Massimo Gambino and others

On 29 July 2019, the First Chamber of the Court delivered its judgment in Case C-38/18, which concerns the interpretation of Directive 2012/29/EU establishing minimum standards on the rights, support and protection of victims of crime. The request for a preliminary ruling was lodged by a first instance Italian court, which has doubts about the compatibility of its national law with the Directive. The Italian code of criminal procedure allows the defendant to ask witnesses to be heard again if the composition of the court has changed, e.g. if, as was the case in the main proceedings, one of the judges has been replaced after witnesses have already been examined. In the light of the principles of immediacy and orality, it would not suffice to read the witnesses’ previous statements, since the new judge(s) should be in a position to hear those statements in person. When the witness is also a victim of the crime, however, the new testimony may jeopardise the victim’s rights and cause him or her further distress. At the same time, this may also be a stratagem of the defendant to prolong the duration of proceedings, in this way frustrating the possibility to redress the damage the victims suffered from the crime.

The referring court focuses its reasoning on Articles 16, 18, and 20(b) of the Directive. The Court of Justice first clarifies that Article 20(b) is not applicable since it concerns the protection of victims during criminal investigations, while the question has been referred in the framework of court proceedings. Article 16 requires the Member States to ensure that, in the course of criminal proceedings, victims obtain a decision on compensation by the offender within a reasonable time, while Article 18 obliges the Member States to ensure that ‘measures are available to protect victims and their family members from secondary and repeat victimisation, from intimidation and from retaliation, including against the risk of emotional or psychological harm, and to protect the dignity of victims during questioning and when testifying’.

The Court does not believe that victims’ rights as enshrined in these two provisions are jeopardised by provisions such as the Italian ones. The core of the Court’s reasoning is, in essence, that victims’ rights shall be balanced with the rights of the suspects and accused persons and that, in cases such as those of the main proceedings, the latter shall prevail.

A number of arguments support this conclusion. First, Recital No 12 of the Directive expressly states that ‘[t]he rights set out in [the] Directive are without prejudice to the rights of the offender’. Second, defence rights as enshrined in the Charter (namely Articles 47 and 48(2)) shall be interpreted in the light of the ECtHR’s case law, since they are provided for in a very similar way by Article 6 ECHR. This case law is clear in stressing the importance of the principle of immediacy: those who are required to decide on a given case shall hear the witnesses in person, as the reading of their statements may not be sufficient. It is true that hearing again the witnesses (who in this case are also the victims) may delay a decision on compensation of the victims (Article 16 of Directive 2012/29), yet this does not, as such, make it impossible to reach a decision on compensation within a reasonable time. Besides, as argued also by the Advocate General in his Opinion, the right enshrined in Article 16 of the Directive cannot lead to violating the equally important defence rights of suspects and accused persons. Third, while Article 18 of the Directive lists some measures that shall be available to the victims, this provision does not include any limitation on the number of times a victim-witness shall be heard during court proceedings. Furthermore, Article 18 itself clarifies that the measures listed therein shall be ‘[w]ithout prejudice to the rights of the defence’.

The Court adds however two caveats. First, espousing the view of the AG, the Court notes that, according to the European Court of Human Rights, Member States, in order to determine whether it is possible to use the minutes (‘procès-verbal’) of a victim’s testimony as evidence, must examine whether the hearing of the victim can be decisive for the judgment and ascertain, with sufficient procedural safeguards, that the production of evidence in the context of criminal proceedings does not prejudice either the fairness of such proceedings (Article 47 of the Charter) or the defence rights (Article 48(2) of the Charter). Therefore, it is for the referring court to assess whether, in the main proceedings, similar conditions can lead not to hear again the victim. Second, if the court decides to hear again the victim, it shall nonetheless proceed – in accordance with Article 22 of the Directive – with an individual assessment of the victim to identify his or her specific protection needs and, if need be, let him or her enjoy the measures laid down in Articles 23 and 24 of the Directive.