(Police and judicial cooperation in criminal matters Framework Decision 2001/220/JHA Directive 2004/80/EC Concept of 'victim' in criminal proceedings Legal person Return of property seized in the course of criminal proceedings)
- This reference for a preliminary ruling concerns the interpretation of Council Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings (OJ 2001 L 82, p. 1; 'the Framework Decision') and of Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims (OJ 2004 L 261, p. 15; 'the Directive').
- The reference was presented in criminal enforcement proceedings following a judgment which resulted in a final criminal conviction, brought before the judge in charge of preliminary investigations at the Tribunale di Milano (District Court, Milan), acting as the judge responsible for enforcement, and concerning the return of assets placed under sequestration.
Legal context
European Union law
The Framework Decision
- Article 1 of the Framework Decision provides:
'For the purposes of this Framework Decision:
(a) 'victim' shall mean a natural person who has suffered harm, including physical or mental injury, emotional suffering or economic loss, directly caused by acts or omissions that are in violation of the criminal law of a Member State;
...
(c) 'criminal proceedings' shall be understood in accordance with the national law applicable;
(d) 'proceedings' shall be broadly construed to include, in addition to criminal proceedings, all contacts of victims as such with any authority, public service or victim support organisation in connection with their case, before, during, or after criminal process;
...'
- Article 2 of the Framework Decision provides:
-1. Each Member State shall ensure that victims have a real and appropriate role in its criminal legal system. It shall continue to make every effort to ensure that victims are treated with due respect for the dignity of the individual during proceedings and shall recognise the rights and legitimate interests of victims with particular reference to criminal proceedings.
2. Each Member State shall ensure that victims who are particularly vulnerable can benefit from specific treatment best suited to their circumstances.'
- In accordance with Article 8(1) of the Framework Decision:
'Each Member State shall ensure a suitable level of protection for victims and, where appropriate, their families or persons in a similar position, particularly as regards their safety and protection of their privacy, where the competent authorities consider that there is a serious risk of reprisals or firm evidence of serious intent to intrude upon their privacy.'
- Under Article 9 of the Framework Decision:
-1. Each Member State shall ensure that victims of criminal acts are entitled to obtain a decision within reasonable time limits on compensation by the offender in the course of criminal proceedings, except where, in certain cases, national law provides for compensation to be awarded in another manner.
...
3. Unless urgently required for the purpose of criminal proceedings, recoverable property belonging to victims which is seized in the course of criminal proceedings shall be returned to them without delay.'
- In accordance with the third indent of Article 17 of the Framework Decision, each Member State shall bring into force the laws, regulations and administrative provisions necessary for the purposes of the implementation of the articles cited in paragraphs 3 to 6 of this judgment by 22 March 2002 at the latest.
The Directive
- Under Article 1 of the Directive:
'Member States shall ensure that where a violent intentional crime has been committed in a Member State other than the Member State where the applicant for compensation is habitually resident, the applicant shall have the right to submit the application to an authority or any other body in the latter Member State.'
- Article 2 of the Directive provides:
'Compensation shall be paid by the competent authority of the Member State on whose territory the crime was committed.'
- Article 12 of the Directive is worded as follows:
-1. The rules on access to compensation in cross-border situations drawn up by this Directive shall operate on the basis of Member States' schemes on compensation to victims of violent intentional crime committed in their respective territories.
2. All Member States shall ensure that their national rules provide for the existence of a scheme on compensation to victims of violent intentional crimes committed in their respective territories, which guarantees fair and appropriate compensation to victims.'
- Article 17 of the Directive provides :
'This Directive shall not prevent Member States, in so far as such provisions are compatible with this Directive, from:
(a) introducing or maintaining more favourable provisions for the benefit of victims of crime or any other persons affected by crime;
(b) introducing or retaining provisions for the purpose of compensating victims of crime committed outside their territory, or any other person affected by such a crime, subject to any conditions that Member States may specify for that purpose.'
