Criminal proceedings against Magatte Gueye (C-483/09) and Valentín Salmerón Sánchez (C-1/10).

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Bay Larsen
• ECLI: ECLI:EU:C:2011:297
• Docket Number: C-483/09,C-1/10
• Date: 12 May 2011
• Procedure Type: Reference for a preliminary ruling

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 12 May 2011 (1)

Joined Cases C‑483/09 and C‑1/10

Magatte Gueye

and

Valentín Salmerón Sánchez

(Reference for a preliminary ruling from the Audiencia Provincial de Tarragona, Spain)

(Framework Decision 2001/220/JHA – Standing of victims in criminal proceedings – Victim protection – Sentencing – Mandatory imposition on the offender of an injunction to stay away from the victim, as an ancillary penalty – Taking into account the wishes of the victim – Mediation in criminal proceedings)

I – Introduction

1. The central question in the present reference for a preliminary ruling is whether Council Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings (2) precludes a national provision pursuant to which on an invariable and mandatory basis in cases of domestic violence as an ancillary penalty the offender is prohibited from communicating with the victim, even in cases in which the victim would like to resume communication with the offender.

II – Legal framework

A – European Union law

2. Article 2(1) of Framework Decision 2001/220, entitled ‘respect and recognition’, provides as follows:

‘Each Member State shall ensure that victims have a real and appropriate role in its criminal legal system. It shall continue to make every effort to ensure that victims are treated with due respect for the dignity of the individual during proceedings and shall recognise the rights and legitimate interests of victims with particular reference to criminal proceedings.’

3. Article 3, which bears the heading ‘hearings, and provision of evidence’, provides in paragraph 1:

‘Each Member State shall safeguard the possibility for victims to be heard during proceedings and to supply evidence.’

4. Article 8 of the Framework Decision concerns the ‘right to protection.’ The first paragraph of that article reads:

‘Each Member State shall ensure a suitable level of protection for victims and, where appropriate, their families or persons in a similar position, particularly as regards their safety and protection of their privacy, where the competent authorities consider that there is a serious risk of reprisals or firm evidence of serious intent to intrude upon their privacy.’

5. Finally, Article 10(1) of the Framework Decision 2001/220 is concerned with mediation in criminal proceedings:

‘Each Member State shall seek to promote mediation in criminal cases for offences which it considers appropriate for this sort of measure.’

B – National law

6. The referring court points out that the Spanish law in relation to crimes committed within the family has been considerably tightened up in recent years. It states that the criminal law policy behind this is that such offences represented a social evil which is the manifestation of the fact that the balance of power in relations between men and women has historically been unequal.

7. It is apparent from what is stated by the referring court that in all cases of domestic violence, the courts are bound to impose in accordance with the provisions of Article 57(2) in conjunction with Article 48(2) of the Código Penal (Criminal Code, ‘CP’) as an ancillary penalty intended to give protection to the victim, a prohibition on the offender approaching or communicating with the victim. This injunction to stay away from the victim applies either for a period of between 1 and 5 years greater than the duration of any period of imprisonment or for a period greater than 6 months and less than 5 years if the penalty is other than imprisonment. The referring court states that this applies even in less serious cases of domestic violence, such as slapping, scratching, pushing or ‘mild verbal threats without weapons’.

8. The referring court emphasises that in every case, the criminal law requires the courts to impose that ancillary penalty and the judge has no discretion – except as to duration – to assess the circumstances of the case, such as the family interests at stake, the victim’s wishes or her decision to resume cohabitation.

9. Article 468(2) of the CP punishes the breach of such an injunction to stay away from the victim as the crime of contempt of court. According to a decision of the Tribunal Supremo (Supreme Court), the victim’s consent to the resumption of cohabitation does not preclude the commission of the crime of contempt of court either. According to the referring court, there is even the theoretical possibility that in certain cases the victim of a crime committed within the family will be prosecuted for instigating or aiding and abetting contempt of court in some cases of resumption of cohabitation with the offender by mutual consent.

10. Moreover, according to the referring court, by virtue of Article 84(3) of the CP, the consequence of a breach of the injunction to stay away from the victim ordered by means of an ancillary penalty is that a suspended sentence is automatically recalled, even if the resumption of communication occurred with the consent of the victim.

