new date thus agreed.

…’

Italian law

12 Article 2 of 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; ‘Law No 69/2005’), in the version resulting from decreto legislativo n. 10 (Legislative Decree No 10) of 2 February 2021 (GURI No 30 of 5 February 2021) (‘Legislative Decree No 10 of 2021’), applicable to the facts in the main proceedings, provides:

‘The execution of the European arrest warrant may not, under any circumstances, entail a breach of the overriding principles of the constitutional order of the State or of the inalienable rights of the individual recognised by the Constitution, of the fundamental rights and the fundamental legal principles enshrined in Article 6 [TEU] or of the fundamental rights guaranteed by the [European] Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 [(‘the ECHR’)] …’

13 Under Article 18 of that law:

‘The Court of Appeal shall refuse surrender in the following cases:

(a) if the offence referred to in the European arrest warrant is extinguished by way of amnesty pursuant to Italian law, where jurisdiction in the matter lies with the Italian State;

(b) if it appears that, vis-à-vis the requested person, in respect of the same acts, a criminal conviction or a judgment dismissing the charges with the force of res judicata has been handed down in Italy, or a final decision has been delivered in another Member State of the European Union, provided that, where there has been a conviction, the sentence has already been served or is in the process of being served, or may no longer be enforced under the law of the sentencing State;

(c) if the person who is the subject of the European arrest warrant was under 14 years of age at the time when the offence was committed’.

14 In the version prior to the entry into force of Legislative Decree No 10 of 2021, Article 18 of Law No 69/2005 provided:

‘The Court of Appeal shall refuse surrender:

…

(p) if the person whose surrender is requested is a pregnant woman or the mother of children under three years of age living with her, unless, in the case of a European arrest warrant issued in the course of proceedings, the need for preventive action underlying the restrictive measure of the issuing judicial authority is exceptionally serious;

…’

The dispute in the main proceedings and the questions referred for a preliminary ruling

15 On 26 June 2020, the Belgian judicial authorities issued a European arrest warrant in respect of GN for the purpose of enforcing a custodial sentence of five...