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Fair trial for women "on violence against women court"

The framework law on integrated protection measures againsts gender violence in Spain. Legal and Feminist Analysis of the Spanish Organic Act 1/2004 of 28 December 2004

María Duran Febrer*

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5º EWLA CONGRESS

Strasbourg, 17 - 19 March 2005

*Lawyer, secretary of EWLA, former president of the Themis Association of Jurist Women.


INTRODUCTION:

The Spanish women associations have called for a comprehensive law against gender violence since 1993 [1], between 1994 to 1998, the women associations was fighting for get a law about the restraining orders for the violent men, and protection for women and child victims of domestic violence.

A vindication of a comprehensive law against gender violence, was continue, a number of campaigns were carried out until end of 1998, when the Socialist Party took up the challenge, and invited said associations to prepare the first draft law against gender violence, filed at Parliament by the Socialist Parliamentary Group on December 16, 2001. A vote was taken to accept the proposal, which was finally rejected due to the votes of the ruling Popular Party.

When the proposal was refused, the General Secretary of Socialist Party Mr. Jose Luis Rodriguez Zapatero took a compromise that the first law of his government shall be a compressive law against gender violence.

In January, 2002 several national associations and from autonomous communities created the Feminist Network against gender violence, the web site is www.redfeminista.org. The nationals associations are:
Association of women lawyers Themis (Asociación de Mujeres Juristas Themis) Enclave Feminist (Enclave Feminista) Women Foundation (Fundación Mujeres) Commission for investigation the maltreatments (Comisión por la investigación contra los malos tratos) Federation of women separated and divorced (Federación de Mujeres Separadas y Divorciadas) Federation of women progressive (Federación de Mujeres Progresistas) Federation of assistance to victims of women raped (Federación de mujeres violandas) Network women (Mujeres en Red) Professionals women in mass media. (Asociación de mujeres profesionales de los medios de comunicación) Spanish women neighbours

The principal aim of this network was to get a compressive law on integrated measures against the gender violence.

A Daphne “Proteger” promoted by Themis Women Lawyers Association, with partners Deutscher Juristinnenbund (DJB) and Associaçao Portuguesa de Muheres Juristas, LEFO from Austria and La Strada Foundation from Poland, elaborated the “Guide of goods practices and forensic uses for fighting the gender violence in Europe” an proposed a compressive law.

In 2000 and 2001 some european women lawyers [Dagmar Orbelies and Nancy Gage from Germany, Viviane Ecker from Luxembourg, Gabriele Vana Kovarisk from Austria, Marcela Pirrone and Maria Virgilo from Italy, and Maria Duran Febrer and Belen Martín Maria from Spain ], discussed a comparative national legislations and practices about gender violence. The meetings finish with some recommendations, the EWLA congress in Sevilla was discussed as imperatives, (7] The importance of this treaty lies in that, on the one hand, it is unique in so far as it refers to the right of women to live free of violence, and on the other it legitimates any citizen of a signatory state to report any non-compliance to the Commission, the decisions of which can be appealed before the American Human Rights Court [8].

Section 5 of Decision A4-250/1997 of the European Parliament on "Zero Tolerance” calls on member states to introduce specific legislation aimed at protecting victims of violence based on their belonging to the female gender in their penal code of law and in family law, and to introduce specific regulations against gender-based harassment of women.

THE ORGANIC ACT 1/2004 FRAMEWORK LAW ON INTEGRATED PROTECTION MEASSURES AGAINST GENDER VIOLENCE.

The Organic Act 1/2004 dated December 28 on integrated protection measures against gender violence was approved by all parliamentary groups, was approved unanimously..

Said Law establish in its first article:

1.The purpose of this Act is to combat the violence exercised against women by their present or former spouses or by men with whom they maintain or have maintained analogous affective relations, with or without cohabitation, as an expression of discrimination, the situation of inequality and the power relations prevailing between the sexes. (...) 3. The gender violence to which this Act refers encompasses all acts of physical and psychological violence, including offences against sexual liberty, threats, coercion and the arbitrary deprivation of liberty.

Said law has the purpose of fighting violence against women by their partners due to the high amount of cases, and in the consequences it has on the lives and the health of women.

Said law guarantees rights to all women who have suffered gender violence in Spain, regardless of their nationality, and their legal situation in Spain.

