**Joined Cases C-483/09 and C-1/10**

**Criminal proceedings**

**against**

**Magatte Gueye**

**and**

**Valentín Salmerón Sánchez**

(References for a preliminary ruling from the

Audiencia provincial de Tarragona)

(Police and judicial cooperation in criminal matters – Framework Decision 2001/220/JHA – Standing of victims in criminal proceedings – Domestic crimes – Obligation to impose as an ancillary penalty an injunction prohibiting the offender from approaching the victim of the offence
– Choice of forms of penalty and level of penalty – Compatibility with Articles 2, 3 and 8 of the Framework Decision – Provision of national law excluding mediation in criminal cases – Compatibility with Article 10 of the Framework Decision)

Summary of the Judgment

1.        *European Union – Police and judicial cooperation in criminal matters – Standing of victims in criminal proceedings – Framework
Decision 2001/220 – Role of victims in proceedings*

*(Council Framework Decision 2001/220, Arts 2, 3 and 8)*

2.        *European Union – Police and judicial cooperation in criminal matters – Standing of victims in criminal proceedings – Framework
Decision 2001/220 – Obligation to promote mediation – Scope*

*(Council Framework Decision 2001/220, Art. 10(1))*

1.        Articles 2, 3 and 8 of Framework Decision 2001/220 on the standing of victims in criminal proceedings must be interpreted
as not precluding the mandatory imposition of an injunction to stay away for a minimum period, provided for as an ancillary
penalty by the criminal law of a Member State, on persons who commit crimes of violence within the family, even when the victims
of those crimes oppose the application of such a penalty.

First, the obligations laid down in Article 2(1) of the Framework Decision are intended to ensure that a victim can effectively
and adequately take part in the criminal proceedings, which does not imply that a mandatory injunction to stay away cannot
be imposed contrary to the wishes of the victim. Second, the procedural right to be heard under the first paragraph of Article
3 of the Framework Decision does not confer on victims any rights in respect of the choice of form of penalties nor in respect
of the level of those penalties. Where the criminal law offers protection against acts of domestic violence, the objective
is not only to protect the interests of the victim but also other more general interests of society. Lastly, the protection
which is the subject of Article 8, which is intended in particular to offer protection suitable to the victim from the offender
during the criminal proceedings, cannot be understood as meaning that Member States are also obliged to protect victims from
indirect consequences which may, at a later stage, arise as a result of the penalties imposed by the national courts.

Moreover, the fact that it is mandatory to impose an injunction to stay away in accordance with the substantive law at issue
does not fall within the field of application of the Framework Decision.

(see paras 56, 60-61, 66-67, 69-70, operative part 1)

2.        Article 10(1) of Framework Decision 2001/220 on the standing of victims in criminal proceedings must be interpreted as permitting
Member States, having regard to the particular category of offences committed within the family, to exclude recourse to mediation
in all criminal proceedings relating to such offences.

In that regard, in addition to the fact that Article 34(2) EU leaves to national authorities the choice of form and methods
necessary to achieve the desired result of framework decisions, Article 10(1) of the Framework Decision does no more than
require Member States to seek to promote mediation in criminal cases for offences which they consider appropriate, and consequently
the choice of the offences for which mediation is to be available is for the Member States to determine.

(see paras 72, 76, operative part 2)


JUDGMENT OF THE COURT (Fourth Chamber)

15 September 2011 ([\*](#Footnote*))

(Police and judicial cooperation in criminal matters – Framework Decision 2001/220/JHA – Standing of victims in criminal proceedings – Domestic crimes – Obligation to impose as an ancillary penalty an injunction prohibiting the offender from approaching the victim of the offence
– Choice of forms of penalty and level of penalty – Compatibility with Articles 2, 3 and 8 of the Framework Decision – Provision of national law excluding mediation in criminal cases – Compatibility with Article 10 of the Framework Decision)

In Joined Cases C‐483/09 and C‐1/10,

REFERENCES for a preliminary ruling under Article 35 EU from the Audiencia Provincial de Tarragona (Spain), made by a decision
of 15 September 2009, amended by decision of 8 October 2009, and a decision of 18 December 2009, received at the Court on
30 November 2009 and 4 January 2010 respectively, in criminal proceedings against

