CJEU Joined Cases C-483/09 and C-1/10 / Opinion

Criminal proceedings against Magatte Gueye (C-483/09) and Valentín Salmerón Sánchez (C-1/10
Policy area
Justice, freedom and security
Deciding body type
Court of Justice of the European Union
Deciding body
Advocate General
Decision date
ECLI (European case law identifier)
  • CJEU Joined Cases C-483/09 and C-1/10 / Opinion

    Key facts of the case:

    References for a preliminary ruling: Audiencia provincial de Tarragona - Spain.

    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.

    Outcome of the case:

    In the light of the foregoing considerations, I suggest that the Court should answer the reference for a preliminary ruling as follows:

    1. Article 3 of Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings obliges the Member States to allow the victim the opportunity to express her views with regard to the imposition of an injunction to stay away from the victim, in a situation in which the victim has a close personal relationship with the offender, and therefore an injunction to stay away from the victim has a indirect effect on the victim’s private and family life. There must also be the possibility that the court can take into account such an opinion of the victim in reaching its decision. However, this only applies within the range of penalties provided for in national law and does not mean that the court is bound by the wishes of the victim.
    2. Framework Decision 2001/220 does not affect the question of the suitability of penalties to be imposed. Therefore it does not preclude a national provision which provides, on an invariable and mandatory basis, for an injunction to stay away from the victim as an ancillary penalty.
    3. Article 10 of Framework Decision 2001/220 grants the Member States a large measure of discretion in determining the offences for which they provide for mediation. The provision does not oblige the Member States to provide for mediation in relation to crimes within the family.
  • Paragraphs referring to EU Charter

    75) Finally, it is also necessary to consider the Charter of Fundamental Rights to which the Commission in particular refers. In the Commission’s view, the obligation on the Member States contained in Article 2(1) of the Framework Decision to recognise the rights of victims in criminal proceedings also means that the Member States must safeguard all rights under the Charter of Fundamental Rights. The Commission therefore examines an infringement of Article 7 of the Charter, which lays down the right to respect for private and family life.


    77) In the present case the question does not arise either as to the interpretation of Article 51(1) of the Charter of Fundamental Rights, which determines its scope. Pursuant to that provision, the Charter applies to the Member States ‘only when they are implementing Union law’. It has not yet been conclusively clarified whether this should be understood restrictively or comprehensively means all cases in which a national provision comes within the field of application of EU law. (26)