Provisional text
OPINION OF ADVOCATE GENERAL
RICHARD DE LA TOUR
delivered on 8 May 2024 (1)
Case C‑126/23 [Burdene] (i)
UD,
QO,
VU,
LO,
CA
v
Presidenza dei Consiglio dei Ministri,
Ministero dell’Interno
(Request for a preliminary ruling from the Tribunale Ordinario di Venezia (District Court, Venice, Italy))
(Reference for a preliminary ruling – Directive 2004/80/EC – Article 12(2) – National schemes on compensation to victims of violent intentional crimes – Death of the victim – Compensation to the close family members of the victim – Concept of ‘victim’ – National provisions precluding the payment of compensation to the close family members of the victim in the event of a surviving spouse and children – ‘Fair and appropriate’ compensation)
I. Introduction
1. This request for a preliminary ruling concerns the interpretation of Article 12(2) of Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims, (2) Articles 20 and 21, Article 33(1) and Article 47 of the Charter of Fundamental Rights of the European Union, (3) as well as Article 1 of Protocol No 12 to the European Convention for the Protection of Human Rights and Fundamental Freedoms. (4)
2. The request has been made in proceedings brought by the parents, sister and children of a murder victim against the Presidenza del Consiglio dei Ministri (Presidency of the Council of Ministers, Italy) and the Ministero dell’Interno (Ministry of the Interior, Italy) concerning the inadequate or non-existent amounts granted, by way of compensation for the harm suffered, to them by the Italian State on the grounds that the person convicted of the murder was insolvent.
3. I will set out the reasons why I consider that national provisions which, in the event of the victim’s death, automatically exclude the payment of compensation to certain members of his or her family, in application of a priority ranking derived from the law of inheritance, do not comply with the provisions of EU law on compensation to crime victims.
II. Legal context
A. European Union law
1. Directive 2004/80
4. Recitals 3, 5 to 7 and 10 of Directive 2004/80 state:
‘(3) At its meeting in Tampere on 15 and 16 October 1999, the European Council called for the drawing-up of minimum standards on the protection of the victims of crime, in particular on crime victims’ access to justice and their rights to compensation for damages, including legal costs.
…
(5) On 15 March 2001 the Council adopted Framework Decision 2001/220/JHA on the standing of victims in criminal proceedings. [(5)] This Decision, based on Title VI of the Treaty on European Union, [‘Provisions on police and judicial cooperation in criminal matters’ (6)], allows crime victims to claim compensation from the offender in the course of criminal proceedings.
(6) Crime victims in the European Union should be entitled to fair and appropriate compensation for the injuries they have suffered, regardless of where in the European [Union] the crime was committed.
(7) This Directive sets up a system of cooperation to facilitate access to compensation to victims of crimes in cross-border situations, which should operate on the basis of Member States’ schemes on compensation to victims of violent intentional crime, committed in their respective territories. Therefore, a compensation mechanism should be in place in all Member States.
…
(10) Crime victims will often not be able to obtain compensation from the offender, since the offender may lack the necessary means to satisfy a judgment on damages or because the offender cannot be identified or prosecuted.’
5. Chapter II of that directive, entitled ‘National schemes on compensation’, contains Article 12, which reads as follows:
‘1. The rules on access to compensation in cross-border situations drawn up by this Directive shall operate on the basis of Member States’ schemes on compensation to victims of violent intentional crime committed in their respective territories.
2. All Member States shall ensure that their national rules provide for the existence of a scheme on compensation to victims of violent intentional crimes committed in their respective territories, which guarantees fair and appropriate compensation to victims.’
6. Chapter III of that directive, entitled ‘Implementing provisions’, contains Articles 13 to 21. Article 17, which relates to ‘more favourable provisions’, is worded as follows:
‘This Directive shall not prevent Member States, in so far as such provisions are compatible with this Directive, from:
(a) introducing or maintaining more favourable provisions for the benefit of victims of crime or any other persons affected by crime;
(b) introducing or retaining provisions for the purpose of compensating victims of crime committed outside their territory, or any other person affected by such a crime, subject to any conditions that Member States may specify for that purpose.’