**Magatte Gueye** (C‐483/09),

intervener:

**X**,

and

**Valentín Salmerón Sánchez** (C‐1/10),

intervener:

**Y**,

THE COURT (Fourth Chamber),

composed of J.‐C. Bonichot, President of the Chamber, K. Schiemann, L. Bay Larsen (Rapporteur), A. Prechal and E. Jarašiūnas,
Judges,

Advocate General: J. Kokott,

Registrar: M. Ferreira, Principal Administrator,

having regard to the written procedure and further to the hearing on 3 March 2011,

after considering the observations submitted on behalf of:

–        the Spanish Government, by N. Díaz Abad, acting as Agent,

–        the German Government, by T. Henze, J. Möller and S. Unzeitig, acting as Agents,

–        the Italian Government, by G. Palmieri, acting as Agent, and by P. Gentili and L. Ventrella, avvocati dello Stato,

–        the Netherlands Government, by C. Wissels and M. de Ree, acting as Agents,

–        the Austrian Government, by E. Riedl, acting as Agent,

–        the Polish Government, by M. Szpunar, acting as Agent,

–        the Swedish Government, by C. Meyer-Seitz and S. Johannesson, acting as Agents,

–        the United Kingdom Government, by H. Walker and J. Stratford, acting as Agents,

–        the European Commission, by R. Troosters and S. Pardo Quintillán, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 12 May 2011,

gives the following

**Judgment**

1        These references for preliminary rulings concern the interpretation of Articles 2, 8 and 10 of Council Framework Decision
2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings (OJ 2001 L 82, p. 1, ‘the Framework Decision’).

2        The references were made in criminal proceedings against Mr Gueye and Mr Salmerón Sánchez respectively, who were charged with
failing to comply with the prohibition, imposed as an ancillary penalty, on approaching the women who were the victims of
their offences, domestic violence in respect of which primary penalties were also imposed on them.

**Legal context**

*European Union legislation*

3        The Framework Decision was adopted on the basis, in particular, of Article 31(1) EU, paragraph (c) of which provides that
common action on judicial cooperation in criminal matters is to include, as may be necessary to improve such cooperation,
ensuring compatibility in rules applicable in the Member States.

4        It is clear from recital 3 of the preamble to the Framework Decision that the European Council meeting in Tampere on 15 and
16 October 1999 stipulated that minimum standards should be drawn up on the protection of the victims of crimes, in particular
on their access to justice and their right to compensation.

5        Recitals 4, 8 and 9 of the preamble to the Framework Decision are worded as follows:

‘(4)      Member States should approximate their laws and regulations to the extent necessary to attain the objective of affording victims
of crime a high level of protection, irrespective of the Member State in which they are present.

...

(8)      The rules and practices as regards the standing and main rights of victims need to be approximated, with particular regard
to the right to be treated with respect for their dignity, the right to provide and receive information, the right to understand
and be understood, the right to be protected at the various stages of procedure ...

(9)      The provisions of this Framework Decision do not, however, impose an obligation on Member States to ensure that victims will
be treated in a manner equivalent to that of a party to proceedings.’

6        Article 1 of the Framework Decision states that, for its purposes:

‘(a)      “victim” shall mean a natural person who has suffered harm ... directly caused by acts or omissions that are in violation of
the criminal law of a Member State;

...

(c)      “criminal proceedings” shall be understood in accordance with the national law applicable;

...

(e)      “mediation in criminal cases” shall be understood as the search, prior to or during criminal proceedings, for a negotiated
solution between the victim and the author of the offence, mediated by a competent person.’

7        Article 2(1) of the Framework Decision, headed ‘Respect and recognition, provides:

‘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.’

8        The first paragraph of Article 3 of the Framework Decision, headed ‘Hearings and provision of evidence’, provides that ‘[e]ach
Member State shall safeguard the possibility for victims to be heard during proceedings and to supply evidence’.

9        Article 8 of the Framework Decision, headed ‘Right to protection’, provides:

‘1.      Each Member State shall ensure a suitable level of protection for victims and, where appropriate, their families ..., 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.

