Council Directive 2004/80/EC of April 29, 2004, “relating to compensation to crime victims,” provided, in particular, the obligation in Art. 12, §. 2, on member states to introduce, by July 10, 2005 (as stipulated in Art. 18, §. 1), a generalized system of indemnity protection, capable of guaranteeing adequate and fair compensation, in favor of the victims of all violent and intentional crimes, in cases where they are unable to obtain, from the direct perpetrators, full compensation for the damage suffered.
By virtue of paragraphs 2 and 2-bis of Article 11 of Italian implementing Law No. 122 of 2016, the compensation referred to in the aforementioned law (implementing, as already noted, Directive 2004/80/EC) is paid in favor of the surviving spouse - or cohabiting partner - and children, and only in the absence of one or the other to the parents, failing even which the indemnity benefit is, finally, due to the brothers and sisters, but only if they are cohabiting with and dependent on the killed at the time of the commission of the crime. If the prerequisites for the enjoyment of the indemnity benefit are lacking, no claim for compensation can be complained about the untimely adoption of such a legislative measure.
However, Article 2 of Directive 2012/29/EU accommodates a very broad notion of a “crime victim” (of homicide), which also includes the “family member of a person whose death was caused by a crime,” provided that he or she has “suffered harm as a result of the death of that person.”
Therefore, the question must be asked whether it is contrary to EU law for the Italian legislator to provide, unconditionally, for the enjoyment of the compensation - established for “victims of the violent intentional ‘crime’ constituted by voluntary manslaughter - only in favor of the spouse (or cohabitee) and children of the killed person, recognizing it, on the other hand, to the parents of the slain exclusively in the absence of the first beneficiaries, or, to the brothers or sisters, only in the absence of such second beneficiaries as well, as well as by virtue of the additional prerequisite that they were cohabiting with and dependent on the slain.
The Supreme Court of Cassation, submits a request to the Court of Justice of the European Union for a preliminary ruling, on the following question of interpretation of Union law: “whether - with regard to the situation of untimely (and/or incomplete) transposition into domestic law of Council Directive 2004/80/EC of April 29, 2004, ‘relating to compensation to crime victims’, which is not self executing, as to the establishment, imposed by it, of a system of compensation to victims of violent crimes residing in a Member State of the Union, which gives rise to the compensatory liability of the State itself, by virtue of the principles set forth in the CJEU's case law (cf, with specific reference to the aforementioned Directive, the Grand Chamber's judgment of July 16, 2020, in C. 129-19, in particular § 56) - the law of the Union requires that such compensatory liability be asserted against any member of the family of a person whose death was caused by such a crime, provided that he or she suffered damage as a result of that person's death, not even excluding ascendants other than parents, as well as brothers and/or sisters and any other relative in collateral relation, unlike what is provided for by Art. 11, paragraph 2-bis, of Law No. 122 of July 7, 2016, according to which, “in the event of the death of the victim as a result of the crime, compensation shall be paid in favor of the surviving spouse and children,” as well as, but only “in the absence of the spouse and children,” to the parents and, in the absence of them as well, to the brothers and sisters, for the latter, however, only on the double condition that they were cohabiting with the deceased, as well as dependent on him at the time of the crime.
(unofficial machine translation)
SUPREME COURT OF CASSATION
THIRD CIVIL SECTION
Hearing date: 18/04/2024
Publication date: 27/09/2024
INTERLOCUTORY ORDER
in the case no. 26492/2021 filed by:
THE PRESIDENCY OF THE COUNCIL OF MINISTERS, represented by the “pro tempore” President, domiciled ex lege in Rome, via dei Portoghesi 12, at the Attorney General’s Office, which legally represents and defends it;
• petitioner -
against:
L. A., P. R., L. AL., electively domiciled in Rome, via Crivellucci 21, at the office of Attorney AL, represented and defended by Attorney CS;
• respondents -
Appeal against the judgment no. 2019/2021 of the Venice Court of Appeal, published on 19/07/2021
Having heard the report of the case discussed in the chamber hearing of 18/04/2024 by Justice Dr. Stefano Giaime Guizzi.
FACTS OF THE CASE AND REASONS FOR THE DECISION
1. The Preliminary Question.
This Supreme Court of Cassation deems it necessary to refer a preliminary question to the Court of Justice of the European Union (CJEU) pursuant to Article 267, paragraph 3, TFEU. The question concerns the interpretation of Directive 2004/80/EC of the Council of 29 April 2004, “relating to compensation to crime victims,” particularly Article 12, §. 2. This interpretation is crucial to resolving the pending dispute, which involves a claim for damages filed by Italian citizens against the Italian State for the failure to implement the aforementioned directive.
2. The Pending Dispute.
The Presidency of the Council of Ministers has challenged the judgment no. 2019/2021 of the Venice Court of Appeal, which upheld the claim of L. A., P. R., and L. AL., recognizing the responsibility of the Italian State for the untimely implementation of Directive 2004/80/EC. This directive imposed an obligation on Member States to establish a compensation system for victims of violent and intentional crimes who were unable to obtain full compensation from the perpetrators.
