Voice of reason

It is a measure of how far the European Union has developed that the European Court of Justice should find itself discussing the remedies imposed by criminal courts in domestic violence cases. But so it was in joined cases C-483/09 and C-1/10 Gueye (Fourth Chamber, 15 September 2011).

The case originated in Spain. Spanish law provided that where a person was convicted of a crime involving certain sorts of domestic violence, the sentencing court was obliged to impose (apart from any other penalty) an injunction prohibiting the offender from having contact with the victim for some period of time. Two defendants, convicted of assault, duly had such injunctions imposed upon them. But, in breach of the injunction, they started living with their victims again. This was something that the victims agreed to, and indeed wanted to happen. But the defendants were charged with breaching the orders that had been imposed upon them.

One can well see that the case might have raised issues under the European Convention on Human Rights, in particular article 8. But what did any of this have to do with EU law? The defendants, supported by their victims, found what they thought was a suitable hook for their arguments in framework decision 2001/220/JHA on the standing of victims in criminal proceedings (OJ 2001 L82/1). The framework decision aims to approximate the rules in member states regarding the standing of victims of crime, with the objective of 'affording victims of crime a high level of protection'. The decision requires each member state to afford victims an 'appropriate role in its criminal legal system', and to 'safeguard the possibility for victims to be heard during proceedings and to provide evidence'. It requires member states to 'ensure a suitable level of protection'. And it encourages member states to 'seek to promote mediation in criminal cases for offences which it considers appropriate for this sort of measure'.

The offenders and their victims argued that these provisions had been infringed because the victims' views and opinions had not been taken into consideration '“ and could not really be, since under Spanish law some sort of injunction was mandatory. Nor had any opportunity to mediate been offered. They attempted to rely on the provisions in the Spanish courts, which referred the issues to the ECJ.

Clear distinction

There the arguments failed. The ECJ drew a clear distinction between the procedural rights that victims are afforded under the legislation (a right to give evidence, both as to the facts of the offence and, it was said, to 'express their opinion'). But it made it firmly clear that the victims' opinion was not made paramount, even so far as their own protection is concerned: 'Where a member state'¦ 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.' It was open to the legislature to enact mandatory penalties, which could be imposed regardless of the victims' wishes.

The ECJ gave similarly short shrift to the suggestion that mediation should have been offered. The framework decision provides for mediation only for offences which the state 'considers appropriate' for such treatment. It was up to each member state to decide that question, within a broad discretion which had not been abused.

Whatever one may think of the inflexibility of the Spanish law, the ECJ's decision is clearly correct. The offenders were trying to turn a set of provisions whose primary focus was procedural '“ on the rights of victims of crime to participate in the criminal process '“ into an instrument by which the substantive sentencing provisions of national criminal law could be reviewed. That would have been a mistaken step to take, as well as a deeply controversial one. Recognising that victims should have some sort of voice in the procedure leading to and following conviction is a completely different thing from allowing them to have a decisive voice, and the ECJ is surely right that it must be for the member states to determine sentencing policy, and that this cannot exclude the possibility of mandatory penalties in some cases.

Relevance of victims' opinions

The ECJ's judgment does, however, contain one comment which may need to be watched carefully. That is where it seems to lay stress on the right of victims' 'opinions' to be taken into account. As the rest of the judgment makes clear, there are limits to this principle.

First, the court clearly understands that the victims' 'opinions' are required to be heard and taken into account only to the extent that they are relevant. A mandatory sentence may, in practical terms, make the victims' opinions irrelevant '“ whether or not the victim thinks this offender should be subject to an injunction, the court may be obliged by national law to impose one, and the judgment is quite clear that this is permissible.

Second, although the issue was not one for decision in the particular case, the statement that a victim's 'opinions' must be taken into account must clearly be qualified by other factors, and above all by the need to ensure a fair trial. It would be quite wrong, for instance, to insist that a victim is entitled to give an 'opinion' as to guilt, and have that taken into account. This cannot be what the ECJ intended.