The article 17 establish the guarantee of victim’s right:

“1. All women suffering gender violence, regardless of their origin, religion or any other personal or social condition or particular, are guaranteed the rights recognised herein.

2. The information, integrated social assistance and legal assistance to gender violence victims envisaged in this chapter shall help give real and effective expression to their constitutional rights to physical and moral integrity, freedom, security and equality and non discrimination on the grounds of sex”. The pillars of this Law are:

1.The rights of women victims of gender violence.

2.Measures for change the patriarchal structures of society.

3.Penal and Judicial measures.

For change the patriarchal structures which becoming the gender violence, the law establish different measures on education, sensitisation, advertising, mass media and healthcare, but two institutions had created a good expectative the Special Government Delegation on Violence against Women and the State Observatory on Violence against Women (articles 29 and 30).

Also the women associations has a important participation in the state council of education and in the Observatory as member of this collegiate organisms.

This Act has different parts:

a)A preliminary Title who define the purpose of the act and guiding principles.

b)Sensitisation, protection and detection measures.

c)Measures in mater of education.

d)Measures in mater of advertising and the communication media.

e)Measures in healthcare

f)The right of female victims of gender violence.

g)The Institutional Protection.

h)Protection under Criminal Law.

i)On Violence against Women Courts

j)Judicial measures of victim protection and security, and The Public Prosecutor for cases of Violence against Women.

Framework Law 1/2004 on integrated measures against gender violence is based on the right of women to live without the threat of male violence wile living with a male partner or after.

Said RIGHT TO LIVE WITHOUT GENDER VIOLENCE is based on the central role of women, the due diligence of the state for prevention, protection, punishment and compensation, as well as, on the restoration of the vital project of the woman who has been the victim of this kind of violence.

The central position of women

If the State has the duty of eradicating gender violence, the starting point for implementing specific measures, should be the priorities and needs of women to prevent or put an end to this type of violence.

Placing women at the centre of the issue makes it easier to identify priorities and changes to be made in the laws in order to restore full citizenship rights to them. To do this, it is necessary to take into account the differentiated manner in which women and men are socialized, the extra value given to masculine activities and the denial of female authority. In addition, the “women at the centre" approach requires taking into account that the measures perpetuate traditional roles or bring men and women closer to genuine equality.

Said comprehensive law applies the above approach in social rights for women victims [9], and penal law establishing specific offences such as threat, harassment and continued abuse by the spouse. The Organic Act 1/2004 has a penal prevision at the articles:

36 Protection against injuri

“The injuries specified in section 1 of the preceding article shall receive a custodial sentence of two to five years depending on the sequels or the risk engendered: (...) 3º If the victims was or had been the wife of the aggressor or shared an analogous affective relationship, with or without cohabitation. (article 148 Penal Code) (...) If the victim was an especially vulnerable person living with the aggressor [10]

37 Protection against abuse

38 Protection against threats.

39 Protection against coercion

The common punishment in the Injury, Abuse, Threats or Coercion Is to aggravate if the victim is o had been the wife o woman partner o former partner of aggressor

This typification is related to the changes which took place in Spanish law, which went from regulating the rights of the husband based on “correcting the wife” [11] and criminalizing “female disobedience” [12] to the absolute prohibition of any type of violence against women.

Threats and harassment of current of former spouses or partners constitutes the turning point beyond which there is no return from an escalation in violence if said actions are not stopped radically and if the infringement of the fundamental rights to freedom and safety is tolerated. It is precisely the margin of tolerance of environmental violence in our society which leads judges to minimise the importance of said violence in court.

All reports involving abuse of minors or the elderly are strongly rejected by society [13], but when a woman files a complaint she infringes a patriarchal rule which continues to be prevalent in our society and which requires her to remain silent and to endure the pain caused by a man’s violent behaviour. Unlike other offences, when a woman reports violent behaviour of her spouse, officials do not give her credibility and choose to believe her male partner instead.

The lack of authority in women is the result of their disempowerment. Borrowing an economic concept, power is held by those who have the ability to mobilise resources of different types and different institutions to reach a specific objective [14]. accordingly, gender relationships prevent women from mobilising resources to achieve equality and non-discrimination amongst institutions such as the market, the church and the legal system.

