The surrender of a mother with cohabiting children could violate the fundamental rights of the person if it is ordered without prior verification by the legal system of the requesting state that excludes the possibility of subjecting the person concerned to conditions incompatible with the protection of the mother's status, in order to safeguard the interests of the child.
If the law of the requesting judicial authority does not provide for forms of protection of the children's right not to be deprived of their mother's role, in a manner comparable to those provided by the domestic law, it would result, in fact, in an infringement of fundamental rights, provided both by the Constitution and the ECHR, which would require the refusal of delivery under Law no. 69 of 2005, art. 2, as reformulated by Legislative Decree no. 10 of 2021, art. 2, paragraph 1, which states that "the execution of the European arrest warrant may not, in any case, entail a violation of the supreme principles of the constitutional order of the State or the inalienable rights of the person recognized by the Constitution, the fundamental rights and fundamental legal principles enshrined in art. 6 of the Treaty on European Union or of the fundamental rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on November 4, 1950, made executive by Law no. 848 of August 4, 1955, and by the additional protocols thereto".
The common standard defined at European level for the protection of fundamental rights in the application of Law no. 69 of 2005, art. 2 requires, first of all, the interpretation of European Union law.
In the spirit of loyal cooperation between national and European courts in the definition of common levels of protection of fundamental rights - an objective of primary importance in matters subject to regulatory harmonization (Corte Cost., ord, No. 117 of 2019), such as the one at issue - it is, therefore, necessary to establish, by making a reference to the Court of Justice for a preliminary ruling, whether or not the surrender, in execution of a European arrest warrant, of a mother of a minor child cohabiting with her is in compliance with the fundamental rights guaranteed by European law, and in particular by the CDFUE, interpreted in harmony with the constitutional traditions common to the Member States, also referred to by art. 52, paragraph 4, of the CDFUE as relevant sources.
Given that the right to private and family life, the protection of childhood and the right of the child to choices made in its best interest are equally recognized in the Charter of Fundamental Rights of the European Union as well as in the Italian Constitution, it is, indeed, in the presence of a case of so-called double bias, which requires the Italian judge a careful assessment of the option between the preliminary reference and the scrutiny of constitutionality in the light of the most recent case law of the Constitutional Court (C. Cost, sent. no. 20 of 2019; sent. no. 63 of 2019; sent. no. 269 of 2017; ord. no. 117 of 2019).
However, in the case in question, the College believes that it should opt for the supranational preliminary ruling, even independently of the obligation of the judge of last instance to raise the issue before the Court of Justice pursuant to art. 267, paragraph 3 of the Treaty on the Functioning of the European Union (most recently: Court of Justice, 6/10/2021, in case C-561/19, Consorzio Italian Management and Catania Multisevizi), precisely because of the priority need to clarify the standard of common protection offered on this point by EU law.
The interpretation of the Court of Justice, however, precisely in the silence of Law no. 69 of 2005 on the discipline of the delivery of mothers of cohabiting minors, could be suitable to protect the fundamental rights at stake without the need to proceed to any declaration of unconstitutionality of the provisions of the implementing law.
Preliminary referral to the Court of Justice is also necessary in order to arrive at a uniform interpretation of EU law on this point.
Request for preliminary ruling:
(a) "must Article 1(2) and (3) and Articles 3 and 4 of Framework Decision 2002/584/JHA be interpreted as not allowing the executing judicial authority to refuse or in any case defer the surrender of the mother with minor children living together"?
(b) if the answer to the first question is in the affirmative, are Article 1(2) and (3) and Articles 3 and 4 of Framework Decision 2002/584/JHA compatible with Articles 7 and 24(3) of the Charter of Fundamental Rights of the European Union, also in the light of the case-law of the European Court of Human Rights on Article 8 ECHR and the constitutional traditions of the Member States? 8 ECHR and the constitutional traditions common to the Member States, insofar as they impose the surrender of the mother by severing the ties with the minor children living together without considering the best interests of the child".
(unofficial automatic translation)
SUPREME COURT OF CASSATION
SECTION SIX CRIMINAL
Section VI, Ord., (hearing 14/01/2022) 19-04-2022, no. 15143
Consisting of the Honorable Sirs Magistrates:
Dott. FIDELBO Giorgio - President - Dott.
Dott. COSTANTINI Antonio - Councilor - Dott.
Dott. ROSATI Martino - Councilor - Dott.
Dott. SILVESTRI Pietro - Councilor - Dott.
