Criminal proceedings against X.
Date: 2011-12-21
21. It is also undisputed that the Framework Decision, based on Articles 31 EU and 34 EU, is one of the acts referred to in Article 35(1) EU on which the Court may rule in a reference for a preliminary ruling and it is accepted that the judge in charge of preliminary investigations, acting in proceedings such as those in the main action, must be regarded as a court or tribunal of a Member State for the purposes of Article 35 EU (see, inter alia, Case C‑467/05 Dell’Orto [2007] ECR I‑5557, paragraph 35).
26. While the Framework Decision does not define the concept of a victim’s vulnerability, within the meaning of Articles 2(2) and 8(4) thereof, it cannot be disputed that where, as in the main proceedings, 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, to that effect, Case C‑105/03 Pupino [2005] ECR I‑5285, paragraph 53).
27. None of the three provisions of the Framework Decision referred to by the referring court lays down specific means for implementing the stated objectives, which consist, in particular, of ensuring that all victims are treated ‘with due respect for the dignity of the individual’; that victims can ‘be heard’ during proceedings and ‘supply evidence’, and that victims are ‘questioned … only insofar as necessary for the purpose of criminal proceedings’, while also ensuring that ‘victims who are particularly vulnerable’ can benefit from ‘specific treatment best suited to their circumstances’ and that those victims are, when necessary, protected ‘from the effects of giving evidence in open court’ by being entitled, ‘by decision taken by the court’, to ‘testify in a manner which will enable this objective to be achieved, by any appropriate means compatible with its basic legal principles’ (see, to that effect, Pupino , paragraph 54).
28. In the absence of fuller clarification in the actual provisions of the Framework Decision in the light of Article 34 EU, which grants to national authorities the choice of form and methods necessary to achieve the desired result of Framework Decisions, it must be recognised that the Framework Decision leaves to the national authorities a large measure of discretion with regard to the specific means by which they implement the objectives to be attained (see, to that effect, Case C‑404/07 Katz [2008] ECR I‑7607, paragraph 46; Case C‑205/09 Eredics and Sápi [2010] ECR I‑0000, paragraphs 37 and 38, and Joined Cases C‑483/09 and C‑1/10 Gueye and Salmerón Sánchez [2011] ECR I‑0000, paragraphs 57, 72 and 74).
29. Under the legislation at issue in the main proceedings, testimony given during the preliminary enquiries must generally be repeated in open court in order to acquire full evidential value. It is, however, permissible in certain cases to give that testimony only once, during the preliminary investigation, with the same probative value, but under different arrangements from those which apply in open court ( Pupino , paragraph 55).
30. As regards that legislation, the Court has previously ruled that achievement of the aims pursued by the abovementioned provisions of the Framework Decision require that a national court should be able, in respect of particularly vulnerable victims, to use a special procedure, such as the incidente probatorio for early gathering of evidence, provided for under Italian law, and the special arrangements for hearing testimony – for which provision is also made – if that procedure is best suited to the circumstances of those victims and is necessary in order to prevent the loss of evidence, to reduce the repetition of questioning to a minimum, and to prevent the damaging effects, for those victims, of their giving evidence in open court ( Pupino , paragraph 56).
37. In addition to the fact that, as stated in recital 9 in the preamble thereto, the Framework Decision does 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 (see, in particular, Gueye and Salmerón Sánchez , paragraph 53), the fact that, in the Italian criminal justice system, 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 , which is an exception to the general rule that evidence is obtained by adversarial proceedings, 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.
42. Admittedly, as the Court has held (see, inter alia, Gueye and Salmerón Sánchez , paragraphs 58 and 59), the first paragraph of Article 3 and Article 2(1) of the Framework Decision imply in particular that the victim is to be able to give testimony in the course of the criminal proceedings and that that testimony is to be capable of being taken into account as evidence. 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.