Not available

Abstract

The case concerns European arrest warrant proceedings arising from an alleged international parental child abduction between the Netherlands and Romania. The Dutch authorities sought the requested person’s surrender for investigation under Article 279(2) of the Dutch Criminal Code, concerning the intentional removal of a minor under the age of twelve from lawful authority. According to the factual description in the warrant, on 20 September 2021 the requested person took her minor son from school in The Hague and brought him to Romania without the father’s permission.

The background was not limited to the single removal alleged in the European arrest warrant. The court recorded that the requested person had previously taken the two minor children to Romania in 2019 without the father’s consent. The father then initiated return proceedings in Romania under Law no. 369/2004 and the 1980 Hague Convention. The Bucharest County Court initially dismissed the return application, but the Bucharest Court of Appeal, by civil decision no. 73 of 24 February 2020, allowed the appeal, set aside the first-instance judgment and ordered the return of the children to their habitual residence in the Netherlands within seven days from communication of the judgment. The Bucharest Court of Appeal also imposed a civil fine of RON 12,500 in case of non-compliance, ordered the requested person to hand over the children’s passports or travel documents, and required her cooperation for the issuing of travel documents where necessary.

At the time of the European arrest warrant proceedings, the return judgment was in the enforcement stage. Enforcement had been authorised by the Iași District Court, but the requested person had refused to hand over the child and had also been ordered to pay penalties for non-compliance.

The case also involved parallel Romanian family proceedings. The requested person had brought divorce proceedings before the Iași District Court. In related interim proceedings, the children’s residence had initially been established temporarily with the mother, but that solution was later set aside on appeal. The Romanian courts ultimately held that, because the children’s habitual residence was in the Netherlands at the relevant time, Romanian courts lacked jurisdiction over the parental-responsibility issues.

Iași Court of Appeal held that the Dutch offence was not included among the offences for which double criminality need not be verified under Article 97(1) of Law no. 302/2004. The court therefore examined whether the conduct described in the European arrest warrant also constituted an offence under Romanian law. It held that the corresponding Romanian offence was Article 379(1) of the Criminal Code, namely non-compliance with measures regarding the custody of a minor. The court expressly rejected the classification of the conduct as unlawful deprivation of liberty under Article 205 of the Criminal Code, noting that there was no identity between the civil wrongfulness established in the Hague return decision and the criminal offence of unlawful deprivation of liberty.

The Court of Appeal also relied on the logic of the 1980 Hague Convention. It referred to the purpose of restoring the status quo ante as quickly as possible, in order to avoid the legal consolidation of an initially unlawful factual situation. It also stated that custody and parental-responsibility issues should be left to the authorities of the State of the child’s habitual residence. On that basis, the prior Hague return decision and the child’s habitual residence in the Netherlands supported the conclusion that the Dutch authorities were better placed to assess the criminal significance of the alleged conduct.

The requested person relied on several grounds against execution, including arguments concerning the father’s alleged consent, the child’s passport, the child’s best interests, the absence of criminal liability, and the Romanian territorial connection of the conduct. The Court of Appeal rejected those objections and ordered execution of the warrant and the requested person’s delivery to the Dutch judicial authorities.

On challenge, the High Court of Cassation and Justice upheld that solution. It confirmed that, at the level of formal double criminality, the Dutch offence had a Romanian equivalent in Article 379(1). It also emphasised the limited role of the Romanian court as executing authority: objections concerning consent, factual justification, the child’s interests, or the merits of the accusation had to be assessed by the judicial authorities of the issuing State. The High Court further rejected the territoriality objection, holding that the essential factual conduct was sufficiently connected to the Netherlands and that the Dutch authorities, as the authorities of the State of habitual residence, were better placed to clarify the facts and their criminal-law significance.