OPINION OF ADVOCATE GENERAL
KOKOTT
delivered on 1 July 20101(1)
Case C‑205/09
Szombathelyi Városi Ügyészség
v
Emil Eredics
and
Vassné Sápi Mária
(Reference for a preliminary ruling from the Szombathelyi Városi Bíróság, Hungary)
(Police and judicial cooperation in criminal matters – Framework Decision2001/2020/JHA – Concept of victim in criminal proceedings – Legal persons – Mediation in criminal proceedings)
I–Introduction
1.This reference for a preliminary ruling gives the Court an opportunity to clarify its past case-law on the concept of victim as used in Framework Decision2001/220/JHA on the standing of victims in criminal proceedings.(2)
2.In an action in which the criminal prosecution authorities have denied the defendant mediation in criminal proceedings, the referring court again raises the question whether a legal person is also a victim within the meaning of the Framework Decision. It further asks about the rules laid down in the Framework Decision on the practical form to be taken by the mediation procedure.
II–Legislative background
A–European Union law
3.According to Article 1(a) of Framework Decision 2001/220, the term ‘victim’ means ‘a natural person who has suffered harm, including physical or mental injury, emotional suffering or economic loss, directly caused by acts or omissions that are in violation of the criminal law of a Member State.’
4.Article 1(e) of Framework Decision 2001/220 defines the term ‘mediation in criminal cases’ as ‘the search, prior to or during criminal proceedings, for a negotiated solution between the victim and the author of the offence, mediated by a competent person.’
5.Article 10 of Framework Decision 2001/220 provides:
‘Penal mediation in the course of criminal proceedings
1. Each Member State shall seek to promote mediation in criminal cases for offences which it considers appropriate for this sort of measure.
2. Each Member State shall ensure that any agreement between the victim and the offender reached in the course of such mediation in criminal cases can be taken into account.’
B–National law
6.Paragraph 221/A of the Hungarian Criminal Procedure Code (A Büntető eljárási törvény) provides:
‘1. The mediation procedure is a procedure which may be applied at the request of the suspect or of the victim, and with the free consent of both, in criminal proceedings brought in respect of offences against the person (Chapter XII, Titles I and III of the Criminal Code), road traffic offences (Chapter XIII of the Criminal Code) or offences against property (Chapter XVIII of the Criminal Code) which are subject to a penalty of not more than five years’ imprisonment.
2. The aim of the mediation procedure is to promote compensation for the consequences of the offence and to ensure that the suspect’s future conduct complies with the law. In the mediation procedure, it is intended that an agreement based on the suspect’s active repentance should be reached between the suspect and the victim. During criminal proceedings, the mediation procedure may be used only once.
3. The Prosecution, of its own motion or at the request of the suspect, counsel for the defence or the victim, shall order a stay of the proceedings for a period of a maximum of six months and the initiation of the mediation procedure:
(a) where the discontinuation of proceedings pursuant to Paragraph 36 of the Criminal Code or an unrestricted reduction of sentence is possible;
(b) where the suspect admits the facts during the investigation, accepts and is able to assume the burden of paying compensation for the harm suffered by the victim or of making reparation to the victim by any other means for the harmful consequences of the offence;
(c) where both the suspect and the victim have consented to the mediation procedure, and
(d) where, having regard to the nature of the offence, the form of responsibility and the person of the suspect, the legal procedure may be omitted or there are grounds for believing that the Court will take account of active repentance at the time of sentencing.
...
5. Statements made by the suspect and the victim, during the mediation procedure, in respect of the acts on which the proceedings are based cannot be used for evidential purposes. The result of the mediation procedure cannot be used against the suspect.
...
