Opinion of the Advocate General — ECLI:EU:C:2011:297
Date: 2011-05-12
Language of the case: Spanish
Based on: Treaty on European Union (1992)
Subject matter: Judicial cooperation in criminal matters;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Spain

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)