Dott. D'ARCANGELO Fabrizio - Rel. Counselor -.
pronounced the following:
ORDINANCE
on the appeals lodged by:
1. Attorney General at the Court of Appeal of Bologna;
2. Y.F., born in (OMISSIS);
against the sentence of October 15, 2021 issued by the Bologna Court of Appeal;
having regard to the deeds, the contested sentence and the appeals;
having heard the report of Counselor Fabrizio D'Arcangelo;
having heard the requests made by the Public Prosecutor, in the person of the Deputy Attorney General, Ciro Angelillis, who concluded by requesting that both appeals are inadmissible;
having heard the conclusions of the defense attorney, RG, who requested that the appeal be accepted and, alternatively, that a question of constitutional legitimacy be raised.
Development of the process
1. The Belgian judicial authority issued on June 26, 2020 a European arrest warrant against the Nigerian citizen Y.F. for the execution of the sentence of five years' imprisonment imposed by the Antwerp Court with judgment no. 2268 of 2020 for the crimes of human trafficking and facilitation of illegal immigration, committed between (OMISSIS).
1.1. The person requested to be surrendered at the time of the arrest, which took place in (OMISSIS) was with her minor son Y.G.S., born in (OMISSIS), and cohabiting with her, who was entrusted to social services.
During the interrogation given at the hearing of September 3, 2021, Y. did not consent to her being handed over to the Belgian judicial authorities and the Deputy Councilor validated the arrest, ordering pre-trial detention in prison, subsequently replaced, by order of October 5, 2021, with house arrest.
1.2. At the hearing of 17 September 2021, having heard the requests of the parties, the Bologna Court of Appeal ordered the acquisition from the requesting judicial authority of information relating to the methods of execution of the sentence for mothers cohabiting with underage children in the Belgian legal system, to the prison treatment to which Y. would be subjected and to the measures that would be adopted with regard to the minor, as well as on the possibility of renewing the judgment concluded with the pronouncement of a sentence in absentia.
In a note dated October 5, 2021, the Antwerp Public Prosecutor's Office informed the Bologna Court of Appeal that the answers to the questions raised were the responsibility of the Federal Public Service for Justice.
1.3. In a judgment issued on 15 October 2021, the Bologna Court of Appeal refused to surrender Y.F. to the judicial authority of Belgium and revoked the precautionary measure applied, ordering the immediate release of the person requested to be surrendered.
The Court of Appeal pointed out that, in the absence of a reply from the Belgian judicial authority, there was no certainty that the requesting state's legal system would recognize detention methods comparable to those of the Italian state and, in particular, that they would protect the mother's right not to be deprived of her relationship with her children and to their care, and that they would guarantee the children the necessary maternal and family assistance that is constitutionally guaranteed in accordance with the provisions of articles 3 and 31 of the Italian Constitution, art. 3 of the Convention on the Rights of the Child and art. 24 of the Charter of Fundamental Rights of the European Union.
2. The Attorney General at the Bologna Court of Appeal and the person requested to be surrendered have appealed against this sentence.
3. The Attorney General at the Court of Appeal of Bologna, with a single reason, requested the annulment of the contested sentence, criticizing the erroneous application of Law no. 69 of 2006, articles 16 and 18 and the illogicality of the motivation.
The Attorney General argues that the Bologna Court of Appeal should at least have resubmitted the request for additional information to the correctly identified authority and that there is no reason to doubt that the requesting State does not recognize detention methods comparable to those guaranteed by the Italian State.
4. Advocate RG, Y.'s counsel, requested the annulment of the judgment under appeal, relying on three grounds.
The attorney for the defence states that the appellant has an interest in the appeal, even though the Court of Appeal refused to hand her over, since the Court of Appeal of Bologna had based its rejection of the request for her surrender on grounds unrelated to the merits of the request and, therefore, the contested sentence would not definitively preclude execution of the requested surrender.
On the contrary, the refusal to surrender should have been pronounced for reasons of merit, since the execution of the European arrest warrant, already in the state of the acts and regardless of the results of the integration of evidence, would be detrimental to the constitutional guarantees and fundamental rights guaranteed by supranational conventions.
4.1. In the first ground the defendant complains about the erroneous application of Law no. 69 of 2005, art. 2 and 17 and argues that the Court of Appeal of Bologna should have refused the request for surrender, since the applicant had been sentenced as a result of a trial in absentia of which she had not been informed and which had been held in the absence of a lawyer and in a Dutch language unknown to her.
4.2. With the second ground of appeal the defendant complains about the violation of Law no. 69 of 2005, art. 2, because, being the applicant pregnant, as it results from the medical documentation acquired after the contested judgment, and mother of a child just over two years old, the execution of the delivery would have caused the violation of the right to health of the mother and of the superior interest of the child not to see its relationship with its mother cut off.
