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[TEST] Jurisprudence européenne en matière pénitentiaire (juin-septembre 2023)

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Cette compilation rassemble les principaux arrêts et décisions de la Cour européenne des droits de l’Homme et de
la Cour de justice de l’Union européenne en matière pénitentiaire. En rendant compte de l’évolution de la
jurisprudence européenne dans ce domaine, et en en identifiant les éventuels angles morts, elle vise à informer le travail
des chercheurs et praticiens du droit, et à élaborer de nouvelles stratégies contentieuses.

Résumé des affaires (Juin-Septembre 2023)

Cour de justice de l’union européenne

GN (Opinion de l’Avocat Général) ■ Case C-261/22
The execution of a European arrest warrant (EAW) issued against a mother of young children may be refused when it is in the best interests of the child. Such a refusal is only possible if the executing authority does not receive from the issuing authority sufficient information that would allow it to be absolutely certain that the enforcement of the EAW would not be against the best interests of the child. Lire plus

cour européenne des droits de l’homme

B.M. ET AUTRES c. FRANCERequêtes nos. 84187/17 et 5 autres
Overcrowding, inadequate conditions of detention and lack of preventive remedy: violation of Articles 3 and 13; systematic strip searches after visits: inadmissible. Lire plus

KOSKO c. UKRAINERequête no. 41832/16
Lack of or delay in consultation by a specialist, lack of or delay in drug therapy for a prisoner with serious medical condition: violation of article 3. Lire plus



COUR de justice l’union européenne

GN (AG Opinion) ■ Case C-261/22 ■ 13 July 2023

Reference for a preliminary ruling ■ European arrest warrant ■ Respect for private and family life ■ Rights of the child ■ Mothers who live with minor children ■ Reasons for non-execution or postponement of surrender


Facts ■ A Belgian judicial authority issued in 2020 a European arrest warrant (EAW) against GN for the execution of a sentence of five years’ imprisonment for the offences of trafficking in human beings and facilitating unlawful immigration. GN was arrested in Italy in September 2021. At the time of her arrest, GN was living with her minor child who was under three years of age. For this reason, her custody was replaced with house arrest.
Receiving no reply to its request for information sent to the Belgian State about i.a. the procedures for the execution of a sentence in Belgium for mothers living with minor children, the Court of Appeal of Bologna refused to execute the EAW. According to the court, “there was no certainty that Belgian law recognised custody arrangements comparable to those in Italy, which protect a mother’s right not to be deprived of her relationship with her children and to ensure that children receive the necessary maternal and family assistance” (para. 7).
Both GN and the Prosecutor General at the Court of Appeal of Bologna appealed this judgment before the Supreme Court of Cassation, who decided to refer the case to the CJEU. The question at hand is whether a court is “entitled to refuse the execution of an EAW if by such a surrender it risks breaching the fundamental rights of a mother whose surrender is requested as well as the fundamental rights of the minor children living with her” (para. 10).

Law ■ Articles 1(3) and 15(2) of Framework Decision 2002/584/JHA, Article 24 CFR
Advocate General (AG) Ćapeta noted that the case is novel as it is the first time that the question of non-execution of an EAW is “based on the possible breach of fundamental rights not (only) of the requested person, but (also) of a third person: the minor child of the mother whose surrender is sought” (para. 13).

(a) GN’s right to family life
AG Ćapeta ruled that the two-steps test established in the judgment Aranyosi and Căldăraru (joined cases C‑404/15 and C‑659/15, 2016), which enables the refusal to execute a EAW when there is a risk of fundamental rights violations, does not apply in the case at hand.
This test requires the executing authority to establish that there are systemic or generalised deficiencies in the prison system of the issuing Member State, and to determine whether the right of the requested person might be breached as a result. Since the EAW mechanism rests on the presumption that Member States respect fundamental rights, and since the executing State has no reason to suspect “that Belgium systematically breaches the right to family life of mothers serving prison sentences” (para. 27), there is no need to put the test in motion.

