The dispute in the main proceedings and the questions referred for a preliminary ruling
10 Mr Eredics, the first defendant in the main proceedings, is the principal of the nursery and primary school of Apátistvánfalva (‘the school’). Ms Sápi, the second defendant in the main proceedings, is a director of Apátistvánfalvi Hotel Apát Kereskedelmi és Szolgáltatási Korlátolt Felelősségű Társaság (a limited liability company under Hungarian law) (‘Hotel Apát kft’) and manager of the Hotel Apát, which is run by Hotel Apát kft.
11 In the framework contract entered into on 30 June 2003 by the school and the Hungarian Small Projects Fund for the PHARE CBC programme (Magyarország – PHARE CBC Program Kisprojekt Alap 2001), the latter granted aid to the school to cover 80.15 % of the amount required to implement a forest paths project, conducted by Mr Eredics as project leader.
12 The aid was paid on 4 February 2004. VÁTI Magyar Regionális Fejlesztési és Urbanisztikai Kiemelten Közhasznú Társaság (a Hungarian public utility company responsible for rural and urban development, ‘VÁTI kht’) supervised the implementation of the project and was responsible for the settlement of accounts.
13 Under a contract entered into by Mr Eredics and Ms Sápi, who was engaged following a tendering procedure, Ms Sápi undertook, in return for the payment of 1 200 000 HUF (approximately EUR 4 270), to organise, prepare and run a training course in preparation for the basic examination in knowledge of fungi, and also to organise study trips and meetings.
14 In order to prove the performance of the provisions of that contract, Ms Sápi drew up a performance report in the name of Hotel Apát kft which she sent to Mr Eredics, who settled the final invoice from the school’s current account.
15 The manner in which the basic mycology course was to be run in accordance with that contract was not defined, and the invoice and the logbook drawn up to prove the performance of the contract at issue have been deemed to be fraudulent. Mr Eredics added to the project file documents which are thought to be fraudulent, including the report on a study trip which did not take place and an evaluation report in which an unknown person forged the name of the group leader. That file was sent to VÁTI kht in order to prove that the obligations stipulated in that contract had been performed.
16 On 20 June 2006 a private complaint was brought against Mr Eredics and Ms Sápi in relation to the unsubstantiated payment of approximately HUF 1 200 000.
17 During the investigation which was undertaken Mr Eredics was called to appear on several occasions as a suspect, but he did not admit the facts alleged against him.
18 On 2 September 2008 the prosecutor attached to the Szombathelyi Városi Bíróság brought criminal proceedings before that court, serving on Mr Eredics and Ms Sápi an indictment where the actions of Mr Eredics were classified as an ‘offence adversely affecting the financial interests of the European Communities’, within the meaning of Article 314(1)(a) of the CP, committed on one occasion as the principal perpetrator.
19 On 24 November 2008, at the invitation of the referring court, Mr Eredics admitted the facts alleged against him and lodged a request for a mediation procedure with the aim of securing either the abandonment of the prosecution or an unrestricted reduction in sentence, in accordance with Article 221/A of the CPP.
20 At the hearing of 9 April 2009 the referring court held that the facts alleged against Mr Eredics could also be classified as ‘fraud’. Mr Eredics maintained both his request for a mediation procedure and his previous declaration relating thereto whereby he admitted the facts.
21 At the hearing of 22 April 2009 VÁTI kht, in its capacity as a victim, consented to the mediation procedure. The referring court then stayed the criminal proceedings until 22 October 2009 for the purposes of mediation.
22 The prosecutor brought an appeal against that decision. The prosecutor’s argument is that in the light of the classification of the facts in the indictment, the acts do not constitute offences for which the mediation procedure is provided under Hungarian law. Further, that procedure is precluded because Mr Eredics did not admit the facts ‘during the investigation’ as laid down in the abovementioned Paragraph 221/A. Moreover, there is no sense in the company VÁTI kht, as a victim, being willing to participate in mediation. The ultimate victim is the European Community and consequently mediation is not justified.
