Opinion of the Advocate General — ECLI:EU:C:2024:396
Date: 2024-05-08
Language of the case: Italian
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary C-126/23 – 1 
Case C-126/23 
Summary of reference for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
2 March 2023 
Referring court:  
Tribunale Ordinario di Venezia (Italy) 
Date of the decision to refer:  
15 February 2023 
Applicants: 
UD 
QO 
VU 
LO 
CA 
Defendants: 
Presidenza del Consiglio dei ministri (Office of the Italian Prime 
Minister) 
Ministero dell’Interno (Italian Ministry of the Interior) 
  
Subject matter of the main proceedings 
Application for damages brought against the State for failure to implement or for 
the inadequate implementation of the obligations under Council Directive 
2004/80/EC of 29 April 2004 relating to compensation to crime victims (OJ 2004 
L 261, p. 15), in particular the obligation under Article 12(2) thereof to provide a 
scheme on compensation to victims of violent intentional crimes which guarantees 
fair and appropriate compensation to victims.  
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-126/23 
 
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Subject matter and legal basis of the reference for a preliminary ruling 
Reference under Article 267(3) TFEU concerning the compatibility with Directive 
2004/80 of national legislation which, first, makes the payment of compensation 
to the parents and sister of a murder victim conditional on there being no spouse 
or children of the victim and, secondly, makes the payment of that compensation 
conditional on the availability of reserves in a fund established by that legislation, 
without such legislation providing for setting aside sufficient resources 
specifically intended to pay the compensation. 
Questions referred for a preliminary ruling 
In the circumstances referred to in paragraph A, concerning a lawsuit for damages 
brought by Italian citizens, permanently resident in Italy, against the State in its 
legislative capacity for failure to implement and/or incorrect and/or incomplete 
implementation of the obligations under Council Directive 2004/80/EC of 
29 April 2004 ‘relating to compensation to crime victims’ and, in particular, the 
obligation, laid down in Article 12(2) thereof, for Member States to introduce by 
1 July 2005 at the latest, as laid down in Article 18(1), a generalised scheme on 
compensation to victims of violent intentional crimes which guarantees fair and 
appropriate compensation to victims in cases where they are unable to obtain full 
compensation for the damage suffered from those directly responsible, and in 
relation to the situation of untimely (and/or incomplete) transposition into national 
law of Council Directive 2004/80/EC of 29 April 2004, the Court of Justice of the 
European Union is asked to rule on the following questions: 
(a) Regarding the provision of Article 11, paragraph 2 bis, of Italian Law 
No 122/2016, which makes the payment of compensation to the parents and sister 
of a murder victim subject to the victim having no spouse and children, even in 
the presence of a final judgment quantifying in their favour the right to 
compensation for the damage suffered and making the perpetrator liable to pay 
such compensation: 
- In the case of murder, does the fact that the payment of compensation laid 
down for the parents and sister of a victim of violent intentional crimes by 
Article 11, paragraph 2 bis of the legge 7 luglio 2016, n. 122 (Disposizioni 
per l’adempimento degli obblighi derivanti dall’appartenenza dell’Italia 
all’Unione europea – Legge europea 2015-2016) (Law No 122 of 7 July 
2016, on provisions to comply with the obligations arising from Italy’s 
membership of the European Union – European Law 2015-2016), as 
subsequently amended by Article 6 of Law No 167 of 20 November 2017 
and by Article 1, paragraphs 593-596, of Law No 145 of 30 December 2018, 
is subject to the victim having no children or spouse (as regards the parents) 
and no parents (as regards siblings), comply with the requirements laid down 
by Article 12(2) of Directive 2004/80, as well as with Articles 20 (equality), 
21 (non-discrimination), 33(1) (protection of the family), 47 (right to an 
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effective remedy and to a fair trial) of the Charter of Fundamental Rights of 
the European Union and Article 1, Protocol 12 of the ECHR (non-
discrimination)? 
