22
Jul
20
Articles, Travel & Cross Border Claims
Special Briefing: the Obligation to Compensate for Criminal Injuries

On 14th May the Advocate General provided his opinion to the CJEU in Presidenza del Consiglio dei Ministri v BV, Case C-129/19, a reference from the Supreme Court of Cassation, Italy, regarding Member States’ obligation to compensate victims of crime; on 16th July the CJEU gave its judgment. Sarah Prager provides a summary of the issues, the Advocate General’s conclusions, and the CJEU’s decision.

 

The facts

In October 2005 BV, an Italian national, was sexually assaulted in Italy by two Romanian nationals. They were tried and duly sentenced to custodial sentences, and to compensate BV in a sum to be determined in subsequent linked proceedings. An order for an interim payment in the sum of €50,000 was also made. BV did not receive this or any other sum from the perpetrators, however, since they absconded. BV turned to the Italian state to compensate her for their crime.

The law

Pursuant to Article 1 of Council Directive (EC) 2004/80:

“Member States shall ensure that where a violent intentional crime has been committed in a Member State other than the Member State where the applicant for compensation is habitually resident, the applicant shall have the right to submit the application to an authority or any other body in the latter Member State”

Pursuant to Article 12(2), these National Compensation Schemes (in the UK, the Criminal Injuries Compensation Authority) must guarantee ‘fair and appropriate compensation to victims’.

Having initially failed to transpose this provision into its domestic law, and having been the subject of infringement proceedings in that regard, Italy eventually sought to implement the provision retrospectively by means of Law No. 122 of 7th July 2016, which provided that the state would compensate victims of intentional crimes. Decree of the Minister for the Interior of 31st August 2017 (determining the amounts of compensation payable to the victims of violent intentional crimes) set out the amounts of compensation payable. In respect of murder, €7,200 was payable, unless the murderer and victim had close emotional ties, in which case the victim’s children could recover €8,200. Victims of crimes of sexual violence were compensated in the sum of €4,800, unless there were ‘attenuating circumstances of lesser gravity’. Victims of all other crimes had their medical and care costs reimbursed, up to a cap of €3,000.

These sums, which appear inadequate indeed to the eyes of an English practitioner, have since been increased. By ministerial decree of 22nd November 2019 the Italian government now compensates rape victims in the fixed sum of €25,000. However, this provision was not in force at the time of the reference to the CJEU.

The reference

The Italian court referred two questions to the CJEU:

‘(1) In relation to the situation of late (and/or incomplete) implementation in the national legal system of [Directive 2004/80], which is non-self-executing as regards the establishment, required by it, of a scheme for compensation for the victims of violent crimes, which gives rise, in relation to cross-border persons, who are the sole addressees of the directive, to a liability on the part of the Member State to pay compensation in accordance with the principles set out in the case-law of the Court of Justice (inter alia the judgments in Francovich and Brasserie du Pêcheur and Factortame III), does [EU] law require that a similar liability be imposed on the Member State in relation to non-cross-border (and thus resident) persons, who are not the direct addressees of the benefits deriving from implementation of the directive but who, in order to avoid infringement of the principle of equal treatment/non-discrimination in that [EU] law, should have and could have — if the directive had been implemented in full and in good time — benefited, by extension, from the effet utile of that directive (that is to say, the abovementioned compensation scheme)?

(2) If the answer to the preceding question is in the affirmative:

Can the compensation established for the victims of violent intentional crimes (and in particular the crime of sexual violence referred to in Article 609-bis of the Italian Criminal Code) by the Decree of the Minister for the Interior of 31 August 2017 (issued pursuant to Article 11(3) of Law No 122 of 7 July 2016 on provisions to comply with the obligations arising from Italy’s membership of the European Union — European Law 2015-2016), with subsequent amendments (referred to in Article 6 of Law No 167 of 20 November 2017 and Article 1(593) to (596) of Law No 145 of 30 December 2018) in the fixed amount of EUR 4 800 be regarded as “fair and appropriate compensation to victims” within the meaning of Article 12(2) of Directive 2004/80?’

Essentially, the court wanted to know whether the provisions of the Directive applied where there was no international element to the crime; and if it did, whether compensation to a rape victim of up to €4,800 was adequate.

The opinion of the Advocate General: the first question

The Italian state argued that the Directive applied only to cross-border situations, with the result that where an Italian national was the victim of a crime in Italy, it was not engaged. BV made the contrary argument.

One of the reasons the issue arose at all is that the Directive does not contain any provision stating its purpose or subject matter, delineating its scope or providing any definitions. Chapter I is entitled ‘Access to compensation in cross-border situations’, which suggests that only victims in those situations will be compensated; but it is followed by Chapter II, entitled ‘National schemes on compensation’ (containing only Article 12), which suggests otherwise.

