Opinion of the Advocate General — ECLI:EU:C:2011:682
Date: 2011-10-20
Language of the case: Italian
Based on: Treaty on European Union (1992)
Subject matter: Judicial cooperation in criminal matters;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Italy

summary, the referring court is uncertain whether the Italian procedural legislation is compatible with Articles 2, 3 and 8 of the Framework Decision since, even where there is an express wish for an incidente probatorio on the part of a victim who is a minor, that procedure may be held only if the Public Prosecutor provides the initial impetus. The G.I.P. does not have an ex officio power to order the procedure and nor may the victim request it directly from the G.I.P.; instead the victim is required to apply to the Public Prosecutor’s Office for the latter to make the appropriate request to the G.I.P. In the opinion of the referring court, that situation constitutes the problem of ‘the inherent unreasonableness of Article 392(1a) and Article 398 [CPP]’, since although those provisions impose on the Public Prosecutor the obligation to draw up the indictment (and the judge may even compel the Public Prosecutor to do so), they do not impose on the Public Prosecutor the obligation to request an incidente probatorio. 52. The reply to this question calls for a detailed interpretation of Article 8(4) of the Framework Decision. As regards cases where a child must give evidence in open court, that provision provides that Member States ‘shall ensure that, where there is a need to protect [vulnerable] victims’, measures are taken so that victims may testify ‘in a manner which will enable this objective to be achieved’. The article also includes two important clarifications. The first concerns the appropriate authority and the form which the relevant decision should take, since the article provides that the procedure is to be determined ‘by decision taken by the court’. (34) The second operates as a limitation, since the procedure must be guaranteed in the Member State concerned provided that it is implemented ‘by any appropriate means compatible with its basic legal principles’, that is, with national law. Therefore, the Framework Decision requires Member States to grant to a public authority, which must be a court, competence for procedures for the early giving of evidence, but also calls for certain safeguards for the benefit of each legal system. The protection of vulnerable victims is paramount but considerable latitude is granted to the national authorities with regard to the appropriate means of ensuring that protection. 53. Further, Recital 9 in the preamble to the Framework Decision states that its provisions ‘do not ... impose an obligation on Member States to ensure that victims will be treated in a manner equivalent to that of a party to proceedings.’ That statement is consistent with the wording of Article 8 since, for the purposes of interpretation, it makes clear that the standing of victims warrants special protection, but it does not require for that reason that their standing should be the same as that of the Public Prosecutor. In an adversarial system such as the Italian, the decision to grant exclusive responsibility for bringing prosecutions to an independent body which is subject to the principle of legality would be invalidated if, pursuant to a legislative instrument of European Union law, victims were afforded standing equivalent to that of the Public Prosecutor. The Framework Decision does not lay down a retributive model of criminal justice and nor can the contrary be inferred from its preparatory documents: when the Portuguese Republic proposed the draft decision to the Council, at no point did it refer to the need to make victims a driving force in all types of criminal proceedings in the Member States. (35) Accordingly, in providing that the decision to use a particular procedure must be adopted ‘by decision taken by the court’, in accordance with the basic legal principles of the Member State concerned, Article 8 draws attention to the fact that a victim is the subject of protection but not the holder of powers designed to guarantee his or her protection. Those powers are vested in the judicial authorities, including, in the Italian legal system, the Public Prosecutor. (36) 54. In the light of the applicable legislative framework, I will now consider whether the provisions governing the incidente probatorio are compatible with the Framework Decision. 