- Article 18(1) and 18(2) of the Directive provide:
-1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 1 January 2006 at the latest, with the exception of Article 12(2), in which case the date of compliance shall be 1 July 2005. They shall forthwith inform the Commission thereof.
2. Member States may provide that the measures necessary to comply with this Directive shall apply only to applicants whose injuries result from crimes committed after 30 June 2005.'
National legislation
- In accordance with Article 263 of the Italian Code of Criminal Procedure, as amended by Law No 134 of 12 June 2003 ('CPP'):
-1. The return of property placed under sequestration shall be ordered by the judge provided that there remains no doubt as to its ownership.
[...]
3. Where there is a dispute as to the ownership of property placed under sequestration, the judge shall refer the case, in so far as it concerns the return, to the civil court with territorial jurisdiction competent at first instance, while maintaining sequestration during this period.'
...
6. Once the judgment is no longer subject to appeal, the judge responsible for enforcement shall take steps to return the property.'
- Article 444 CPP provides:
-1. The accused and the public prosecutor may request the court to apply an alternative sanction, of a kind and extent appropriate, or a financial penalty, reduced to a maximum of one third of the quantum, or a sentence of imprisonment which, taking into account the circumstances and reduced to a maximum of one third of the quantum, does not exceed five years, alone or accompanied by a financial penalty.
2. If there is an agreement, even of the party who did not make the request, and provided there has been no acquittal ..., the court, on the basis of the documents before it, assuming that the characterisation of the facts and the application and comparison of the circumstances of the case made by the parties are correct and that the sanction indicated is adequate, shall by judgment impose that sanction, mentioning in the operative part that it was requested by the parties. In cases where a civil party joins the proceedings, the court shall not give judgment on that claim; ...
...'
- Article 665(1) CPP provides:
'Unless provided otherwise by law, only the judge who took the decision in the case is competent to enforce that decision.'
The main action and the questions referred for a preliminary ruling
- It is apparent from the order for reference that criminal proceedings were brought before the Tribunale de Milano against Mr Dell'Orto and other accused persons in respect of the offence of giving false information about companies (false accounting), with the further intention of committing the offences of aggravated embezzlement and of unlawful financing of political parties. Several companies belonging to the Italian group ENI were among the persons affected by those crimes, including Saipem SpA ('Saipem'), which joined those criminal proceedings as a civil party.
- According to the order for reference, Mr Dell'Orto and the other accused persons embezzled large sums of money belonging to those companies by obtaining remuneration for fictional consultancy activities provided to offshore companies with which one of the accomplices was institutionally linked, appropriating part of those sums for themselves. In particular, Mr Dell'Orto appropriated for himself a sum of EUR 1 064 069.78 which belonged to Saipem, a sum which was placed under sequestration by the Italian courts in the course of the criminal proceedings. Such a protective measure had, in particular, the main and specific goal of guaranteeing that the civil obligations arising from the crime would be met.
- The criminal proceedings resulted in the issue of a judgment by the judge in charge of the preliminary investigations at the Tribunale di Milano on 4 May 1999, which became res judicata on 5 June 1999, applying a penalty on the basis of Article 444 CPP, that is by a means known as 'by settlement'. Mr Dell'Orto was sentenced by this judgment to a term of imprisonment and a fine, the sentence being suspended. No decision was taken as to the fate of the sum placed under sequestration.
- Saisem obtained the return of the above sum following an order of that judge made on 3 December 1999. That order was set aside by a judgment of the Corte Suprema di Cassazione (Supreme Court of Cassation) of 8 November 2001. That judgment pointed out in particular that, as the judgment of 4 May 1999 made no decision on the sum placed under sequestration, the criminal court lacked the power to order its return to Saipem.
- Following the judgment of 8 November 2001, Mr Dell'Orto requested the judge in charge of preliminary investigations to order Saipem in turn to return the sum in question, given that it might again be placed under sequestration in anticipation of a decision on its possible return. According to Mr Dell'Orto, it is for the civil court to take that decision pursuant to Article 263(3) CPP, on the ground that there is a dispute as to the ownership of that sum.
