Cass. pen. n. 49642/2023: protection of minors and the European protection order

The judgment of the Supreme Court of Cassation no. 49642 of December 13, 2023 has opened new perspectives for the protection of minors involved in international abduction situations. The case saw A.A., father of B.B., request the issuance of a European protection order, in the face of a decision by the Judge of the Court of Forlì who had declared the request inadmissible. This article analyzes the main aspects of the judgment and its impact on the protection of minors' rights.

Legal context and the Judge's decision

The central issue concerned the application of Directive 2011/99/EU, which allows for the issuance of European protection orders to ensure the safety of vulnerable persons in other Member States. The Judge for preliminary investigations had considered that, since the minor's place of residence was unknown, the protection order could not be issued. However, the Court of Cassation contested this interpretation, stating that the Directive aims to ensure the protection of the victim even in cases of forced transfers.

The Court held that the purpose of the European protection order is to ensure the continuity of the victim's protection in any Member State.

Reasons for upholding the appeal

The Court of Cassation upheld A.A.'s appeal on the basis of several considerations:

• Directive 2011/99/EU and Legislative Decree no. 9 of 2015 establish that protection measures must also be applicable in cases of international abduction of minors.
• The Judge wrongly considered the lack of a place of residence as a reason to deny the issuance of the protection order, not taking into account the minor's vulnerability.
• Protection must be guaranteed even in the absence of a formally registered residence, provided there are indications of her current whereabouts.

Conclusions

Judgment no. 49642/2023 represents an important step forward in the protection of minors in international abduction situations. The Court reaffirmed the principle that the minor's safety and well-being must prevail over procedural issues. This case highlights the importance of a coordinated approach among European Union Member States to guarantee the rights of minors and their protection, even across borders. It will be crucial to monitor how this decision will influence future applications of Directive 2011/99/EU in similar cases.