2. Directive 2012/29/EU
7. Recital 19 of Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA, (7) stipulates:
‘A person should be considered to be a victim regardless of whether an offender is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between them. It is possible that family members of victims are also harmed as a result of the crime. In particular, family members of a person whose death has been directly caused by a criminal offence could be harmed as a result of the crime. Such family members, who are indirect victims of the crime, should therefore also benefit from protection under this Directive. However, Member States should be able to establish procedures to limit the number of family members who can benefit from the rights set out in this Directive. In the case of a child, the child or, unless this is not in the best interests of the child, the holder of parental responsibility on behalf of the child, should be entitled to exercise the rights set out in this Directive. This Directive is without prejudice to any national administrative procedures required to establish that a person is a victim.’
8. Article 2 of the directive reads as follows:
‘1. For the purposes of this Directive the following definitions shall apply:
(a) “victim” means:
(i) a natural person who has suffered harm, including physical, mental or emotional harm or economic loss which was directly caused by a criminal offence;
(ii) family members of a person whose death was directly caused by a criminal offence and who have suffered harm as a result of that person’s death;
(b) “family members” means the spouse, the person who is living with the victim in a committed intimate relationship, in a joint household and on a stable and continuous basis, the relatives in direct line, the siblings and the dependants of the victim;
…
2. Member States may establish procedures:
(a) to limit the number of family members who may benefit from the rights set out in this Directive taking into account the individual circumstances of each case; and
(b) in relation to paragraph (1)(a)(ii), to determine which family members have priority in relation to the exercise of the rights set out in this Directive.’
B. Italian law
9. Article 11 of legge n. 122 – Disposizioni per l’adempimento degli obblighi derivanti dall’appartenenza dell’Italia all’Unione europea – Legge europea 2015-2016 (Law No 122 on provisions to comply with the obligations arising from Italy’s membership of the European Union – European Law 2015-2016), (8) of 7 July 2016, in the version applicable to the facts in the main proceedings (‘Law No 122/2016’), provides the following:
‘1. Without prejudice to more favourable benefits in favour of the victims of crimes provided for by other provisions of law, the right to compensation provided by the State is recognised for the victim of a violent intentional crime and in any case of the crime referred to in Article 603bis of the codice penale [(Criminal Code)], with the exception of the crimes referred to in Articles 581 and 582, unless the aggravating circumstances provided for in Article 583 of the Criminal Code apply.
2. Compensation for crimes of murder, sexual assault or grievous bodily harm, in accordance with the second subparagraph of Article 583 of the Criminal Code … shall be awarded to the victim or the beneficiaries listed in paragraph 2bis, to the extent determined by the decree referred to in paragraph 3. For offences other than those referred to in the first sentence, compensation shall be paid for the reimbursement of medical and welfare expenses.
2bis In the event of the death of the victim as a consequence of the crime, compensation is paid to the surviving spouse and children; in the absence of the spouse and children, compensation is paid to the parents and, in the absence of the parents, to the siblings who were cohabiting and dependants at the time the crime was committed. …
2ter In the event of several rightful claimants, the compensation shall be apportioned according to the quotas provided for in the provisions of Title II of Book Two of the codice civile [(Civil Code)].
3. The amounts of compensation shall be determined by decree of the Ministro dell’interno [(Minister for the Interior, Italy)] and Ministro della giustizia [(Minister for Justice, Italy)], in agreement with the Ministro dell’economia e delle finanze [(Minister for the Economy and Finance, Italy)], to be issued within six months from the date of entry into force of this law, in any event within the limits of the availability of the [Fondo di rotazione per la solidarieta’ alle vittime dei reati di tipo mafioso, delle richieste estorsive, dell’usura e dei reati intenzionali violenti (Revolving fund for the support of victims of mafia-style crime, extortion, usury and violent intentional crime, Italy) (9)] referred to in Article 14, ensuring greater compensation to the victims of sexual violence and murder and, in particular, to the victim’s children in the event of murder committed by the spouse, including a separated or divorced spouse, or by a person who is or was linked by emotional ties to the victim.’
10. Article 13(2), of Law No 122/2016 stipulates:
‘The request must be submitted no later than 60 days after a final decision has been handed down on the grounds that the perpetrator has not been identified, or after the final stage of an unsuccessful prosecution, or after the date on which the criminal sentence has acquired the standing of res judicata.’