(b) The best interests of the child
According to AG Ćapeta, the question of whether the execution of an EAW would infringe on the best interests of the child “does not arise as a question of mutual trust” and must be addressed “even when the issuing Member State offers a high level of protection of children whose mothers are in prison” (para. 41).
The issue requires a specific approach, based on the concrete situation of the child at issue, (rather than the conditions in the issuing Member State), which requires the executing authority to use the communication channel with the issuing judicial authority foreseen in Article 15(2) of the EAW Framework Decision.
If the executing authority “does not receive sufficient information that would allow it to be absolutely certain that the execution of the EAW would not go against the best interests of the child, it should refuse surrender” (para. 71).
AG Ćapeta noted that Article 23(4) of the EAW Framework Decision allowing for the postponement of the execution of an EAW is not suited for the situation at hand, at this provision refers specifically to the requested person, not to a third person (e.g. her children).
Trying to reconcile the respect for the best interests of the child with the prevention of impunity, AG Ćapeta suggests that the possibility for the executing authority to refuse an EAW and to execute the custodial sentence on its territory could be made compulsory when “it is in the best interests of the child not to leave the executing Member State” (para. 95).

Conclusion ■ The execution of a European arrest warrant (EAW) issued against a mother of young children may be refused when it is in the best interests of the child. Such a refusal is only possible if the executing authority does not receive from the issuing authority sufficient information that would allow it to be absolutely certain that the enforcement of the EAW would not be against the best interests of the child.

Cour européenne des droits de l’homme

B.M. AND OTHERS v. FRANCEApplication nos. 84187/17 and 5 others ■ Fifth Section ■ 6 July 2023

Art 3 + 13 ■ degrading treatment ■ detention in an overcrowded cell ■ lack of effective preventive remedy
Art 3 ■ systematic strip searches after visits ■ inadmissible ■ non-exhaustion of domestic remedies


Facts ■ The six applicants had been detained for various periods of time between 2016 and 2019. They all complained that they had been detained in inadequate detention conditions and that they had no effective preventive remedy to put an end to the ensuing violation of their rights. Five out of six applicants also complained about systematic strip searches imposed following visits.

Law ■ Article 3 ■ Strip searches
The Government objected that the applicants had not challenged the strip searches imposed before the competent domestic courts. The applicants argued there is no effective remedy available to put an end to systematic strip searches and pointed to the fact that in spite of several judgments requiring the prison administration to put an end to this practice rendered since 2013, several reports (including from the CPT and the NPM) suggest that they have persisted. The Court observed that the interim relief judge has the power to put an end to strip searches if they breach a prisoner’s dignity and has done so in its previous case law. Consequently, the Court considered this remedy to be effective and rejected this part of the applications for non-exhaustion of the available domestic remedies.

Conclusion ■ Inadmissible.

Law ■ Articles 3 & 13 ■ Inadequate detention conditions & lack of effective preventive remedy
The Court noted that the applicants had been imprisoned in the same facility (Fresnes prison) and during the same period as the applicants of the quasi-pilot judgment J.M.B. and Others v. France (no. 9671/15 , 30 January 2020), in which it had found a violation of Articles 3 and 13 as a result of inadequate detention conditions and of the absence of effective remedy in this respect. Consequently, finding no reasons to depart from its previous analysis, the Court concluded that there had been a violation of Articles 3 and 13.

Conclusion ■ Violation of Articles 3 & 13.

Article 41 ■ EUR 21 250, EUR 13 250 and EUR 11 750 in respect of non-pecuniary damage for three out of six applicants (three applicants having accepted a friendly settlement); EUR 2400 in respect of costs and expenses for one applicant.


KOSKO v. UKRAINE ■ Application no. 41832/16 ■ Fifth Section Committee ■ 6 July 2023

Inadequacy of medical care provided in detention | Lack of or delay in consultation by a specialist | lack of or delay in medical examination | Lacking or delayed drug therapy, including pain relief.


Facts | The applicant suffered from a serious medical condition, namely, impairment of spinal cord, causing a 1st level of disability. He complained of several shortcomings in his medical treatment during a period of one year and one month, namely a lack of or delay in consultation by a specialist, a lack of or delay in medical examination, and a lack of or delayed drug therapy, including pain relief.

Law | Article 3
Referring to its well established case law concerning prison healthcare in Ukraine, and having examined the material submitted to it, the Court concluded that the applicant did not receive comprehensive and adequate medical care whilst in detention, in breach of Article 3 (see also Nevmerzhitsky v. Ukraine, no. 54825/00, 2005; Melnik v. Ukraine, no. 72286/01, 2006, Logvinenko v. Ukraine, no. 13448/07, 2010)

Conclusion | Violation of Article 3.

Article 41 | EUR 7 500 in respect of pecuniary and non-pecuniary damage; EUR 250 in respect of costs and expenses.

Funded by the European Union and the Robert Carr Fund. Views and opinions expressed are those of the authors only and do not necessarily reflect those of the European Union or the Robert Carr Fund. Neither the European Union nor the Robert Carr Fund can be held responsible for them

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