- By order of 18 July 2003, the judge in charge of preliminary investigations at the Tribunale di Milano ordered the transfer of the case file to the civil court, rejecting Mr Dell'Orto's request as to the remainder.
- That order was annulled by a judgment of 21 April 2005 of the Corte Suprema di Cassazione, which sent the case back to the same judge. According to that judgment, if, pursuant to Article 263(3) CCP, the dispute as to the ownership of the seized property is decided by the civil court judge in interim proceedings, that does not thereby deprive the criminal court judge of the power to take measures regarding the safe keeping of the property pending resolution of the dispute as to its ownership, with the result that it is for the judge of preliminary investigations at the Tribunale di Milano to 'adopt the appropriate measures for the purposes of actually placing under sequestration the sum which has in the meantime been returned to Saipem'.
- The proceedings before the court making the reference were therefore reopened in order to ensure the enforcement of the second judgment of the Corte Suprema di Cassazione.
- According to the court making the reference, there cannot in the main action be any remaining 'dispute as to ownership' of the sums placed under sequestration, of such a kind to justify the opening of interim proceedings before the civil court judge. The assets placed under sequestration are not owed to a third party and should be returned to Saipem pursuant to Article 2037 of the Italian Civil Code, and it follows from the examination of the documents in the case file that Mr Dell'Orto has never questioned that the sums in question are the property of that company.
- The court making the reference considers that, in reality, a purely procedural obstacle precludes it from itself ordering the return of the sums in question to Saipem, the question being one as to the power of the judge responsible for enforcement to take a decision on the return of the sums placed under sequestration following a judgment on application of the penalty imposed under Article 444 CPP. According to the case-law of the Corte Suprema di Cassazione, in particular the above-mentioned judgment of 8 November 2001, the judge with responsibility for enforcement does not have the power to take a decision concerning return to the victim of the property seized following a judgment issued under Article 444, which makes no provision in that regard.
- In that context, the court making the reference raises the question of the applicability of the principles set out in Articles 2 and 9 of the Framework Decision.
- It asks, in particular, whether those articles of the Framework Decision are applicable from the point of view of their personal scope, as the victim is not a natural person but a legal person.
- Article 1(a) of the Framework Decision provides that it applies to a 'natural person' who has suffered harm. The court making the reference nevertheless asks whether it is possible to interpret the Framework Decision, when read in the light of Articles 12 and 17 of the Directive, to mean that it also applies to any other person who is the victim of a crime, and, in particular, to legal persons. If this is the case, the principle referred to in Article 9(3) of the Framework Decision, according to which property seized in the course of criminal proceedings which belongs to victims shall be returned to them without delay, is applicable in the main action. In accordance with the case-law of the Court (Case C-105/03 Pupino [2005] ECR I-5285), the national judge is obliged, in so far as possible, to interpret the provisions of the CPP concerning the extent of the decision-making powers of the judge responsible for enforcement, with regard to the return of property seized in the course of criminal proceedings, in conformity with Article 9(3) of the Framework Decision, which sanctions a simplified procedure in order to obtain the objectives established by the legislation relating to the compensation of victims.
- The court making the reference comments moreover that the Court has held with regard to certain forms of procedure which bar further prosecution and are analogous to that resulting from a judgment reached by 'settlement' for the purposes of Article 444 CCP, that they are to be considered as equivalent to a judgment which finally disposes of a case and closes the criminal proceedings (Joined Cases C-187/01 et C-385/01Gözütok and Brügge [2003] ECR I-1345).
- Since, in the main action, the dispute as to the return of sums placed under sequestration arises following the closure of criminal proceedings by the judgment of 4 May 1999, the national court making the reference also raises the question of the applicability of the principles referred to in Articles 2 and 9 of the Framework Decision in the specific context of criminal enforcement proceedings which follow the closure of the criminal proceedings proper.