The alarm caused in certain political and legal circles by the approval of specific criminal offences related to intimidatory violence against women should be no surprise because it is based on the premise that “the husband is the perfect subject of legal proceedings, the potential father, the paradigm of human models which establishes good faith and care for things [15]. This virtual reality permeates all the branches of law and is the source of all resistances to parity laws and to the admission that human beings have sex and that different groups of individuals (the elderly, children, disabled, adolescents, etc.) are made up both by men and women.

A specific sector of the Spanish Legal Doctrine has emphasised the term “wife” or “woman” as a discriminatory element towards men who could also find themselves in the same situation. However, men cannot be in the same situation because any man enjoys the power which institutions have granted him, whereas women continue to be disempowered [16].

Threats and harassment do not become serious because the victim is a woman but because they are the expression of a violent relationship based on the superiority of the man [17]. Threat and harassment are the instruments used by violent men to maintain women in submission.

The constitutionality of said criminal offences has been questioned as they may involve discrimination against men due to the application of greater punishments when the offender is a man [18].

The specific nature of these offences slightly increases the initial sentence from three to six months in prison. This is not an exception in our Penal Code; For Instance, Framework Law 15/03 increases the punishment for threats where armed groups, organisations of terrorists publicly claim the authorship of violent actions (art. 170.2 of the Spanish Penal Code).

The penal code is regarded as the other side of the Constitution because it regulates the consequences of any violation of constitutional rights. Whereas the Constitution establishes the main principles and fundamental rights of individuals, criminal law establishes the actions or omissions which are unacceptable for society and the punishments for any infringement of said fundamental rights. In comparative law we find the example of Sweden. Under the heading “Offences against Freedom and Peace”, section 4.c of the Swedish criminal code establishes an offence such as “Gross Violation of a Woman’s Integrity”, in which the active subject is a man and the passive subject is his wife, former wife, common-law wife or former common-law wife. The experience in Sweden, where this offence has been applied since 1998, regulates and fulfils at least the following functions: the first, aimed at the active subject, makes it clear that violence against women is totally forbidden; the second, aimed at political powers, renders statistics more objective, and finally it allows for a review of judicial action in cases of violence against women. In addition to being an active legal tool, the specific offence of violence against women fulfils an educational function, making it clear that there are no justifications: it is simply forbidden.

Due Diligence

The CEDAW report about violence against women from 1992, the Amnesty International report for 2000 on gender violence, and the report of the special United Nations rapporteur for gender violence [19] from 1996, 1998 and 2003 evidence the need for due diligence by governments for doing away with this form of violence against women.

The action of the judiciary is crucial in all states of law, and the UN rapporteur emphasises the criminal nature of gender violence and the need of applying the law with due diligence, investigating in full depth all infringements of human rights, prosecuting offenders and punishing them according to the positive laws of each country, establishing a compensation for damages and guaranteeing the effectiveness thereof. Said special United Nations rapporteur states that: “23. The principle of due diligence is being recognised at the international level. In accordance with article 4 of the Declaration for the Elimination of Violence Against Women, governments must proceed with due diligence in order to prevent, investigate and punish according to the law all actions of violence against women, carried out by individuals or by the state.”

In article 1, the Spanish Integrated law states that:

2. The present Act establishes integrated protection measures whose goal is to prevent, punish and eradicate this violence and lend assistance to its victims.

The judicature is one of the powers of a state of law with the mission of guaranteeing constitutional rights. Article 9.2 of the Spanish Constitution requires it to remove obstacles which prevent or hinder the full enjoyment of citizenship rights for women; for a better fulfilment of this mission, this law establishes the Court of Violence against Women.

This Court is competent in all of cases who there is gender violence by partner o former partner. In the cases of gender violence, the act establish an special court, which has competences in mater penal an civil

- Protection Order (Restrain Order, Provisional Separation and Social Measures)
- Offence’s investigation
- Misdemeanour Sentence
- Sentence when the offence has a punishment no more than five years of custodial o fine, and the offender consent the punishment proposed for the public prosecutor.
- Measures to suspend the parental authority or legal custody of minors
- Suspension of visiting right
- Procedures of filiations maternity and paternity
- Separation and Divorce
- Custody of minors o maintenance claims by one parent against the other on behalf of minors.
- The contesting of administrative decisions regarding the protection of minors.

