CELEX: 62009CJ0205
Police and judicial cooperation in criminal matters
Framework Decision 2001/220/JHA
Standing of victims in criminal proceedings
Meaning of ‘victim’
Legal persons
Mediation in criminal proceedings
Detailed rules of application

This reference for a preliminary ruling concerns the interpretation of Article 1(a) and Article 10(1) of the 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’).
The reference has been made in criminal proceedings brought against Mr Eredics and Ms Sápi on charges of adversely affecting
the financial interests of the European Communities.

Legal context

European Union legislation
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;
…
(e)      “mediation in criminal cases” shall be understood as the search, prior to or during criminal proceedings, for a negotiated
solution between the victim and the author of the offence, mediated by a competent person.’
Article 10 of the Framework Decision provides:
‘1.      Each Member State shall seek to promote mediation in criminal cases for offences which it considers appropriate for this sort
of measure.
2.      Each Member State shall ensure that any agreement between the victim and the offender reached in the course of such mediation
in criminal cases can be taken into account.’

National legislation
Paragraph 221/A of the Hungarian Criminal Procedure Code (Büntető eljárási törvény, ‘the CPP’) provides:
‘1.      The mediation procedure is a procedure which may be applied at the request of the suspect or of the victim, and with the free
consent of both, in criminal proceedings brought in respect of offences against the person (Chapter XII, Titles I and III
of the Criminal Code), transport safety (Chapter XIII of the Criminal Code) or offences against property (Chapter XVIII of
the Criminal Code) which are subject to a penalty of not more than five years’ imprisonment.
2.      The aim of the mediation procedure is to promote compensation for the consequences of the offence and to ensure that the suspect’s
future conduct complies with the law. In the mediation procedure, it is intended that an agreement based on the suspect’s
active repentance should be reached between the suspect and the victim. During criminal proceedings, the mediation procedure
may be used only once.
3.      The Prosecution, of its own motion or at the request of the suspect, counsel for the defence or the victim, shall order a
stay of the proceedings for a period of a maximum of six months and the initiation of the mediation procedure
(a)      where the discontinuation of proceedings pursuant to Paragraph 36 of the Criminal Code or an unrestricted reduction of sentence
is possible;
(b)      where the suspect admits the facts during the investigation, accepts and is able to assume the burden of paying compensation
for the harm suffered by the victim or of making reparation to the victim by any other means for the harmful consequences
of the offence;
(c)      where both the suspect and the victim have consented to the mediation procedure, and
(d)      where, having regard to the nature of the offence, the form of responsibility and the person of the suspect, the legal procedure
may be omitted or there are grounds for believing that the Court will take account of active repentance at the time of sentencing.
…
5.      Statements made by the suspect and the victim, during the mediation procedure, in respect of the acts on which the proceedings
are based cannot be used for evidential purposes. The result of the mediation procedure cannot be used against the suspect.
6.      A special law will determine the detailed rules applicable to the mediation procedure.
7.      If the outcome of the mediation procedure is an agreement and if it is appropriate to apply Paragraph 36(1) of the Criminal
Code, the Prosecution shall discontinue the proceedings; if it is appropriate to apply Paragraph 36(2) of the Criminal Code,
the Prosecution shall issue an indictment. If the suspect has started to implement the agreement reached at the end of the
mediation procedure, but remains liable to a criminal penalty, the Prosecution may, in respect of offences punishable by imprisonment
of a maximum of three years, postpone the issue of the indictment for one or two years’.
Under Paragraph 36 of the Hungarian Criminal Code (Büntető törvénykönyv, ‘the CP’):
‘1.      No punishment shall be imposed on a person who, within a mediation procedure, pays compensation or otherwise makes reparation
to the victim for the damage caused by an offence against the person (Chapter XII, Titles I and III of the Criminal Code),
a transport safety offence (Chapter XIII of the Criminal Code) or an offence against property (Chapter XVIII of the Criminal
Code) which is punishable by a penalty of not more than three years’ imprisonment.
2.      As regards offences referred to in subparagraph (1) which are punishable by a penalty of not more than five years’ imprisonment,
the penalty may be reduced, without restriction, if the offender pays compensation or otherwise makes reparation to the victim,
within a mediation procedure, for the damage caused by such an offence.
3.      The above subparagraphs (1) and (2) shall not apply if the offender
(a)      is a habitual offender or has committed the particular offence previously,
(b)      committed the offence as a member of a criminal organisation,
(c)      committed an offence which caused death,
(d)      committed an intentional offence during a period of probation giving rise to the suspension of a period of imprisonment or,
if a sentence of a period of imprisonment was to be imposed upon commission of an intentional offence, before commencing the
period of imprisonment concerned, or further during a period of release on licence or deferral of prosecution.’
Under Paragraph 314 of the CP:
‘1.      Any person who causes harm to the budget of the European Communities by making a false statement, or by using a false, counterfeit
or forged document or instrument, or who either does not comply or inadequately complies, to an extent amounting to misrepresentation,
with the obligations to provide information relating to
(a)      aid provided from funds managed by or on behalf of the European Communities,
(b)      payments to be made to the budget managed by or on behalf of the European Communities,
is guilty of an offence punishable by imprisonment of up to five years.
2.      Any use, for purposes other than those authorised, of,
(a)      the aid referred to in Paragraph 314(1)(a), or
(b)      an advantage relating to the payment referred to in [Paragraph 314(1)(b)],
is also an offence punishable in accordance with the provisions of Paragraph 314(1).’
Paragraph 318 of the CP provides:
‘1.      A person who, for the purposes of unlawful gain, induces a person to hold or continue to hold a false belief and causes damage
thereby, commits fraud.
…
4.      The offence will be punished by a term of imprisonment of up to three years if
(a)       the fraud causes considerable loss,
…’
Under Paragraph 138/A of the CP, a loss is ‘considerable if it is more than HUF 200 000 but less than HUF 2 000 000’.

