This article delves into the GN case and its implications for the European Arrest Warrant (EAW) system, highlighting a significant shift in the interpretation and application of the Framework Decision 2002/584. The central issue revolves around whether the executing judicial authority can deny or postpone the surrender of a mother with dependent children, given the potential breach of fundamental rights. This analysis explores the intersection of the European Charter of Fundamental Rights (ECFR), European Court of Human Rights (ECtHR) jurisprudence, and common constitutional principles among EU Member States. It underscores the paramount importance of the child's best interests, drawing on international legal standards like the Convention on the Rights of the Child (CRC). The article reviews key legal precedents, including the Aranyosi, Căldăraru, LM, and E. D. L. cases, establishing a framework for refusal based on the two-step test. Additionally, it emphasizes the discretionary power of executing authorities under Article 4(6) of the EAW Framework Decision to prioritize the best interests of the child when considering extradition requests.
Keywords: GN case, European Arrest Warrant, Framework Decision 2002/584, fundamental rights, best interests of the child, European Charter of Fundamental Rights, European Court of Human Rights, Convention on the Rights of the Child, Aranyosi and Căldăraru, LM case, E. D. L. case, mutual recognition, extradition, family life, judicial discretion.
В статье рассматривается кейс GN и его последствия для европейской системы ордеров на арест (EAW), что свидетельствует о значительных изменениях в толковании и применении Рамочного решения 2002/584. Центральный вопрос касается того, может ли исполняющий судебный орган отказать или отложить выдачу матери с детьми на иждивении, учитывая потенциальное нарушение фундаментальных прав. В данном анализе рассматривается пересечение Европейского устава фундаментальных прав (ECFR), судебной практики Европейского суда по правам человека (ЕСПЧ) и общих конституционных принципов государств-членов ЕС. В статье подчеркивается первостепенное значение наилучших интересов ребенка, опираясь на международные правовые стандарты, такие как Конвенция о правах ребенка (КПР). В статье рассматриваются ключевые судебные прецеденты, включая дела Aranyosi, Căldăraru, LM и E. D. L., устанавливающие рамки отказа на основе двухступенчатого теста. Кроме того, в ней подчеркивается дискреционное право исполнительных органов в соответствии со статьей 4(6) Рамочного решения о EAW отдавать приоритет наилучшим интересам ребенка при рассмотрении запросов об экстрадиции.
Ключевые слова: кейс GN, Европейский ордер на арест, Рамочное решение 2002/584, основные права, наилучшие интересы ребенка, Европейский устав фундаментальных прав, Европейский суд по правам человека, Конвенция о правах ребенка, Aranyosi and Căldăraru, дело LM, дело E. D. L., взаимное признание, экстрадиция, семейная жизнь, судебное усмотрение.
In 2020, a European arrest warrant (EAW) was issued by Belgian judicial authorities against GN, seeking her incarceration for five years due to convictions related to human trafficking and aiding unlawful immigration, albeit delivered in absentia. GN's arrest occurred in Italy in September 2021, where she resided with her toddler and was pregnant with her second child.
The Court of Appeal in Bologna, Italy, sought clarification from Belgian authorities regarding the protocol for incarcerating mothers with young children, the conditions of GN's potential imprisonment, arrangements for her offspring, and the prospect of a retrial. However, with no response forthcoming, the Court of Appeal doubted Belgium's ability to uphold maternal rights and familial bonds, per Italian law and the European Charter of Fundamental Rights.
The pivotal issue under scrutiny revolves around the interpretation of Framework Decision 2002/584 on the European Arrest Warrant (FD EAW), questioning whether it prohibits the executing judicial authority from denying or postponing the surrender of a mother with dependent children. Furthermore, if such interpretation is affirmed, the inquiry extends to examining the compatibility of pertinent articles within the FD EAW with the European Charter of Fundamental Rights (ECFR), jurisprudence from the European Court of Human Rights (ECtHR), and the shared constitutional principles among Member States [1]. This evaluation delves into whether the compelled surrender of a mother, thereby disrupting familial bonds with minor children, aligns with the paramount consideration of the child's best interests.
There is a nuanced debate surrounding the tension between safeguarding the rights of the child—questioning why a child should endure consequences due to parental actions—and maintaining the impartiality of the judicial system. This discussion extends to considering the extent to which caregiving and parental responsibilities should influence decisions regarding pre-trial measures or sentencing. Moreover, there is a confluence of concerns regarding public safety and the efficacy of sentences in deterring future offenses [2].
For the first time, the possibility of not carrying out extradition could be influenced by concerns not only about the fundamental rights of the person being sought but also about the rights of a third party—the minor child of the mother who is the subject of the extradition request. For that reason, my analysis will focus on this very issue — the protection of the defendant's family life and the best interests of innocent minor children.
One of the core principles of children’s rights is the best interest of the child. Article 3(1) CRC assures that the child's best interest must be a ‘primary consideration’ in all situations relating to children, directly or indirectly [3]. Even though the CRC affords the most protection, it must be noted that the child's best interest has been recognized as being part of CIL as well [4]. The fact that the best interest of the child must be a primary consideration means that the principle should override other rights in case of contradiction.