55. According to Article 394 CPP, victims have the right to contact the Public Prosecutor to request that he in turn ask the G.I.P. to order an incidente probatorio. The Public Prosecutor’s decision must be accompanied by a statement of reasons in all cases, so that, where the victim’s request is refused, the reasons for that decision are given. Further, the Public Prosecutor is bound exclusively by the principle of legality and also has a constitutional obligation to bring prosecutions. (37) The function of the Public Prosecutor is to uphold the principle of legality, a task which he carries out with complete independence and for which purpose he has constitutional status which is legally protected. (38) In the context of that function of upholding the law, the Public Prosecutor must logically take into consideration the individual position of the most vulnerable victims. In his capacity as an independent judicial authority bound by the principle of legality, the Public Prosecutor has an obligation to protect a child’s best interests. From that perspective, the Public Prosecutor is an authority who, in his capacity as guardian of the law, protects victims who are minors during criminal proceedings. (39) 56. The fact that a victim who is a minor must address a request to hold an incidente probatorio exclusively to the Public Prosecutor bolsters that assessment. Since Italian law entrusts the Public Prosecutor with the task of representing a child’s best interests, the Public Prosecutor must decide whether, in the furtherance of those interests, it is appropriate formally to request an incidente probatorio. In that connection, the decision of the Public Prosecutor is the ‘decision taken by the court’ referred to in Article 8(4) of the Framework Decision, a concept which, as I observed above, must be interpreted broadly in the light of the principles underlying each national legal system. (40) Thus, Italian law has assigned to the Public Prosecutor, among other tasks, the role of protector of the victim where testimony must be given in open court. By entrusting that task to the Public Prosecutor, an independent body bound only by the law, by respecting the right of the victim to be heard on the subject of whether it is appropriate to hold an incidente probatorio, and by adopting a decision accompanied by a statement of reasons on that subject, the national legislation has taken a balanced approach which, in principle, safeguards the objectives and provisions enshrined in the Framework Decision. 57. The foregoing is further confirmed if we consider the specific features of the Italian model of criminal procedure, which must be taken into account in accordance with Article 8(4). The requirement that victims must be able to give evidence by means of specific procedures, provided that those procedures are compatible with a Member State’s ‘basic legal principles’, emphasises the importance of those basic legal principles and also of each national procedural‑law tradition, in particular the criminal procedural tradition. That limitation is now set out in general terms, in relation to the whole area of freedom, security and justice, in Article 67(1) TFEU, which provides that the European Union constitutes such an area ‘with respect for fundamental rights and the different legal systems and traditions of the Member States.’ The Framework Decision, which was adopted pursuant to the legal bases of that policy, complies with that requirement and accommodates the specific features of each legal system. 58. In the case of Italy, it should be recalled that the incidente probatorio is an exception to the adversarial principle and as such it is dealt with specifically in Article 111 of the Constitution. (41) The possibility of taking evidence early in criminal proceedings is a measure provided for in most national legal systems, but its practice is accompanied by numerous safeguards aimed at protecting the rights of the accused. That tension, underpinned by a criminal justice model which European Union law does not call into question, pursues a balance between the effective search for the substantive truth, the protection of the best interests of vulnerable victims and the fundamental rights of the accused. Italian law takes into consideration all those interests in the rules governing the incidente probatorio and, accordingly, I believe that the provisions concerned do not infringe either the wording or the objectives of Articles 2, 3 and 8 of the Framework Decision. 59. Before concluding, it is worth drawing attention to the argument put forward by the Commission, to the effect that there is an infringement of the Framework Decision in cases where the G.I.P. is certain that a trial will be held. The view put forward by the Commission involves two scenarios. The first arises after the trial has taken place when, the Commission submits, a victim who is a minor is exposed to detrimental effects which are incompatible with the Framework Decision. The second scenario arises before the commencement of the trial, if the G.I.P. is certain that the trial will take place. 