3. The Context of the Case.
The plaintiffs in the main proceedings are the parents and brother of L. E., as well as the grandparents and uncle of L. AR., both victims of a homicide committed by a Moroccan citizen, B.F., in 2009. Despite the perpetrator’s criminal conviction, his assets proved insufficient, preventing the civil parties from obtaining compensation. The plaintiffs thus sought to hold the Italian State accountable for the failure to implement Directive 2004/80/EC, which would have ensured adequate compensation for them.
4. The Presidency of the Council of Ministers’ Appeal.
In its appeal, the Presidency of the Council of Ministers raises several issues of legitimacy and interpretation of the directive, arguing that the compensation provided is limited to the direct victims of the crime, excluding their relatives. Additionally, it contests the amount of compensation set by the Court of Appeal, deeming it excessive in light of the limitations imposed by national law.
PRELIMINARY QUESTIONS
Given the issues raised, this Court deems it necessary to request the CJEU to clarify whether European Union law, as interpreted in the Grand Chamber’s judgment of 16 July 2020 (C. 129-19), requires Member States to recognize compensation also for the relatives of a victim of a violent crime, such as ascendants other than parents, siblings, and other collateral relatives. This would be in contrast to the Italian law (Article 11, paragraph 2-bis, Law no. 122 of 2016), which limits such entitlement to the spouse and children of the victim, with the extension to parents only in the absence of the primary beneficiaries.
THE RELEVANT NATIONAL LAW PROVISIONS
The following legal framework is immediately relevant to the case.
The Law no. 122 of July 7, 2016 (Provisions for the fulfillment of Italy’s obligations arising from its membership in the European Union - European Law 2015-2016), entered into force on July 23, 2016, to remedy the failure to comply with the deadline imposed by the European Commission under Article 258 TFEU.
The law provides, under Article 11:
• paragraph 1, that compensation “for the crimes of murder, sexual violence, or grievous bodily harm, pursuant to Article 583, second paragraph, of the Penal Code (as well as for the crime of disfigurement by permanent injuries to the face pursuant to Article 583-quinquies of the Penal Code) is provided to the victim or the entitled parties listed in paragraph 2-bis in the amount determined by the decree referred to in paragraph 3”;
• paragraph 2-bis, first line, that “in case of the victim’s death as a result of the crime, the compensation is provided to the surviving spouse and children; in the absence of the spouse and children, the compensation is due to the parents and, in the absence of the parents, to the cohabiting brothers and sisters who were dependent on the victim at the time of the crime.”
The Legislative Decree no. 212 of December 15, 2015, implementing Directive 2012/29/EU of the European Parliament and the Council of October 25, 2012, which establishes “minimum standards on the rights, support, and protection of victims of crime,” replaces the Council Framework Decision 2001/220/JHA.
RELEVANT EU LAW PROVISIONS
The following EU law provisions are pertinent.
Firstly, Directive 2004/80/EC of the Council of April 29, 2004, “relating to compensation to crime victims,” and in particular Article 12, included in Chapter II (“National compensation systems”), which provides: “1. The provisions of this Directive concerning access to compensation in cross-border situations apply on the basis of the systems of the Member States regarding compensation to crime victims.”
Secondly, Directive 2012/29/EU of the European Parliament and the Council of October 25, 2012, which establishes “minimum standards on the rights, support, and protection of victims of crime,” defines “victim” in Article 2 as including “a family member of a person whose death was directly caused by a crime and who has suffered harm as a result of that person’s death.”
PRELIMINARY REFERENCE AND REQUEST FOR RULING
As previously outlined, the Presidency of the Council of Ministers, in its cassation appeal, claims—primarily (and generally)—the lack of standing or entitlement to damages for L. A., P. R., and L. AL. It asserts that the compensation under Directive 2004/80/EC should be narrowly interpreted as referring only to the person directly injured by the crime, excluding so-called “collateral victims.”
However, as noted by the Attorney General of this Court, EU law recognizes a broader definition of “victim” through Framework Decision 2001/220/JHA and Directive 2012/29/EU, which identifies a “victim of crime” as including a “family member of a person whose death was caused by a crime and who has suffered harm as a result of that person’s death.”
Consequently, the Presidency of the Council’s position to exclude the parents and brother of L. E., as well as the grandparents and uncle of L. AR., from being considered “victims” under EU law does not align with the broad interpretation of the term “victim” under Union law, as also incorporated into national law.
Thus, this Court finds it necessary to refer to the CJEU to resolve whether the limitation imposed by the Italian legislature, which restricts compensation to the spouse and children of the victim, with recourse to parents and siblings only in their absence, is compatible with the broader concept of “victim” under EU law.
DECISION (PQM)
The Court, in light of Article 267, paragraph 3, TFEU, requests the Court of Justice of the European Union to issue a preliminary ruling on the interpretation of EU law as outlined in § 3 above.
The Court orders the suspension of the current proceedings pending the decision of the Court of Justice.
The Court orders the transmission of the case files to the Registry of the Court of Justice via the “e Curia” electronic application.
The Court also orders that, in case of the dissemination of this decision, the personal data and identifying details of the individuals involved be omitted, in accordance with Article 52 of Legislative Decree 196/2003, as amended by Legislative Decree 101/2018.
So decided in Rome, following the chamber hearing of the Third Civil Section of the Court of Cassation on 18 April 2024.
The President Raffaele Frasca