The Title V “Judicial Protection” Chapter I “On Violence against Women Court” regulate the structure and civil and penal competences of this court (articles 43 to 60)

The article 44 to indicate the competence of the violence against women courts:

“1. The Violence against Women Courts shall deal with the following cases under criminal law in accordance with the procedures and appeals set out in the Criminal Procedure Act:

a) The investigation of cases involving the crimes listed in the Criminal Code relative to murder, injury, injury to the foetus, crimes against a person’s freedom, against a person’s moral integrity, against a person’s sexual freedom and inviolability, and any other crime involving violence or intimidation, when it is committed against a person who is or has been his wife or shares or has shared an analogous affective relationship, with or without cohabitation, and those committed against his descendents or those of his spouse or cohabiting partner, or against minors or incapacitated persons living with him or under the parental authority, guardianship, custody or foster care of his spouse or cohabiting partner, when an act of gender violence has also occurred.

b) The investigation of cases involving crimes against family rights and duties, when the victim is among the persons specified in a) above.

c)Adoption of the corresponding victim protection orders notwithstanding the competences assigned to the Duty Judge.

d) The hearing and determination of responsibility for offences listed under titles I and II of book III of the Criminal Code, when the victim is among the persons specified under a) above.

2. The Violence against Women Courts shall deal with the following cases under civil law in accordance with the procedures and appeals set out in the Civil Procedure Act:

a)Those of filiations, maternity and paternity.

b)Those of matrimonial annulment, separation and divorce.

c)Those involving parent-child relations.

d)Those whose purpose is the adoption or modification of important measures affecting the family.

e)Those exclusively concerning the guardianship and custody of minors or alimony claims by one parent against the other on behalf of minors.

f)Those concerning obligatory consent in cases of adoption.

g)The contesting of administrative decisions regarding the protection of minors.

3. The Violence against Women Courts will have sole and exclusive powers under civil law when all the following requisites simultaneously obtain:

a)That of being a civil process whose purpose is one of the matters stated in 2 of this article.

b)That one of the parties in the civil process is a victim of acts of gender violence under the terms referred to in 1 a) of the present article.

c)That one of the parties in the civil process stands accused of perpetrating acts of gender violence or aiding or abetting in the same.

d)That criminal proceedingshavebeen brought before the Violence against Women Judge for an act of violence against the woman, or a protection order issued in such respect.

4. When a Judge is confident that the acts presented do not constitute an expression of gender violence, he or she may refuse leave to proceed in respect of the claim, referring it to the competent judicial body.

5. Mediation is prohibited in all the above cases.”

There shall be one o more Violence Against Women Courts in each judicial district, with its seat in the capital of the same and jurisdiction over all its territory.

For the appeals the resolutions to the country courts, one o several of this sections should specialise. the same is the mater of appeals is criminal or civil.

Said courts combine civil and penal juridical mater, in all cases based on violent actions against women by her partner o former partner. This means that, on the one hand, the tendency is to avoid the secondary victimisation derived from the fact that women must repeat their statements at different judiciary levels, and on the other hand, it involves an optimisation of resources because the same juridical operators who intervene in the criminal proceedings will also deal with the civil suit, in full knowledge of the violent actions which have taken place.

It would have been better to establish a special jurisdiction which could be called “Equality Jurisdiction” [20]. if the goal is to find a better and clearer line for judicial action against gender violence (sexual murders, abuse, injuries, gender-based moral harassment, sexual harassment, sexual attack, trafficking of women for sexual exploitation, etc.), a specific jurisdiction can resolve all civil, criminal, and administrative and labour controversies related to violence.

In Spain, at present four jurisdictions intervene in these cases: the civil jurisdiction to resolve the disputes related to Family Law, the criminal jurisdiction to prosecute offences, the labour jurisdiction for dealing with a refusal of the active insertion benefits, and finally, the administrative jurisdiction in the rejection of an independent residence permit for immigrant women victims of gender violence, and women victims who are not given preference for obtaining public housing.

The Spanish law has chosen an intermediate position between the separation of jurisdictions and a specific jurisdiction. In this sense, we can be satisfied for this first step towards a special jurisdiction [21] while making a critical consideration about the regulation of the Courts For Violence against Women:

If there is no specialisation with adequate training, the judges will not have the multidisciplinary knowledge that the subject requires. Training of competent judges must comprise several branches of social sciences so that the future magistrates of the Court of Violence against Women are knowledgeable about the various aspects of gender violence [22].

