In all cases of domestic violence, the European Union law does not preclude a mandatory injunction to stay away being even if the victim wishes to re-establish cohabitation with the offender. While the right to be heard must give the victim, that procedural right 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. A measure of protection under criminal law against acts of domestic violence is intended to protect not only the interests of the victim but also the more general interests of society.

The European Court concluded its judgement on the case of Mr Gueye and Mr Salmerón Sánchez were convicted of mistreating their respective partners. According to the Court, in cases of domestic violence, the national courts are obliged to impose criminal penalties, and, in all cases, an order prohibiting the perpetrator of the acts of violence from being in the vicinity of his victim is mandatory. That injunction to stay away, which must be for a minimum period, is intended to protect the victim and the general interest of society. Failure to comply with that injunction to stay away is itself a criminal offence.

In its judgement, the European Court states that there is no provision in the Framework Decision on the standing of victims in criminal proceedings, 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. The objective of the Framework Decision is to ensure that a victim can effectively and adequately take part in the criminal proceedings, by recognising, to that end, that the victim has certain procedural rights, including the right to be heard. However, the Court states that, while the right to be heard must give the victim, the procedural right 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. Accordingly, the Court concludes that the victim’s right to be heard as recognised by the Framework Decision does not preclude the national legislature from providing, particularly when interests other than the specific interests of the victim must be taken into consideration, mandatory penalties of a minimum duration.

The Court of Justice does not decide the dispute itself. It is for the national court or tribunal to dispose of the case in accordance with the Court’s decision, which is similarly binding on other national courts or tribunals before which a similar issue is raised.