The dispute in the main proceedings and the questions referred for a preliminary ruling
Mr Eredics, the first defendant in the main proceedings, is the principal of the nursery and primary school of Apátistvánfalva
(‘the school). Ms Sápi, the second defendant in the main proceedings, is a director of Apátistvánfalvi Hotel Apát Kereskedelmi
és Szolgáltatási Korlátolt Felelősségű Társaság (a limited liability company under Hungarian law) (‘Hotel Apát kft’) and manager
of the Hotel Apát, which is run by Hotel Apát kft.
In the framework contract entered into on 30 June 2003 by the school and the Hungarian Small Projects Fund for the PHARE CBC
programme (Magyarország – PHARE CBC Program Kisprojekt Alap 2001), the latter granted aid to the school to cover 80.15% of
the amount required to implement a forest paths project, conducted by Mr Eredics as project leader.
The aid was paid on 4 February 2004. VÁTI Magyar Regionális Fejlesztési és Urbanisztikai Kiemelten Közhasznú Társaság (a Hungarian
public utility company responsible for rural and urban development, ‘VÁTI kht’) supervised the implementation of the project
and was responsible for the settlement of accounts.
Under a contract entered into by Mr Eredics and Ms Sápi, who was engaged following a tendering procedure, Ms Sápi undertook,
in return for the payment of 1 200 000 HUF (approximately EUR 4 270), to organise, prepare and run a training course in preparation
for the basic examination in knowledge of fungi, and also to organise study trips and meetings.
In order to prove the performance of the provisions of that contract, Ms Sápi drew up a performance report in the name of
Hotel Apát kft which she sent to Mr Eredics, who settled the final invoice from the school’s current account.
The manner in which the basic mycology course was to be run in accordance with that contract was not defined, and the invoice
and the logbook drawn up to prove the performance of the contract at issue have been deemed to be fraudulent. Mr Eredics added
to the project file documents which are thought to be fraudulent, including the report on a study trip which did not take
place and an evaluation report in which an unknown person forged the name of the group leader. That file was sent to VÁTI
kht in order to prove that the obligations stipulated in that contract had been performed.
On 20 June 2006 a private complaint was brought against Mr Eredics and Ms Sápi in relation to the unsubstantiated payment
of approximately HUF 1 200 000.
During the investigation which was undertaken Mr Eredics was called to appear on several occasions as a suspect, but he did
not admit the facts alleged against him.
On 2 September 2008 the prosecutor attached to the Szombathelyi Városi Bíróság brought criminal proceedings before that court,
serving on Mr Eredics and Ms Sápi an indictment where the actions of Mr Eredics were classified as an ‘offence adversely affecting
the financial interests of the European Communities’, within the meaning of Article 314(1)(a) of the CP, committed on one
occasion as the principal perpetrator.
On 24 November 2008, at the invitation of the referring court, Mr Eredics admitted the facts alleged against him and lodged
a request for a mediation procedure with the aim of securing either the abandonment of the prosecution or an unrestricted
reduction in sentence, in accordance with Article 221/A of the CPP.
At the hearing of 9 April 2009 the referring court held that the facts alleged against Mr Eredics could also be classified
as ‘fraud’. Mr Eredics maintained both his request for a mediation procedure and his previous declaration relating thereto
whereby he admitted the facts.
At the hearing of 22 April 2009 VÁTI kht, in its capacity as a victim, consented to the mediation procedure. The referring
court then stayed the criminal proceedings until 22 October 2009 for the purposes of mediation.
The prosecutor brought an appeal against that decision. The prosecutor’s argument is that in the light of the classification
of the facts in the indictment, the acts do not constitute offences for which the mediation procedure is provided under Hungarian
law. Further, that procedure is precluded because Mr Eredics did not admit the facts ‘during the investigation’ as laid down
in the abovementioned Paragraph 221/A. Moreover, there is no sense in the company VÁTI kht, as a victim, being willing to
participate in mediation. The ultimate victim is the European Community and consequently mediation is not justified.
In those circumstances, the Szombathelyi Városi Bíróság decided to stay the proceedings and to refer to the Court the following
questions for a preliminary ruling:
‘(1)      The court wishes to know, in connection with the criminal proceedings pending before it, whether “a person other than a natural
person” falls within the definition of “victim” in Article 1(a) of the Framework Decision …, in light of the obligation to
promote mediation between the victim and the offender in criminal cases, laid down in Article 10 of the Framework Decision,
and asks the Court of Justice to explain and supplement its judgment in Case C‑467/05
Dell’Orto
[2007] ECR I‑5557.
(2)      The court wishes to know, regarding Article 10 of the Framework Decision …, which provides that “[e]ach Member State shall
seek to promote mediation in criminal cases for offences which it considers appropriate for this sort of measure”, whether
the meaning of the term “offences” may be interpreted to refer to all offences the legal classification of which is substantively
the same.
(3)      Is it possible to interpret the words “[e]ach Member State shall seek to promote mediation in criminal cases ...]” in Article
10(1) of the Framework Decision … in such a way that the conditions upon which offender and victim can have access to mediation
can be satisfied at least until the point when a decision is made at the first stage of proceedings; or [in such a way] that
a condition that the offender has admitted the facts during the legal proceedings, after the investigation has been completed
- when all other conditions are satisfied - is a condition which is compatible with the obligation to promote mediation?
(4)      The court raises the question, with regard to Article 10(1) of the Framework Decision, whether the words “[e]ach Member State
shall seek to promote mediation in criminal cases for offences which it considers appropriate for this sort of measure” mean
that the option of mediation in criminal proceedings must be generally available, provided that all the prerequisite legal
conditions are satisfied, and that there is no room for discretion. That is to say, if the reply to the question is in the
affirmative, is the existence of a condition worded as follows: “[where] having regard to the nature of the offence, the form
of responsibility and the person of the suspect, the legal proceedings may be omitted or there are grounds for believing that
the court will take into account active repentance at the time of sentencing” compatible with the provisions (requirements)
of Article 10?’