The defender points out that, although the specific reason for refusing the delivery provided by art. 18, letter. s) of the original wording of Law no. 69 of 2005 for pregnant women or mothers with children under three years of age has been repealed, the delivery should be excluded by reason of the general clause in the new Law no. 69 of 2005, art. 2 in order to avoid the violation of fundamental rights to childhood and motherhood.
4.3. With the third reason the defender notes that, if the Court of Cassation believes that it does not adhere to the interpretation that allows to refuse the delivery of pregnant women or mothers with cohabiting offspring under Law no. 69 of 2005, art. 2, should raise a question of constitutional legitimacy of L. No. 69 of 2005, art. 18, insofar as it unreasonably does not provide as a mandatory reason for refusing to hand over a pregnant woman or mother of a child under three years of age, in contrast with articles 2, 31, 3 and 111 of the Constitution and with art. 10 of the Constitution, in relation to art. 8 of the European Convention on Human Rights and art. 17 of the European Social Charter.
5. At the end of the council chamber of December 16, 2021, the College, after hearing the parties, postponed the deliberation, pursuant to art. 615 c.p.p., to the council chamber of January 14, 2022.
Reasons for the decision
1. The Court of Appeal of Bologna, in the judgment under appeal, refused to hand over Y.F. to the Belgian judicial authorities, on the grounds that she was the mother of a child under three years of age, living alone with her at the time of her arrest.
According to the Court of Appeal, with regard to European arrest warrants, for the purposes of surrendering a mother of children under the age of six, it is necessary that the law of the requesting State recognizes detention methods similar to those guaranteed by Italian law and that ensure the necessary maternal and family assistance to the children guaranteed by articles 3 and 31 of the Italian Constitution, article 3 of the Convention on the Rights of the Child and article 24 of the Charter of Fundamental Rights of the European Union.
2. The Court considers that the decision of the appeals brought against this judgment requires, as a preliminary matter, to request clarification from the Court of Justice of the European Union on the exact interpretation, and possibly on the validity, of the rules set out in Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, for the surrender of the mother of a minor child living with her.
3. The Italian implementing legislation, Law no. 69 of April 22, 2005 (Provisions to conform domestic law to Council Framework Decision 2002/584/JHA of June 13, 2002, regarding the European arrest warrant and the surrender procedures between Member States), in its original formulation, provided, in art. 18, twenty mandatory grounds for "refusal of surrender".
Law no. 69 of 2005, art. 18, letter s), in particular, provided that "The Court of Appeal refuses the surrender (...) if the person requested to be surrendered is a pregnant woman or a mother of children under three years of age living with her, unless, being a European arrest warrant issued in the course of proceedings, the precautionary requirements underlying the restrictive measure of the issuing judicial authority are exceptionally serious".
With this provision, which did not correspond to the framework decision, the Italian legislator had transposed the precept of art. 275, paragraph 4, of the Code of Criminal Procedure, which in the Italian legal system is based on the European arrest warrant, paragraph 4, which in the domestic legal system prohibits the judge from ordering pre-trial detention in prison, unless there are exceptional precautionary needs, for defendants who are mothers of children up to three years of age (the three-year limit was subsequently raised to six years by Law no. 62, art. 1, paragraph 1 of April 21, 2011).
The jurisprudence of this Court has held that the ground for refusal provided for by art. 18, letter s) of Law no. 69 of 2005 applies both to cases of so-called executive arrest warrants and to cases of so-called procedural arrest warrants (Sez. F, no. 35286 of 02/09/2008, no. 35286 of 02/09/2008, no. 35286 of 02/09/2008, no. 35286 of 02/09/2008). 35286 of 02/09/2008, Zvenca, Rv. 241002 - 01), as was demonstrated by the effectiveness of the exception provided for therein when the European arrest warrant was issued "in the course of proceedings" (and, therefore, before the criminal action was brought).
Moreover, the jurisprudence of legitimacy has affirmed, in numerous pronouncements, that the prohibition of surrender provided for by art. 18, letter p) of Law no. 69 of April 22, 2005, although expressly sanctioned by the law, does not apply to European arrest warrants. p), although expressly sanctioned in the matter of the European arrest warrant, as an expression of a general principle and, in particular, of the primary need to protect the interests of minors, should also be applied in extradition proceedings; the execution of extradition in respect of the mother of a cohabiting minor child was, therefore, allowed only upon verification that the specific prison treatment to which the extradited person would be subjected would allow the protection of the psychophysical integrity of the minor (ex plurimis: Sez. 6, no. 1677 of 11/12/2019, dep. 2020, Kurti, Rv. 278216 - 01; Sez. 6, no. 19148 of 10/03/2009, Crudu, Rv. 243318 - 01; Sez. 6, no. 12498 of 04/12/2007, dep. 2008, Kochanska, Rv. 239145 - 01).