11. Finally, the referring court points out that Article 87(b)(5) of the Ley Orgánica del Poder Judicial (Organic Law on the judiciary) prohibits mediation in all cases of crimes or offences (including mere insults) committed within the family.

III – Facts and main proceedings

12. The Juzgado de lo Penal No 23 de Barcelona (Criminal Court, No 23 of Barcelona) convicted Mr Gueye of a crime of domestic abuse, which is not described in any more detail in the reference for a preliminary ruling, the victim being his partner, with whom Mr Gueye had maintained a relationship in the four preceding years. Consequently, the court imposed, inter alia, an ancillary penalty which prohibited the offender from approaching within 1 000 metres of the victim or communicating with her for a period of 17 months.

13. A few days after those penalties were imposed, Mr Gueye resumed cohabitation with the victim; this occurred at the request of the victim. Due to this breach of the injunction to stay away from the victim, the Juzgado de lo Penal No 1 deTarragona (Criminal Court, No 1 of Tarragona) convicted him of the crime of contempt of court pursuant to Article 468(2) of the CP. Mr Gueye appealed against that judgment to the referring court, Section 4 of the Audiencia Provincial de Tarragona (Provincial Court, Tarragona).

14. The Audiencia Provincial de Tarragona must also decide, as appeal court, on the conviction of Mr Valentín Salmerón Sánchez for the crime of contempt of court pursuant to Article 468(2) of the CP. Mr Salmerón Sánchez is accused of having failed to comply with an ancillary penalty imposed on him by a judgment of the Juzgado de Instrucción No 7 de Valencia Sobre la Mujer de El Vendrell (Court of Preliminary Investigations, No 7, Valencia with special jurisdiction over crimes of violence against women) on 6 November 2006, which prohibited him from approaching within 500 metres of the victim or communicating with her for a period of 16 months.

15. The basis of the imposition of an ancillary penalty by the Juzgado de Instrucción No 7 de Valencia Sobre la Mujer, de El Vendrell, was a crime of domestic abuse, which is not described in any more detail in the reference for a preliminary ruling, the victim being his partner, with whom the second defendant had maintained a relationship in the six preceding years.

16. According to the court’s findings, in both cases the defendants began living with the victims again only a few days after being sentenced, despite an injunction to stay away from the victims. When they were heard by the referring court, each of the victims stated that they had continued the relationship with the offender of their own free will, without having been pressurised to do so and without economic necessity; they said that the initiative to do so had substantially come from them. They therefore regarded themselves as indirect victims of the Spanish criminal law, particularly since they said that the cohabitation had been without problems prior to the detention of the defendants for contempt of court.

17. The appeal court entertains doubts about the compatibility of the Spanish provisions with the Framework Decision. It considers that it may well be necessary to impose an injunction to stay away from the victim for the protection of the victim, even against the latter’s will. However, the fact that even in cases involving minor offences Spanish law does not allow scope for an assessment on a case-by-case basis or for the victim’s wishes to be taken into account and requires that without exception an injunction to stay away from the victim for at least six months should be imposed, does not appear appropriate to the appeal court.

IV – Reference for a preliminary ruling and proceedings before the Court of Justice

18. Against this background, by order of 15 September 2009, in the proceedings relating to Mr Gueye and by order of 18 December 2009, in the proceedings relating to Mr Salmerón Sánchez, the appeal court, the Audiencia Provincial de Tarragona, referred the following questions – which are identical in both proceedings – to the Court for a preliminary ruling:

‘(1) Should the right of the victim to be understood, referred to in recital (8) of the preamble to the Framework Decision, be interpreted as meaning that the State authorities responsible for the prosecution and punishment of criminal conduct have a positive obligation to allow the victim to express her assessment, thoughts and opinion on the direct effects on her life which may be caused by the imposition of penalties on the offender with whom she has a family relationship or a strong emotional relationship?

(2) Should Article 2 of the Framework Decision 2001/220/JHA be interpreted as meaning that the duty of States to recognise the rights and legitimate interests of victims creates the obligation to take into...