The Court of Violence against Women should be open permanently; otherwise, it may happen that most of the complaints, initial proceedings and protection measures will take place in the police Court, and this would be contrary to the spirit of the law [23]

Said law also foresees the specialisation of public prosecutors. The appointment by the General State Prosecutor of a special prosecutor for violence against women and the establishment of sections against this form of violence in the Audiencia Nacional (High Court), Court of Justice and Provincial Courts will allow for the specialisation of public prosecutors.

The violence against women section shall be the following functions:

A)Appear in criminal proceedings for acts constituting crimes o misdemeanours whose jurisdiction has been assigned to the violence against women courts.

B) Appear directly in civil proceeding whose jurisdiction has been assigned to the violence against women court.

The law recognize the right to privacy of victims-witness in trial

The article 63 establish the privacy of victim’s data and publicity restrictions.

The privacy of victims shall be protected in all acts and proceedings relating to gender violence; with particular regard to their personal data, those of their descendents and those of any other person under their guardianship or custody.

The competent Judges may decide of their own motion or on the petition of apart to hear the case behind closed doors and that proceedings should not be made public.

Said law requires security forces to control and fulfil the protection orders and other security measures, entrusting to local police (municipal security forces, in cooperation with the national police) the supervision and protection of protected women.

Said law has previsions in protocols of conduct for units of forensic damage’s evaluations of victims gender violence. The Second additional Provision:

“The Government and the Autonomous Communities exercising devolved powers in legal matters shall organise integrated forensic evaluation units within their respective coroner’s services in charge of designing global, integrated protocols of conduct for cases of gender violence”

Restoration of the vital project

Gender violence does not only cause physical injuries and psychological damage to its victims, it also breaks an individual’s vital project.

Before being abused, women went to school and developed abilities which allowed them to entertain expectations about a career, in addition to a personal and social life, with a reasonable probability of successes.

The consequences of violence are far reaching. In October 2002, the World Health Organisation published a “World Report on Violence and Health” stating that the consequences of domestic violence seriously affect the health and welfare of a community. Sharing a household with a violent man damages women to the extent of erasing their self-esteem and social abilities. These women have a high risk of suffering depression, chronic pain, psychological and social ailments, a reduction of up to 10 years in their life expectancy and, in addition, account for 40 percent of suicides.

Gender violence will break any woman’s vital project because it modifies the conditions in which she lives her life. The alterations in the objective environment of the victim and the relationship with the perpetrator extend in time long after the end of a violent episode, depriving women of the affection and satisfaction which allow her to enjoy and give meaning to her life.

Violence against women does not only have serious effects on the health of a woman, it also reduces her autonomy with serious consequences for her professional career. Abuse is not restricted to the home. The harassment of a victim at work includes all kind of behaviour which diminishes her ability to do her work properly. These victims are usually watched, followed and harassed with phone calls or the physical presence of the violent partner, who does not respect either the time or the place of work.

The doctrine of restoration of the vital project is established in sentences dated November 27 1998 and January and 1999 of the InterAmerican Human Rights Court, among others in the Loyaza Tamayo case [24].

Said changes in the conditions of a victim’s life must be repaired, but compensations for material and moral damages are not enough to restore a vital project. For this reason, the Comprehensive Law recognises social rights in the field of health, work and housing.

The article 2, the guiding principles of the law establish that:

“This Act deploys a comprehensive battery of measures in pursuit of the following ends:

a) Strengthen preventive awareness among citizens, providing the public authorities with effective instruments to fulfil this goal in the educational, social services, health, advertising and media spheres.

b) Establish the rights of women suffering gender violence, which shall be enforceable through the public authorities, to ensure them rapid, transparent and effective access to the services provided.

c)Improve the provision of information, care, crisis, support and integrated recovery services at least to the minimum standards required under the objectives of this Act, and establish a system to effectively coordinate existing services at regional and municipal levels.

d)Guarantee employment conditions, in the private and public sectors, which reconcile contractual requirements with the circumstances of workers or civil servants suffering gender violence.

e) Guarantee economic rights for women suffering gender violence in order to facilitate their social integration.

f) Establish a comprehensive system of institutional protection whereby the General State Administration, through the Special Government Delegation on Violence against Women in conjunction with the State Observatory on Violence against Women, promotes public policies designed to offer safeguards to the victims of gender violence.

g) Reinforce the criminal and procedural framework in place to ensure that gender violence victims are accorded full protection by the courts.

h) Coordinate the range of resources and instruments deployed by different public authorities to maximise the prevention of gender violence incidents, and ensure that, when they occur, the authors receive appropriate penalties.

i)Promote the collaboration and involvement of civil entities, associations and organisations engaged in the fight against gender violence.

j) Encourage the specialisation of the professional groups providing information, care and protection to victims.

k) Uphold the principle of across-the-board application, so the specific needs and demands of all women suffering gender violence are taken into account.”