2.      To that end, and without prejudice to paragraph 4, each Member State shall guarantee that it is possible to adopt, if necessary,
as part of the court proceedings, appropriate measures to protect the privacy and photographic image of victims and their
families or persons in a similar position.

3.      Each Member State shall further ensure that contact between victims and offenders within court premises may be avoided, unless
criminal proceedings require such contact. Where appropriate for that purpose, each Member State shall progressively provide
that court premises have special waiting areas for victims.

4.      Each Member State shall ensure that, where there is a need to protect victims – particularly those most vulnerable – from
the effects of giving evidence in open court, victims may, by decision taken by the court, be entitled to testify in a manner
which will enable this objective to be achieved, by any appropriate means compatible with its basic legal principles.’

10      Lastly, under Article 10(1) of the Framework Decision, ‘[e]ach Member State shall seek to promote mediation in criminal cases
for offences which it considers appropriate for this sort of measure’.

*National legislation*

11      The Criminal Code (Código Penal), in the version resulting from Organic Law 15/2003 amending Organic Law 10/1995 (Ley Orgánica
15/2003 por la que se modifica la Ley Orgánica 10/1995) of 25 November 2003 (BOE No 283 of 26 November 2003, p. 41842, ‘the
Criminal Code’), contains an Article 48, which sets out, in Article 48(2), the effects of an ancillary penalty requiring the
offender to stay away and prohibiting him from approaching, in particular, his victim.

12      Article 57 of the Criminal Code sets out as follows the circumstances and conditions under which one or more of the injunctions
provided for in Article 48 either may (Article 57(1)), or must (Article 57(2)), be imposed:

‘1.      In respect of the crimes of homicide, abortion, assault causing injury, deprivation of liberty and torture, and crimes infringing
moral integrity, sexual liberty, privacy, the right to protection of personal image and the inviolability of the home ..., the
courts or tribunals may, having regard to the gravity of the offences or the danger which the offender represents, impose
when sentencing one or more of the injunctions referred to in Article 48 ...

...

2.      In respect of those crimes referred to in the first subparagraph of paragraph 1 which were committed against a person who
is, or was, the spouse, or against a person who is, or was, connected to the offender, even when there is no cohabitation,
by a comparable emotional relationship, ... there shall be imposed, in all cases, the penalty laid down in Article 48(2) [namely
the prohibition on approaching the victim of the offence] and that for a period which should not exceed 10 years, in the case
of a serious crime, and 5 years, in the case of a less serious crime ...’.

13      It is stated in the order for reference that that prohibition is imposed as a mandatory penalty for a period of between one
and five years greater than the period of imprisonment imposed, or for a period with a minimum duration of six months and
a maximum duration of five years if the penalty imposed is other than imprisonment.

14      The prescribed minimum period of six months may, in certain situations, be reduced to one month in accordance with Article
40(3) of the Criminal Code, read together with Article 33(6) thereof.

15      Article 468(2) of the Criminal Code, in the version amended by Organic Law 1/2004 on measures for comprehensive protection
against gender-based violence (Ley Orgánica 1/2004 de Medidas de Protección Integral contra la Violencia de Género) of 28
December 2004 (BOE No 313 of 29 December 2004, p. 42166, ‘Organic Law 1/2004’), provides for a sentence of imprisonment of
six months to one year for any person who does not comply with one of the penalties laid down in Article 48 of the Criminal
Code, imposed for a criminal offence the victim of which is one of the persons specified in Article 173(2) of the Criminal
Code. The latter provision specifies, inter alia, a spouse or an individual related by comparable emotional bonds, even when
there is no cohabitation.

16      Article 82(1) of Organic Law 6/1985 on the judiciary (Ley Orgánica 6/1985 del Poder Judicial), in the version amended by Organic
Law 1/2004 (‘Organic Law 6/1985’), provides that the Audiencias Provinciales are to have criminal jurisdiction, inter alia
to hear ‘[a]ppeals in accordance with law against decisions made in criminal proceedings by the provincial Juzgados de Violencia
sobre la Mujer [the courts with jurisdiction in relation to violence against women]’.