11. Article 1(1)(b) of decreto ministeriale – Determinazione degli importi dell’indennizzo alle vittime dei reati intenzionali violenti (Ministerial Decree on the determination of the amounts of compensation payable to the victims of violent intentional crimes) (10) of 22 November 2019 (‘the Implementing Ministerial Decree’) – adopted in application of Article 11(3) of Law No 122/2016 – provides for, ‘in the case of murder committed by a spouse, including a separated or divorced spouse, or by a person who is or was linked by emotional ties to the victim, … the fixed amount of EUR 60 000 exclusively for the victim’s children.’
III. Facts in the main proceedings and the questions referred for a preliminary ruling
12. In a ruling of 18 September 2018, the Tribunale di Padova (District Court, Padua, Italy) sentenced the person convicted of the murder of his ex-partner, in Italy, to a term of imprisonment of 30 years, and ordered that he should pay a provisional sum of compensation to the members of the victim’s family, who were civil parties to the proceedings. As such, EUR 400 000 was awarded to each of the victim’s two children, EUR 120 000 to her father, mother and sister, and EUR 30 000 to the victim’s separated (but not divorced) husband.
13. In accordance with the national provisions, as the person convicted of the murder had no assets or income, having been granted free legal aid, the children each received only EUR 20 000 in compensation from the Italian State, while the separated husband was granted compensation of EUR 16 666.66.
14. On 1 February 2022, the applicants, namely the victim’s family members, with the exception of her husband, believing that Law No 122/2016, in breach of Directive 2004/80, had introduced significant limitations on the provision of compensation, brought an action before the Tribunale Ordinario di Venezia (District Court, Venice, Italy), the referring court. Their requests sought, after the Implementing Ministerial Decree had been disapplied as unlawful, to determine the ‘fair and appropriate’ amount of compensation to be paid to them in view of the degree of their relationship to the murder victim, in accordance with Article 12(2) of that directive, taking into account – after deduction, in the case of the victim’s children, of the amount already paid to them – the amount of harm determined by the judgment convicting the perpetrator of the murder, even if the Solidarity Fund did not have the necessary financial resources available. On a secondary basis, the applicants sought for the Presidency of the Council of Ministers, representing the Italian State, to be ordered to pay the same amount of compensation for the harm suffered as a result of the incorrect implementation of that directive and, in particular, Article 12 thereof.
15. First, the applicants claim that the limit established in Article 11(2bis), of Law No 122/2016, which grants the right to compensation to the victim’s parents only in the absence of a spouse and children of the victim, while siblings are entitled to compensation only in the absence of all of the above persons, infringes the obligation to provide compensation laid down in Article 12 of Directive 2004/80, since it arbitrarily determines those who must actually be compensated, from amongst the injured persons to whom a right to compensation is recognised in the abstract, without reference to criteria that are fair and appropriate to the case in question. Furthermore, in the present case, compensation was also awarded to the victim’s husband, from whom she had been separated since 2006, almost 11 years before her death. The right to compensation is thus recognised even where the emotional bond has clearly weakened, perhaps almost to the point of being non-existent.
16. Secondly, the applicants claim that the EUR 20 000 granted to the victim’s children under the Implementing Ministerial Decree, equal to 5% of the provisional compensation awarded at trial, does not appear to comply with the Court’s ruling in paragraph 69 of its judgment of 16 July 2020, Presidenza del Consiglio dei Ministri. (11)
17. Thirdly, the applicants believe that the national provisions are also unlawful in that they make the payment of compensation conditional on the State having set aside sufficient funds to award the compensation, in breach of recital 10 of Directive 2004/80.
18. The defendant Italian authorities have pointed out, as regards the children, that the determination of the compensation was made in full compliance with the provisions in force, taking into account the surviving spouse’s source of income. They also note that the Court, after having stated in paragraph 58 of the judgment in BV that Member States have a wide margin of discretion when determining the amount of compensation referred to in Article 12(2) of Directive 2004/80, found in paragraph 65 of that judgment that that provision does not preclude a fixed rate of compensation to victims, but instead requires only that this compensation be ‘fair and appropriate’. In paragraph 69 of that judgment, the Court held that this requirement had been met since the compensation, even if its rate was fixed, represented ‘an appropriate contribution to the reparation of the material and non-material harm suffered’ by the victim.
