Gueye and Salmerón Sánchez: The ECJ side-stepping the Stockholm syndrome in domestic violence cases, and its implications

John Morijn

This post is partly based on a case comment published in the Dutch law journal European Human Rights Cases.

As far as cases with counterintuitive facts go, the references for a preliminary ruling in Gueye (C-489/09) and Salmerón Sánchez (C 1/10) of 15 September 2011 rank high. The ECJ was asked whether an obligation laid down in Spanish criminal law to impose an additional restraining order on convicted perpetrators of domestic violence was at odds with EU law, in particular articles 2, 3 and 8 of the Framework Decision (2001/220/JHA) on the standing of victims in criminal proceedings. Delicate detail: the victims – in a move reminiscent of victims’ extraordinary-events-induced bonding with perpetrators, the so-called Stockholm syndrome – had joined their loose-handed husbands in objecting to this approach in Spanish courts, asserting that the unconditional and uncompromising nature of the measure had the effect of violating their private and family life. The resulting judgement raised the interesting issue not only of whether EU law co-regulates how States should deal with Stockholm syndrome-type scenarios, but also how the Court applies the EU Fundamental Rights Charter and the ECHR underlying it.

Mr. Gueye and Mr. Salmerón Sanchez had been convicted on domestic violence charges and had imposed upon them, amongst other penalties, an obligation to avoid contact or being within a distance of 500 metres from their victims for 17 and 16 months respectively. Both however resumed living with their respective victims within days after their release from prison. They did so at the request of their victims. This resulted in Mr. Gueye and Mr. Salmerón Sanchez being apprehended again for reason of failure to comply with their ancillary penalty. In following procedures the men, supported by their wives, contended that they did not fail to comply with their ancillary penalty because the decision to live together with their former victims was based on freely given consent.  The resulting legal dilemma was summarised well by the Advocate-General:

“a mandatory injunction to stay away from the victim lies in the area where the requirement to take effective State action against domestic violence on the one hand is in conflict with respect for private and family life and private autonomy on the other. [This] problem area … requires a difficult balancing of the various legal interests” (para. 37)

The ECJ did not wade into this balancing. Following its AG, it ruled that the Spanish court’s questions essentially related to substantive criminal law, since they concerned the legality and proportionality of a minimum sentence with regard to the crime of domestic violence. At the same time it found that the Framework Decision aimed exclusively at harmonising the approach to be taken toward victims in criminal procedure (par. 50-51). As a result of this reasoning, it held that any fundamental rights issue raised in this respect for the victim was outside the scope of the fundamental rights laid down in the EU Fundamental Rights Charter (par. 69).  It concluded that the issue of an obligatory additional restraining order in the case of domestic violence, and its possible implications on victims, was outside the scope of EU law, and was therefore not precluded by it.

In this way, the ECJ essentially side-stepped dealing with the Stockholm syndrome issue. It made but scant reference to the dilemma painted by the AG. The question is: was this fully convincing in this particular case, and – more generally – sustainable as a judicial method given the much stronger anchoring of fundamental rights protection in the post-Lisbon construct? The answers are: no and no.

As to the first point, the ECJ drew its conclusion without even so much as mentioning, let alone discussing, ECtHR case law on domestic violence. The AG referred in a footnote (footnote 13) to one important ECtHR judgement (Opuz v. Turkey, Appl. No. 33401/02) – since Spain has mentioned it in its intervention to explain why it had taken this stance in stamping out domestic violence – but did not actually engage with it. Therefore there was no (visible) substantive Luxembourg analysis of the ECtHR view on the approach to be taken in domestic violence cases, and the obligations on States to fight this sad phenomenon. As a result, neither was there any assessment of the assertion that could be read as an implicit assumption in the judgment and the Opinion that relevant aspects of ECtHR case law on this topic only concern substantive criminal law and not criminal procedure. How do we now know that the ECJ and the AG actually substantively looked in any detail into obligations flowing from the ECHR for Member States generally and for Member States acting as EU agents when implementing Union law?

Let’s have a look at how the ECtHR has actually approached domestic violence. There is quite a lot of case law on this under Article 8 ECHR, which protects private and family life. The ECtHR has repeatedly characterised victims of domestic violence as a category of particularly vulnerable victims (see e.g. A v. Croatia, Appl. No. 55164/08; Hajduová v. Slovakia, Appl. No. 2660/03). In this key it has pointed out that a (pro)active and category-specific approach is required from States in signalling and combating domestic violence (see, e.g. Opuz v. Turkey). It has explicitly rejected claims by some States that a (pro)active approach is problematic to implement on principal grounds, because in acting in this way States risk interfering with Article 8 ECHR-rights of victims (Bevacqua and S. v. Bulgaria, Appl. No. 71127/01, par. 83). The ECtHR’s assessment of States’ obligations concerns all the circumstances of the case, both procedural aspects (such as access to legal remedies and their effectiveness) as well as substantive aspects, such as (additional) penalties (A. v. Croatia, par. 64). It does leave a ‘margin of appreciation’: not wanting to place itself in the shoes of the national authorities deciding on the most appropriate intervention method, it instead focuses on procedural and substantive aspects of how this task is executed (A. v. Croatia, par. 75).