17      Article 87b(5) of Organic Law 6/1985, inserted by Organic Law 1/2004, prohibits mediation in all cases of offences committed
within the family.

18      In accordance with Article 792(3) of the Code of Criminal Procedure (Ley de Enjuiciamento Criminal), no appeal through the
ordinary courts can be brought against decisions such as those which the referring court will have to deliver as the appellate
court in the cases before it.

**The main proceedings and the questions referred for a preliminary ruling**

19      Mr Gueye and Mr Salmerón Sánchez were separately convicted of crimes of domestic violence – by two judgments delivered in
2008 by the Juzgado de lo Penal No 23 de Barcelona (Criminal Court No 23 of Barcelona) and in 2006 by the Juzgado de Instrucción
No 7 de Violencia sobre la Mujer de El Vendrell (Court of First Instance and Preliminary Investigations No 7 of El Vendrell,
with special jurisdiction over crimes of violence against women) – and the sentences imposed on them included, among other
penalties, an ancillary penalty consisting of a prohibition on being within 1 000 metres (Mr Gueye) and 500 metres (Mr Salmerón
Sánchez) of their victims or having any contact with them, for a period of 17 months in the case of the former and 16 months
in the case of the latter.

20      Although they were aware of those injunctions, imposed under Article 57(2) of the Criminal Code, within a relatively short
time after the imposition of those ancillary penalties the two offenders resumed living together with their respective victims
at the request of those victims. The offenders continued to cohabit with them until they were apprehended, on 3 February 2009
in the case of Mr Gueye and 5 December 2007 in the case of Mr Salmerón Sánchez.

21      By judgments delivered on 11 February 2009 and 27 March 2008 respectively, the Juzgado de lo Penal No 1 de Tarragona (Criminal
Court No 1 of Tarragona) found Mr Gueye and Mr Salmerón Sánchez guilty of failure to comply with the ancillary penalty, namely
the prohibition on approaching their victims, under Article 468(2) of the Criminal Code.

22      In the course of the appeals brought against those judgments, the referring court heard the testimony of the individuals whose
relationships with Mr Gueye and Mr Salmerón Sánchez had existed for several years before the penalties were imposed on them
and were continuing when the two men were apprehended.

23      In that testimony the women concerned declared that they had themselves, consciously and voluntarily, decided to resume cohabitation
with the offenders, notwithstanding the fact that the two men had been convicted of having previously assaulted them and were
consequently the subjects of criminal penalties.

24      According to those individuals, their cohabitation with Mr Gueye and Mr Salmerón Sánchez had continued normally for several
months, until the date when the two men were apprehended.

25      By their appeals brought before the referring court against the judgments of the Juzgado de lo Penal No 1 de Tarragona, the
offenders seek a declaration that to resume living together with the freely given consent of their partners does not constitute
the offence of failure to comply with an ancillary penalty consisting of an order to stay away.

26      The referring court considers that the decision whether the penalties imposed at first instance should be upheld depends on
whether the fact that the adoption of measures such as injunctions to stay away in cases of crimes of domestic violence is
mandatory, even when the victims oppose such measures, is compatible with the Framework Decision.

27      In the opinion of that court, it appears indisputable that, in certain situations, such injunctions to stay away can be imposed
even when that is against the wishes of the victims. That court nevertheless considers that the appropriate level of protection
which should, in practice, be afforded to victims of crimes committed within the family cannot, particularly in cases of minor
infringements, result in the imposition, without any exceptions, of an injunction to stay away without any prior assessment
of the circumstances of each specific case.

28      In those circumstances, the Audiencia Provincial de Tarragona decided to stay proceedings and to refer to the Court for a
preliminary ruling the following questions, which are drafted in identical terms in both Case C‐483/09 and Case C‐1/10:

‘(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 ... be interpreted as meaning that the duty of [Member] States to recognise the rights
and legitimate interests of victims creates the obligation to take into account their opinions when the penalties arising
from proceedings may jeopardise fundamentally and directly the development of their right to freedom of personal development
and the right to private and family life?