7. If the outcome of the mediation procedure is an agreement and if it is appropriate to apply Paragraph 36(1) of the Criminal Code, the Prosecution shall discontinue the proceedings; if it is appropriate to apply Paragraph 36(2) of the Criminal Code, the Prosecution shall issue an indictment. If the suspect has started to implement the agreement reached at the end of the mediation procedure, but remains liable to a criminal penalty, the Prosecution may, in respect of offences punishable by imprisonment of a maximum of three years, postpone the issue of the indictment for one or two years.’
7.Paragraph 266(3)(c) of the Criminal Procedure Code provides that the court can stay proceedings for not more than six months for the purpose of initiating a mediation procedure. Paragraph 307 of the Criminal Procedure Code further lays down that proceedings may also be stayed after a hearing has been held.
8.Paragraph 314 of the Criminal Code (Büntető törvénykönyv) provides:
‘1. Any person who causes harm to the budget of the European Communities by making a false statement, or by using a false, counterfeit or forged document or instrument, or who either does not comply or inadequately complies, to an extent amounting to misrepresentation, with the obligations to provide information relating to:
(a) aid provided from funds managed by or on behalf of the European Communities,
(b) payments to be made to the budget managed by or on behalf of the European Communities,
is guilty of an offence punishable by imprisonment of up to five years.
2. Any use, for purposes other than those authorised, of
(a) the aid referred to in Paragraph 314(1)(a), or
(b) an advantage relating to the payment referred to in Paragraph 314(1)(b),
is also an offence punishable in accordance with the provisions of Paragraph314(1).’
9.Paragraph 318 of the Criminal Code provides:
‘1. A person who, for the purposes of unlawful gain, induces a person to hold or continue to hold a false belief and causes damage thereby, commits fraud.
...
4. The offence will be punished by a term of imprisonment of up to three years if
(a) the fraud causes considerable loss,
…
10.Paragraph 318/A of the Criminal Code provides:
‘For the purposes of the application of this Law, .... loss is
(b) considerable if it is more that HUF200000 but less than HUF2000000.’
11.Paragraph 36 of the Criminal Code provides:
‘1. No punishment shall be imposed on a person who, within a mediation procedure, pays compensation or otherwise makes reparation to the victim for the damage caused by an offence against the person (Chapter XII, Titles I and III of the Criminal Code), a road traffic offence (Chapter XIII of the Criminal Code) or an offence against property (Chapter XVIII of the Criminal Code) which is punishable by a penalty of not more than three years’ imprisonment.
2. As regards offences referred to in subparagraph (1) which are punishable by a penalty of not more than five years’ imprisonment, the penalty may be reduced, without restriction, if the offender pays compensation or otherwise makes reparation to the victim, within a mediation procedure, for the damage caused by such an offence.’
12.Offences against the financial interests of the European Communities governed by Paragraph 314(1) of the Criminal Code are listed in Chapter XVII of the Criminal Code (economic crimes).
III–Facts of the case and main proceedings
13.The first defendant in the main proceedings, Mr Eredics, is accused by the criminal prosecution authorities of using the sum of HUF1200000, which originated from resources for a European Union programme, for other than its intended purpose by deception with the aid of falsified documents and so causing damage to the Hungarian company VÁTI, which was supervising the implementation of the project and was responsible for the settlement of accounts, and to the budget of the European Union.
14.The competent prosecuting authority sees this as a punishable offence against the financial interests of the European Union pursuant to Paragraph314(1)(a) of the Hungarian Criminal Code.
15.During its investigations Mr Eredics was questioned on several occasions, but he did not admit the facts.
16.On the basis of the findings of its investigations the Prosecution brought proceedings against Mr Emil Eredics and his co-defendant before the Szombathelyi Városi Bíróság (Szombathelyi District Court) on 2 September 2008.
17.After receiving the indictment, the referring court notified the first defendant on 7 November 2008. Mr Eredics admitted to the referring court that he had committed the offences of which he was accused and made an application for a mediation procedure with the aim of securing either the abandonment of the proceedings or a reduction of sentence in accordance with Paragraph 221/A of the Criminal Procedure Code.