- In those circumstances, the judge in charge of preliminary investigations at the Tribunale di Milano decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
'(1) Can the rules referred to in Articles 2 and 9 of the Framework Decision ... apply in criminal proceedings, in general, to any party affected by a crime, by virtue of Article 1 et seq of the Directive ... or of other provisions of Community law?
(2) Can the rules referred to in Articles 2 and 9 of the Framework Decision ... apply in criminal proceedings for enforcement following a judgment which resulted in a final criminal conviction (and thus also following a judgment applying a penalty as provided for in Article 444 of the Code of Criminal Procedure) to any party affected by a crime, by virtue of Article 1 et seq of the Directive ... or of other provisions of Community law?'
The questions for a preliminary ruling
Admissibility
- Several governments which have submitted observations in the course of these proceedings have cast doubt upon the admissibility of the reference for a preliminary ruling.
- The United Kingdom Government submits that the reference for a preliminary ruling is inadmissible because it is based on Article 234 EC whereas the interpretation sought concerns the Framework Decision, that is an act adopted under Title VI of the Treaty on European Union. In such a case, the reference should be based exclusively on Article 35(1) EU, whereas Article 234 EC is not applicable. Ireland maintains that, since the conditions for application of Article 35 EU are met in this case, the mistaken reliance on Article 234 EC as the basis for the reference should not preclude the Court from giving a reply to the questions referred by the court making the reference.
- First of all, it should be noted that, in accordance with Article 46(b) EU, the provisions of the EC and EAEC Treaties concerning the powers of the Court of Justice and the exercise of those powers, including the provisions of Article 234 EC, apply to the provisions of Title VI of the Treaty on European Union under the conditions laid down by Article 35 EU. Contrary to what is argued by the United Kingdom Government, it therefore follows that the system under Article 234 EC is capable of being applied to the Court's jurisdiction to give preliminary rulings by virtue of Article 35 EU, subject to the conditions laid down by that provision (see, to that effect, Pupino, paragraphs 19 et 28).
- It is established that the Italian Republic indicated, by a declaration which took effect on 1 May 1999, the date on which the Treaty of Amsterdam came into force, that it accepts the jurisdiction of the Court to rule on the validity and interpretation of the acts referred to in Article 35 EU in accordance with the rules laid down in paragraph 3(b) of that article. It is also undisputed that the Framework Decision, based on Articles 31 EU and 34 EU, is one of the acts referred to in Article 35(1) EU on which the Court may rule in a reference for a preliminary ruling (Pupino, paragraphs 20 and 22) and it is accepted that the judge in charge of preliminary investigations at the Tribunale di Milano, acting in proceedings such as those in the main action, must be considered as a court or tribunal of a Member State for the purposes of Article 35 EU.
- In those circumstances, and regardless of the fact that the questions referred for a preliminary ruling also concern the interpretation of a Directive adopted under the EC Treaty, the fact that the order for reference does not mention Article 35 EU, but refers to Article 234 EC, cannot of itself make the reference for preliminary ruling inadmissible. This conclusion is reinforced by the fact that the Treaty on European Union neither expressly nor by implication lays down the form in which the national court must present its reference for a preliminary ruling (see, by analogy, with regard to Article 234 EC, Case 13/61 De Geus [1962] ECR, p. 45, 50).
- The Netherlands Government questions the admissibility of the reference for a preliminary ruling on the ground that the factual and legislative context is not defined sufficiently in the order for reference. According to that government, the relevance of the questions asked does not emerge from it sufficiently clearly, since, in the absence of further clarification of the applicable national law, it is impossible to confirm whether, as submitted by the court making the reference, a question is raised concerning the interpretation of that law in conformity with the Framework Decision, which in any event lacks direct effect.
- The Austrian Government submits that Italian law prevents the court making the reference from taking a decision in the main action on questions of a civil law nature, with the consequence that the questions referred for a preliminary ruling are hypothetical.