(3)      Should Article 2 of the Framework Decision ... be interpreted as meaning that the State authorities may not disregard the freely
expressed wishes of victims where the imposition or maintenance in force of an injunction to stay away from the victim when
the offender is a member of their family are opposed by the victim and where no objective circumstances indicating a risk
of re-offending are established, where it is possible to identify a level of personal, social, cultural and emotional competence
which precludes any possibility of subservience to the offender or, rather, as meaning that such an order should be held appropriate
in every case in the light of the specific characteristics of such crimes?

(4)      Should Article 8 of the Framework Decision ... providing that [Member] States are to guarantee a suitable level of protection
for victims be interpreted as permitting the general and mandatory imposition of injunctions to stay away from the victim
or orders prohibiting communication as ancillary penalties in all cases in which a person is a victim of crimes committed
within the family, in the light of the specific characteristics of those offences, or, on the other hand, does Article 8 require
that an assessment of each individual case be undertaken to allow the identification, on a case by case basis, of the suitable
level of protection having regard to the competing interests?

(5)      Should Article 10 of the Framework Decision ... be interpreted as permitting a general exclusion of mediation in criminal proceedings
relating to crimes committed within the family, in the light of the specific characteristics of those crimes or, on the other
hand, should mediation also be permitted in proceedings of that kind, assessing the competing interests on a case by case
basis?’

29      By order of the President of the Court of 24 September 2010, Cases C‐483/09 and C‐1/10 were joined for the purposes of the
oral procedure and judgment.

**The jurisdiction of the Court**

30      It is apparent from the Information concerning the date of entry into force of the Treaty of Amsterdam, published in the *Official Journal of the European Communities* of 1 May 1999 (OJ 1999 L 114, p. 56) that the Kingdom of Spain made a declaration on the basis of Article 35(2) EU by which
it accepted the jurisdiction of the Court to give preliminary rulings, in accordance with Article 35(3)(a) EU, at the request
of any national court or tribunal of that Member State against whose decisions there is no judicial remedy under national
law.

31      Under Article 792(3) of the Code of Criminal Procedure, the decisions which must be made by the referring court in the main
proceedings are decisions against which there is no judicial remedy, within the ordinary courts, under domestic law.

32      In accordance with Article 10(1) of Protocol No 36 on transitional provisions, annexed to the FEU Treaty, the powers of the
Court under Title VI of the EU Treaty, in the version applicable before the entry into force of the Treaty of Lisbon, are
to remain the same in respect of a measure such as the Framework Decision which was adopted before that date, including where
they have been accepted under Article 35(2) EU.

33      In those circumstances, the Court has jurisdiction, under Article 35(1) EU, to give a preliminary ruling, as requested by
the referring court, on the interpretation of the Framework Decision.

**Admissibility of the questions referred for a preliminary ruling**

34      The Spanish and Italian Governments claim, primarily, that the references for preliminary rulings are inadmissible.

35      The Spanish Government states that the imposition of an injunction to stay away pursuant to Article 57(2) of the Criminal
Code is not at issue in the main proceedings and maintains, first, that there is no need to inquire whether the Framework
Decision precludes the mandatory adoption of such a measure. Since the main proceedings concern the imposition of a penalty
pursuant to Article 468(2) of the Criminal Code, in respect of a contravention of a previously imposed injunction to stay
away, the questions referred for a preliminary ruling are purely hypothetical.

36      Secondly, if those questions refer to Article 468(2) of the Criminal Code, the Spanish Government states that the problem
which arises in the main proceedings is not the result of that provision in itself, but of the interpretation made of that
provision by the Sala de lo Penal del Tribunal Supremo (the criminal chamber of the Supreme Court) in a ‘non-binding resolution’
of 25 November 2008 from which it is clear that ‘the consent of the woman does not exclude liability to punishment under Article
468 of the Criminal Code’. Accordingly, the questions referred for a preliminary ruling actually concern the interpretation
of national law, on which it is not for the Court to rule within the preliminary ruling procedure.

37      The Italian Government observes further that any interpretation of the Framework Decision which would result in a conflict
between the Framework Decision and the national law cannot be resolved by an interpretation of national law in such a way
as to conform with the objectives of the Framework Decision. Such a conforming interpretation could, at best, be made *contra legem*, which is not permissible under European Union (‘EU’) law. Consequently, the questions referred for a preliminary ruling
are deprived of any purpose and are hypothetical.