18.The representative of VÁTI Kht agreed to mediation.
19.The prosecuting authority argues that the crime of which the defendant is accused does not fall into the category of offences for which mediation is permissible. Furthermore, a mediation procedure could not be undertaken in the present case, since Mr Eredics did not admit the facts during the investigation proceedings as required by Hungarian law. There was, moreover, no sense in involving VÁTI Kht in the mediation procedure as the victim and to have the defendant pay it compensation: the real victim was the European Community, since the use of Community resources for other than their intended purpose was an offence against the financial interests of the Community and caused harm to the Community budget, and accordingly mediation is not justified because of the particular features of the present case.
IV–Request for a preliminary ruling and proceedings before the Court
20.Against this background, the Szombathelyi Városi Bíróság stayed its proceedings by order of 22 April 2009, received by the Court on 8 June 2009, and referred the following questions to the Court for a preliminary ruling:
1. In light of the obligation to promote mediation between the victim and the offender in criminal cases laid down in Article 10 of the Framework Decision, does ‘a person other than a natural person’ fall within the definition of ‘victim’ in Article 1(a) of Council Framework Decision 2001/220/JHA? The referring court explicitly asks the Court of Justice to explain and supplement its judgment in Case C‑467/05 Dell’Orto [2007] ECR I‑5557.
2. Can the term ‘offences’ in Article10 of Framework Decision 2001/220/JHA be interpreted as referring to all offences the legal classification of which is substantively the same?
3. Can Article 10(1) of Framework Decision 2001/220/JHA be interpreted as meaning that mediation between offender and victim must be possible at least until a decision is made at the first stage of proceedings, that is to say that the requirement of an acknowledgement of the facts during the legal proceedings, after the investigation proceedings have been completed – provided that all other conditions are satisfied – is compatible with the obligation to promote mediation?
4. Does Article10(1) of Framework Decision 2001/220/JHA contain a guarantee that, subject to the satisfaction of other legal requirements, general access to mediation will be granted without any room for discretion? In other words, do the rules laid down in Article 10 preclude a provision under which, ‘having regard to the nature of the offence, the form of responsibility and the person of the suspect, the legal proceedings may be omitted if there are grounds for believing that the court will take into account active repentance at the time of sentencing’?
21.During the proceedings before the Court the French, Italian and Hungarian Governments and the Commission made observations.
V–Legal appraisal
A–First question
22.With its first question the referring court seeks to establish whether, at least in the context of mediation pursuant to Article 10 of the Framework Decision, a legal person can also be deemed to be a ‘victim’ within the meaning of the Framework Decision.
23.This question concerning the scope of the Framework Decision as regards the persons to which it applies was the subject of the Court’s judgment in Dell’Orto, which the referring court explicitly asks the Court to explain and supplement. In that judgment the Court ruled that the Framework Decision is to be interpreted as meaning that, in enforcement proceedings following a judgment which resulted in a final criminal conviction, the concept of ‘victim’ for the purposes of the Framework Decision does not include legal persons.(3)
24.In the present proceedings the question is therefore whether a broader concept of ‘victim’ applies in the context of the mediation provided for in Article10 of the Framework Decision. This is clearly not the case.
25.It is a view to which the first objection is the fact that Article 1(a) of the Framework Decision contains a legal definition of the term ‘victim.’ It defines in advance who may be deemed to be a victim for the purposes of the Framework Decision, and that definition extends solely to natural persons. There is no indication in the wording of the Framework Decision that a broader interpretation of the concept of ‘victim’ is possible in individual parts of the Framework Decision.
26.Nor, as I argued in my Opinion in Dell’Orto, does a systematic and teleological interpretation of the Framework Decision favour an extension of the concept of ‘victim’ contrary to the wording of the Framework Decision. The content of many of the provisions of the Framework Decision is such that they can be applied only to natural persons.(4) Article 1(a), for example, refers in particular to physical or mental injury and emotional suffering as harm possibly suffered by a victim. Such harm can affect only natural persons. Reference can also be made to Article 2(1), which requires victims to be treated with due respect for the dignity of the individual.