3.1. Law no. 117 of October 4, 2019 (Delegation to the Government for the full adaptation of the national legislation to the provisions of Framework Decision 2002/584/JHA on the European arrest warrant and surrender procedures between Member States, and provisions on the European arrest warrant and surrender procedures between States) amended the text of Law no. 69 of 2005, in order to adapt it more fully to the Framework Decision.
Widespread criticalities of the Italian implementing law had, in fact, emerged in the evaluation report of the group of experts of the Council of the European Union on the fourth cycle of mutual evaluations concerning "the practical application of the European arrest warrant and the corresponding surrender procedures between Member States", published on February 23, 2009, as well as in the most recent report of the Commission on the implementation of the Framework Decision on the European arrest warrant, sent on July 2, 2020 to the European Parliament and the Council, which concluded by suggesting the possibility of an infringement procedure.
One of the most critical points was precisely the introduction, by the Italian legislator, of additional and entirely new grounds for refusal with respect to those provided for by the Framework Decision.
Law no. 117 of 2019 has, therefore, introduced the distinction between mandatory and optional grounds for refusal, listed respectively in art. 18 and in the new art. 18-bis, and has given a delegation to the Government to make "appropriate amendments" to these articles, with a view to their full alignment with the Framework Decision.
In this context, Law no. 117 of 2019, art. 6, paragraph 5, letter a) reduced to seventeen the mandatory grounds for refusal set out in art. 18, maintaining, however, with regard to the delivery of pregnant women or mothers, the same wording as before, transposed, however, to letter p).
3.2. Legislative Decree no. 10 of February 2, 2021 (Provisions for the full adaptation of national legislation to the provisions of Framework Decision 2002/584/JHA on the European Arrest Warrant and the surrender procedures between member states, in implementation of the delegation referred to in Law no. 117, art. 6 of October 4, 2019) has made a generalized suppression of all internal provisions that were different from the European discipline.
The Legislative Decree, in particular, repealed the grounds for non-execution of the European Arrest Warrant which were not provided for, as "mandatory", by the Framework Decision or which, although provided for by the Framework Decision, in the Italian implementing law assumed a greater extension than that outlined by EU law.
Legislative Decree no. 10 of 2021, art. 14 has, therefore, fully replaced the text of Law no. 69 of April 22, 2005, art. 18, concerning the "grounds for mandatory refusal of surrender", providing that "the court of appeal refuses the surrender in the following cases:
(a) if the crime charged in the European arrest warrant is extinguished by amnesty under Italian law, when there is the jurisdiction of the Italian State over the fact;
b) if it turns out that against the wanted person, for the same facts, in Italy, an irrevocable sentence or criminal decree has been issued or a sentence of no longer proceeding that is no longer subject to appeal or, in another Member State of the European Union, a final sentence, provided that, in case of conviction, the sentence has already been executed or is being executed, or can no longer be executed under the laws of the State that issued the sentence
c) if the person subject to the European arrest warrant was under 14 years of age at the time the crime was committed".
As things stand at present, therefore, the Italian legislation implementing the European arrest warrant no longer contemplates the grounds for refusal relating to the surrender of pregnant mothers or those with children under three years of age.
3.3. Legislative Decree no. 10 of 2021 came into force on 20 February 2021 and, in accordance with the principle tempus regit actum, its provisions replace the previous ones and apply to arrest warrants issued from that date.
Legislative Decree no. 10 of 2021, art. 28, with reference to European arrest warrants pending on that date, also provided that: "the proceedings relating to requests for execution of European arrest warrants pending on the date of entry into force of this decree shall continue with the application of the rules previously in force when on that date the court of appeal has already received the European arrest warrant or the person requested to be surrendered has already been arrested".
In the present case, therefore, the applicant's request for surrender is subject to the discipline dictated by Legislative Decree no. 10 of 2021, since, although the European arrest warrant was issued on June 26, 2020 by the Antwerp Court, the arrest of the person requested for surrender took place in (OMISSIS).
4. In the current structure of the implementation rules on the European Arrest Warrant, therefore, the surrender of a pregnant woman or mother of a minor cohabiting offspring cannot be refused, since this hypothesis does not fall within any of the grounds for refusal strictly provided for by the legislator.
5. According to two rulings of this Court, referred to in the judgment of the Court of Appeal of Bologna, however, the intervening repeal of the mandatory reason for refusal of delivery already provided by Law no. 69 of 2005, art. 18, lett. p) is not in itself sufficient to consider the handing over, in execution of a European arrest warrant, to the requesting authority of the mother of a child under three years of age as permitted (Sect. 6, no. 25333 of 25/06/2021, Eminovic, Rv. 281533 - 01; Sect. 6, no. 22124 of 03/06/2021, Tonuzi, Rv. 281349 - 01).