19. The defendants also submit that the requests made by the father, mother and sister of the victim are inadmissible. The 60-day limitation period for making an administrative request for compensation had expired, since the final verdict in the criminal proceedings was handed down on 6 May 2021 but the pending proceedings were initiated on 1 February 2022, and the limitation period was not interrupted by their request for mediation.
20. The referring court considers that in order to assess the merits of the request for damages and interest in the case before it, which is based on the incorrect implementation of Directive 2004/80, it must be first established whether the national provisions, as set out in Article 11(2bis), (2ter) and (3) of Law No 122/2016, comply with EU law.
21. That court points out that those national provisions – which make the payment of compensation, even where a final judgment establishes, in favour of certain members of the family, a right to compensation for the harm they have suffered and the amount of that compensation, conditional, as regards the victim’s parents, on the absence of a spouse and children of the victim, and, as regards the victim’s siblings, on the absence of the parents, in so far as they were cohabiting with and dependant on the victim at the time when the crime was committed – do not take into account the non-material aspect of the harm linked to the violent loss of the victim.
22. As regards the spouse and children, that court notes that the extent of the harm suffered is not taken into account. Consequently, in the present case, no significance was attached to the fact that the husband had been separated from the victim for some time, with provision only for compensation to be awarded in accordance with inheritance rules, subject to the Solidarity Fund’s resources. No account was therefore taken of the seriousness of the consequences of the crime for the victims, contrary to the judgment in BV. Furthermore, compensation for the children was set at an amount broadly comparable to that awarded to the husband, which was completely disproportionate to the amount of the provisional compensation established in the criminal proceedings, and did not take into account any of the criteria commonly applied to the loss of the parental relationship, such as the age of the victim, the age of the survivor, the familial relationship and the extent of cohabitation, with the possibility of adjusting the final amount according to the specific features of the case. The amount awarded to the children in the present case cannot therefore be considered ‘fair and appropriate’ within the meaning of Article 12(2) of Directive 2004/80.
23. Furthermore, the referring court pointed out that the time limit for submission of the administrative request for compensation under Article 13(2) of Law No 122/2016, which applied to the request made by the parents and the sister of the victim, was excessively short, which seems contrary to Article 47 of the Charter.
24. In those circumstances the Tribunale Ordinario di Venezia (District Court, Venice) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) In the case of murder, does the fact that the payment of compensation laid down for the parents and sister of a victim of violent intentional crimes by Article 11(2bis) of [Law No 122/2016] is subject to the victim having no children or spouse (as regards the parents) and no parents (as regards siblings), comply with the requirements laid down by Article 12(2) of [Directive 2004/80], as well as with Article 20 (equality), Article 21 (non-discrimination), Article 33(1) (protection of the family) and Article 47 (right to an effective remedy and to a fair trial) of the [Charter] and Article 1, Protocol No 12 to the [ECHR] (non-discrimination)?
(2) Can the condition attached to the payment of the compensation provided for in Article 11(3) of [Law No 122/2016], which states “in any event within the limits of the availability of the [Solidarity Fund]”, without any provision requiring the Italian State to make specific provision for the compensation, even if determined on a statistical basis and in any event which is actually capable of providing compensation to those entitled within a reasonable period of time, be deemed to be “fair and appropriate compensation to victims” pursuant to the provisions of Article 12(2) of [Directive 2004/80]?’
25. Written observations were filed by the parents and the sister of the murder victim as well as by her children, the Italian Government and the European Commission. They answered the questions for an oral answer put by the Court at the hearing on 21 February 2024.
IV. Analysis
A. The Court’s jurisdiction and the admissibility of the reference for a preliminary ruling
26. In its written observations, the Italian Government takes the view that it is necessary to consider the jurisdiction of the Court and the admissibility of the questions referred for a preliminary ruling, since the dispute in the main proceedings concerns a situation that does not fall within the scope of Directive 2004/80.
