THE UNIVERSITY OF HULL

SPAIN GENDER EQUALITY AND VIOLENCELAWS AND THEIR COMPLIANCE WITHEUROPEAN CONVENTION ON HUMAN

RIGHTS; A CASE OF AFFIRMATIVE ACTIONAGAINST MEN

being a Dissertation submitted in partial fulfillment ofthe requirements for the Degree of Master of Laws –LLM

in the University of Hull

by

Anthony Joseph O. Onoh

SEPTEMBER, 2014

Acknowledgement:

I give glory to God Almighty for the grace to achieve thisheight. I am forever grateful to my wife and children fortheir enduring patience and support. Many thanks to mysupervisor who saw and squeezed out those potential in

me that enabled the successful completion of this work.

ContentsAbstract...............................................................................................................2

Chapter One: Introduction..........................................................................................2

1.1. Aims and Scope: Thesis Statement.......................................................................6

1.2. Research Objectives..........................................................................................7

1.3. Methodology...................................................................................................7

1.4. Thesis Structure...............................................................................................8

Chapter Two: European Convention on Human Rights and the European Court Doctrines on Affirmative Action............................................................9

2.1. Introduction.................................................................................................9

2.2. Principle of Equality: Articles 14 and Article 1 of Protocol No. 12 of the Convention. . .12

2.3. The State’s Positive and Negative Obligations under the European Convention on Human Rights.........................................................................................................14

2.4. ECtHR Interpretative Mechanisms: The Principle of Proportionality and the Margin of Appreciation Doctrine..............................................................................................16

2.5. Summary Conclusion I....................................................................................18

Chapter Three: Spain’s Gender Violence and Equality Laws............................................19

3.1 Introduction.......................................................................................................19

3.2. Criminal Measures to Protect Women from Domestic Abuse/Violence (Special Court, Procedural Matters).................................................................................................23

3.3. Police Arrest and Detention of Suspects (“Habeas Corpus”, Article 17(1) of the Spanish Constitution) and Unequal Treatment in the Commission of Similar Crimes (Articles 617(1) v. 153 of the Criminal Code).........................................................................................25

3.4. Fast Track or Summary Trials (Act 27/2003 of July).............................................31

3.5. Burden of Proof (Presumption of Guilt/Article 13 of the Organic Law on Equality). . . .33

3.6. False Accusations and State Measures Against It..................................................40

Chapter Four: Family Law (International Law Prerogative on the Right toFamily life).........................................................................................................44

4.1 Introduction................................................................................................44

4.2. Separation, Divorce and Child Custody................................................48

4.3. Summary Conclusion II:...........................................................................52

Chapter Five: Gender Equality and Utilitarian Factors in Civil Society (Dynamism or Lethargy).................................................................................53

5.1. Introduction...............................................................................................53

6.1. Parity in the Government: Article 16 of Law 3/2007..........................56

6.2. Consequences: Lethargy?.......................................................................59

Chapter Seven..................................................................................................61

7.1. Conclusion................................................................................................61

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7.2. Recommendations....................................................................................65

Bibliography:.....................................................................................................66

Abstract Human rights protection is the backbone of equality and freedom.

Consequently, it requires mechanisms for protection that create a balance

between the different parties and interests in society. This balance is often

developed within the scope of domestic law provision on

affirmative/positive action, which discriminates yet does not generate an

imbalance in equality or violate human rights. In consequence, when a

state’s affirmative action policy produces paradoxical results that

discriminate against one interest or party to empower another, the policy

creates a situation of illegality that disturbs other ambits of human rights

protection regimes. Hence, this research was undertaken to examine the

compliance of Spanish domestic legislation that regulates equal rights and

protection for women against domestic violence with the standards of

human rights protection and freedom set in the European Convention on

Human Rights.

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Chapter One: Introduction Spain’s efforts to act in response to demands from international organisations1 for measures

that protect women from gender-based abuses has led to the adoption of a series of ground-

breaking laws2. The application of these laws and measures has, however, not only come to

be pioneering, but also controversial and expressly discriminatory against men. Hence, the

constitutionality and legality of these laws and measures have been contentious ab initio in

Spain’s Constitutional Court, which delivered a narrowly split judgment in favour of the laws

that are widely known as “positive discrimination”.3 Even so, the extent to which these laws

are admissible under the European Convention of Human Rights (hereinafter referred to as

the Convention or ECHR) which, in its provisions,4 prohibits all forms of discrimination,

remains a subject for legal discourse. Conversely, the international Human Rights Committee

1 See Articles 2 and 3 of Recommendation Rec(2002)5 of the Council of Europe Committee of Ministers to Member States on the protection of women against violence (adopted by the Committee of Ministers on 30 April 2002 at the 94th meeting of the Ministers’ Deputies); see also the United Nations Declaration on the Elimination of Violence against Women (1993), The United Nations Convention on the Elimination of All Forms of Discrimination against Women (1979); see also the Platform for Action adopted at the Fourth World Conference on Women (Beijing, 1995) and the Resolution on Further actions and initiatives toimplement the Beijing Declaration and Platform for Action adopted by the United Nations General Assembly (23rd extraordinary session, New York, 5-9 June 2000); see also the Preamble of the Convention on the Elimination of All Forms of Discrimination against Women, 1979 (CEDAW).