Consideration of the questions referred

The first question
By its first question, the referring court asks, in essence, whether Articles 1(a) and 10 of the Framework Decision must be
interpreted as meaning that the concept of ‘victim’ extends to legal persons for the purposes of the promotion of mediation
in criminal proceedings referred to in Article 10(1).
As the Hungarian, French and Italian Governments and the Commission of the European Communities rightly stated, the Court
has already ruled that, having regard to the wording and the general structure of the Framework Decision, the concept of ‘victim’
for the purposes of the Framework Decision, as defined in Article 1 thereof, applies only to natural persons (see, to that
effect, in particular,
Dell’Orto
, paragraphs 53 to 56).
The Court ruled, in paragraph 53 of
Dell’Orto
, that it follows from the very wording of Article 1(a) of the Framework Decision, which, for the purposes of that Framework
Decision, defines a victim 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, that that
provision of the Framework Decision applies only to natural persons who have suffered such harm.
In paragraphs 55 and 56 of the same judgment, the Court stated that 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 that Framework Decision, to legal persons, and that the converse is in fact the case, as several of its provisions 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, the Court referred not only to Article 1(a) of the Framework Decision, which mentions, as
categories of harm, physical or mental injury and emotional suffering, but also to Article 2(1) of the Framework Decision,
which obliges Member States 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 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 to family members.
The fact that some Member States provide for penal mediation where the victim is a legal person does not call into question
the conclusion reached by the Court in
Dell’Orto
.
Since the Framework Decision does not undertake a complete harmonisation of the field in question, a decision that its provisions
are also to be applicable where the victim is a legal person is one that Member States are neither prevented by the Framework
Decision from taking nor obliged to take.
Nor does an interpretation of the Framework Decision as applying solely to natural persons constitute discrimination against
legal persons. The European Union legislature could legitimately establish a body of rules designed to protect only natural
persons, since such persons are objectively in a situation which differs from that of legal persons because of their greater
vulnerability and because of the nature of the interests which can be harmed by offences which can be committed only against
natural persons, such as the victim’s life and physical well-being.
In the light of the foregoing, Articles 1(a) and 10 of the Framework Decision must be interpreted as meaning that the concept
of ‘victim’ does not extend to legal persons for the purposes of the promotion of mediation in criminal proceedings under
Article 10(1).