60. In the first scenario, the Commission is incorrect merely to assert that the trial will have detrimental effects for a victim who is a minor, since, as the Italian Government points out in its written observations, Italian law provides for specific measures for the protection of vulnerable victims during that stage of the proceedings. It cannot be stated categorically that it is contrary to the Framework Decision for a victim who is a minor to give evidence at a trial. Furthermore, the instant case does not concern the position of the victim during the trial but rather during the stage preceding the commencement of the trial. Accordingly, that aspect of the argument put forward by the Commission must be rejected. 61. However, the second scenario described by the Commission warrants closer attention. In circumstances such as those in the main proceedings, and as regards the pre-trial stage of the proceedings, it could be the case that refusal by the Public Prosecutor to request an incidente probatorio is at odds with a decision to commence the adversarial stage or with a decision within the judge’s sphere of competence as a result of which it is possible to foresee that the proceedings will continue. In that context, a refusal to hold an incidente probatorio might, as the case may be, lead to an infringement of the Framework Decision. Accordingly, it is necessary to analyse in detail whether, during the pre-trial stage of Italian criminal proceedings, circumstances of that nature arise. 62. In Italian law, the bringing of a prosecution does not automatically lead to the opening of a trial. That outcome happens only after the Giudice’dell’udienza preliminare (magistrate of first instance), a single judge who is a person other than the Giudice per le indagini preliminari, (42) has heard the parties in open court, classified the charges and opened the oral stage of the proceedings. (43) Therefore, between the bringing of a prosecution and the commencement of the oral stage of the proceedings there is a period of time during which it is still possible to request an incidente probatorio. (44) Where the G.I.P. requires the Public Prosecutor to draw up the charges, the procedure will commence in relation to the holding of a preliminary hearing which will result in a decision on the commencement of the oral stage of the proceedings. (45) During that period the likelihood of a trial taking place will have increased. Furthermore, if there are uncertainties regarding the consistency of the facts on which the prosecution is based, the trial is the appropriate forum for clarifying all those uncertainties. In that connection, attention should be drawn at this juncture to the case-law of the European Court of Human Rights on the positive obligations of the State, in particular the Public Prosecutor, where there are vulnerable victims and where uncertainties relating to the facts put an end to an investigation on which, strictly speaking, a decision should be made in court. (46) Accordingly, once the Public Prosecutor has been ordered to draw up the charges and in the event that the Giudice dell’udienza preliminare orders the opening of the oral stage of the proceedings, it is predictable, and also logical, that the Public Prosecutor will agree to a request of a victim who is a minor and seek an incidente probatorio. 63. That is the outcome which the Commission appears to have in mind when it asserts that the Italian legislation is incompatible with the Framework Decision in cases where the G.I.P. is certain that there will be a trial. However, neither the G.I.P. nor the Public Prosecutor can be absolutely certain in that regard, since the decision falls exclusively to the Giudice’dell’udienza preliminare. However, it is clear that the Public Prosecutor, as guarantor of legality and protector of a child’s best interests, will in most cases be called on to request an incidente probatorio after he has been required to draw up the charges. 64. However, as I pointed out in paragraph 34 of this Opinion, it is not necessary in the circumstances of the present case to deal with the impact of the Framework Decision on the later stages of the proceedings in which the G.I.P. is not involved. Therefore, despite the fact that the situation to which the Commission refers could legitimately give rise to uncertainties concerning the compatibility of the legislation at issue with the Framework Decision, it is my view that the Court must reply to the question specifically raised in these proceedings, which concerns solely and exclusively the investigation stage. 