2 Spanish Organic Law 1/2004 of 28 December on Integrated Protection Measures against Gender Violence, published in BOE [State Official Gazette] No. 313 of 29 December, 2004 (Hereinafter referred to as Law 1/2004); Organic Law 3/2007 of 22 March for effective equality between women and men, published in BOE [State Official Gazette] No. 71 of 23 March, 2007.

3 See paragraph 12 of Spain’s Constitutional Court Judgment 59/2008, of 14 May 2008, published in BOE [State Official Gazette] No. 135 of 4 June 2008.

4 See See Article 14 of The European Convention on Human Rights, Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4.XI.1950,Available at: http://www.echr.coe.int/Documents/Convention_ENG.pdf, accessed on 26/08/2014; see also the expansion of the guarantee of equality in Article 1 ofProtocol No 12 of the European Convention on Human Rights.

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suggests that “The enjoyment of rights and freedoms on an equal footing, however, does not

mean identical treatment in every instance”5 and granted leave for “states to take affirmative

action in order to diminish or eliminate conditions which cause or help to perpetuate

discrimination prohibited by the Covenant”.6 In light of the complexity in defining equality,

affirmative action can be subject to interpretation. Consequently, the European Court of

Human Rights (ECtHR)7 has mechanisms for determining whether a law meets the standard

of the Convention provisions on the protection of human rights. These interpretative

mechanisms are embedded within the doctrines of proportionality and consensus.

In recent years, men have benefited from no significant ideological transformation or specific

legal recognition under international law. Hence, there is no supportive system derived from

being members of a “particular social group”8 in global society. Consequently, the

dissemination of a strong feminist ideological position has led to its absorption by an

established international legal regime that confers numerous rights on women. Perhaps the

feminist ideological approach, which presents “the structure of oppression [of women under

a] patriarchal society”9 where women are abused and considered merely as domestic workers

5 See paragraph 8 of the Human Rights Committee, General Comment 18, Non-discrimination (37th session, 1989), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.1 at 26 (1994).

6 ibid, paragraph 10.

7 European Court on Human Rights (hereinafter referred to as the ECtHR or the Court).

8 See, The International Covenant on Civil and Political Rights (ICCPR), 1966, Available at: http://www.ohchr.org/Documents/ProfessionalInterest/ccpr.pdf, accessed on 26/08/2014 (ICCPR); the Convention on the Elimination of All Forms of Discrimination against Women, 1979 (CEDAW); and Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577, p. 03.

9 Jillah R Eisenstein, Capitalist Patriarchy and the Case for Socialist Feminism, 1979, Monthly Review Press, p. 05.

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and subordinates in the family, has influenced the decline of the protection of men’s rights

under domestic and international law. The underpinning question is whether the development

of women’s protection to women’s empowerment has overturned the intended result of

Article 110 of the interpretation of discrimination from the Convention on the Elimination of

All forms of Discrimination against Women (CEDAW). Noticeably, Spain has witnessed a

polarising of society due to the unravelling of procedural rules in the application of these

laws, which have dramatically raised concerns regarding a new form of discrimination. This

raises questions as to whether these gender protection laws are in breach of the state’s

“negative obligation”11 relating to the protection of men’s rights and freedom under the

ECHR. Inconsistencies over the use of such gender inequality laws to combat discrimination

and the expansion of these measures into criminal law present doubts about their

compatibility with the ECHR. It is also important to note that gender violence law has been

absorbed by three domestic regulations.12 These include criminal, civil and family law with

the establishment of a special court that confers powers on a magistrate to decide on all cases

that originate from a complaint over domestic abuse: specifically of a woman.13 In view of

10 Article 1 of the Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, United Nations, Treaty Series, vol. 1249, p. 13, (CEDAW).

11 Ibid, no. 04, Article 1 of the European Convention on Human Rights; see also paragraph 24 of Article 1, Protocol 12 of the ECHR Explanatory Report: “The prime objective of Article 1 is to embody a negative obligation for the parties, theobligation not to discriminate against individuals”.

12 See Titles III, IV and V of the Spanish Organic Law 1/2004 of 28 December on Integrated Protection Measures against Gender Violence, published in BOE [StateOfficial Gazette] no. 313 of 29 December, 2004.

13 See paragraph 5, Title V of the Organic Law 1/2004 of 28 December on Integrated Protection Measures against Gender Violence, published in BOE [StateOfficial Gazette] No. 313: “The formula chosen is one of the specialisation in the criminal system of Investigating Judges, with the creation of specific Violence against Women Courts, rather than creating a new jurisdictional system or assigning criminal law competences to Civil Court Judges. These new Courts will examine and, where appropriate, rule on criminal cases involving violence

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the foregoing, there is evident malaise regarding these processes conferring benefits

exclusively on women. It also raises questions relating to where the limitations of affirmative

action end.

