European Arrest Warrant: Commentary on Judgment No. 261/22 of 2023

The recent judgment No. 51798 of December 28, 2023, by the Court of Cassation offers an important interpretation regarding the European Arrest Warrant, particularly in relation to children's rights. The Court examined the case of the mother of a child under the age of three, establishing specific conditions for the refusal of surrender.

Legal Context

The European Arrest Warrant is a legal instrument that allows for the arrest and extradition of a person sought in a European Union Member State. However, the protection of fundamental rights, particularly those of minors, plays a crucial role in these procedures. The Court of Justice of the European Union, in judgment C-261/22, established that the executing judicial authority cannot refuse the surrender of the mother solely because she has a cohabiting child under the age of three. This decision is based on the obligation for the requesting party to demonstrate specific deficiencies in the legal system of the requesting country.

261/22, the executing judicial authority cannot refuse surrender solely because the requested person is the mother of a child cohabiting with her and under the age of three, it being the burden of the party to allege specific circumstances revealing the existence, in the requesting State, of structural and systemic deficiencies that would expose the protection of children's rights to concrete risk. (In its reasoning, the Court specified that, only if assessment elements based on recognized and reliable international sources are acquired, is the Court of Appeal required to request supplementary information from the issuing State).

Implications of the Judgment

This judgment underscores a fundamental principle: the protection of minors' rights must not become a pretext to avoid the application of the law. It is the responsibility of the requesting party to provide concrete evidence of any risks to the minor in the country of origin. This aspect is particularly relevant in the context of international legal cooperation, where trust between Member States is essential.

• The judgment highlights the need for a thorough assessment of living conditions in the requesting country.
• It clarifies that the mere condition of motherhood does not automatically justify a refusal of surrender.
• In case of doubt, the judicial authority must request supplementary information from the issuing State.

Conclusions

In conclusion, judgment No. 51798 of December 28, 2023, represents a significant step towards greater protection of children's rights, even within the scope of the European Arrest Warrant. It clearly establishes that the protection of children's rights must not compromise justice and the application of laws. Judicial authorities must act responsibly and concretely, balancing the needs of justice with the protection of the most vulnerable individuals.