27.Nor can any reason for legal persons to be included in the concept of ‘victim’ be inferred from the fundamental rights to be observed by the Union legislature, since the latter could, with due regard for the principle of equality, confine itself to laying down rules on natural persons. Although legal persons can also be harmed by offences, the definition of ‘victim’ in Article 1(a) of Framework Decision 2001/220 already indicates that, in many instances, the harm suffered by natural persons does not stop at material loss, but may, in the form of physical and mental injury and mental suffering, assume very different dimensions from the harm suffered by legal persons. Furthermore, natural persons are often far more dependent on protection in criminal proceedings than legal persons, with the professional support they usually enjoy. Those are objective grounds for ensuring that natural persons who become the victims of offences receive privileged treatment.
28.It should thus be noted that Framework Decision 2001/220 does not offer any grounds for extending its wording to enable the definition of ‘victim’ to include legal persons. The same applies in the context of the mediation for which Article 10 of the Framework Decision provides.
29.Consideration must finally be given to the referring court’s objection that failure to include legal persons in the concept of ‘victim’ in the Framework Decision may give rise to the unequal treatment of victims of offences by the Member States, since some Member States would proceed from a broader concept of ‘victim’ and include legal persons when transposing the Framework Decision. Compared to such Member States, victims in Member States which treat only natural persons to be victims would be in a less favourable position.
30.However, such unequal treatment stems from the fact that the Framework Decision is merely intended as a means of achieving some harmonisation of measures relating to the standing of natural persons. The possibility of treatment varying among the Member States in the non-harmonised sphere is in the nature of this partial harmonisation and cannot be overcome by extending the interpretation of the Framework Decision contrary to its clear wording.
B–Second question
31.In its second question the referring court asks whether, for the purposes of Article 10 of the Framework Decision, the term ‘offences’ must be interpreted as referring to all offences the legal classification of which is substantively the same.
32.The background to this question is the fact that in cases of fraud Hungarian law permits mediation even if the victim of the offence is a legal person. If, on the other hand, an offence is committed against the financial interests of the European Communities pursuant to Paragraph 314 of the Criminal Code, Hungarian law makes no provision for mediation, since Chapter XVII of the Criminal Code, in which this rule is to be found, is not one of the chapters for which Paragraph 221/A of the Criminal Procedure Code permits mediation. (5)
33.The referring court takes the view that criminal fraud and offences against the financial interests of the European Union are substantively identical. The question is, therefore, whether or not the legislature of a Member State is free in relation to criminal law to decide to provide for mediation in the case of identical crimes or whether Union law requires uniform treatment.
34.It should first be pointed out at this juncture that in its observations the Hungarian Government argued convincingly that the two Hungarian offences are clearly distinct and that it is ultimately for the referring court to determine finally how comparable the two offences are.
35.The Hungarian and Italian Governments contend that, given the answer to the first question referred, the second is obviously hypothetical and so need not be answered, since it concerns an offence against a legal person, which is not covered by the Framework Decision.
36.With regard to the offences for which it has made provision for mediation,(6) however, Hungarian legislation permits mediation both in cases in which the victims are natural persons and in cases in which they are legal persons. In the present case it might therefore have opted for ‘supererogatory transposition’ of the Framework Decision and so sought also to be guided by the Framework Decision where mediation in the case of legal persons is concerned.
37.Under settled case-law a question on the interpretation of European Union law is permissible in such a case of supererogatory transposition, since there is an interest in ensuring that, in order to forestall future differences of interpretation, every provision of European Union law is given a uniform interpretation irrespective of the circumstances in which it is to be applied.(7)
38.If the Court were to assume supererogatory transposition, it would have to decide whether, in the Framework Decision’s area of application, that is in the context of natural persons, a Member State is obliged to provide for mediation uniformly for all similar offences.