38      It should be observed that, like Article 267 TFEU, Article 35(3)(a) EU makes a reference to the Court of Justice for a preliminary
ruling subject to the condition that the national court ‘considers that a decision on the question is necessary in order to
enable it to give judgment’, and accordingly the case-law of the Court on the admissibility of references under Article 267
TFEU is, in principle, transposable to references for a preliminary ruling submitted to the Court under Article 35 EU (see,
to that effect, Case C‐105/03 *Pupino* [2005] ECR I‐5285, paragraph 29).

39      Within the framework of the cooperation between the Court and national courts and tribunals established by Article 267 TFEU,
it is solely for the national court before which the dispute has been brought and which must assume responsibility for the
subsequent judicial decision to determine, in the light of the particular circumstances of the case, both the need for a preliminary
ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently,
where the questions submitted concern the interpretation of EU law, the Court is in principle bound to give a ruling (see,
inter alia, Case C‐415/93 *Bosman* [1995] ECR I‐4921, paragraph 59, and Case C‐391/09 *Runevič-Vardyn and Wardyn* [2011] ECR I‐0000, paragraph 30).

40      However, in the light of the task conferred on the Court by Article 267 TFEU, the Court may refuse to give a ruling on questions
submitted by a national court or tribunal where it is quite obvious that the interpretation which is sought of the provisions
of EU law referred to in the questions bears no relation to the actual facts of the main action or to its purpose or where
the problem is hypothetical (see, to that effect, Case C‐404/07 *Katz* [2008] ECR I‐7607, paragraph 31 and case-law cited).

41      In the present case, the purpose of the questions submitted by the referring court is to determine whether the mandatory imposition
of the injunction to stay away as an ancillary penalty is as such compatible with the Framework Decision. That court considers
that it is necessary, in the criminal proceedings relating to failure to comply with the previously imposed injunctions to
stay away, to determine whether those penalties, which are mandatory and which are fundamental to the convictions of the offenders,
do not as such infringe the Framework Decision. In the light of those considerations, the questions submitted are not obviously
hypothetical.

42      Further, it must be made clear that, in order to answer the questions referred, the Court relies on the interpretation provided
by the referring court of the provisions of national law at issue, and is not entitled to question or verify the correctness
of that interpretation.

43      Lastly, in its written observations, the Spanish Government stated that the interpretation of Article 468(2) of the Criminal
Code arrived at by the Supreme Court in its resolution of 25 November 2008 does not, in principle, preclude the courts and
tribunals from being able to depart from that interpretation provided that reasons for doing so are stated. Accordingly, in
the event that the Court’s answer to the questions referred were that the Framework Decision precludes a national measure
such as that at issue in the main proceedings, it is not obvious that, in the main proceedings, an interpretation of national
law in conformity with the Framework Decision would, contrary to what is claimed by the Italian Government, necessarily be
impossible.

44      In those circumstances, it is not obvious that the interpretation of the Framework Decision requested by the referring court
bears no relation to the actual facts of the main proceedings or to their purpose, or that the problem raised is hypothetical.

45      Consequently, the references for a preliminary ruling are admissible.

**The questions referred for a preliminary ruling**

*Questions 1 to 4*

46      Before examining the first four questions, it must be observed that recital 8 of the preamble to the Framework Decision, which
is the subject of the first question, does not in itself have any binding legal force (see Case C‐562/08 *Müller Fleisch* [2010] ECR I‐0000, paragraph 40).

47      Moreover, it should be noted that, formally, the referring court has limited its second, third and fourth questions to the
interpretation of Articles 2 and 8 of the Framework Decision. Such a situation does not however prevent the Court from providing
the referring court with all the elements of interpretation of EU law, including, in the present case, those which may relate
to another provision of the Framework Decision, which may be of assistance in adjudicating on the case before it, whether
or not that court has specifically referred to them in the questions (see, to that effect, Case C‐434/09 *McCarthy* [2011] ECR I‐0000, paragraph 24).

