Keywords

Summary



Keywords

1. European Union – Police and judicial cooperation in criminal matters – Standing of victims in criminal proceedings – Framework Decision 2001/220 – Particularly vulnerable victims – Meaning – Young child allegedly the victim of acts of a sexual nature – Included

(Council Framework Decision 2001/220, Arts 2(2) and 8(4))

2. European Union – Police and judicial cooperation in criminal matters – Standing of victims in criminal proceedings – Framework Decision 2001/220 – Protection of particularly vulnerable victims – Procedures

(Art. 34 EU; Charter of Fundamental Rights of the European Union, Art. 47; Framework Decision 2001/220, Arts 2, 3 and 8)

Summary

1. While Framework Decision 2001/220 on the standing of victims in criminal proceedings does not define what is meant by a victim’s vulnerability, within the meaning of Articles 2(2) and 8(4) thereof, it cannot be disputed that where a young child claims to have been the victim, repeatedly, of acts of a sexual nature committed by her father, that child is manifestly capable of being so classified, having regard in particular to her age and to the nature, seriousness and consequences of the offences of which she considers herself to have been the victim, with a view to her benefiting from the specific protection required by the provisions of the Framework Decision referred to above.

(see para. 26)

2. Articles 2, 3 and 8(4) of Framework Decision 2001/220 on the standing of victims in criminal proceedings must be interpreted as not precluding provisions of national law which, first, do not impose on the Public Prosecutor any obligation to apply to the competent court so that a victim who is particularly vulnerable may be heard and give evidence under the arrangements of the incidente probatorio during the investigation phase of criminal proceedings and, second, do not give to that victim the right to bring an appeal before a court against that decision of the Public Prosecutor rejecting his or her request to be heard and to give evidence under those arrangements.

None of the above provisions of the Framework Decision lays down specific means for implementing their stated objectives. Failing fuller clarification in those provisions and in the light of Article 34 EU, it must be recognised that the Framework Decision leaves to the national authorities a large measure of discretion with regard to those specific means.

In that regard, the fact that, under the provisions of national law, it is for the Public Prosecutor to decide whether to submit to the competent court the victim’s request for use, in the investigation phase, of the incidente probatorio , can be regarded as part of the logic of a system in which the Public Prosecutor is a judicial body with responsibility for bringing prosecutions. However, having regard to the need to ensure that fundamental rights are respected, the national authorities must ensure, in every case, that the effect of application of such a procedure is not such that the criminal proceedings, considered as a whole, are unfair.

Further, in order to guarantee that the victim can effectively and adequately take part in the criminal proceedings, his or her right to be heard must permit not only the possibility of objectively describing what happened, but also the opportunity to express his or her opinion. However, neither the provisions of the Framework Decision nor Article 47 of the Charter of Fundamental Rights of the European Union guarantee to the victim of a criminal offence a right to require criminal proceedings to be brought against a third party in order to secure his conviction.

(see paras 27-28, 33, 37-38, 42-44, operative part)