39.The very wording of the Framework Decision leaves the Member States considerable latitude as regards the form which mediation takes in criminal cases. It refers, for example, in very unforceful fashion to the need for the Member States to seek to promote mediation. They are to promote mediation only for offences which they consider ‘appropriate.’ As a criterion, appropriateness leaves the Member States wide discretion in determining the offences for which they provide mediation. Consideration might, however, be given to whether the principle of equal treatment in European Union law, which the Member States must observe when transposing the Framework Decision, obliges them, if they provide for mediation for certain offences, to introduce it uniformly for all similar offences. Otherwise, persons who were victims of substantively the same offences might be treated unequally. The victim of a certain criminal act would have the opportunity to engage in mediation, whereas no provision would be made for mediation for the victim of a criminal act which is substantively the same. In this respect a further question to be clarified is whether such unequal treatment might be justified from a crime prevention perspective.
40.I would not like to make any final comments on these questions at this juncture, however, since I do not regard this as a case of supererogatory transposition. The Hungarian legislature has, after all, deliberately chosen not to provide for mediation for the specific offence in the present case, which adversely affects the financial interests of the European Communities, in which none of the victims can be natural persons. This offence is not included in the list of offences for which mediation is provided, contained in Paragraph 221/A(1) of the Hungarian Criminal Procedure Code. Nor, then, in this respect, is it likely that supererogatory transposition of the Framework Decision is intended. The Hungarian Government even goes so far as to claim that mediation in the present case would be ‘contra legem’. That the Hungarian legislature in relation to other crimes has also provided for mediation when legal persons are the victims, means that it has at least in part decided on a supererogatory transposition. For the crime at issue in the present case, and the category of crime to which this crime belongs, no supererogatory transposition was undertaken.
41.The referring court’s comments on the second question similarly contain no grounds for maintaining that that court views the second question in the context of supererogatory transposition. As I understand it, the referring court’s second question asks whether European Union law obliges a Member State to provide for mediation for legal persons if it provides for mediation for a similar offence involving a legal person.
42.It thus needs to be made clear that a Member State has no ‘obligation’ to provide for mediation where the victim of the offence is a legal person. The principle of equality laid down in European Union law applies only within the scope of European Union law, which in the present case is determined by the Framework Decision. The Framework Decision affects only arrangements for natural persons who are victims of offences, whereas legal persons as victims are excluded from the scope of the Framework Decision and thus of European Union law. It is therefore impossible to infer from the principle of equality in European Union law any obligation to provide for mediation in criminal cases in which a legal person has been the victim of an offence, where national law provides mediation in the case of substantively the same offence even if the victim is a legal person.
C–Preliminary remark on the third and fourth questions
43.In its third and fourth questions the referring court asks for further details on the actual form to be taken by the mediation procedure provided for in Article10 of the Framework Decision. Some of the invested parties take the view that those questions are obviously of a hypothetical nature and so do not need to be answered by the Court. As the answers to the first two questions have already shown that a victim within the meaning of the Framework Decision is not involved in the main proceedings and that an obligation to provide for mediation in the case of the offence in question does not ensue from the principle of equal treatment, although the victim is a legal person, I share the view that it is unnecessary to answer these questions.
44.However, in case the Court wishes to answer these two questions, given the concept of ‘supererogatory transposition’ of the Framework Decision addressed in paragraph 36 above, they will also be considered below.
D–Third question
45.As regards the form to be taken by the mediation procedure, the referring court begins by asking whether Article 10 of the Framework Decision should be interpreted as meaning that mediation between offender and victim must be possible at least until a decision is made at the first stage of proceedings.