(b)  Regarding the limitation on the payment of compensation: 
- Can the condition attached to the payment of the compensation provided for 
in Article 11, paragraph 3, of Law No 122/2016, on provisions to comply 
with the obligations arising from Italy’s membership of the European 
Union – European Law 2015-2016, as amended by Article 6 of Law No 167 
of 20 November 2017 and by Article 1, paragraphs 593-596, of Law No 145 
of 30 December 2018) which states ‘in any event within the limits of the 
availability of the Fund referred to in Article 14’, without any provision 
requiring the Italian State to make specific provision for the compensation, 
even if determined on a statistical basis and in any event which is actually 
capable of providing compensation to those entitled within a reasonable 
period of time, be deemed to be ‘fair and appropriate compensation to 
victims’ pursuant to the provisions of Article 12(2) of Directive 2004/80? 
Provisions of EU law relied on 
Articles 12 and 18 of Council Directive 2004/80/EC of 29 April 2004 relating to 
compensation to crime victims (‘Directive 2004/80’). 
Articles 20, 21, Articles 33(1) and 47 of the Charter of Fundamental Rights of the 
European Union. 
Article 1, Protocol 12 of the European Convention for the Protection of Human 
Rights and Fundamental Freedoms (ECHR). 
Provisions of national law cited 
Legge 7 luglio 2016, n. 122 (Disposizioni per l’adempimento degli obblighi 
derivanti dall’appartenenza dell’Italia all’Unione europea — Legge europea 
2015-2016) (Law No 122 of 7 July 2016 on provisions to comply with the 
obligations arising from Italy’s membership of the European Union — European 
Law 2015-2016), as amended by Article 6 of Law No 167 of 20 November 2017 
and paragraphs 593-596 of Article 1 of Law No 145, of 30 December 2018 (‘Law 
No 122/2016’): Article 11 (Right to compensation in favour of victims of violent 
intentional crimes, implementing Directive 2004/80/EC. Infringement procedure 
2011/4147), paragraphs 1 and 2:  
‘Without prejudice to more favourable benefits in favour of the victims of certain 
crimes provided for by other provisions of law, the right to compensation at the 
expense of the State is recognised for the victim of an intentional crime committed 
with violence to the person and in any case of the crime referred to in Article 603 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-126/23 
 
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bis 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 murder crimes (…) shall be paid in favour of the 
victim or those entitled to it under paragraph 2 bis, 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.’ 
Article 11, paragraph 2 bis: ‘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.’ 
Article 11, paragraph 2 ter: ‘In the event of several rightful claimants, the 
indemnity shall be apportioned according to the quotas provided for in the 
provisions of Book Two, Title II of the codice civile (Civil Code).’ 
Article 11, paragraph 3: ‘The amounts of compensation shall be determined by 
decree of the Minister for the Interior and the Minister for Justice, in agreement 
with the Minister for the Economy and Finance, 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 Fund referred to in Article 14, ensuring greater compensation to 
the victims of sexual violence and murder and, in particular, to the victim’s 
children in the event of murder committed by the spouse, including a separated or 
divorced spouse, or by a person who is or was linked by emotional ties to the 
victim.’ 
Article 1, paragraph 1(b) of Ministerial Decree of 22 November 2019: 
‘In the case of murder committed by a spouse, including a separated or divorced 
spouse, or by a person who is or was linked by emotional ties to the victim, in the 
fixed amount of EUR 60 000 exclusively for the victim’s children.’ 
Succinct presentation of the facts and the proceedings 
1 The applicants UD and QO are the parents, CA is the sister, and VU and LO are 
the children of TS, who on 18 May 2017 was killed by her former cohabiting 
partner KU in […]. KU was sentenced to a term of imprisonment of 30 years by 
the Tribunale di Padova (District Court of Padua, Italy) on 18 September 2018, a 
sentence upheld by the Corte d’Appello di Venezia (Court of Appeal of Venice, 
Italy) on 6 March 2019; on 6 May 2021, the Corte di Cassazione (Court of 
Cassation, Italy) declared the appeal lodged against the Court of Appeal’s verdict 
inadmissible and, therefore, KU’s sentence to the aforementioned penalty became 
final. 
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2 In the first instance proceedings, the District Court of Padua ordered KU to pay 
damages in favour of the plaintiffs and ordered the payment of a provisional sum 
of EUR 400 000 for each child, EUR 120 000 for each parent and the sister, and 
EUR 30 000 for MI, the victim’s separated (but not divorced) husband. 