- The Court observes that, like Article 234 EC, Article 35 EU makes reference to the Court of Justice for a preliminary ruling subject to the condition that the national court 'considers that a decision on the question is necessary in order to enable it to give judgment', meaning that the case-law of the Court of Justice on the admissibility of references under Article 234 EC is, in principle, transposable to references for a preliminary ruling submitted to the Court of Justice under Article 35 EU (Pupino, paragraph 29).
- It follows that the presumption that questions referred by national courts for a preliminary ruling are relevant may be rebutted only in exceptional cases, where it is quite obvious that the interpretation which is sought of the provisions of Union law referred to in the questions bears no relation to the actual facts of the main action or to its purpose or where the problem is hypothetical or the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. Save for such cases, the Court is, in principle, required to give a ruling on questions concerning the interpretation of the acts referred to in Article 35(1) EU (Pupino, paragraph 30).
- Furthermore, the need to provide an interpretation of Community law which will be of use to the national court presupposes that the latter sets out the factual and legislative context of the questions it is asking or, at the very least, explains the factual circumstances on which those questions are based. In that regard, it is essential that the national court should give at the very least some explanation of the reasons for the choice of the provisions of Union law which it requires to be interpreted and on the link it establishes between those provisions and the national legislation applicable to the dispute (see, inter alia, with regard to Article 234 EC, Case C-295/05 Asemfo [2007] ECR I-0000, paragraphs 32 and 33).
- The information provided in orders for reference must not only be such as to enable the Court to reply usefully but must also enable the governments of the Member States and other interested parties to submit observations pursuant to Article 23 of the Statute of the Court of Justice (see, inter alia, Case C-303/05 Advocaten voor de Wereld [2007] ECR I-0000, paragraph 20).
- As is evident from paragraphs 16 to 30 of this judgment, the order for reference sets out the underlying facts of the main action and the provisions of applicable national law which are directly relevant and it explains the reasons why the court making the reference is seeking an interpretation of the Framework Decision, and also the link between the latter and the national legislation applicable in the matter.
- Contrary to the argument submitted by the Austrian Government, it is not obvious that an interpretation of national law in conformity with the Framework Decision in the main action is impossible, this being a matter for the national court to determine (see, to that effect, Pupino, paragraph 48).
- In those circumstances, it is not obvious that the interpretation which is sought of the provisions of the Framework Decision referred to in the questions raised bears no relation to the actual facts of the main action or to its purpose or that the problem is hypothetical or that the Court lacks the factual or legal material necessary to give a useful answer to those questions.
- Finally, the information contained in the order for reference is also sufficient to ensure that the parties to the main action, the Member States, the Council of the European Union and the Commission of the European Communities are able to submit their observations pursuant to Article 23 of the Statute of the Court of Justice, as is, moreover, indicated by the observations lodged by the parties who have intervened in these proceedings.
- During the written procedure before the Court, the question was raised whether the Framework Decision can be considered as applicable from a temporal perspective to a set of facts which, as in the main action, occurred well before adoption of the Framework Decision on 15 March 2001, let alone the period prescribed for its implementation, which expired on 22 March 2002 with regard inter alia to Article 9 of the Framework Decision.
- In that regard, it must be recalled that, according to settled case-law, procedural rules are generally held to apply to all proceedings pending at the time when they enter into force, whereas substantive rules are usually interpreted as not applying to situations existing before their entry into force (see, inter alia, Case C-293/04 Beemsterboer Coldstore Services [2006] ECR I-2263, paragraph 21 and case-law cited).
- The question which is at the centre of the main proceedings, that is the power of the national court to take a decision concerning the return to the victim of property which has been seized in criminal proceedings, relates to procedural rules, with the result that there is no obstacle deriving from the temporal application of the law which precludes the taking into account, in those proceedings, of the relevant provisions of the Framework Decision with a view to the interpretation of the applicable national law in conformity with those provisions.
- The reference for a preliminary ruling is therefore admissible.
