BRUSSELS, July 13 () –
A country of the European Union may reject the execution of a European Arrest and Surrender Warrant (EAW) against a mother with young children if this is “absolutely certain” that harm to the best interest of the minor is avoided. protects the European Charter of Fundamental Rights, according to an opinion published this Thursday by one of the general lawyers of the Court of Justice of the EU (CJEU).
In her reasoning, the lawyer Tamara Capeta warns, however, that the denial of this Euroorder is only possible if, after making use of the communication mechanism provided in the European framework of the OEDEs, the executing authority does not have sufficient information that allows you to be absolutely certain that the delivery of the requested is not contrary to the best interests of the child.
The opinion of the General Advocate is not binding for the CJEU, which, however, tends to follow the line marked by the opinions of its lawyers in the vast majority of the sentences handed down.
The case responds to a preliminary question raised by the Italian High Court of Cassation regarding doubts about the surrender of a woman, mother of a baby, to the Belgian judicial authorities who are demanding her surrender so that she can serve in Belgium a sentence of five of years in prison.
The defendant was arrested in Bologna when she lived with a minor child under her care, for which house arrest was ordered instead of prison so that the child could remain with his mother. The Bologna Court of Appeal requested information from the Belgian judicial authority on the way in which the sentences imposed on mothers with minor children in their care are carried out in that country, but received no response and decided to deny the Euro-order.
In her opinion, the Advocate General recalls that the Euro-order framework is based on the presumption that Member States respect fundamental rights and this can only be questioned “if the executing authority is aware of systemic or generalized deficiencies in what regarding respect for the right to family life of persons detained in the issuing State”.
In this case “there are no indications of systemic deficiencies” in terms of respect for family law, so it does not consider that the surrender of the woman claimed by Belgium can be automatically rejected, but it opens the door for it to be denied in the best interests of the child provided that the communication mechanisms established in the Framework Decision on Euro-orders are exhausted to determine this need, for example when the judicial authorities do not have sufficient information that allows them to be absolutely certain that the execution is not contrary to the best interests of the child. child.