23 In those circumstances, the Szombathelyi Városi Bíróság decided to stay the proceedings and to refer to the Court the following questions for a preliminary ruling:
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The court wishes to know, in connection with the criminal proceedings pending before it, whether “a person other than a natural person” falls within the definition of “victim” in Article 1(a) of the Framework Decision …, 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, and asks the Court of Justice to explain and supplement its judgment in Case C-467/05 Dell’Orto [2007] ECR I-5557.
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The court wishes to know, regarding Article 10 of the Framework Decision …, which provides that “[e]ach Member State shall seek to promote mediation in criminal cases for offences which it considers appropriate for this sort of measure”, whether the meaning of the term “offences” may be interpreted to refer to all offences the legal classification of which is substantively the same.
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Is it possible to interpret the words “[e]ach Member State shall seek to promote mediation in criminal cases...]” in Article 10(1) of the Framework Decision … in such a way that the conditions upon which offender and victim can have access to mediation can be satisfied at least until the point when a decision is made at the first stage of proceedings; or [in such a way] that a condition that the offender has admitted the facts during the legal proceedings, after the investigation has been completed - when all other conditions are satisfied - is a condition which is compatible with the obligation to promote mediation?
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The court raises the question, with regard to Article 10(1) of the Framework Decision, whether the words “[e]ach Member State shall seek to promote mediation in criminal cases for offences which it considers appropriate for this sort of measure” mean that the option of mediation in criminal proceedings must be generally available, provided that all the prerequisite legal conditions are satisfied, and that there is no room for discretion. That is to say, if the reply to the question is in the affirmative, is the existence of a condition worded as follows: “[where] having regard to the nature of the offence, the form of responsibility and the person of the suspect, the legal proceedings may be omitted or there are grounds for believing that the court will take into account active repentance at the time of sentencing” compatible with the provisions (requirements) of Article 10?’
Consideration of the questions referred
The first question
24 By its first question, the referring court asks, in essence, whether Articles 1(a) and 10 of the Framework Decision must be interpreted as meaning that the concept of ‘victim’ extends to legal persons for the purposes of the promotion of mediation in criminal proceedings referred to in Article 10(1).
25 As the Hungarian, French and Italian Governments and the Commission of the European Communities rightly stated, the Court has already ruled that, having regard to the wording and the general structure of the Framework Decision, the concept of ‘victim’ for the purposes of the Framework Decision, as defined in Article 1 thereof, applies only to natural persons (see, to that effect, in particular, Dell’Orto, paragraphs 53 to 56).
26 The Court ruled, in paragraph 53 of Dell’Orto, that it follows from the very wording of Article 1(a) of the Framework Decision, which, for the purposes of that Framework Decision, defines a victim as 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, that that provision of the Framework Decision applies only to natural persons who have suffered such harm.
27 In paragraphs 55 and 56 of the same judgment, the Court stated that there is no indication in any other provision of the Framework Decision that the European Union legislature intended to extend the concept of ‘victim’, for the purposes of the application of that Framework Decision, to legal persons, and that the converse is in fact the case, as several of its provisions confirm that the legislature’s objective was to limit its scope exclusively to natural persons who are victims of harm resulting from a criminal act. In that regard, the Court referred not only to Article 1(a) of the Framework Decision, which mentions, as categories of harm, physical or mental injury and emotional suffering, but also to Article 2(1) of the Framework Decision, which obliges Member States to make every effort to ensure that victims are treated with due respect for the dignity of the individual; Article 2(2), which refers to the specific treatment from which victims who are particularly vulnerable can benefit, and Article 8(1) of the Framework Decision, which obliges the Member States to ensure a suitable level of protection to the family of the victim or to persons in a similar position to family members.
28 The fact that some Member States provide for penal mediation where the victim is a legal person does not call into question the conclusion reached by the Court in Dell’Orto.
29 Since the Framework Decision does not undertake a complete harmonisation of the field in question, a decision that its provisions are also to be applicable where the victim is a legal person is one that Member States are neither prevented by the Framework Decision from taking nor obliged to take.
30 Nor does an interpretation of the Framework Decision as applying solely to natural persons constitute discrimination against legal persons. The European Union legislature could legitimately establish a body of rules designed to protect only natural persons, since such persons are objectively in a situation which differs from that of legal persons because of their greater vulnerability and because of the nature of the interests which can be harmed by offences which can be committed only against natural persons, such as the victim’s life and physical well-being.
