Introduction to the Pupino case By Wouter van Ballegooij

In short the main points of the case are as follows:

Ms Pupino was a kindergarten teacher in Italy. Apparently she was not very kind to her pupils, putting band aids on their mouths, hitting them and preventing them from going to the toilet. This did not go unnoticed and led to criminal proceedings being initiated against her.

At the initial stage of the proceedings the public prosecutor asked for the children to be heard out of court considering their age and vulnerability. The relevant article in the Italian code of criminal procedure allows for such a hearing out of court only in case it concerns the prosecution of a sexual offence. However, the Framework Decision on the standing of victims in criminal proceedings (2001/220/JHA) seems to allow for “vulnerable victims” to be granted protection from giving evidence in open court. The Italian court consequently in a preliminary ruling asked questions on how to interpret that framework decision.

The Court of Justice came back with a judgment in which it confirmed the obligation to interpret in line with framework decisions. It avoided the argument put forward by several Member States that indirect effect of framework decisions would have a contra legem effect, by pointing out the case was about hearings and the taking of evidence, not the creation of criminal liability. Consequently, it held that the children could very well be classified as vulnerable victims, giving them right to the special out-of-court hearing. However, it also pointed out that the granting of such a right would have to be considered in the light of the total system of criminal procedure and that the right to fair triail (ECHR) should not be violated.

The case raises a number of questions on: 1° the duty to interpret national legislation in line with framework decisions; 2° the limits to this indirect effect of framework decisions; 3° the status of the third pillar and of third pillar legislation after this judgment.

The Court rules that third pillar legislation is definitely binding and that Member States are held to implement it correctly (see article 10 EC). Direct effect is, as we know, not possible, but indirect effect now is. Where does the judgment leave us concerning supremacy?

In this context it is also interesting to mention the Darkazanli case, currently pending in the German Bundesverfassungsgericht, where constitutional complaints were lodged against the (national implementation of) the Framework Decision on the European arrest warrant.