Opinion of Advocate General Richard de la Tour delivered on 8 May 2024.

• Jurisdiction: European Union
• Celex Number: 62023CC0126
• ECLI: ECLI:EU:C:2024:396
• Date: 08 May 2024
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

RICHARD DE LA TOUR

delivered on 8 May 2024 (1)

Case C‑126/23 [Burdene] (i)

UD,

QO,

VU,

LO,

CA

v

Presidenza dei Consiglio dei Ministri,

Ministero dell’Interno

(Request for a preliminary ruling from the Tribunale Ordinario di Venezia (District Court, Venice, Italy))

(Reference for a preliminary ruling – Directive 2004/80/EC – Article 12(2) – National schemes on compensation to victims of violent intentional crimes – Death of the victim – Compensation to the close family members of the victim – Concept of ‘victim’ – National provisions precluding the payment of compensation to the close family members of the victim in the event of a surviving spouse and children – ‘Fair and appropriate’ compensation)

I. Introduction

1. This request for a preliminary ruling concerns the interpretation of Article 12(2) of Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims, (2) Articles 20 and 21, Article 33(1) and Article 47 of the Charter of Fundamental Rights of the European Union, (3) as well as Article 1 of Protocol No 12 to the European Convention for the Protection of Human Rights and Fundamental Freedoms. (4)

2. The request has been made in proceedings brought by the parents, sister and children of a murder victim against the Presidenza del Consiglio dei Ministri (Presidency of the Council of Ministers, Italy) and the Ministero dell’Interno (Ministry of the Interior, Italy) concerning the inadequate or non-existent amounts granted, by way of compensation for the harm suffered, to them by the Italian State on the grounds that the person convicted of the murder was insolvent.

3. I will set out the reasons why I consider that national provisions which, in the event of the victim’s death, automatically exclude the payment of compensation to certain members of his or her family, in application of a priority ranking derived from the law of inheritance, do not comply with the provisions of EU law on compensation to crime victims.

II. Legal context

A. European Union law

1. Directive 2004/80

4. Recitals 3, 5 to 7 and 10 of Directive 2004/80 state:

‘(3) At its meeting in Tampere on 15 and 16 October 1999, the European Council called for the drawing-up of minimum standards on the protection of the victims of crime, in particular on crime victims’ access to justice and their rights to compensation for damages, including legal costs.

…

(5) On 15 March 2001 the Council adopted Framework Decision 2001/220/JHA on the standing of victims in criminal proceedings. [(5)] This Decision, based on Title VI of the Treaty on European Union, [‘Provisions on police and judicial cooperation in criminal matters’ (6)], allows crime victims to claim compensation from the offender in the course of criminal proceedings.

(6) Crime victims in the European Union should be entitled to fair and appropriate compensation for the injuries they have suffered, regardless of where in the European [Union] the crime was committed.

(7) This Directive sets up a system of cooperation to facilitate access to compensation to victims of crimes in cross-border situations, which should operate on the basis of Member States’ schemes on compensation to victims of violent intentional crime, committed in their respective territories. Therefore, a compensation mechanism should be in place in all Member States.

…

(10) Crime victims will often not be able to obtain compensation from the offender, since the offender may lack the necessary means to satisfy a judgment on damages or because the offender cannot be identified or prosecuted.’

5. Chapter II of that directive, entitled ‘National schemes on compensation’, contains Article 12, which reads 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.’

6. Chapter III of that directive, entitled ‘Implementing provisions’, contains Articles 13 to 21. Article 17, which relates to ‘more favourable provisions’, is worded as follows:

‘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.’

2. Directive 2012/29/EU

7. Recital 19 of Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA, (7) stipulates:

‘A person should be considered to be a victim regardless of whether an offender is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between them. It is possible that family members of victims are also harmed as a result of the crime. In particular, family members of a person whose death has been directly caused by a criminal offence could be harmed as a result of the crime. Such family members, who are indirect victims of the crime, should therefore also benefit from protection under this Directive. However, Member States should be able to establish procedures to limit the number of family members who can benefit from the rights set out in this Directive. In the case of a child, the child or, unless this is not in the best interests of the child, the holder of parental responsibility on behalf of the child, should be entitled to exercise the rights set out in this Directive. This Directive is without prejudice to any national administrative procedures required to establish that a person is a victim.’

8. Article 2 of the directive reads as follows:

‘1. For the purposes of this Directive the following definitions shall apply:

(a) “victim” means:

(i) a natural person who has suffered harm, including physical, mental or emotional harm or economic loss which was directly caused by a criminal offence;

(ii) family members of a person whose death was directly caused by a criminal offence and who have suffered harm as a result of that person’s death;

(b) “family members” means the spouse, the person who is living with the victim in a committed intimate relationship, in a joint household and on a stable and continuous basis, the relatives in direct line, the siblings and the dependants of the victim;

…

2. Member States may establish procedures:

(a) to limit the number of family members who may benefit from the rights set out in this Directive taking into account the individual circumstances of each case; and

(b) in relation to paragraph (1)(a)(ii), to determine which family members have priority in relation to the exercise of the rights set out in this Directive.’

B. Italian law

9. Article 11 of legge n. 122 – Disposizioni per l’adempimento degli obblighi derivanti dall’appartenenza dell’Italia all’Unione europea – Legge europea 2015-2016 (Law No 122 on provisions to comply with the obligations arising from Italy’s membership of the European Union – European Law 2015-2016), (8) of 7 July 2016, in the version applicable to the facts in the main proceedings (‘Law No 122/2016’), provides the following:

‘1. Without prejudice to more favourable benefits in favour of the victims of crimes provided for by other provisions of law, the right to compensation provided by the State is recognised for the victim of a violent intentional crime and in any case of the crime referred to in Article 603bis of the codice penale [(Criminal Code)], with the exception of the crimes referred to in Articles 581 and 582, unless the aggravating circumstances provided for in Article 583 of the Criminal Code apply.

2. Compensation for crimes of murder, sexual assault or grievous bodily harm, in accordance with the second subparagraph of Article 583 of the Criminal Code … shall be awarded to the victim or the beneficiaries listed in paragraph 2bis, to the extent determined by the decree referred to in paragraph 3. For offences other than those referred to in the first sentence, compensation shall be paid for the reimbursement of medical and welfare expenses.

2bis In the event of the death of the victim as a consequence of the crime, compensation is paid to the surviving spouse and children; in the absence of the spouse and children, compensation is paid to the parents and, in the absence of the parents, to the siblings who were cohabiting and dependants at the time the crime was committed. …

2ter In the event of several rightful claimants, the compensation shall be apportioned according to the quotas provided for in the provisions of Title II of Book Two of the codice civile [(Civil Code)].

3. The amounts of compensation shall be determined by decree of the Ministro dell’interno [(Minister for the Interior, Italy)] and Ministro della giustizia [(Minister for Justice, Italy)], in agreement with the Ministro dell’economia e delle finanze [(Minister for the Economy and Finance, Italy)], to be issued within six months from the date of entry into force of this law, in any event within the limits of the availability of the [Fondo di rotazione per la solidarieta’ alle vittime dei reati di tipo mafioso, delle richieste estorsive, dell’usura e dei reati intenzionali violenti (Revolving fund for the support of victims of mafia-style crime, extortion, usury and...