65. Accordingly, as a result of the arguments set out above, I propose that the Court’s answer to the first question should be that Articles 2, 3 and 8 of the Framework Decision must be interpreted as meaning that they do not preclude a national provision such as Article 394 CPP which does not impose on the Public Prosecutor an obligation to request the hearing and taking of evidence from a victim who is a minor by means of the incidente probatorio during the investigation stage, following a specific request to that effect by such a victim. VI – The second question 66. Next, the referring court asks the Court whether Articles 2, 3 and 8 of the Framework Decision preclude a provision such as Article 394 CPP which does not make it possible for a victim who is a minor to appeal to the G.I.P. against a refusal by the Public Prosecutor of his or her request to be heard in accordance with an incidente probatorio. As I will explain below, the reply to that question follows indirectly from the answer I have proposed to the first question. 67. As I stated above, the Italian legislation grants an important role to the Public Prosecutor when it comes to requesting an incidente probatorio. Unlike the accused, who also has the right to request that procedure, a victim who is a minor may ask the Public Prosecutor’s Office to make a request to the G.I.P. for the procedure to be held. As I have already observed, the Public Prosecutor becomes rather like a protector of the victim when deciding whether the request is appropriate. Those powers are necessarily discretionary because each case requires a detailed analysis, especially where particularly important interests and values are involved, as always occurs where the victim is a minor. In such cases, the role of the Public Prosecutor may be even more important because a victim who is a minor will usually act through a representative, as in the instant case. In such circumstances, the Public Prosecutor safeguards and pursues the lawful requests of a victim who is a minor, while also monitoring each request in order to prevent the risk of exploitation of the proceedings for purposes which fall outside their scope. (47) 68. In those circumstances, it is reasonable for the Italian legislature to impose on the Public Prosecutor at least the obligation to state reasons, even though his decision on the request for an incidente probatorio is not subject to appeal. That requirement makes the procedure transparent, is compatible with the rights of the accused, and also guarantees the right of victims to be informed of all acts which concern them. In addition, the fact that the victim is entitled to be heard by the G.I.P. where a request is made for discontinuance of the case, ensures that the victim has the opportunity to respond to the Public Prosecutor’s arguments. Therefore, as I stated above, there is a possibility that the G.I.P. will require the Public Prosecutor to draw up the charges and, at that point, the right to request an incidente probatorio arises again. Thus, the fact that there is no right of appeal against the decision of the Public Prosecutor does not mean that the victim is deprived of all possibility of his or her request succeeding. 69. Further, were the Framework Decision to call for a right of appeal against decisions of the Public Prosecutor, the model and the balance created by the Italian legislature would be seriously compromised. As I have already observed, the incidente probatorio system is principally the responsibility of the Public Prosecutor where the victim is a minor, and the decision on whether it is appropriate to make a request for that procedure to the G.I.P. is assigned to that ‘judicial authority’ for the purposes of Article 8(4) of the Framework Decision. Were the victim to have a right to appeal to the G.I.P. against that decision, the system would be undermined because the decision would not fall in the last instance to the Public Prosecutor but rather to the court. 70. Accordingly, in the light of the above arguments, I propose that the Court’s answer to the second question should be that Articles 2, 3 and 8 of Framework Decision 2001/220 must be interpreted as not precluding a national provision such as Article 394(1) CPP which does not make it possible for a victim of the relevant offence who is a minor to appeal to the courts, during the investigation stage, against the decision of the Public Prosecutor not to grant his or her request to apply to the G.I.P. for an incidente probatorio. VII – Conclusion 71. In the light of the foregoing considerations, I propose that the Court should answer the questions referred for a preliminary ruling by the Giudice per le indagini preliminari, Florence as follows: (1) Articles 2, 3 and 8 of Council Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings must be interpreted as not precluding a national provision such as Article 394 of the Italian Code of Criminal Procedure which does not impose on the Public Prosecutor an obligation to request the hearing and taking of evidence from a victim who is a minor by means of the incidente probatorio during the investigation stage, following a specific request to that effect by such a victim. (2) Articles 2, 3 and 8 of Framework Decision 2001/220 must be interpreted as not precluding a national provision such as Article 394 of the Italian Code of Criminal Procedure which does not make it possible for a victim of the relevant offence who is a minor to appeal to the courts, during the investigation stage, against the decision of the Public Prosecutor not to grant his or her request to apply to the Giudice per le Indagini Preliminari for an incidente probatorio. 