The second question
The jurisdiction of the Court
The Hungarian Government observes that the CPP permits recourse to the mediation procedure where the victim is not a natural
person. However, since the scope of the Framework Decision extends only to victims who are natural persons, that is in any
event of no relevance to the case in the main proceedings.
In accordance with settled case-law, the Court has jurisdiction to provide a ruling, even where the facts of the main proceedings
are outside the scope of European Union law, provided that the domestic legislation has adopted the same solutions as those
adopted in European Union law and applies those solutions to a situation which is not covered by European Union law. According
to the Court’s case-law, the legal order of the European Union clearly has an interest in ensuring that, to forestall future
divergences of interpretation, any provision of European Union law should be interpreted uniformly, irrespective of the circumstances
in which the provision is to apply (see, to that effect, in particular, Case C‑130/95
Giloy
[1997] ECR I‑4291, paragraphs 19 to 28; Case C‑267/99
Adam
[2001] ECR I‑7467, paragraphs 23 to 29; Case C‑43/00
Andersen og Jensen
[2002] ECR I‑0379, paragraphs 15 to 19, or Case C‑3/04
Poseidon Chartering
[2006] ECR I‑2505, paragraphs 14 to 19).
As is conceded by the Hungarian Government, Paragraph 221/A of the CPP inserted in that code, with effect from 1 January 2007,
a mediation procedure which, as regards the offences listed there, makes no distinction according to whether the victim is
a natural person or a legal person.
The Court therefore does not lack jurisdiction to answer the second question merely because the Framework Decision applies
only to victims who are natural persons.
Substance
By this question, the referring court asks, in substance, whether Article 10 of the Framework Decision must be interpreted
as requiring Member States to make recourse to mediation possible for all offences the substantive components of which, as
defined by the national legislation, correspond essentially to those of offences for which mediation is expressly provided
for by that legislation.
In that regard, it must be observed that, in addition to the fact that Article 34 EU leaves to national authorities the choice
of form and methods necessary to achieve the desired result of Framework Decisions, Article 10 of the Framework Decision does
no more than require Member States to seek to promote mediation in criminal cases for offences which they ‘consider[s] appropriate’,
and consequently the choice of the offences for which mediation is to be available is for the Member States to determine.
It follows from the very wording of Article 10 and from the large measure of discretion which the Framework Decision leaves
to national authorities with regard to the specific means by which they implement its objectives (see Case C‑404/07
Katz
[2008] ECR I‑7607, paragraph 46) that, in deciding to enable the mediation procedure to be applied solely in cases of offences
against the person, transport safety or offences against property, a choice which essentially rests on grounds of legal policy,
the Hungarian legislature has not exceeded its discretion.
While it is true that the decisions of Member States may be restricted by the obligation to use objective criteria to determine
the types of offences concerned, there is no indication that that is at issue in the present case.
In the light of the foregoing, Article 10 of the Framework Decision must be interpreted as not requiring Member States to
make recourse to mediation possible for all offences the substantive components of which, as defined by the national legislation,
correspond essentially to those of offences for which mediation is expressly provided by that legislation.

The third and fourth questions
The jurisdiction of the Court
It is common ground that Hungarian law does not provide for any recourse to mediation when the offence concerned is that of
adversely affecting the financial interests of the European Communities. Moreover, it is apparent from the answer given to
the second question that it cannot be inferred from the Framework Decision that, in cases where the victim is a natural person,
it imposes a requirement on Member States to provide for recourse to mediation for offences in respect of which the national
legislation does not provide such recourse even though the substantive components of the offence concerned are the same as
those of offences for which mediation is possible.
Since recourse to mediation is, accordingly, clearly not possible in a situation such as that at issue in the main proceedings,
no answer need therefore be given to the third and fourth questions.

Costs
Since these proceedings are, for the parties to the main proceedings, 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 (Second Chamber) hereby rules:
1.
Articles 1(a) and 10 of Council Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings
must be interpreted as meaning that the concept of ‘victim’ does not extend to legal persons for the purposes of the promotion
of mediation in criminal proceedings in Article 10(1).
2.
Article 10 of the Framework Decision 2001/220 must be interpreted as not requiring Member States to make recourse to mediation
possible for all offences the substantive components
of which, as defined by national legislation, correspond essentially to those of offences for which mediation is expressly
provided by that legislation.
[Signatures]
*
Language of the case: Hungarian.