27. That argument does not rely on the fact that the applicants alleging the non-compliance of the applicable national provisions with Article 12(2) of Directive 2004/80 are all resident in Italy, or in other words the territory in which the act of violent intentional crime was committed. It strikes me, however, as important to point out that the Court found in paragraph 52 of the judgment in BV that that provision ‘imposes the obligation on each Member State to provide for a scheme of compensation covering all victims of violent intentional crime committed on their territory’ and, in paragraph 55 of the same judgment, that provision ‘confers the right to obtain fair and appropriate compensation not only on victims of violent intentional crime committed in the territory of a Member State who find themselves in a cross-border situation, within the meaning of Article 1 of that directive, but also on victims who habitually reside in the territory of that Member State’.
28. The Italian Government states, first, that the referring court did not examine whether the applicants qualified as victims within the meaning of Directive 2004/80, and, secondly, that the term ‘victim’ must be interpreted as meaning the person directly injured. Since the contested Italian legislation falls within the competence of the Member States, this constitutes justification for the inadmissibility of the questions referred for a preliminary ruling.
29. The question as to whether the concept of a ‘victim’ of an act of intentional violence, within the meaning of Directive 2004/80, includes, in the case of murder, the survivors of the victim, such as the surviving spouse, the children, the parents or the siblings of the victim, concerns the scope of that directive.
30. As such, I believe that the jurisdiction of the Court and the admissibility of the reference for a preliminary ruling are not in doubt.
B. The admissibility of the second question referred
31. In my view, this second question, which concerns the limitation of the compensation provided for by the Italian legislation by reference to a cap based on the budget allocated to the Solidarity Fund set up for this purpose, is not admissible.
32. It was confirmed during the hearing that a limitation of this kind had no impact on the amounts of compensation granted by the Italian State in the case in the main proceedings. I therefore share the view of the Commission and the Italian Government that the question posed by the referring court has no bearing on the outcome of the case. What is more, it can be observed that no clarifications have been provided by the referring court with regard to the financing or operation of the Solidarity Fund. (12)
33. In addition, I note that none of the questions referred for a preliminary ruling relate to the other problems raised by the referring court, namely the excessively reduced amount of compensation received by the victim’s children (13) and the short deadline for submitting a request for compensation.
C. The first question referred
34. By this question, the referring court essentially asks the Court whether Article 12(2) of Directive 2004/80 precludes national legislation that provides for a scheme on compensation for victims of violent intentional crimes that makes the right to compensation of parents of the deceased victim subject to the absence of a surviving spouse and children, and the right to compensation of the victim’s siblings subject to the absence of their parents.
35. The Court is therefore invited to clarify the concept of ‘victim’ and to supplement its interpretation of the concept of ‘fair and appropriate compensation’ in the judgment in BV.
1. The concept of ‘victim’
36. In the first place, it must be clarified whether the national legislation, in so far as it refers to the family members who may be eligible for compensation in the event of the victim’s death, falls within the scope of Directive 2004/80. I am of the view that this designation should not be at the discretion of the Member States, as it results from the interpretation of Article 12(2) of that directive. (14)
37. First, in the absence of a definition of the concept of ‘victim’ in Directive 2004/80 and of a reference to national law, it must be considered that this is an autonomous concept of EU law. In accordance with the objective of that directive, it seeks to ensure that there is no disparity between the Member States as regards the determination of beneficiaries of the national schemes on compensation for victims of violent intentional crimes committed in their respective territories.
38. Secondly, in my view the opposite interpretation advanced by the Italian Government, drawn from Article 17 of Directive 2004/80, has to be rejected. It is true that that article provides for Member States to be able to introduce more favourable provisions for the benefit of victims of crime, by expanding the group of beneficiaries to include ‘any other person affected by crime’. That article is, however, in Chapter III of the directive, entitled ‘Implementing provisions’, and its sole objective is thus to implement the scheme adopted by the Member States on the basis of the minimum standards defined in the previous chapters. Furthermore, if Article 12(2) of that directive had to be interpreted as limiting the scope of application of the directive exclusively to victims who have survived an offence that qualifies as a ‘violent intentional crime’, this would have the effect of excluding murder from the list of these offences since, in those circumstances, there is no longer any direct victim to compensate. The Court has already found that the scope of the compensation scheme for victims cannot be limited only to certain violent intentional crimes. (15)
39. Thirdly, it must also be ensured that the interpretation is consistent with the other provisions of EU law. It follows from recital 5 of Directive 2004/80 that that directive builds on the foundation of Framework Decision 2001/220, which was replaced by Directive 2012/29.