46.In its comments on this question the referring court contends that it is a violation of the suspect’s rights of defence for mediation to be made conditional on a prior confession during the investigation proceedings. Hungarian criminal procedural law requires inter alia that ‘the suspect admits the facts during the investigation, accepts and is able to assume the burden of paying compensation for the loss suffered by the victim or of making reparation to the victim by any other means for the harmful consequences of the offence.’(8)
47.The third question thus has two facets. First, it needs to be clarified until what point in time mediation must be permitted. The second question is whether it is compatible with the Framework Decision for a confession to be required, as a precondition for mediation, as early as ‘during the investigation’.
1.The timing of the mediation procedure
48.Article 10(1) of the Framework Decision requires the Member States to promote mediation in criminal proceedings.
49.It might be thought incompatible with that requirement for a Member State to provide for mediation only during the investigation and so to promote it solely at an early stage of the proceedings.
50.‘Mediation in criminal cases’ is explicitly defined in Article 1(e) of the Framework Decision as the search, prior to or during criminal proceedings, for a negotiated solution between the victim and the author of the offence, mediated by a competent person. The promotion of mediation will undoubtedly be particularly comprehensive if mediation can take place right up until the time when the criminal proceedings are concluded. The Framework Decision does not, however, require such extensive promotion of mediation, since it expressly defines mediation as a search prior to or during the criminal proceedings and so deems it sufficient for there to be an opportunity for mediation at any stage of the proceedings. By providing for this alternative, the Framework Decision makes it clear that mediation may take place both during the investigation and during the court proceedings, but need not be possible during both at the same time. The considerable latitude left to the Member States by the Framework Decision thus enables them to decide whether to restrict the opportunity for mediation to just one stage of the proceedings.
51.Furthermore, as the Hungarian Government has already observed, Hungarian law also allows mediation to take place after the investigation has been completed, during the court proceedings, this being endorsed by the wording of Paragraph 266(3) of the Criminal Procedure Code. In its third question the referring court may therefore be asking about the admissible timing of a confession as a precondition for mediation. That, then, is the aim of the second half of the third question referred.
2.The suspect’s confession
52.Under Hungarian law mediation is, pursuant to Paragraph 221/A(3)(b) of the Criminal Procedure Code, conditional on an admission of the facts during the investigation proceedings. What needs to be clarified in the following is whether this takes sufficient account of the obligation laid down in Article 10 to promote mediation.
53.The Framework Decision does not explain precisely what form the Member States are to give to the mediation procedure. Article 10(1) merely obliges the Member States in general terms to seek to promote mediation in criminal proceedings. According to paragraph 2, the Member States must ensure that any agreement between the victim and the offender reached in the course of such mediation can be taken into account in criminal proceedings.
54.The Framework Decision thus leaves to national legislatures a large measure of discretion as to the actual form taken by mediation.(9) However, the Framework Decision must not be transposed in practice in such a way as to be deprived of much of its practical effect and so to infringe the obligation stated in Article 2(1) of the Framework Decision, which requires the Member States to ensure that victims have a real and appropriate role in their criminal legal systems.(10)
55.It must again be added at this juncture that mediation will appear attractive to the defendant if he does not have to opt for it during the on‑going investigation proceedings, but can defer that choice until after charges have been preferred. The defendant can then wait to see what the outcome of the investigations is. And the more attractive the mediation procedure to the defendant, the sooner the victim, too, will enjoy its benefits, if mediation is what he wants.
56.The large measure of discretion left to the Member States for the transposition of the Framework Decision has not been exceeded in the present case, however, since the form chosen by Hungarian law does not deprive the Framework Decision of much of its practical effect. For one thing, there remains considerable substantial scope for mediation procedures; for another, good reasons can be cited for creating an incentive for mediation to be held at the earliest possible stage, during the investigation proceedings. The victim can then, for example, be spared from the outset what may be irksome court proceedings, and in terms of penal policy, too, the mitigating effects of mediation on sentence, or even the cessation of proceedings, for which Hungarian law provides, can be all the better justified, the sooner the defendant admits having committed the offence of which he is accused and seeks conciliation with the victim. The Hungarian Government observed in this context that the requirement of an early confession was introduced to prevent manoeuvring and abuse by the suspect.