31 In the light of the foregoing, Articles 1(a) and 10 of the Framework Decision must be interpreted as meaning that the concept of ‘victim’ does not extend to legal persons for the purposes of the promotion of mediation in criminal proceedings under Article 10(1).
The second question
The jurisdiction of the Court
32 The Hungarian Government observes that the CPP permits recourse to the mediation procedure where the victim is not a natural person. However, since the scope of the Framework Decision extends only to victims who are natural persons, that is in any event of no relevance to the case in the main proceedings.
33 In accordance with settled case-law, the Court has jurisdiction to provide a ruling, even where the facts of the main proceedings are outside the scope of European Union law, provided that the domestic legislation has adopted the same solutions as those adopted in European Union law and applies those solutions to a situation which is not covered by European Union law. According to the Court’s case-law, the legal order of the European Union clearly has an interest in ensuring that, to forestall future divergences of interpretation, any provision of European Union law should be interpreted uniformly, irrespective of the circumstances in which the provision is to apply (see, to that effect, in particular, Case C-130/95 Giloy [1997] ECR I-4291, paragraphs 19 to 28; Case C-267/99 Adam [2001] ECR I-7467, paragraphs 23 to 29; Case C-43/00 Andersen og Jensen [2002] ECR I-0379, paragraphs 15 to 19, or Case C-3/04 Poseidon Chartering [2006] ECR I-2505, paragraphs 14 to 19).
34 As is conceded by the Hungarian Government, Paragraph 221/A of the CPP inserted in that code, with effect from 1 January 2007, a mediation procedure which, as regards the offences listed there, makes no distinction according to whether the victim is a natural person or a legal person.
35 The Court therefore does not lack jurisdiction to answer the second question merely because the Framework Decision applies only to victims who are natural persons.
Substance
36 By this question, the referring court asks, in substance, whether Article 10 of the Framework Decision must be interpreted as requiring Member States to make recourse to mediation possible for all offences the substantive components of which, as defined by the national legislation, correspond essentially to those of offences for which mediation is expressly provided for by that legislation.
37 In that regard, it must be observed that, in addition to the fact that Article 34 EU leaves to national authorities the choice of form and methods necessary to achieve the desired result of Framework Decisions, Article 10 of the Framework Decision does no more than require Member States to seek to promote mediation in criminal cases for offences which they ‘consider[s] appropriate’, and consequently the choice of the offences for which mediation is to be available is for the Member States to determine.
38 It follows from the very wording of Article 10 and from the large measure of discretion which the Framework Decision leaves to national authorities with regard to the specific means by which they implement its objectives (see Case C-404/07 Katz [2008] ECR I-7607, paragraph 46) that, in deciding to enable the mediation procedure to be applied solely in cases of offences against the person, transport safety or offences against property, a choice which essentially rests on grounds of legal policy, the Hungarian legislature has not exceeded its discretion.
39 While it is true that the decisions of Member States may be restricted by the obligation to use objective criteria to determine the types of offences concerned, there is no indication that that is at issue in the present case.
40 In the light of the foregoing, Article 10 of the Framework Decision must be interpreted as not requiring Member States to make recourse to mediation possible for all offences the substantive components of which, as defined by the national legislation, correspond essentially to those of offences for which mediation is expressly provided by that legislation.
The third and fourth questions
The jurisdiction of the Court
41 It is common ground that Hungarian law does not provide for any recourse to mediation when the offence concerned is that of adversely affecting the financial interests of the European Communities. Moreover, it is apparent from the answer given to the second question that it cannot be inferred from the Framework Decision that, in cases where the victim is a natural person, it imposes a requirement on Member States to provide for recourse to mediation for offences in respect of which the national legislation does not provide such recourse even though the substantive components of the offence concerned are the same as those of offences for which mediation is possible.
42 Since recourse to mediation is, accordingly, clearly not possible in a situation such as that at issue in the main proceedings, no answer need therefore be given to the third and fourth questions.