Criminal proceedings against Maria Pupino.

• Jurisdiction: European Union
• Celex Number: 62003CC0105
• ECLI: ECLI:EU:C:2004:712
• Docket Number: C-105/03
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 11 November 2004

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 11 November 2004 (1)

Case C-105/03

Criminal proceedings

against

Maria Pupino

(Reference for a preliminary ruling from the Tribunale di Firenze (Ufficio del giudice per le indagini preliminari) (Italy))

(Judicial cooperation in criminal matters – Protection of victims – Examination of juvenile witnesses)

I – Introduction

1. In these proceedings the Court is called upon for the first time to interpret a framework decision adopted on the basis of Articles 31 and 34(2)(b) EU, namely, Council Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings (hereinafter ‘the Framework Decision’). (2) The Tribunale di Firenze wishes to know whether, under that framework decision, in criminal proceedings concerning physical injury caused to five-year-old children, those children must be examined as witnesses outside the trial by recording their evidence beforehand, even though the Italian law of criminal procedure does not provide for such a procedure in relation to the offences in question.

II – Legal framework

A – Union law

2. For the purpose of interpreting the Framework Decision, the Treaty on European Union, in the version resulting from the Treaty of Amsterdam, is authoritative, since the Framework Decision was adopted before the Treaty of Nice came into force. The legislative effect of framework decisions results from Article 34(2)(b) EU:

‘… Framework decisions shall be binding upon the Member States as to the result to be achieved but shall leave to the national authorities the choice of form and methods. They shall not entail direct effect.’

3. The application of the preliminary ruling procedure to acts referred to in Title VI of the Treaty on European Union results from Article 35 EU. On that basis, Italy has made a declaration which entitles all Italian courts to request preliminary rulings.

4. The framework decision contains various provisions which may be relevant with regard to the standing of children as victims and witnesses in criminal proceedings.

5. Article 2 relates to respect for and recognition of victims in general:

‘(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.’

6. Article 3 deals with victims as witnesses:

‘Each Member State shall safeguard the possibility for victims to be heard during proceedings and to supply evidence.

Each Member State shall take appropriate measures to ensure that its authorities question victims only insofar as necessary for the purpose of criminal proceedings.’

7. Member States are to develop special procedures for giving evidence in accordance with Article 8(4):

‘Each Member State shall ensure that, where there is a need to protect victims – particularly those most vulnerable – from the effects of giving evidence in open court, victims may, by decision taken by the court, be entitled to testify in a manner which will enable this objective to be achieved, by any appropriate means compatible with its basic legal principles.’

B – Italian law

8. According to the referring court, in the Italian law of criminal procedure the trial is intended to be the cornerstone of the procedure. In principle, therefore, evidence must be taken at the initiative of the parties in an adversarial procedure conducted between them at the trial under the direct supervision of the judge. However, a special inquiry procedure for recording evidence beforehand has also been introduced, enabling evidence to be taken at an early stage where, by its nature, it cannot be deferred until the trial. Use of that special inquiry procedure may be requested by either the prosecution or the defence. The decision on the request is taken by the investigating judge who, if he grants the request, then immediately orders the evidence to be taken in an adversarial procedure involving the parties. Evidence taken beforehand by that special procedure has the same full evidential value as that taken at the trial.

9. The legislature has listed specifically and exhaustively the situations in which use of that procedural instrument is admissible, either by indicating the types of evidence which may be recorded beforehand or by indicating the specific features of factual situations which justify recourse to the early taking of evidence.

10. Article 392(1) of the Codice di procedura penale (Code of Criminal Procedure; hereinafter ‘the CPP’) provides inter alia that a witness statement may be recorded beforehand where there is good reason to believe that it will not be possible to examine the witness at the trial because of illness or some other serious impediment or where, on the basis of clear and specific indications, there is good reason to believe that the witness is vulnerable to violence, threats, offers or promises of money or other benefits, intended to induce him not to testify or to give false testimony. Under subsequent amendments of the law, even if none of the aforementioned reasons applies, a court may order the special procedure of recording evidence beforehand in relation to the examination of a witness who is under 16 years of age where the case involves sexual offences or offences with a sexual background.

11. Under Article 398(5a) of the CPP, the court may opt for special forms of procedure for taking and recording evidence where the case involves sexual offences or offences with a sexual background and the witness statement of a person under 16 has to be given using the special procedure of recording it beforehand, if the minor’s situation makes that necessary or shows it to be advisable. Those special forms of procedure consist of the possibility of holding the hearing in a place other than the court, in particular in special facilities or even at the minor’s place of residence. The witness statements must also be fully documented by the use of sound or audiovisual reproduction equipment.

III – Facts and reference for a preliminary ruling

12. The referring court has pending before it criminal proceedings against a nursery school teacher, Ms Pupino, who is charged with having, in January and February 2001, misused disciplinary measures against and injured children entrusted into her care.

13. In August 2001, the Public Prosecutor’s Office applied to examine, by the special procedure of recording their evidence beforehand, eight children born in 1996 who are witnesses to and victims of the offences at issue in the criminal proceedings. It argued that, because of the tender age of the witnesses and the resulting inevitable alteration of their psychological state and because of a possible ‘process of psychological repression’, that evidence could not be repeated at the trial. It also requested that the evidence be taken under protected conditions, that is, in a special facility under conditions which would safeguard the children’s dignity, need for privacy and peace of mind, if necessary bringing in an expert in child psychology because of the sensitivity called for by the events in question and their significance and because of the difficulty of relating to the persons to be questioned because of their tender age.

14. The defence opposed that application since there was no provision for taking evidence in that way in the case of the offences in question.

15. The referring court takes the view that the application by the Public Prosecutor’s Office should be rejected, pursuant to the abovementioned provisions of Italian law of criminal procedure, since the recording of evidence beforehand, as an instrument for taking evidence at an earlier stage than the trial, is a procedural mechanism which is absolutely exceptional in character and cannot be used in situations other than those specified by law.

16. The court is nevertheless of the opinion that the restriction by Italian law of the use of the special procedure for recording evidence beforehand infringes Articles 2, 3 und 8 of the Framework Decision. Minors are always ‘victims who are particularly vulnerable’ within the meaning of Article 2(2) of the Framework Decision. Special arrangements for the examination of witnesses should therefore always apply, regardless of the offence in question, in order to protect them. The referring court infers from Article 3 of the Framework Decision that repetitions of examinations of victims are, as a general rule, to be avoided because of the psychological stress involved. In view of the particular vulnerability of juvenile victims, it is therefore necessary to derogate from the basic rule that only statements made at the trial have evidential value. The referring court infers from Article 8(4) of the Framework Decision the principle that a court must always have the power to dispense with the hearing in open court if it may have adverse effects on victims as witnesses.

17. Since the referring court wishes to ascertain whether it is possible to interpret Italian law in the light of the Framework Decision, it asks the Court of Justice to rule on whether its proposed interpretation of Article 2(3) and Article 8(4) of the Framework Decision is correct.

IV – Legal assessment

A – The right to make references for a preliminary ruling

18. As all the parties acknowledge, the referring court is in principle entitled to submit questions concerning framework decisions to the Court of Justice since Italy has exercised the option provided for in Article 35(3)(b) EU of conferring such jurisdiction on all its...