As regards the social rights regulated by the law, the following are most relevant:

a) The right to information (article 18)

1. Female victims of gender violence have the right to receive comprehensive information and advice adapted to their personal circumstances, through the services, agencies and offices provided by the public authorities.

The said information shall include the measures envisaged in this Act for their protection and security, and the rights and assistance provided therein, along with details on the location of care, crisis, support and integrated recovery services.

2.All necessary steps will be taken to ensure disabled women suffering violence full access to information on their rights and the resources at their disposal. Such information shall be provided in a format that is accessible and understandable for people suffering disabilities, such as sign language or other communication modes or options, including alternative or augmentative systems.

3. Likewise, the means shall be put in place so women suffering gender violence whose personal and/or social circumstances may hinder their access to information are assured the effective exercise of this right.

b)The right to free legal counsel and aid in the legal action, for women who justify lack of means for litigating (article 19).

c) The rights of the victim related to work. In this area the law foresees that a working woman can reduce her working timetable, hold in abeyance her labour contract for six months while receiving unemployment benefits or extinguish the Labour contract receiving the same unemployment benefits as a wrongful dismissal (articles 21 to 23)

d)The right of women civil servants victims of gender violence (article 24 to 25).

e)The rights of a woman who works independently o self employed worked, who is forced to suspend her activity due to the violence she suffers; in these cases, she would be exempted from paying social security for six months while retraining all benefits (article 21.5).

f)The right to comprehensive social assistance (article 19).

g)The right to receive economic aids (article 27).

h)Preferential access to public housing and public homes for the elderly (article 28).

In order to access the rights of paragraphs c) d) e) and g), the victim must be in possession of a protection order issued by the judge or a report by the public prosecutor stating that there are indications of gender violence in her home (article 23).

For the first time, women who are victims of gender violence and living in Spain, have a range of recognised social rights which, adequately applied, can achieve an effective end of the violence they suffer.

BY WAY OF CONCLUSION:

The main challenge for the law is its applicability by legal operators, which should yield results in the short term [25].

The women’s associations have been instrumental in making gender violence visible, in providing attention to victims and in evidencing the need of a comprehensive Law against gender violence, as acknowledged by the Preamble of said law.

“Aggressions against women have a particular incidence in the reality of Spain, in that we now have a greater awareness than before about their repercussions, thanks largely to the work of women’s organisations in their fight against all forms of gender violence. They no longer constitute an "invisible crime" but are the object of collective rejection and a clear cause of social alarm”

The comprehensive Law is comparable to a polyhedron in which multiple faces are joined in the common objective of eradicating gender violence. The rights of women who are victims of this violence constitute the backbone of this law. Prevention, school education and awareness raising of the general public together with an adequate control of the image of women given by the media comprises an additional pillar. Other cornerstones of the law are early detection of gender violence through health services.

Finally, the government delegation and the Observatory are the channels for the participation of social organisations, particularly women’s associations, for promoting and supervising the measures set forth by the law.

Prevention is focused on education on equality and on peaceful resolution of conflicts in all areas of personal, family and social life. It is obvious that two factors come to bear on violence against women: the imbalance of power between both genders and the differences in physical strength. Education in peaceful resolution of conflicts teaches abilities based on negotiation instead of imposition. The future generations will be able to receive this education at an early stage.

Another highly positive aspect is that the measures foreseen by the law shall be reviewed three years after the law becomes valid by the government jointly with the autonomous communities. Their report shall be discussed in Parliament. This evaluation will surely optimise the allocation of resources and will also ensure democratic plurality and the participation of regional administrations.

Women’s organisations are actively legitimated to initiate lawsuits against sexist advertising and will be members of the National Education Council and the National Observatory for Gender Violence, having in the latter full voting and speaking rights.

