The question whether a victim of domestic violence must be able to choose to resume cohabitation immediately with her attacker does not fall within the scope of European Union law, according to Advocate General Kokott. Nevertheless, the opinion of the victim must be able to be  taken into consideration in order to vary the duration of an order to stay away laid down by national law.

Mr Gueye and Mr Salmerón Sánchez were convicted of mistreating their respective partners. They were the subject of injunctions restraining them from approaching the victim or communicating with her for a period of 17 and 16 months respectively. Some days after their conviction, Mr Gueye and Mr Salmerón Sánchez resumed cohabitation with their partners. By reason of the failure to comply with the orders to stay away imposed on them they were both arrested and convicted. Both appealed against their conviction before the Audiencia Provincial de Tarragona (Spain) (Provincial Court, Tarragona, Spain) and the Audiencia asks to the ECJ whether framework-decision 2001/220/JHA on the standing of victims in criminal proceedings precludes national legislation which, where crimes are committed within the family, prescribe that a mandatory injunction is to be imposed on the perpetrator of the violence prohibiting him from approaching the victim without providing for the possibility to dispense with that injunction after weighing the circumstances of the case and, in particular, the victim’s wish to resume her relationship with the perpetrator.

The Advocate General takes the view that the form and duration of the penalties that the Member States may provide for in domestic violence cases is not covered by procedural guarantees or therefore the Framework Decision. However, Ms Kokott states that the victim’s right to be heard by the courts requires the Member States to give her the opportunity to express her opinion as to the imposition of an order to stay away where the victim maintains a close personal relationship with the perpetrator and where such an order thus produces indirect effects on her private and family life.

The Advocate General’s Opinion is not binding on the Court of Justice. It is the role of the Advocates General to propose to the Court, in complete independence, a legal solution to the cases for which they are responsible. The Judges of the Court are now beginning their deliberations in this case. Judgment will be given at a later date.