3 As the murderer was without assets and income, having been admitted to free 
legal aid – a condition indicated by Article 12(b) of Law No 122/2016 – the 
parents, sister, children and husband decided to invoke the protections guaranteed 
to them by Directive No 2004/80; the victim’s children each received 
compensation of EUR 20 000 from the State, while the separated but not divorced 
husband was granted compensation in the amount of EUR 16 666.66. 
4 Having ascertained that the Italian State, by enacting Law No 122/2016, 
introduced significant limitations on the provision of compensation, in breach of 
Directive 2004/80, the applicants have requested: 
- To disapply the Ministerial Decree of 22 November 2019 as unlawful, and 
consequently determine the sums to which they are entitled by way of 
compensation and by reason of their degree of relationship with TS, 
quantifying the compensation in a fair and appropriate amount in accordance 
with Article 12 of Directive 2004/80 and taking account of the quantification 
of the damage made in their favour in the judgment convicting KU, ordering 
the Office of the Prime Minister and the Ministry of the Interior to pay that 
compensation; 
- In the alternative, to order that the defendant institutions pay the same sums 
by way of compensation for the incorrect implementation of Directive 
80/2014 and, in particular, Article 12 thereof. 
5 The defendant institutions, as regards the position of the children, sought the 
dismissal of the claim, since compensation in the amount of EUR 20 000 was 
legitimately paid to them, having found that the victim’s husband was also 
entitled, taking into account that the Ministerial Decree of 22 November 2019 
provides for compensation in the fixed amount of EUR 60 000 in the case of 
homicide, and having carried out the distribution provided for in Article 11, 
paragraph 2 ter, of Law No 122/2016. 
6 In relation to the position of the victim’s parents and sister, the defendant 
institutions also requested the dismissal of the application on the grounds that the 
60-day time limit for the administrative presentation of the claim for 
compensation had been exceeded; in the alternative, the defendant institutions 
requested the dismissal of the application submitted by the victim’s parents and 
sister, since under national law, 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 latter, to the dependent siblings living with the 
victim at the time the crime was committed. 
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Principal arguments of the parties to the main proceedings 
7 According to the applicants, the limit provided by of Article 11,  paragraph 2 bis, 
of Law No 122/2016, which grants the right to compensation to the victim’s 
parents only in the absence of children and the spouse of the victim, while siblings 
are entitled to compensation only in the absence of all the above persons, 
reproducing the provision of Article 568 of the Italian Civil Code for the 
identification of legitimate heirs in the context of successions due to death, as is 
expressly stated in paragraph 2 ter of the same article, is clearly unlawful. Indeed, 
this rule identifies the victim’s parents and siblings as persons entitled to 
compensation, thus explicitly admitting that they have been harmed by the crime, 
and are therefore to be compensated in their own right, but awards them 
compensation only subordinately, that is, on condition that the victim had no 
children or spouse – that is, the parties who can be compensated under inheritance 
law. 
8 In so doing, the Italian legislator unreasonably infringed the obligation to 
compensate provided for in Article 12 of the directive, as it laid down an 
unjustified requirement for compensation, deciding which of the various injured 
parties to whom it abstractly recognises the entitlement must then be actually 
compensated, moreover in an arbitrary manner and without taking into account 
parameters that are fair and appropriate to the case. Compensation was also 
awarded to MI, husband separated since 2006 from TS, that is, a good 11 years 
before the murder, to whom compensation is due under the first sentence of 
paragraph 2 bis: ‘In the event of the death of the victim as a result of the crime, 
compensation is paid to the surviving spouse and the children.’ Consequently, 
even where the emotional bond has manifestly weakened, perhaps almost to the 
point of being non-existent, there is a person (the husband who has been separated 
for years) who is entitled to compensation, whereas this is denied to the victim’s 
father and mother, whose emotional bond with their daughter has never weakened 
in the slightest, just as the one with the sister has never weakened. 
9 There is also inequality of treatment in relation to the different compensation laid 
down for the relatives of the victims of crimes by other provisions: Article 5, 
paragraph 4 of the legge n. 206/2004, relativa agli indennizzi alle vittime di atti di 
terrorismo (Law No 206/2004, relating to compensation to victims of acts of 
terrorism), awards compensation ‘to the surviving spouse, minor children, 
children of full age, parents and siblings, if cohabiting and dependants’; Article 2, 
paragraph 3, of Law No 407 of 1998, again in favour of victims of terrorism, also 
awards compensation ‘to the surviving spouse, minor children, children of full age 
who are incapacitated, parents and siblings, if cohabiting and dependants’. 