It must be mentioned, that it wasn't until the 2016 ruling in Aranyosi and Căldăraru that the Court acknowledged the potential to reject the execution of a European Arrest Warrant (EAW) based on grounds not explicitly outlined in the EAW Framework Decision itself. In this landmark case, the Court deliberated on the possibility of a grave risk of breaching the prohibition of inhuman and degrading treatment—an absolute fundamental right enshrined in Article 4 of the Charter—as a valid reason for refusal of surrender [5]. Drawing upon Article 1(3) of the EAW Framework Decision, the Court stipulated that such refusal was contingent upon the executing authority's confirmation of systemic or widespread deficiencies pertaining to the respect of Article 4 of the Charter in the issuing Member State, coupled with the risk of infringement of the individual's rights. This established the framework known as the 'two-step test.' Subsequent rulings have largely focused on clarifying the parameters guiding the executing judicial authority in applying this test, reaffirming the stance outlined in Aranyosi and Căldăraru .
Expanding on the legal precedent established in Aranyosi and Căldăraru , a parallel line of cases echoed similar reasoning. The Court determined that refusal to surrender, applying the two-step test, could also be warranted when there's a potential violation of the requested person's right to a fair trial, protected under Article 47 of the Charter. This principle was solidified in the LM case and upheld in subsequent rulings, affirming the significance of safeguarding fair trial rights within the extradition process.
In the context of applying the principle of mutual recognition, it's emphasized that the refusal to carry out a European Arrest Warrant (EAW) should be viewed as an exceptional measure, subject to strict interpretation. This principle was underscored in the E . D . L. case (C‑699/21, 2023), particularly concerning grounds for refusal related to the health of the requested individual:
where the executing judicial authority called upon to decide on the surrender of a requested person who is seriously ill in the execution of a European arrest warrant concludes that there are substantial and established grounds for believing that that surrender would expose that person to a real risk of a significant reduction in his or her life expectancy or of a rapid, significant and irreversible deterioration in his or her state of health, it must postpone that surrender and ask the issuing judicial authority to provide all information relating to the conditions under which it intends to prosecute or detain that person and to the possibility of adapting those conditions to his or her state of health to prevent such a risk from materializing;
if, in the light of the information provided by the issuing judicial authority and all the other information available to the executing judicial authority, it appears that that risk cannot be ruled out within a reasonable period, the executing judicial authority must refuse to execute the European arrest warrant [6].
In the current scenario of the GN case, the well-being of the children emerges as a crucial factor beyond the requested individual herself—specifically, her offspring. Should the transfer of their mother entail potential risks endangering the children, such as threats to their health or emotional welfare, their best interests must be diligently taken into account.
Family Life Simply put, the right to respect family life includes the right to live together and, in that way, spend time and create close family relations [7]. However, the Court has recognized that the protection of family life can occasionally be applied when the family does not live together [8].
The European Court of Human Rights (ECtHR) encountered a scenario when children find themselves separated from a parent in the case of Horych v. Poland (ECtHR, No. 13621/08, 17 April 2012) [9]. Here, the court examined the circumstances surrounding visits from the applicant's minor daughters (aged 6, 11, and 16 at the time of his arrest). It noted that “visits from children […] in prison require special arrangements and may be subjected to specific conditions depending on their age, possible effects on their emotional state or well-being and the personal circumstances of the person visited”. The Court went on to say that “positive obligations of the State under Article 8, […] include a duty to secure the appropriate, as stress-free for visitors as possible, conditions for receiving visits from his children, regard being had to the practical consequences of imprisonment” (para. 131). Consequently, sending the accused to places of detention that do not allow free visitation by minor children with safety for their psychological health may violate the aforementioned Article 8 of the ECHR.
To conclude, the judicial authority responsible for executing a European arrest warrant holds the discretion to decline execution if the mother of young children faces systemic shortcomings in the conditions of detention and care in the requesting Member State, posing a risk of violating fundamental rights. However, the two-step test, aimed at upholding mutual trust, doesn't directly address whether refusal of extradition serves the child's best interests.
Furthermore, Article 4(6) of the EAW Framework Decision provides another avenue for executing authorities to consider, enabling them to retain both mother and child in the executing Member State when it's deemed in the child's best interests.
States Parties to the Convention on the Rights of the Child are internationally bound to prioritize the best interests of the child when determining sentences or implementing pre-trial measures involving parents or primary caregivers. The preferred approach is to make this consideration obligatory rather than merely suggestive for courts or judges making such determinations. This includes requiring them to explicitly outline in their decisions how they've taken the child's best interests into account. Failure to do so should constitute grounds for appealing such decisions. Moreover, this obligation extends beyond custody matters to encompass all measures, including non-custodial ones [9].
This principle should apply universally to all parents and primary caregivers, as children have the right to maintain contact with both parents, even if they aren't the primary caregivers, provided it aligns with the child's best interests. The impact of the child's best interests varies depending on the nature of the existing relationship.
References:
- C-261/22, GN, judgment, ECLI:EU:C:2023:1017
- Rachel Brett, Best Interests of the Child when Sentencing a Parent: Some reflections on international and regional standards and practice, 313 p.
- UN Committee for the Rights of the Child, ‘General Comment No 14’ (29 May 2013) UN Doc CRC/C/GC/14
- Daniel Moeckli, Sangeeta Shah, Sandesh Sivakumaran & David J Harris (ed.), International human rights law, 3rd edition (OUP 2018) (n 3) 331.
- C 404/15 and C 659/15 PPU Aranyosi and Căldăraru EU:C:2016:198
- C‑699/21 E. D. L.
- Anna Juhlin, The Best Interest of the Child under International Law The Right to Respect for Private and Family Life in the Formation, Malfunctioning, and Disruption of a Family, 229 p.
- Kroon and Others v The Netherlands App no 18535/91 (ECtHR, 27 October 1994)
- Rachel Brett, Best Interests of the Child when Sentencing a Parent: Some reflections on international and regional standards and practice, 313 p.
