Is the CJEU creating two different categories of fundamental rights? Judgment of the CJEU in the case of GN

GN is yet another case concerning the execution of a European arrest warrant (EAW). This time round, the person subject to that EAW is the mother of a young child who, at the time of the events, was also pregnant with a second child. The Belgian judicial authorities had issued a EAW in respect of her for the purpose of enforcing a custodial sentence of five years which was handed down in absentia.

After a first refusal by the Bologna Court of Appeal to surrender GN to the Belgian authorities, on the ground that the latter had never responded to its request for information concerning inter alia the arrangements for the enforcement of sentences imposed on mothers living with minor children and the measures taken in relation to GN’s minor child, the case ended up before the Italian Supreme Court of Cassation, which referred the case for a preliminary ruling by the CJEU.

Interestingly, the Supreme Court of Cassation stated in its referral request that if the Belgian legal order did not provide for measures protecting the rights of children which were comparable to those provided for by Italian law, the surrender of GN would lead to a breach of the latter’s fundamental rights protected by the Italian Constitution and the European Convention on Human Rights (§ 22). In its second question to the CJEU, the Supreme Court of Cassation explicitly raised the question of the possible incompatibility of the surrender of GN with Articles 7 and 24(3) of the EU-Charter, “also considering the case-law of the European Court of Human Rights in relation to Article 8 [ECHR] and the constitutional traditions common to the Member States”.

In its response, the CJEU follows its traditional two-step approach, consisting of a general test, on the existence of systemic or generalised deficiencies in the issuing Member State, followed by an individual test, on whether in light of such deficiencies, there are substantial grounds for believing that the persons concerned will run a real risk of breach of their fundamental rights. In the case at hand, this risk concerned the rights to respect for one’s family life and to consideration given to the child’s best interests, as laid down in Articles 7 and 24(2) of the EU-Charter respectively (§§ 45-48).

Despite the sensitive nature of the issues involved, affecting minor children, the CJEU appears determined in this case to further narrow the scope left to the executing judicial authorities for the consideration of individual circumstances which might be relevant in the assessment of the risks incurred in the issuing Member State by the persons subject to the EAW at stake.

For not only does the CJEU confirm in GN its recent case-law precluding the executing judicial authorities from applying the individual test in the absence of systemic or generalised deficiencies or from applying the two tests simultaneously (§ 46), this time round it also explicitly prohibits these authorities, in the absence of systemic or generalised deficiencies, from inquiring under Article 15(2) of Framework Decision 2002/584 about the conditions under which it is intended, in the issuing Member State, to detain persons as Ms GN and/or to take care of their children (§ 50). This only reinforces the conclusion already reached in Staatsanwaltschaft Aachen about the mere ancillary function of the individual test.

However, what is worrying about this strict ban on the application of an autonomous individual test, and the inquiries which may go with it, is that it may interfere with the obligations placed by the Convention on the executing judicial authorities. Given that the Convention applies to the execution of a EAW (see, among others, Bivolaru and Moldovan v. France) and that it only provides for an individual test, the question indeed arises whether the two-step approach, with the individual test made contingent on the outcome of the general test, leaves enough room for the judges of the executing Member State to conform with their duties under the Convention. This may also be the sense of the concerns expressed by the Supreme Court of Cassation concerning compliance with the Convention.

Of course, national judges are not prevented by the Convention from having regard, if appropriate, to the general context of the individual situations which they must assess. The ECtHR itself does it but uses that assessment only as evidence, not as an autonomous test. The ultimate test to be applied under the Convention is always an individual test, which is autonomous and focussed on the individual situation of the person concerned. It does not require to be preceded by any prior general assessment. Even less is its validity contingent on any specific outcome of that general assessment.

It follows that under the Convention the scope of the risks capable of justifying a ban on the the extradition or deportation of a person is not limited to those risks which flow from systemic or generalised deficiencies. Risks of a violation of fundamental rights in the country of destination which are unrelated to any systemic or generalised deficiencies, such as risks stemming exclusively from the biography of the person concerned, are equally relevant. For why should a risk of breach of a fundamental right be ruled out only because it does not exist on a large scale?

Thus, as confirmed in Bivolaru and Moldovan v. France, compliance with the Convention when executing a EAW logically also requires an assessment about the personal and individual risks incurred by the person concerned in the issuing Member State. The scrutiny cannot stop after a general assessment, regardless of its result, as this would be tantamount to replacing the individual test required by the Convention by a general test which only considers the overall situation in the issuing Member State, thereby also raising the question as from when deficiencies are to be considered systemic or generalised.

Yet, it would appear that under EU law the simple finding by the executing judicial authority that no systemic or generalised deficiencies can be identified in the issuing Member State is sufficient to preclude any such individual assessment. This situation raises at least two following questions. First, is the CJEU creating two categories of fundamental rights in this area: those which stem from systemic and generalised deficiencies and are therefore relevant, and those which do not stem from such deficiencies and can be ignored? Second, are national judges being prevented by EU law from correctly applying the Convention in this area, as they are instructed to do by the Avotiņš v. Latvia and Bivolaru and Moldovan v. France jurisprudence?