10 According to the applicants, the amount of EUR 20 000 granted to the children 
under the Ministerial Decree of 22 November 2019, equal to 5% of the provisional 
compensation awarded at trial, does not appear to comply with the ruling of the 
Court of Justice of the European Union in its judgment of 16 July 2020, C-129/19, 
according to which ‘Article 12(2) of Directive 2004/80 must be interpreted as 
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meaning that a fixed rate of compensation awarded to victims of sexual violence 
under the national scheme of compensation to victims of violent intentional crime 
cannot be classified as “fair and appropriate”, within the meaning of that 
provision, if it is fixed without taking into account the seriousness of the 
consequences, for the victims, of the crime committed and does not therefore 
represent an appropriate contribution to the reparation of the material and non-
material harm suffered.’ (paragraph 69) 
11 The applicants invoke a third ground to claim the unlawfulness of the national 
provisions, where the payment of compensation is conditional on the State having 
set aside sufficient funds, in breach of recital 10 of the directive (‘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’); indeed, Article 12 of Law 
No 122/2016 indicates the need, in order to obtain compensation, for the victim to 
have unsuccessfully attempted enforced recovery against the convicted person or, 
as in the case at hand, for the latter to have been admitted to free legal aid due to 
his lack of financial means. 
12 The defendant institutions, as regards the position of the children, have pointed 
out that the determination of the compensation by means of an administrative 
procedure was made in full compliance with the provisions in force, namely the 
Ministerial Decree of 22 November 2019, taking into account the fact that there is 
a surviving spouse, and that the Court of Justice itself, in its judgment of 16 July 
2020, C-129/19, after having recalled that the Member States have a wide margin 
of discretion in determining the compensation referred to in Article 12(2) of 
Directive 2004/80 (paragraph 58), ruled, inter alia, that the aforementioned 
Article 12(2) does not preclude fixed rate compensation of victims (paragraph 65), 
and requires only that such compensation be ‘fair and appropriate’; in the Court’s 
view, this requirement is satisfied when the compensation, even as a fixed sum, 
represents ‘an appropriate contribution to the reparation of the material and non-
material harm suffered’ by the victim (paragraph 69). 
Succinct presentation of the reasons for the reference 
13 In the referring court’s view, the national legislation in question, as regards the 
parents of the murder victim, clearly makes the payment of compensation 
conditional on the absence of the victim’s spouse and children, and as regards the 
siblings of the victim, on the absence of the parents, provided that they are 
cohabiting with and dependants of the victim, thus making the measure serve as 
compensation for the loss of an expectation of maintenance, while completely 
disregarding the non-material aspect of the suffering connected with the violent 
loss of a relative. 
14 With regard to the spouse and children, despite the fact that said spouse had been 
separated from the victim for some time, provisions are made for a mere 
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distribution of compensation on the basis of the rules on inheritance, subject to the 
capacity of the Fund established pursuant to Article 14 of Law No 122/2016, 
therefore without taking into account the seriousness of the consequences of the 
crime for the victims as indicated in the Court’s judgment of 16 July 2020, 
C-129/19. 
15 The quantification of the compensation for the children (EUR 20 000) is very 
disproportionate compared to the amount of the provisional compensation 
established in the criminal proceedings (EUR 400 000 for each child), and largely 
comparable to that awarded to the husband (EUR 16 666.66), without taking into 
account the parameters commonly applied in matters of loss of parental 
relationship – namely, the age of the victim, the age of the survivor, the degree of 
kinship and cohabitation. The amount awarded in this case to the children could 
possibly not be considered ‘fair and appropriate’ within the meaning of 
Article 12(2) of Directive 2004/80. 
16 In relation to the time limit for the administrative submission of the claim for 
compensation under Article 13, paragraph 2, of Law No 122/2016, considering 
that the victim’s parents and sister would not be entitled to any claim based on 
Article 11, paragraph 2 bis, of that provision, the 60-day time limit provided for in 
Article 13, paragraph 2, applies to them. Such a short limitation period seems to 
run counter to the right to an effective remedy and to a fair hearing guaranteed by 
Article 47 of the Charter of Fundamental Rights of the European Union.