The questions for a preliminary ruling
- By its two questions, which it is appropriate to examine together, the court making the reference asks essentially whether the Framework Decision must be interpreted as meaning that, in criminal proceedings, and, more specifically, in enforcement proceedings following a judgment resulting in a final criminal conviction, such as that at issue in the main proceedings, the concept of 'victim' for the purposes of the Framework Decision includes legal persons who have suffered harm directly caused by acts or omissions that are in violation of the criminal law of a Member State.
- Article 1(a) of the Framework Decision defines 'victim', for the purposes of the Framework Decision, as a 'natural' person who has suffered harm, including physical or mental injury, emotional suffering or economic loss, directly caused by acts or omissions that are in violation of the criminal law of a Member State.
- It follows from the wording of this provision that the Framework Decision applies only to natural persons who have suffered harm directly caused by conduct which infringes the criminal law of a Member State.
- To interpret the Framework Decision to mean that it would also apply to 'legal' persons who, like the civil party to the main action, maintain that they have suffered harm directly caused by a criminal act, would contradict the very letter of Article 1(a) of the Framework Decision.
- In addition, there is no indication in any other provision of the Framework Decision that the European Union legislature intended to extend the concept of victim for the purposes of the application of the Framework Decision to legal persons. The converse is in fact the case, as several provisions of the Framework Decision confirm that the legislature's objective was to limit its scope exclusively to natural persons who are victims of harm resulting from a criminal act.
- In that regard, apart from Article 1(a) of the Framework Decision, which refers, so far as the principal categories of harm are concerned, to physical or mental injury and to emotional suffering, reference should also be made to Article 2(1) of the Framework Decision, which obliges each Member State to make every effort to ensure that victims are treated with due respect for the dignity of the individual, Article 2(2), which refers to the specific treatment from which victims who are particularly vulnerable can benefit, and also Article 8(1) of the Framework Decision, which obliges the Member States to ensure a suitable level of protection to the family of the victim or to persons in a similar position.
- The Directive is not of such a kind as to invalidate this interpretation. The Framework Decision and the Directive govern different matters. The Directive sets up a system of cooperation to facilitate access to compensation to victims of crimes in cross-border situations. It seeks to ensure that where a violent intentional crime has been committed in a Member State other than that in which the victim is habitually resident, the victim shall receive compensation from the former Member State. The Framework Decision, on the other hand, aims to approximate the legislation of the Member States concerning the protection of the interests of the victim in criminal proceedings. It seeks to ensure that the offender makes reparation for the harm suffered by the victim.
- Even supposing that the provisions of a Directive adopted on the basis of the EC Treaty were capable of having any effect on the interpretation of the provisions of a Framework Decision based on the Treaty on European Union and that the concept of victim for the purposes of the Directive could be interpreted to include legal persons, the Directive and the Framework Decision are not on any analysis linked in a manner which would call for a uniform interpretation of the concept in question.
- Moreover, a situation such as that in the main action does not fall within the scope of the Directive. As is evident from paragraph 57 of this judgment, the Directive provides for compensation only where a violent intentional crime has been committed in a Member State other than that in which the victim is habitually resident, whereas the main action relates to offences of false accounting, aggravated embezzlement and unlawful financing of political parties committed substantially on the territory of the Member State in which the victim resides.
- The answer to the questions referred is therefore that the Framework Decision must be interpreted as meaning that, in criminal proceedings and, in particular, in enforcement proceedings following a judgment which resulted in a final criminal conviction, such as those in the main action, the concept of 'victim' for the purposes of the Framework Decision does not include legal persons who have suffered harm directly caused by acts or omissions that are in violation of the criminal law of a Member State.
Costs
- Since these proceedings are, for the parties to the main action, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Third Chamber) hereby rules:
Council Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings, must be interpreted as meaning that, in criminal proceedings and, in particular, in enforcement proceedings following a judgment which resulted in a final criminal conviction, such as those in the main action, the concept of 'victim' for the purposes of the Framework Decision does not include legal persons who have suffered harm directly caused by acts or omissions that are in violation of the criminal law of a Member State.
[Signatures]
* Language of the case: Italian.