The surrender of a mother with children under three years of age cohabiting with her could, in fact, violate the fundamental rights of the person if it is ordered without prior verification by the law of the requesting State that recognizes modes of detention similar to those guaranteed by the Italian law, such as to exclude that the interested party may be subjected to conditions incompatible with the protection of the condition of mother, to safeguard the interests of the child (Sez. 6, no. 22124 of 03/06/2021, Tonuzi, Rv. 281349 - 01).
If the legal system of the requesting judicial authority does not provide for forms of protection of the children's right not to be deprived of their mother's role, in a manner comparable to those provided for by domestic law, there would be, in fact, an infringement of fundamental rights, provided for by both the Constitution and the ECHR, which would require the refusal of delivery under Law no. 69 of 2005, art. 2, as reformulated by Legislative Decree no. 10 of 2021, art. 2, paragraph 1.
This provision states, in fact, that "the execution of the European arrest warrant may not, in any case, involve a violation of the supreme principles of the constitutional order of the State or the inalienable rights of the person recognized by the Constitution, the fundamental rights and fundamental legal principles enshrined in art. 6 of the Treaty on European Union or of the fundamental rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on November 4, 1950, made executive by Law no. 848 of August 4, 1955, and by the additional protocols thereto".
6. The interpretation of art. 2 of Law no. 69 of 2005 was clarified by the Constitutional Court in Ordinance no. 216 of 2021, in which it asked the Court of Justice, as a preliminary ruling, whether art. 1, paragraph 3, of Framework Decision 2002/584/JHA on the European arrest warrant, read in light of art. 3, 4 and 35 of the Charter of Fundamental Rights of the European Union (CDFUE), must be interpreted as meaning that the executing judicial authority, if it considers that the surrender of a person suffering from serious chronic and potentially irreversible diseases could expose him to the risk of suffering serious damage to his health, must request from the issuing judicial authority information that allows it to exclude the existence of this risk, and is obliged to refuse the surrender if it does not obtain assurances to that effect within a reasonable time.
The Constitutional Court, in motivating the reference for a preliminary ruling, noted that it is primarily up to the Court of Justice of the European Union to establish in which cases - in addition to those provided for by national law and by Framework Decision 2002/584/JHA - the Italian judicial authority may refuse to execute a European arrest warrant.
In matters subject to full regulatory harmonization, in fact, "it is primarily the law of the Union to establish the standards of protection of fundamental rights to the respect of which the legitimacy of the discipline of the European arrest warrant and its concrete execution at national level are subordinate".
The Constitutional Court noted that it would be manifestly contrary to the primacy, unity and effectiveness of EU law "an interpretation of national law that would recognize the judicial authority of execution the power to refuse the surrender of the person concerned outside the cases provided for by law in accordance with the provisions of the framework decision, on the basis of general provisions such as those contained in the text of L. n. 69 of 2005, art. No. 69 of 2005, art. 1 and 2 prior to the amendments made by Legislative Decree no. 10 of 2021, or as art. 2 of the same law in the wording in force today".
Recalling the recurrent statements of the Court of Justice, therefore, the Constitutional Court has stated that it is "precluded to the Member States to condition the implementation of EU law, in areas subject to full harmonization, to the respect of purely national standards of protection of fundamental rights, where this could compromise the primacy, unity and effectiveness of EU law (ex plurimis: Court of Justice, 26/02/2013, in Case C-617/10, Fransson, par. 29; 02/26/2013, in case C-399/11, Melloni, par. 60).
The fundamental rights to which the Framework Decision is bound under Article 1, paragraph 3, are, rather, those recognized by the law of the European Union, and consequently by all Member States when they implement EU law: fundamental rights to the definition of which, moreover, contribute in an eminent manner the same constitutional traditions common to the Member States (Art. 6, paragraph 3, TEU and 52, paragraph 4, CDFU)".
7. The Board agrees with this interpretation and notes that the reference to the common standard defined at European level for the protection of fundamental rights in the application of Law no. 69 of 2005, art. 2, requires a preliminary interpretation of European Union law.
8. In the spirit of loyal cooperation between national and European courts in the definition of common levels of protection of fundamental rights - an objective of primary importance in matters subject to regulatory harmonization (Corte Cost., ord, No. 117 of 2019), such as the one at issue - it is, therefore, necessary to establish, by making a reference to the Court of Justice for a preliminary ruling, whether or not the surrender, in execution of a European arrest warrant, of a mother of a minor child living with her is consistent with the fundamental rights guaranteed by European law, and in particular by the CDFUE, interpreted in harmony with the constitutional traditions common to the Member States, also referred to by Article 52, paragraph 4, of the CDFUE as relevant sources.