Even though the law is a magnificent legal tool which will probably allow abused women to enjoy greater autonomy and freedom, the approval of the law does not signify an imminent end of the murders of women, but it will be a good juridical tool for women to put a safe end to violence in their homes.

The development of this law requires the commitment of the state, the autonomous communities and the municipal authorities, with adequate budgetary allocations.

The applicability of the Law will depend on how the agents in charge of eradicating violence assume it, on trade unions taking in into account in their collective bargaining, on hospitals and primary health care centres being aware of its contents, on education councils remembering the need of applying the guidelines that this law set forth regarding education, that juridical operator interpret without prejudices based in gender rules, and on women association promoting the law until the extreme inequality which sustains gender violence redressed.

Maria Duran Febrer mdfebrer@jet.es

Strasbourg 17 March 2005

Notas

[1] In December 1993, a draft resolution was presented to the National Congress of Women Lawyers for setting up a committee for drafting a comprehensive law on violence against women which should include civil, criminal and administrative measures.

[2] by example: Easy and free access to Information which provides qualitative sources of help as well as delineates the steps that need to be taken to get out of a violent relationship at an early stage, to enable them to protect themselves and their children (clearing house). The quality of the information must be ensured through specialised, women-oriented continuing education which covers both psycho-social as well as legal aspects. Male violence against women demands an immediate and unequivocal societal reaction The protection of women and children has highest priority. Each response must make it clear that male violence does not meet with societal approval. Every procedure and each step thereof must, in our estimation, be oriented toward the human dignity and the integrity of women and children experiencing violence. Hence procedural instruments:
- Must provide protection against continued violence, whereby it must be assumed that violent acts will be repeated,
- Must be geared to maintaining an unequivocal, not ingratiating attitude toward violence,
- Must express societal respect and appreciation for women; this precludes paternalistic care-giving as well as patronising procedures" class=’spip_out’ rel=’external’>www.ewla.org].

The Spanish women associations was fighting to get the name of Law was “Integrated Law Against the Gender Violence”, because the term “domestic violence” wasn’t enough. The wishes of the associations was a law for violence against women, no against family, in Spain there was a enough legislation for protect the family.

The term "gender violence" is used to define the violence men use to maintain women in subordination. This violence takes different forms, such as abuse in close relationships, gender-based moral harassment and sexual harassment in the workplace, as well and sexual aggression in the social context.

At first sight, it may seem that “gender violence" and "domestic violence" are equivalent terms, because in the domestic domain women are by far the main recipients of violence. However, there are essential differences, because legal protection for domestic violence victims arises from protection for the family, the term “gender violence” considers women as citizens on a par with their male counterparts, and emphasises the democratic shortcoming implicit in the fact, that the state does not guarantee women the full enjoyment of the fundamental right to life, freedom, equality and safety.

Men’s control of women’s bodies, their authority in the private domain and the denial of any authority for women, evidence a democratic deficit, substantiated in the obstacles that women continue to encounter in the enjoyment of their citizenship, which is derived from the recognition of their fundamental right to equality and non-discrimination.

The "gender violence" concept has encountered resistance in its inclusion in statute law due to the abstract and apparently neutral concept of the subject of law. Laws have been passed addressing domestic violence but until now we didn’t have in Spain a national law[[The Autonomous Communities of Castilla la Mancha, Navarra, Canary islands and Cantabria have laws for the protection of abused women or gender-based violence victims.

[3] Even though women are clearly the main victims of domestic violence, to date the legislator does not recognise her as the only victim and includes a range of relatives or cohabitants of the perpetrator (art. 153 and 173.2 of the Spanish Criminal Code).

[4] In 1992, CEDAW made a recommendation recognising gender violence as a fundamental violation of human rights and requesting governments to implement preventive and educational policies on the roles and unequal position of women and men.

[5] Article I-3)

[6] The declaration appended to the Final Document No. 13, referred to art. 116, states that “the Union shall endeavour in its policies to fight domestica violence in all its forms. It is necessary that member states adopt all measures for preventing and punishing these crimes and providing support and protection to victims”.

[7] "CONVENCION DE BELEN DO PARA". This convention has not been ratified by the United States or Canada.