48      In that regard, it must be observed that, while Member States are obliged to recognise the rights and legitimate interests
of victims under Article 2 of the Framework Decision, it is however the first paragraph of Article 3 thereof, read in the
light of recital 8, which lays down that Member States must safeguard the possibility for victims to be heard during the criminal
proceedings.

49      Accordingly, it must be held that, by the first four questions, which should be examined together, the referring court seeks
to ascertain, in essence, whether Articles 2, 3 or 8 of the Framework Decision must be interpreted as precluding the mandatory
imposition of an injunction to stay away for a minimum period, as prescribed as an ancillary penalty by the criminal law of
a Member State, on persons who commit crimes of violence within the family, even when the victims of those persons oppose
the application of such a penalty.

50      It must be stated that there is no provision in the Framework Decision relating to the forms of penalties and the level of
penalties which Member States must enact in their legislation in order that criminal offences should be subject to punishment.

51      Moreover, the Framework Decision contains no indication that the EU legislature, within the limits of the powers conferred
on it by the EU Treaty, intended to harmonise or, at the least, approximate the legislation of Member States in respect of
the forms and levels of criminal penalties.

52      As is clear from recitals 3 and 4 of its preamble, the aim of the Framework Decision is only that, within criminal proceedings
as defined in Article 1(c) thereof, minimum standards should be drawn up for the protection of victims of crimes and victims
should be afforded a high level of protection, particularly in respect of their access to justice.

53      Recital 9 of the preamble to the Framework Decision states moreover that its provisions do not impose an obligation on Member
States to ensure that victims will be treated in a manner equivalent to that of a party to proceedings.

54      The Framework Decision, as regards its structure and content, takes the form of a general declaration, in Article 2, of the
main objectives which are to be achieved for the protection of victims and the specification, in the following articles, of
various rights which are principally procedural and which victims must be able to exercise during the criminal proceedings.

55      The provisions of the Framework Decision must be interpreted in such a way that fundamental rights, including in particular
the right to respect for family and private life, as stated in Article 7 of the Charter of Fundamental Rights of the European
Union, are respected (see, inter alia, *Pupino*, paragraph 59, and *Katz*, paragraph 48).

56      The obligations laid down in Article 2(1) of the Framework Decision are intended to ensure that a victim can effectively and
adequately take part in the criminal proceedings, which does not imply that a mandatory injunction to stay away such as that
at issue in the main proceedings cannot be imposed contrary to the wishes of the victim.

57      Article 3 of the Framework Decision, while imposing on Member States the obligation to safeguard the possibility for victims
to be heard during proceedings and to supply evidence, leaves to the national authorities a large measure of discretion with
regard to the specific means by which they implement that objective (see, to that effect, *Katz*, paragraph 46).

58      However, in order not to deprive the first paragraph of Article 3 of the Framework Decision of much of its practical effect
or to infringe the obligations stated in Article 2(1) thereof, those provisions imply, in any event, that the victim is to
be able to give testimony in the course of the criminal proceedings which can be taken into account as evidence (*Katz*, paragraph 47).

59      Thus, to guarantee that the victim can effectively and adequately take part in the criminal proceedings, his or her right
to be heard must permit not only the possibility of objectively describing what happened, but also the opportunity to express
his or her opinion.

60      That procedural right to be heard under the first paragraph of Article 3 of the Framework Decision does not confer on victims
any rights in respect of the choice of form of penalties to be imposed on the offenders in accordance with the rules of national
criminal law nor in respect of the level of those penalties.

61      In that regard, it must be borne in mind that where a Member State in the exercise of its powers to enforce the law ensures
that the criminal law offers protection against acts of domestic violence, the objective is not only to protect the interests
of the victim as he or she perceives them but also other more general interests of society.

62      It follows that Article 3 of the Framework Decision does not preclude the national legislature from enacting laws imposing
mandatory penalties of a minimum duration, particularly where interests other than the specific interests of the victim must
be taken into consideration.

63      As regards, lastly, Article 8 of the Framework Decision, it is clear from Article 8(1) that the aim is to ensure a ‘suitable
level of protection for victims’, 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’.