9. Given that the right to private and family life, the protection of childhood and the right of the child to choices made in its best interest are equally recognized in the Charter of Fundamental Rights of the European Union as well as in the Italian Constitution, it is, indeed, in the presence of a case of so-called double bias, which requires the Italian judge a careful assessment about the option between the preliminary reference and the scrutiny of constitutionality in the light of the most recent case law of the Constitutional Court (Constitutional Court, sent. no. 20 of 2019; sent. no. 63 of 2019; sent. no. 269 of 2017; ord. no. 117 of 2019).
9.1. However, in the case in question, the College believes that it should opt for the supranational preliminary ruling, even independently of the obligation of the judge of last instance to raise the issue before the Court of Justice pursuant to art. 267, paragraph 3 of the Treaty on the Functioning of the European Union (most recently: Court of Justice, 6/10/2021, in case C-561/19, Consorzio Italian Management and Catania Multisevizi), precisely because of the priority need to clarify the standard of common protection offered on this point by EU law.
The interpretation of the Court of Justice, however, precisely in the silence of Law no. 69 of 2005 on the discipline of the delivery of mothers of cohabiting minors, could be suitable to protect the fundamental rights at stake without the need to proceed to any declaration of unconstitutionality of the provisions of the implementing law.
9.2. A reference to the Court of Justice for a preliminary ruling is also necessary to achieve a uniform interpretation of EU law on this point.
The Supreme Court of the United Kingdom has, in fact, refused the surrender of mothers in execution of a European Arrest Warrant, on the grounds that interference with the right to family life enshrined in Art. 8 of the ECHR cannot be deemed proportionate unless the best interests of the child, according to the UN Convention on the Rights of the Child and the CDFUE, have been given primary consideration (Supreme Court of the United Kingdom, 20 June 2012, HH and PH v. Deputy Public Prosecutor of the Italian Republic, Genoa; FK v. Polish Judicial Authority (2012) UKSC 25).
9.3. The proposition of the preliminary appeal to the Court of Justice, moreover, does not exclude the recourse to the Constitutional Court in the event that a rule of the implementing discipline, in violation of art. 11 Const. and art. 117 Const., paragraph 1, does not allow to guarantee the European standard of fundamental rights or even in the case, "highly unlikely", in which this standard is in contrast with "the observance of the supreme principles of the Italian constitutional order and the inalienable rights of the person" (Constitutional Court, ord. no. 24 of 2017).
10. Framework Decision 2002/584/JHA, of June 13, 2002, on the European arrest warrant and surrender procedures between Member States, is based on the principle of mutual recognition, of which it constituted the first concretization.
10.1. Article 1(2) of the Framework Decision on the European arrest warrant states that "Member States shall execute every European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision".
The Framework Decision provides for strict exceptions to this rule in the form of mandatory (art. 3) and optional (art. 4 and 4-bis) grounds for non-execution.
10.2. The Court of Justice of the European Union has also affirmed that the primacy of EU law and its effectiveness preclude member states from introducing ex novo grounds for non-execution or extending the scope of those provided for by the Framework Decision.
The Framework Decision has, in fact, governed the matter of the limits to surrender in an exhaustive manner and, therefore, it is not possible to impose further restrictions on the execution of a warrant, either through state transposition rules or through the interpretative activity of national courts (Court of Justice, 26/02/2013, in case C-399/11, Melloni, par. 44).
11. Given that the Framework Decision does not provide for a ground for refusal to surrender a mother cohabiting with a minor child, in this case the surrender would seem to be unconditionally due.
12. The unconditional obligation to surrender, in execution of a European arrest warrant, a woman who is the mother of children under three years of age living with her seems, however, to be objectively in tension not only with the national standard, but also with the European standard of protection of the fundamental rights of the subjects affected (the right to respect for the private and family life of the mother but also and above all of the minor child), which could lead to an exasperated compression, if not a real sacrifice.
Art. 1, par. 3, of the Framework Decision 2002/584/JHA provides, moreover, that "The obligation to respect fundamental rights and fundamental legal principles as enshrined in art. 6 of the Treaty on European Union shall not be affected by this Framework Decision".
The twelfth recital of the Framework Decision adds, moreover, that "This Framework Decision respects the fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union, in particular Chapter VI thereof".
This principle, moreover, underlies the entire legal system of the Union, in which - as is clear, inter alia, from art. 51, paragraph 1, of the Charter of Fundamental Rights of the European Union (CFREU) - fundamental rights are binding both on the institutions, bodies, offices and agencies of the Union, first and foremost in their production of legislation, and on the Member States when they implement Union law.