40. In its proposal for a directive, which was tabled on 12 July 2023, (16) the Commission stated that the directive was ‘the main horizontal instrument for victims’ rights’. (17) It highlighted the fact that the EU legislation on victims’ rights included Directive 2004/80 relating to compensation and EU rules on protection orders. (18) The Commission underlined that the adoption of Directive 2012/29 had been a crucial development in strengthening victims’ rights and victim-centred justice in the EU and had played a major role in creating a European area of freedom, security, and justice. (19) As a result, I believe that Directive 2004/80, which deals with the specific issue of compensation for victims, must be interpreted in the light of Directive 2012/29, which established a general ‘horizontal’ framework, to borrow the expression used by the Commission, even if the latter had a different legal basis, namely Article 82(2) TFEU, (20) while the legal basis for Directive 2004/80 was Article 352 TFEU (ex Article 308 TEC).
41. ‘Victim’ as referred to in Article 12(2) of Directive 2004/80 is thus defined in Article 2(1)(a) and (b) of Directive 2012/29. (21) The Italian legislation that defines the family members eligible to benefit from compensation in the event of the victim’s death therefore comply with the provisions of EU law, according to which the number of persons concerned is furthermore limited. (22)
2. The concept of ‘fair and appropriate compensation’
42. In the second place, it must be considered whether EU law precludes legislation that makes the right to compensation of the family members of a deceased victim subject to a priority ranking based on the rules of inheritance, having the effect that, if the victim is survived by a spouse and children, the other members of the victim’s immediate family – in the present case her parents and her siblings – are, on those grounds alone, deprived of any compensation.
43. It should be recalled that Article 12(2) of Directive 2004/80 confers on the victims of violent intentional crimes committed in the territory of a Member State the right to fair and appropriate compensation. (23)
44. In the judgment in BV, the Court interpreted the concept of ‘fair and appropriate compensation’ in response to questions about the fixed rate of EUR 4 800 awarded in compensation to the victims of sexual assault under the Italian scheme on compensation to victims of violent intentional crimes.
45. The Court provided guidance as to the interpretation of Article 12(2) of Directive 2004/80; in my opinion, this guidance is relevant to answering the referring court’s questions relating to the arrangements for determining the beneficiaries of ‘fair and appropriate’ compensation.
46. The Court found that the compensation to be awarded to the victims of violent intentional crime should be fixed taking into account ‘the seriousness of the consequences, for the victims, of the crime committed’ and that it did not otherwise represent an ‘adequate contribution to the reparation of the material and non-material harm suffered’. (24)
47. In my view, it may be inferred from this that a compensation scheme under which victims are excluded without any regard whatsoever for the degree of harm they have suffered, on the grounds of an abstract ranking of priority (25) among the various victims who are eligible to be compensated and based solely on the nature of the family ties, from which mere presumptions are drawn regarding the existence or significance of this harm, cannot result in ‘fair and appropriate compensation’ within the meaning of Article 12(2) of Directive 2004/80.
48. That assessment is further supported by the finding, confirmed at the hearing, that even if a similar method of excluding certain victims is modelled on the rules of inheritance, it does not apply them fully. Under the Italian scheme on compensation, the presence of a sole legatee or grounds for disqualification for conduct does not deprive the displaced heir of the right to be compensated. As a result, even though the goal pursued by the Italian provisions is to implement a simplified method of designating the victims to be compensated, (26) the fact remains, however, that the legitimate requirement to achieve simple and swift compensation for victims must not override the obligation to compensate appropriately for the harm suffered by those victims as a result of the violent intentional crime which caused the death of their family member. (27)
V. Conclusion
49. In the light of all the above considerations, I propose that the Court respond only to the first question referred by the Tribunale Ordinario di Venezia (District Court, Venice, Italy), as follows:
Article 12(2) of Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims
must be interpreted as precluding national legislation that provides for a scheme on compensation to victims of violent intentional crimes which makes the right to compensation for the victim’s parents conditional on the deceased victim having no children or surviving spouse and for the victim’s siblings, conditional on the absence of their parents.