[8] Jurisprudence of the American Human Rights Court has established the doctrine of due diligence in the Velásquez Rodríguez case dated July 29, 1988 and the definition of damages to individual life projects in the Loyaza Tamayo case dated January 10, 1999.

[9] See its in “Restorations of the vital project”

[10] the inclusion of particularly vulnerable individuals in criminal offences has a criticism at feminist point of view.. The consensus of Parliament in the approval of the draft law has required the introduction of some points which may disperse the attention on gender violence, such as other passive subject of domestic violence which would be better treated in the Minors Protection Law. It wasn’t a prevision when the Spanish Government presented the proposal at Parliament, but it was a need condition for a quorum in the vote.

[11] Until 1975

[12] Until 1999 it isn’t definitively out the Spanish Legislation.

[13] Research by the Themis Association of Jurist Women, “Family Violence in the Judiciary Domain” which analyses 1,443 cases in Castilla la Mancha between 1999 and 2000 evidences that 94% of attacks against parents and 81% of attacks against children are carried out by men.

[14] Mujeres y Economía, Cristina Carrasco (Ed) Icaria 1999, Idoye Zabala page 358

[15] Juridical analysis of violence against women. IAM Updated edition 2004. Ana Rubio Castro, page 42

[16] If we take a look at daily life, we can see how women are paid 30 percent less than men for work of the same value and the absence of reconciliation between family and work. The United Nations has declared that women account for 70 percent of all poor people in the world.

[17] Report by Miguel Lorente Acosta on the framework law draft project for comprehensive protection measures against gender violence.

[18] María Luisa Balaguer, Professor of Constitutional Law, expresses her “surprise at the attempts to disqualify the draft law against gender violence utilising legal arguments instead of political, social or even medical arguments, on the grounds that equality is equal treatment by lawmakers for the same actions. This statement ignores the jurisprudence of the Constitutional Court which has admitted compensatory inequality as the best way to achieve true equality in a society which (and here I use my own words) has subjected women to invisibility, margination, historical nonexistence, and accordingly to the domination”. Compensatory inequality and the rights to equality. See http://www.redfeminista.org.

[19] Radica Comwaraswamy

[20] In the same way as the labour jurisdiction was established.

[21] Before October 2005 directive 2002 will be transposed, involving the inclusion in the Spanish legal system of the new figures which prohibit gender-based moral harassment or sexual harassment.

[22] The Government, the General Council of the Judiciary and the Autonomous Communities , shall ensure training courses for judges and magistrates, prosecutors, court clerks, including specific training on gender equality, non discriminations for reasons of sex, and issues of gender violence. Such training shall in all cases focus on the vulnerability of the victims (article 47).

[23] The 8th Latin American Congress of Constitutional Law, held on December 4, 2003 in Seville, discussed the experience of law 1887 in Costa Rica, which 10 years ago established special Courts against domestic violence which are permanently open. According to Rubén Hernández, Professor of Costa Rica Constitutional Law, domestic violence has been reduced between 30 and 40 percent. www.redfeminista.org

[24] The InterAmerican Human Rights Court states that: 147. In what concerns claims for damages to the vital project, it should be said that this concept has been analysed by recent doctrine and jurisprudence. It is different to “emerging damages” and “loss of benefits”. It certainly does not correspond to the immediate and direct loss of income as is the case of “emerging damages”. In what concerns loss of benefits, we must point out that while this refers exclusively to the loss of future income, which can be quantified on the basis of specific and objective indicators, the “vital project” comprises the comprehensive fulfilment of the subject, considering her vocation, abilities, circumstances, potential and aspirations allowing her to establish reasonable expectations within her reach. 148. The "vital project " is linked to the concept of personal realisation, which in turn is based on the options that the subject may have to lead her life and attain the objectives she has set herself. In fact, the options are the expression and guarantee of freedom. It can hardly be said that a person is truly free if she lacks options to direct her existence towards its natural combination. In themselves, these options have a high existential value. Accordingly, their annullment or reduction involves an objective lessening of her freedom and the loss of a value which cannot be ignored by this Court .

[25] Ana Rubio Castro says that “the force with which a law is applied depends on the way in which it is accepted by those who have to apply it and on whether the users consider it a guide for action”. Legal analysis of violence against women, guide for juridical operators. IAM (2003) page 15.



2005-07


Otros textos

Temas :
Violencia
Feminismo
Violencia contra las mujeres :
Legislación

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