12.1. The Court of Justice, moreover, has repeatedly interpreted the discipline of the European arrest warrant combining the implementation of the principle of mutual recognition with the protection of fundamental rights, as in the judgments on the non-execution of the European arrest warrant in case of risk of violation of art. 4 CDFUE (Court of Justice, 5/04/2016, in joined cases C-404/15 and C659/15 PPU, Aranyosi and Caldararu) or the risk of violation of the right to a fair trial (most recently, Court of Justice, 20/02/2022, in joined cases C-562/21 PPU and C-563/21, X and Y; 17/12/2020, in joined cases C-354/20 PPU and C-412/20 PPU, L and P).
12.2. Likewise, the EDU Court has stated that, in the context of the execution of a European arrest warrant by an EU Member State, the mutual recognition mechanism should not be automatically and mechanically applied to the detriment of fundamental rights (EDU Court, 17/04/2018, Pirozzi v. Belgium, p.p. 57-64).
The Edu Court has, moreover, affirmed, also with reference to cases of surrender of suspects for the most serious crimes, that the execution of the European Arrest Warrant by the executing State, while falling under the procedural obligations, deriving from Art. 2 ECHR, to cooperate so that persons suspected of having committed a murder are tried and, if found guilty, sentenced in the State where the crime was committed, however, finds a limit in the risk, based on "serious grounds", of the violation of the fundamental rights of the wanted person (EDU Court, 9/07/2019, Romeo Castario v. Belgium, p.p. 79, 92).
13. Article 7 of the Charter of Fundamental Rights of the European Union, which has the same value as the Treaties (Art. 6(1) TEU), states that "Everyone has the right to respect for his private and family life, his home and his communications."
Article 24(3) of the Charter of Fundamental Rights of the European Union further states that "In all actions relating to children, whether taken by public authorities or private institutions, the child's best interests must be a primary consideration" and paragraph 3 adds that "Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both parents, unless that is contrary to his or her interests".
Article 3(1) of the Convention on the Rights of the Child further states that "In all actions concerning children, whether taken 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" and a similar principle is affirmed in article 6 of the European Convention on the Exercise of Children's Rights.
13.1. The Court of Justice, in the Piotrowski case, while considering compatible with EU law the surrender, in execution of a European arrest warrant, of minors who reach the age threshold for criminal responsibility as defined by national law, has highlighted the need for procedural guarantees to ensure "that the best interests of children who are the subject of a European arrest warrant are always taken into consideration, in accordance with art. 24(2) of the Charter" and in accordance with recital no. 8 of Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children suspected or accused in criminal proceedings (Court of Justice, 23/01/2018, in Case C-367/16, Piotrowski, para. 37).
It would, therefore, be singular that the parameter of the best interests of the child, which must inform the choices of execution of the European Arrest Warrant with respect to the accused or convicted child, does not assume relevance for children, at a much younger age, who live with their mother, who is the addressee of a European Arrest Warrant, and who are extraneous to any criminal dispute.
13.2. The pre-eminence of the best interests of the child has, moreover, been affirmed by the Court of Justice in asylum matters in the context of the so-called "Dublin II Regulation" (Court of Justice, December 31, 2010). The primacy of the best interests of the child has, moreover, been affirmed by the Court of Justice on asylum in the context of the so-called Dublin II Regulation (Court of Justice, 06/06/2013, in case C-648/11, MA and others, par. 57), an instrument also based on the principles of mutual recognition and mutual trust.
14. The fundamental right to respect for private and family life enshrined in art. 7 of the CDFUE must, moreover, have the same latitude as the right to respect for private and family life recognized by art. 8 of the Convention, as interpreted by the ECHR. According to art. 52, par. 3, of the Charter of Fundamental Rights of the European Union, in fact, "Where the (...) Charter contains rights corresponding to those guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those conferred by that Convention".
14.1 The EDU Court has recognized on several occasions that it is particularly problematic to determine whether infants and young children may remain in prison with their mothers.
In this regard, the Court has noted the recognition by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) that, on the one hand, prisons do not provide an adequate environment for infants and young children, while, on the other hand, the forced separation of mothers and infants is highly undesirable.
The EDU Court has also noted that the United Nations Rules for the Treatment of Women Prisoners state that decisions to allow children to remain with their mothers in prison are based on the best interests of the children (EDU Court, 26/11/2013, X v. Latvia, p. 95; 24/03/2016, Korneykova and Korneykov v. Ukraine, p. 129).
Recently, the European Court of Human Rights has also held that the right to private and family life of the applicant, of Nigerian nationality, was violated by the deportation order issued against him after he had been convicted of a criminal offence of forgery of an identity document, as the national authorities had not properly balanced the consideration of the nature and gravity of the offence committed by the applicant with the best interests of his minor child.