64      For that purpose, the preventive and practical measures of protection stated in Article 8(2) to (4) are intended to ensure
that the ability of victims adequately to take part in the criminal proceedings is not jeopardised by the possibility that
their safety and privacy is placed at risk.

65      No more than Articles 2 and 3 of the Framework Decision does Article 8 thereof impose any obligation on Member States to enact
provisions of national criminal law enabling the victim to influence the penalties which national courts may impose on the
offender.

66      The protection which is the subject of Article 8 of the Framework Decision is intended in particular to offer protection which
is ‘suitable’ to the victim or persons connected with her from the offender during the criminal proceedings.

67      On the other hand, Article 8 of the Framework Decision cannot be understood as meaning that Member States are also obliged
to protect victims from indirect consequences which may, at a later stage, arise as a result of the penalties imposed by the
national courts on offenders.

68      Consequently, Article 8 of the Framework Decision cannot be interpreted in such a way that it restricts the choice by Member
States of the criminal penalties they establish in their domestic legal systems.

69      Lastly, it is clear that the fact that it is mandatory to impose an injunction to stay away in accordance with the substantive
law at issue in the main proceedings does not, per se, fall within the scope of the Framework Decision and, accordingly, it
cannot, in any event, be assessed in the light of the provisions of the Charter of Fundamental Rights of the European Union.

70      In the light of all the foregoing, the answer to the first four questions is that Articles 2, 3 and 8 of the Framework Decision
must be interpreted as not precluding the mandatory imposition of an injunction to stay away for a minimum period, provided
for as an ancillary penalty by the criminal law of a Member State, on persons who commit crimes of violence within the family,
even when the victims of those crimes oppose the application of such a penalty.

*The fifth question*

71      By the fifth question in each of the two cases, the referring court seeks to ascertain, in essence, whether Article 10 of
the Framework Decision must be interpreted as enabling Member States, having regard to the particular category of offences
committed within the family, to exclude recourse to mediation in all criminal proceedings relating to such offences.

72      In that regard, it must be observed that, in addition to the fact that Article 34(2) EU leaves to national authorities the
choice of form and methods necessary to achieve the desired result of Framework Decisions, Article 10(1) of the Framework
Decision does no more than require Member States to seek to promote mediation in criminal cases for offences which they ‘consider
... appropriate’, and consequently the choice of the offences for which mediation is to be available is for the Member States
to determine (see Case C‐205/09 *Eredics and Sápi* [2010] ECR I‐0000, paragraph 37).

73      Consequently, Article 10(1) of the Framework Decision permits Member States to exclude recourse to mediation in respect of
all offences committed within the family, as provided by Article 87b(5) of Organic Law 6/1985.

74      It follows from the very wording of Article 10(1) 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 that, in deciding to exclude
the application of the mediation procedure for a particular type of offence, a choice to be made on criminal justice policy
grounds, the national legislature has not exceeded its discretion (see, by analogy, *Eredics and Sápi*, paragraph 38).

75      It should be added that the Member States’ decisions may be restricted by the obligation to use objective criteria in order
to determine the types of offences for which they consider mediation not to be suitable. There is however no indication that
the exclusion of mediation provided for by Organic Law 6/1985 is based on criteria which are not objective.

76      In the light of the foregoing, the answer to the fifth question is that Article 10(1) of the Framework Decision must be interpreted
as permitting Member States, having regard to the particular category of offences committed within the family, to exclude
recourse to mediation in all criminal proceedings relating to such offences.

**Costs**

77      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court,
the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs
of those parties, are not recoverable.

On those grounds, the Court (Fourth Chamber) hereby rules:

1.      **Articles 2, 3 and 8 of Council Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings
must be interpreted as not precluding the mandatory imposition of an injunction to stay away for a minimum period, provided
for as an ancillary penalty by the criminal law of a Member State, on persons who commit crimes of violence within the family,
even when the victims of those crimes oppose the application of such a penalty.**

2.      **Article 10(1) of Framework Decision 2001/220 must be interpreted as permitting Member States, having regard to the particular
category of offences committed within the family, to exclude recourse to mediation in all criminal proceedings relating to
such offences.**

[Signatures]

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[\*](#Footref*) Language of the case: Spanish.