1 – Original language: Spanish. 2 – Council Framework Decision of 15 March 2001 (OJ 2001 L 82, p. 1). 3 – Case C‑105/03 Pupino [2005] ECR I‑5285. 4 – The wording reflects the amendments introduced by the Law of 6 February 2006 (GURI. No 38 of 15 February 2006) adopting provisions for combating the sexual abuse of minors and child pornography on the Internet, and by Decree-Law No 11 of 23 February 2009. 5 – In the opinion of the Public Prosecutor, in addition to the lack of evidence there is also the extremely contentious relationship of the child’s parents since their separation, in particular since Ms. Y became aware that Mr. X is in a stable relationship with another woman. 6 – On the historical evolution of criminal procedural law in Italy, see Cordero, F., Procedura Penale, 8th ed., Giuffrè, Milan, 2006, pp. XX. 7 – Article 326 CPP. 8 – Article 493 CPP. 9 – See, in general, Giostra, G., ‘Contraddittorio’, Enciclopedia Giuridica Treccani, 2001, vol II, p. 1 et seq.; Ubertis, G., ‘La ricerca della verità giudiziale’, Ubertis, G. (ed.), La conoscenza del fatto nel processo penale, Giuffrè, Milan, 1992, p. 2 et seq.; Ferrua, P. ‘La regola d’oro del processo accusatorio’, Kostoris, R (ed.), Il giusto processo tra contraddittorio e diritto al silenzio, Ed. Giappichelli, Turin, 2002, p. 11 et seq; and Illuminati, G., ‘Giudizio’, Conso, G. and Grevi, V. (eds.), Compendio di procedura penale, Cedam, Padua, 2003, p. 644 et seq. 10 – On the amendment and its background, see Pizzi, W.T and Montagna, M., ‘The Battle to Establish an Adversarial Trial System in Italy’, Michigan Journal of International Law, 2004, and Panzavolta, M., ‘Reforms and Counter-Reforms in the Italian Struggle for an Accusatorial Criminal Law System’, North Carolina Journal of International and Commercial Regulation, 2005. 11 – In that connection, see Busetto, L., Il contraddittorio inquinato, Cedam, Padua, 2009, p. 8 et seq. 12 – Article 328 CPP. 13 – Article 327 CPP. 14 – Article 50 CPP. 15 – ‘…il giudice, quando non accoglie la richiesta di archiviazione, dispone con ordinanza che, entro dieci giorni, il pubblico ministero formuli l’imputazione. Entro due giorni dalla formulazione dell’imputazione, il giudice fissa con decreto l’udienza preliminare’ (emphasis added). Italian academic opinion is divided on the assessment of that power of the investigating judge: for some it flows logically from the requirement that the Public Prosecutor must abide by the law, which is explicitly enshrined in Article 112 of the Constitution, while for others it constitutes a dubious imbalance which is detrimental to the adversarial principle. See the contrasting views in the works of Zagrebelsky, V., ‘Le soluzioni peggiori del male (a proposito del pubblico ministerio)’, Cassazione Penale, 1991, p. 313, and Ferraioli, L., Il ruolo di garante del giudice per le indagini preliminari, Cedam, Padua, 2006, pp. 105 to 106. 16 – On the rules governing, the basis for and the purpose of the Italian incidente probatorio, see, in general, Esposito, G., Contributo allo studio dell’incidente probatorio, Novene, Naples, 1989; Di Geronimo, P., L’incidente probatorio, Cedam, 2000; Morselli, L’incidente probatorio, Utet, Turin, 2000; Renon, P., L’incidente probatorio nel processo penale, tra riforme ordinarie e riforme costituzionali, Cedam, Padua, 2000; and Di Martino, C. and Procaccianti, T., La prova testimoniale nel processo penale, 2nd ed., Cedam, 2010, pp. 163 to 174. 17 – Article 394 CPP. 18 – Ibid. 19 – See the detailed analysis of Fayolle, L., Naissance et influence de la notion d’exploitation sexuelle enfantine. Étude des incriminations et sanctions pertinentes et de la participation de l’enfant victime au cours de la phase préparatoire en droit comparé, en droit international, en droit du Conseil de l’Europe et en droit de l’Union Européenne, doctoral thesis, IUE, Florence, 2008, p. 347 et seq. 20 – That is evidenced by the fact that the initiative for the Framework Decision presented by the Portuguese Republic, the text of which forms the basis for the legislation itself, specified in Article 2(2) a number of criteria for the identification of vulnerable victims, including their age (Initiative of the Portuguese Republic with a view to adopting a Council Framework Decision on the standing of victims in criminal procedure (OJ 2000, C 243, p. 4)). 21 – Cited above in footnote 3. 22 – Opinion in Pupino delivered on 11 November 2004, points 53 to 58. 23 – Pupino, footnote 3, paragraph 53. 