Their decision to expel the applicant therefore constituted a disproportionate interference with his family life, since it resulted in his separation from his son (European Court of Human Rights, 24/11/2020, Unuane v. United Kingdom, p. 86-90).
15. The Court of Justice has stated that "one of the objectives of Framework Decision 2002/584 is to combat impunity" (Court of Justice, 20 February 2022, in Joined Cases C-562/21 PPU and C-563/21, X and Y) and specified that Framework Decision 2002/584/JHA presupposes a common commitment of Member States to "combat the impunity of a wanted person who is in a territory other than that in which he or she is presumed to have committed an offence" (Court of Justice, judgment L and P, paragraph 62, and further precedents cited therein).
The enforced separation of mothers and infants or minor cohabiting children in the execution of the European Arrest Warrant is, however, highly problematic, due to the extreme vulnerability of the young child, and may result in exceptionally serious consequences, on a subject who is not charged with any criminal offence.
The delicate task of reconciling the obligation to execute the European Arrest Warrant, in implementation of the mutual recognition of judicial decisions in the common European space, with the fundamental rights of the child cohabiting with the mother requested to be surrendered, does not fall to this Court.
The enhancement of the canon of the best interest of child, which requires a primary but not exclusive evaluation of the best interest of the child, could, however, lead to postpone the surrender of the cohabiting mother to a time when, taking into account the individual conditions and circumstances of the case, it is more respectful of the best interest of the child or to allow the delivery of the child, together with its mother, only after verification of the conditions of detention that will be guaranteed in the requesting state.
The transfer of infants and for children, together with their mother, in fact, imposes, in accordance with the World Health Organization Recommendations of October 6, 2010, "United Nations Rules for the Treatment of Women Prisoners and Non-custody/ Measures for Women Offenders" (the Bangkok Rules), the obligation for the authorities to adequately ensure the health and well-being of the child (EDU Court, 24/03/2016, Korneykova and Korneykov v. Ukraine, p. 131).
The failure to take measures, due to the extreme vulnerability of the child, may, in fact, constitute inhuman and degrading treatment, under Article 3 ECHR, for the mother and child (EDU Court, 24/03/2016, Korneykova and Korneykov v. Ukraine, p.p. 140-148; 17/10/2019, G.B. and Others v. Turkey, p.p. 101117 and 151; 7/12/2017, S.F. and Others v. Bulgaria, 2017, p.p. 84-93).
16. On the basis of these findings, the Court considers, therefore, to refer the following questions to the Court of Justice of the European Union for a preliminary ruling pursuant to and for the purposes of Article 267 of the Treaty on the Functioning of the European Union (TFEU), as amended by Article 2 of the Treaty of Lisbon of 13 December 2007 and ratified by Law No. 130 of 2 August 2008:
(a) "must Article 1(2) and (3) and Articles 3 and 4 of Framework Decision 2002/584/JHA be interpreted as not allowing the executing judicial authority to refuse or in any case defer the surrender of the mother with minor children living together"?
(b) if the answer to the first question is in the affirmative, are Article 1(2) and (3) and Articles 3 and 4 of Framework Decision 2002/584/JHA compatible with Articles 7 and 24(3) of the Charter of Fundamental Rights of the European Union, also in the light of the case-law of the European Court of Human Rights on Article 8 ECHR and the constitutional traditions of the Member States? 8 ECHR and the constitutional traditions common to the Member States, insofar as they impose the surrender of the mother by severing the ties with the minor children living together without considering the best interests of the child".
17. Therefore, the present proceedings must be suspended until the definition of the questions referred for a preliminary ruling.
It is requested to examine the above questions by accelerated procedure pursuant to art. 105 of the Rules of Procedure of the CJEU, as this is a decision that affects the fundamental rights of a pregnant mother and a child of a few years old, living only with her, and that is necessary to overcome the uncertainty that currently persists on his future custody.
The proposed questions also bring to the attention of the Court of Justice issues common to a significant number of cases pending before the Italian courts, but also in other Member States and in an area, such as the European arrest warrant, which according to Article 17 of Framework Decision 2002/584/JHA must be treated "with the utmost urgency".
FOR THIS REASONS
Having regard to art. 267 of the Treaty on the Functioning of the European Union, as amended by art. 2 of the Treaty of Lisbon of 13 December 2007, ratified by Law no. 130 of 2 August 2008, suspends the present proceedings until the definition of the questions referred for a preliminary ruling. Requests that the questions be decided under an expedited procedure. Orders the transmission of a copy of this order, together with the documents relating to the proceedings, to the Registry of the Court of Justice of the European Union.
So decided in Rome, on January 14, 2022.
Filed at the Registry on April 19, 2022.