57.The referring court also argues that making mediation dependent on a confession during the investigation proceedings is an infringement of the defendant’s right to remain silent (nemo tenetur se ipsum accusare). The referring court perceives a danger of inadmissible pressure being brought to bear on a suspect to make a confession and so to incriminate himself.
58.The French Government disputes the claim of an infringement of the right to avoid self-incrimination if only because of Paragraph 221/A(5) of the Hungarian Criminal Procedure Code. This provides that statements made by the suspect and the victim, during the mediation procedure, in respect of the acts on which the proceedings are based, have no evidential value. The present case, however, concerns the confession made by the suspect during the investigation proceedings before a mediation procedure is undertaken. In view of the timing, then, that procedure is unlikely to fall within the scope of the aforementioned provision. Not least for that reason, the question referred is therefore hypothetical.
59.The Framework Decision must be interpreted in such a way that fundamental rights are respected.(11) Of primary importance in the present context is the right to a fair trial as set out in Article 6 EHRC and in the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union.(12)
60.According to the case-law of the European Court of Human Rights, the principle of the right to remain silent is the central element of the right to a fair trial pursuant to Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.(13) Its purpose, according to that case‑law, is to protect the defendant against abusive coercion on the part of the authorities. According to the settled case-law of the Court of Justice, the right to freedom from self-incrimination primarily concerns respect for a defendant’s wish to remain silent. Freedom from self-incrimination further implies that the Prosecution so presents its case in criminal proceedings that it manages without evidence which has been obtained from the defendant against his will by means of coercion or pressure.(14)
61.A defendant is undoubtedly under some pressure to confess at an early stage if he knows that, whether or not he confesses later, he can no longer derive any benefit from mediation. However, the creation by the legislature, particularly with respect to the determination of penalties, of incentives intended to persuade a defendant to confess as early as possible does not represent prohibited pressure or coercion. In other aspects of adjusting the penalty, too, a confession typically has a mitigating effect on sentence. As all those involved in the proceedings have rightly assumed, a form of mediation procedure like the Hungarian does not therefore violate the right to a fair trial.
E–Fourth question
62.With its fourth question the referring court wishes to establish whether Article 10(1) of the Framework Decision requires that, provided that the legal requirements are satisfied, general access to the mediation procedure must be granted without exception and must not depend on a discretionary decision by the competent authorities. The referring court points in this respect to Paragraph221/A(3)(d) of the Hungarian Criminal Procedure Code. According to this, the Prosecution is to order mediation where, having regard to the nature of the offence, the form of responsibility and the person of the suspect, the legal procedure may be omitted or there are grounds for believing that the court will take account of active repentance at the time of sentencing.
63.The referring court takes the view that the Hungarian arrangement leaves room for subjective appraisal by the criminal prosecution authority when it comes to deciding whether the conditions for mediation are satisfied and that that might obstruct the mediation procedure. This would be to the victim’s disadvantage in that it would not help to promote mediation.
64.For the answer to this question it should again be pointed out that Article10(1) of the Framework Decision does not contain any practical details on the form to be taken by the mediation procedure. Nor can it therefore be directly inferred from that provision whether access to mediation may be left to the discretion of the competent authority. The Framework Decision merely requires the Member States in general terms to promote mediation. The Member States therefore have considerable freedom to decide what form the mediation procedure is to take and what conditions it must satisfy.(15)
65.However, the actual transposition of the Framework Decision must not be such that it is deprived of much of its practical effect.(16) The obligation to promote mediation as laid down in Article 10(1) of the Framework Decision is therefore to be interpreted as meaning that it needs to be transposed in such a way that, in practice, it retains a substantial area of application.