Somewhat remarkably, the Advocate General admitted that it was not clear from the wording and history of the Directive whether it applied only to cross-border crimes, or to all intentional crimes. In his opinion he set out the arguments for and against each position, and in the end came down in favour of BV’s argument that it applied to all intentional crime; but said that there was ‘still no clear answer either way’.

The Advocate General appears to have struggled somewhat to reconcile his conclusion with the Recitals to the Directive, which contain numerous references to cross-border situations, seeming to limit the intended scope of the Directive to those circumstances. By the time he came to deal in his opinion with the travaux preparatoires to the Directive, he seems to have fallen into something of a state of despair; and when he turned to the conflicting caselaw one can only have sympathy for the inconsistencies that seemed only to multiply every time he sought clarity from another source.

At paragraph 100 he seems to have given up altogether:

“…I must admit that it is rarely the case that after having explored the text, context, purpose, legislative history, as well as arguments relating to the legal basis of an EU law instrument, one finds oneself pretty much where one started: lost…”

On balance, however, and taking a purposive approach, he tentatively came down on the side of compensating all victims of intentional crime, not just those who find themselves in a cross-border situation.

The opinion of the Advocate General: the second question

The Advocate General, who seems to have been having a trying day at the office, confessed at the outset that he found it ‘very difficult’ to provide a yes or no answer to the question of whether the sum of €4,800 is sufficient to compensate a rape victim.

Having decided that the provision of a non-compensatory fixed sum is not incompatible with the requirement that it should be fair and appropriate, the Advocate General considered that as long as the sum was not symbolic, the court should not interfere with Member States’ differing regimes.

“…the amount must give a meaningful contribution to the reparation of the material and immaterial damage suffered by the victim, and provide some satisfaction to him or her for the harm suffered. In particular, the amount of compensation cannot be so low that it becomes purely symbolic, or that the usefulness and comfort that the victim derives from it is, in practice, negligible or marginal…”

The Advocate General did not go on to consider whether the sum of €4,800 fell into the ‘purely symbolic’ category, but did not appear to consider that it does.

The Decision of the Court

On 16th July the CJEU gave its judgment in the case. It does not seem to have agonised over the issues found by the Advocate General to be so difficult, having no trouble at all in finding that Member States owe a duty to compensate victims of all intentional crime, whether there is a cross-border element or not.

Turning to the second question, of whether or not the sum of €4,800 in relation to a violent rape is fair and appropriate, the CJEU observed that it was for Member States to determine the level of compensation to be provided, and it was a relevant consideration that such sums should not be so high as to render the scheme financially unviable. Therefore such sums set out in the statutory scheme need not compensate the victim for his or her losses.  However, because the sum of €4,800 had been fixed by the Italian state with no regard for the seriousness of the consequences for any particular victim, it was not fair and appropriate. According to the Court:

“…Article 12(2) of Directive 2004/80 cannot be interpreted as meaning that it precludes a fixed rate of compensation to such victims, with the fixed amount granted to each victim being capable of being varied in accordance with the nature of the violence suffered. However, a Member State that has opted for such a compensation scheme must ensure that the compensation scale is sufficiently detailed so as to avoid the possibility that, having regard to the circumstances of a particular case, the fixed rate of compensation provided for a specific type of violence proves to be manifestly insufficient…”

Essentially, Member States can use a fixed tariff scheme, but if they choose to do so, they must allow sufficient flexibility within the scheme that those more significantly affected by the crime obtain a higher award than others.

Conclusion

It is rare indeed that one reads an opinion from an Advocate General so hedged about with contrary and inconsistent chains of reasoning. In the view of the author the Directive is, as he concluded, opaquely drafted and far from clear; however, to an English lawyer the fact that Chapter II of the Directive deals with purely domestic crimes does suggest that the Directive should apply to such crimes, and so the CJEU found.

Whether or not the sum of €4,800 is sufficient to compensate a victim of rape in any meaningful way is, in the opinion of the author, much less open to question. It must be borne in mind that the English bereavement award is not all that much higher, even after having been increased on 1st May of this year. However, as the CJEU found, recovery of no more than €4,800 both for the most serious of violent sexual offences, and for lesser offences, does not seem either fair or appropriate.

It is interesting to see the CJEU counselling against the mechanistic application of fixed tariffs just as the UK government appears to be moving towards the implementation of just such legal schemes. It remains to be seen whether the reasoning underpinning the decision in BV can be deployed against these fixed tariff regimes, however.

 

About the author

Called to the Bar in 1997, Sarah Prager has been listed in the legal directories as a Band 1 practitioner in travel law for many years. Together with her colleagues at 1 Chancery Lane, Matthew Chapman QC and Jack Harding, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last decade. She was recently named Best Lawyers’ Travel Lawyer of the Year 2020/2021.

 

 

Written by or involving: Sarah Prager

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