This brief overview shows, firstly, that the ECtHR does not limit Article 8 ECHR application in cases of domestic violence to substantive criminal law. The positive obligations to protect article 8 ECHR in this scenario also include procedural law issues. Secondly, it may illustrate that the inclusion of a brief description of the ECtHR’s standpoint by the ECJ could have actually considerably strengthened its own ruling. Article 2, par. 2 of the Framework Decision – strikingly mentioned neither by the ECJ nor the AG – specifically lays down that ‘each Member State shall ensure that victims who are particularly vulnerable can benefit from specific treatment best suited to their circumstances’. By linking this article to the ECtHR-line that victims of domestic violence are in the category of “the particularly vulnerable”, the ECJ could have come to the same conclusion on much firmer grounds. It could have also avoided what in its current reasoning looks like a paradoxically substantive remark: “where a Member State in the exercise of its powers to enforce the law 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” (par. 61).

A second interesting aspect is the way in which applicability of the EU Charter – and therefore any ECJ fundamental rights check – is automatically ruled out because the legal question is found to be outside the scope of the Framework Decision (par. 69 Judgment) (which is a finding that we have just itself found open to some criticism, but let’s assume a scenario where secondary Union law was not applicable). On the one hand, this is understandable. Article 51, par. 1 Charter states specifically that it only applies ‘when Member States implement EU law’. On the other hand, this digital approach can also become problematic for the ECJ.  In taking this stance, and basing its analysis only on the Charter, the ECJ may have left itself vulnerable to green-lighting fundamental rights violations.

For imagine, in the context of our case, that Spanish criminal law had obliged the imposition of an additional restraining order of at least 15 years on the reasoning that it would allow victims of domestic violence time and space to break out of their Stockholm-syndrome and meet a more reasonable partner. Potentially laudable as this may seem as an approach, this could have raised issues from the viewpoint of the ECtHR’s ‘margin of appreciation’ in case a stubborn victim would still want to get together with that partner/former perpetrator. In such a case an obligatory 15-year term would likely be struck down by the ECtHR (but note that the ECJ approach taking in this case would not have avoided that, because the legal assessment as to the proportionality of this measure was simply declared outside of the scope of Union law). In this regard it is telling that some Member States in their written observations already made remarks about the proportionality of the approach laid down in Spanish criminal law. Germany, in an apparent attempt to link it to the surer grounds of the internal market, even gave the rather bizarre example of how the Spanish regulation could lead to economic problems. For in the situation of a couple who jointly manage a business, an additional injunction on a perpetrator to stay away from the victim could lead to the collapse of the business and consequently even the destruction of the victim’s economic means of support (Opinion, par. 35).

Arguably, the full hands-off approach with regard to fundamental rights to matters outside the immediate scope of secondary Union law here employed by the ECJ, without checking the ECHR margin of appreciation, could be avoided in the future. One way to do this would be to check the regulation in the light of fundamental rights laid down not in the Charter but as flowing from general principles – equally a source of fundamental rights in Union law ex Article 6 TEU. For it could be argued that the strict limitation of the Charter’s scope of application does not apply to general principles. As an approach this would also be reminiscent of the way the ECJ has checked fundamental rights compliance of Member States when they derogate from fundamental freedoms (e.g. C-5/88 Wachauf and C-260/89 ERT), scenarios in which Union law was not implemented (because it was actually derogated from). Secondly, of course, the ECJ could opt to give a broad interpretation to what could fall under the scenario of States ‘implementing Union law’, and apply this to scenarios that do not stricto sensu fall within secondary Union law. This would likely be a more sensitive route, because the Charter contains many clauses which seek to limit ECJ judicial activism. On the other hand, this has not really kept the ECJ from being judicially active at all (think, for example, Ruiz Zambrano etc.)

Both issues discussed here illustrate the need for the ECJ, in dealing with domestic violence and beyond, to adopt and develop a more systematic and visible method for ‘ticking the ECHR/Charter box’. Perhaps the ECJ should follow the example of other EU institutions and formulate develop a ‘Charter checklist’. This would not only likely decrease the risk, entailed by an ECHR-free Luxembourg-approach, of a painful direct or indirect Strasbourg overruling. But it would also better reflect the fact that fundamental rights are more firmly anchored in Union law in the post-Lisbon construct. Therefore – and this is the bottom-line of the much-hyped need to develop a EU fundamental rights culture – fundamental rights form an obligatory touching stone for every Union-action, including interpretation of Union law by the ECJ.

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