66.In these circumstances, as the Italian and French Governments have emphasised, it is in principle not incompatible with the Framework Decision for the competent authorities to be granted discretionary powers to decide whether or not a mediation procedure should be initiated. Article 10(1) must not be understood to mean that the victim is to be granted a general and unconditional right to mediation. Case‑by‑case decisions by the prosecuting authority seem appropriate in that it will then be guaranteed that account is taken of all the specific circumstances of the individual case, which may include other important considerations over and above the victim’s interest in mediation, and will not deprive the mediation procedure of its practical effect from the outset.
67.The discretionary powers granted to the authorities must, however, be based on objective criteria, they must respect fundamental rights, and they must not, for all practical purposes, bar the way to mediation. If the victim agrees to mediation, it will therefore be made available in many cases.
68.In the light of the fact that the State’s right to prosecute is not only associated with considerations of victim protection, and that punishment is intended in particular to achieve the offender’s rehabilitation and to have a preventive effect, it may well be permissible to refuse to allow mediation even if the victim has given his consent.
VI–Conclusion
69.In view of the foregoing I propose that the questions referred by the Szombathelyi Városi Bíróság should be answered as follows:
1. Victims within the meaning of Council Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings are exclusively natural persons even in the context of the mediation in criminal proceedings provided for by Article 10 of the Framework Decision.
2. An obligation to provide for mediation in criminal cases where a legal person has been the victim of an offence cannot be inferred from European Union law even if, under national law, mediation is available for another offence where the victim is a legal person and which is substantively the same.
1 – Original language: German.
2– Council Framework Decision of 15 March 2001 on the standing of victims in criminal proceedings, OJ 2001 L 82, p. 1, ‘Framework Decision 2001/220.’
3– Judgment in Case C-467/05 Dell’Orto [2007] ECR I‑5557, paragraph 60.
4– See my Opinion in Dell’Orto, C-467/05, [2007] ECR I‑5557, paragraph 52 et seq.
5– Fraud on the other hand is in Chapter XVIII (Crimes against property) for which Article 221/A of the Hungarian Criminal Code provides mediation.
6– They are listed in Paragraph 221/A(1) of the Hungarian Criminal Procedure Code.
7– Settled case-law since the judgment in Joined Cases C‑297/88 and C‑197/89 Dzodzi [1990] ECR I‑3763, paragraphs 36 and 37; for Directive 90/434 in particular, see the judgments in Cases C‑28/95 Leur-Bloem [1997] ECR I‑4161, paragraphs 32 and 34, and C‑43/00 Andersen og Jensen [2002] ECR I‑379, paragraphs 18 and 19; see also the judgment in Case C‑280/06 ETI and Others [2007] ECR I‑10893, paragraphs 21 and 22.
8– Paragraph 221/A(3)(b) of the Hungarian Criminal Procedure Code
9– C-404/07 Katz [2008] I‑7607, paragraph 46.
10– Katz cited in footnote 9, paragraph 47.
11– Katz cited in footnote 9, paragraph 48 and C‑105/03 Pupino [2005] I‑5285, paragraph 59.
12– Charter of Fundamental Rights of the European Union proclaimed in Nice on 7 December 2000 (OJ 2000 C 364, p. 1) as amended in Strasbourg on 12 December 2007 (OJ 2007 C 303, p. 1).
13 – Judgment of the ECHR in Jalloh v Germany, 54810/00 ECHR 2006-IX-(11.7.06) p. 1141, paragraph 97 et seq. For the unofficial German translation from the French see the translation by the Bundesministerium der Justiz (Federal Ministry of Justice), Berlin, on:
http://www.coe.int/t/d/menschenrechtsgerichtshof/dokumente_auf_deutsch/volltext/urteile/20060711-Jalloh.asp.
14– ECHR Jalloh v Germany cited in footnote 12, paragraph 100.
15– See Katz cited in footnote 9, paragraph 46.
16– See Katz cited in footnote 9, paragraph 47.