24 – In Joined Cases C‑483/09 and C‑1/10 Gueye and Salmerón Sánchez [2011] ECR I‑0000, the Court also dealt with the application of the two provisions to vulnerable victims, albeit in the context of domestic violence against women rather than minors as in the instant case and Pupino. 25 – Emphasis added. 26 – See in that connection Case C‑404/07 Katz [2008] ECR I‑7607, in which the Court held that the Framework Decision does not oblige a national court to permit the victim to be heard as a witness in criminal proceedings instituted by a substitute private prosecution such as that in issue in the main proceedings. ‘However, in the absence of such a possibility, it must be possible for the victim to be permitted to give testimony which can be taken into account as evidence’ (paragraph 50). Therefore, the Framework Decision does not determine the specific arrangements but rather the existence of the right itself. 27 – Gueye and Salmerón Sánchez, paragraph 62. See also the Opinion of Advocate General Kokott in that case, in particular point 63 which refers to the ‘auxiliary function’ of Article 8 of the Framework Decision, the subject-matter of which ‘is not concerned with covering all conceivable interests of the victim’. 28 – Convention adopted and opened for signature and ratification on 20 November 1989 (UN Treaty Series, Vol. 1577, p. 43). 29 – The explanation on Article 24 is worded as follows: ‘This Article is based on the New York Convention on the Rights of the Child signed on 20 November 1989 and ratified by all the Member States, particularly Articles 3, 9, 12 and 13 thereof.’ 30 – Case C‑491/10 PPU Aguirre Zarraga [2010] ECR I‑0000. 31 – Ibid., paragraph 67. 32 – Ibid., paragraph 66. 33 – Pupino paragraph 59; Katz, paragraph 48; and Gueye, paragraph 64. 34 – That nuance is not insignificant, as the initial Portuguese proposal referred in general to the ‘Member States’. Therefore, the provision confers power exclusively on the courts in the broad sense. 35 – See recitals 8, 9 and 10 of the initial Portuguese proposal which clearly state that the objective of the initiative was to approximate laws concerning criminal procedure with a view to addressing victims’ needs in an integrated manner. At no point does the initiative seek to subvert the role of the victim in criminal proceedings in each Member State. While it is true that there is intense debate concerning the proper place for victims in such proceedings (see, in that connection, Ashworth, A., ‘Victims’ rights, defendants’ rights and criminal procedure’, Crawford, A. and Goodey, J. (eds.), Integrating a victim perspective within criminal justice: international debates, Aldershot, Ashgate-Dartmouth, 2000), it is not clear that the Framework Decision seeks to adopt a particular view in that regard. 36 – See Articles 50 to 54c of the CPP. 37 – See Article 112 of the Italian Constitution. 38 – See footnote 36 of this Opinion. On the subject, see Zanon, N., Pubblico Ministero e Costituzione, Cedam, Padua, 1996. 39 – See Spangher, G., Trattato di procedura penale, vol. 3, Indagini preliminari e udienza preliminare, Utet, Turin, 2009, pp. 608 and 609, and Bresciani, L., ‘Persona offesa dal reato’, Digesto penale, IX, Utet, Turin, 1995, p. 527. There appears to be some dispute about this role in Italy and it is branded by some commentators as ‘judicial paternalism’, but the charge refers to the general limitation which applies to all victims and not specifically to victims who are minors, as occurs in the present case. On that debate, see Errico, G., ‘Rilettura dell’incidente probatorio per l’attuazione di un processo giusto’, Cerquetti, G. and Florio, F. Dal principio dal giusto processo alla celebrazione di un processo giusto, Padua, 2002. 40 – It should be noted that the constitutional status of the Public Prosecutor is provided for in Part II, Title IV of the Italian Constitution, which concerns ‘the Judiciary’. See more specifically Articles 107 and 112, which clearly include the Public Prosecutor’s Office as part of the judiciary, in the broad sense. 41 – See the references cited in footnote 10 of this Opinion. 42 – See Article 34(2a) CPP. 43 – See Articles 418 to 426 CPP. 44 – In fact, the Corte costituzionale, by judgment No 77 of 10 March 1994, held that the rule prohibiting the holding of an incidente probatorio during the preliminary hearing stage was unconstitutional. 45 – Articles 415 and 416 CPP. 46 – In particular, with regard to victims who are minors and the obligation to continue the investigation with a view to a trial, see the judgment of the European Court of Human Rights of 4 March 2004 in the case of M.C. v Bulgaria, No 39272/98, paragraph 148 et seq. In that connection, for a detailed discussion, see Fayolle, L., op. cit., p. 315 et seq. 47 – See Spencer, J., ‘The victim and the prosecutor’, Bottoms, A. and Roberts, J.V. (eds.), Hearing the Victim. Adversarial justice, crime victims and the State, Willan, Devon-Portland, 2010, pp. 141 to 144.