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Dawid Piotrowski*

On 6 September 2017, Advocate General Bot delivered his opinion in case C-367/16 on the ground for mandatory non-execution of a EAW provided for in Article 3(3) of the EAW Framework Decision.

This case relates to the execution in Belgium of a EAW issued by the Polish authorities against Mr Piotrowski, a Polish national resident in Belgium, for the purposes of execution of two prison sentences. In relation to one of the convictions on which the EAW is based, the competent Belgian investigating judge found that the arrest warrant could not be executed because Mr Piotrowski had been a minor at the material time. The Public Prosecutor appealed against that order, as a minor over the age of sixteen may be the subject of a EAW issued by the Belgian authorities if the Juvenile Court has declined to hear the case, pursuant to the Law on youth protection. In such a case, that court assesses the minor’s situation in concreto in order to determine whether he may be held criminally responsible and whether he may be the subject of criminal prosecution. However, he considered that, in relation to the execution of a EAW issued by the authorities of another Member State, it is not necessary to carry out such an in concreto assessment, and that the only matter to be taken into account is the age of the person concerned, that is, whether he had attained the age of 16 at the time of the offence. In this context, the referring court, asks, in essence whether a minor aged 16 may or may not be surrendered in the execution of a EAW and, if need be, under which conditions.

In his opinion, Advocate General Bot found that the Court should answer the questions referred as follows:

1) Article 3(3) of the EAW Framework Decision, read in the light of Article 24(2) of the Charter, is to be interpreted as meaning that:

– the ground for mandatory non-execution of the warrant contained in that provision does not apply simply because the perpetrator of the offence in respect of which the warrant was issued is a minor;

– the executing Member State may refuse to surrender a minor where, owing to his age at the time of commission of the offence, no penalty can be imposed on him under the law of that State;

– on the other hand, the executing Member State must surrender the minor whenever, having regard to his age at the time of commission of the offence, the penalty which could be imposed in the issuing Member State corresponds, in nature and severity, to one which could equally have been imposed in the executing Member State.

2) Where the executing Member State refuses to surrender the minor, it must meet, in relation to that minor, its duty of care with respect to him within the framework of the educational support it is required to provide.

Case Number C-367/16

Name of the parties Dawid Piotrowski

Date of the judgement 2017-09-06

Court Court of Justice of the EU