Ergo, this researcher takes the position that the practical exercise of Spain’s gender equality

and violence laws constitutes a prime example of discrimination and is, therefore,

inconsistent with the provisions of the ECHR with regard to the protection of human rights

and freedoms. In 2004, the Spanish parliament enacted these laws, which continue to

generate controversy due to the abusive nature of the laws themselves and the evident

exclusion of men from protection under these regulations. These are manifest in Spain’s

official statistical data, which confirm the fragmentation of society as a result of the abusive

nature of the implementation of these laws. This is evident from the number of men who have

lost their paternal rights, grandparents (mostly from the father’s side) who have no

relationship with their grandchildren, uncles and aunts who cannot enjoy family life with

their nieces and nephews and, of course, children who are deprived of their right to family

life as a result of the abusive application of these gender laws in family law relating to

separation and divorce. All these measures are to the detriment of men, as the laws specify

that women are the sole beneficiaries14 of protection. It is these incongruities that this study

seeks to understand and explain.

In the light of the continued unfolding of discrimination against men brought about by the

enactment of affirmative action to protect women’s rights through Spain’s Law on Gender

against women, as well as any related civil cases, such that both are dealt with inthe first instance before the same bench”.

14 ibid, no. 13, Article 1 of Law 1/2004: “The purpose of this Act is to combat theviolence 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”.

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Violence and the Equality Law, the imbalance in criminal responsibility between men and

women for similar offences and the abusive application of family law, it is unclear as to

whether, under the ECHR, this constitutes a proportionate measure or a breach of the state’s

negative duty to protect the rights and freedom of men. The obvious inference is that there

exist gaps in the law which produce abusive results in relation to men’s rights and freedom.

In other words, there are elements of discrimination against men which have been laid bare in

the procedural application of the laws. Conversely, the lack of clarity in the definition of what

constitutes inequality and the limitations of affirmative action further suggest that state-

approved measures to protect women from “all kinds of violence” which, according to the

Spanish Constitutional Court, “do not lead to disproportionate consequences”,15 are in

compliance with ECHR provisions.

This study will, therefore, focus on uncovering those gaps in the practical implementation of

these laws, which show nonconformity with ECHR provisions.

1.1. Aims and Scope: Thesis Statement

This research examines the compliance of Spain’s controversial Law on Gender Violence and

its Equality Law with the principles of human rights protections for all under the European

Convention on Human Rights. Although this thesis is concerned with the comparative and

analytical examination of Spanish domestic laws along with the regional human rights

regime, it inevitably addresses the issue of affirmative action and men’s rights in Spain and

Europe. It is an academic study of international human rights law wherein the principle of

equality and non-discrimination under the ECHR and the limitations of affirmative action in

15 Plenary Judgment 59/2008, of the Spanish Constitutional Court of 14 May 2008, published in BOE [State Official Gazette] No. 135 of June 4, 2008, para 12 of the Judgment.

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addressing the problem of inequality will also constitute an integral part. Given evidence of

social malaise among men as a result of these laws in Spain, the absence of any challenge of

their legality before the European Court of Human Rights (ECtHR) gives relevance to this

study.

1.2. Research Objectives

The objectives of this research include identifying gaps in the procedural and substantive

nature of Spain’s gender violence laws that conflict with the ECHR, determining the legal

constraints or consequences in adopting affirmative action juxtaposed with the principle of

equality, and examining the disproportionate effect of these laws on the rights of Spanish men

and their impact on fostering lethargy rather than dynamism in Spanish society.

Ultimately, the study holds out the hope that pursuing these objectives will shed light on the

compliance of Spain’s Law on Gender Violence and Equality Law with the European

Convention on Human Rights, or, alternatively, lead to an understanding of the reason(s) for

the existence of considerable discontent among Spanish men in relation to these laws.

1.3. Methodology

For the purpose of achieving an objective study outcome, a comparative analysis research

method will be used in the interpretation of legislations, ECtHR case laws, Spanish

jurisprudence and other international human rights law doctrines. A range of primary source

materials such as international conventions and human rights protection regimes, the Spanish

gender violence and equality laws – including criminal, civil and family law – will be used to

examine the thesis question. A comparative method is necessary in this study because it is “a

branch of legal science whose object it is to bring about systematically the establishment of

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closer relations between the legal institutions of the different countries”.16 In this case, the

comparative17 analysis is between Spain’s domestic legislation and an international regime for

the protection of human rights, freedom and equality. Hence, this comparative methodology

will help to “stimulate awareness of the cultural and social characters of the [Spanish and

ECHR] law”.18 Some empirical evidence obtained from the Spanish Judicial Commission will

be used to explain the complexity of guaranteeing equality under affirmative action. A limited

number of secondary materials such as academic books and journals will be used to produce

evidence of support for and/or opposition to these laws. It is intended that this methodology

will produce a piece of “legal research [that is] descriptive and exploratory”,19 with analysis

and content that are consistent with the aims and objectives of this study.

1.4. Thesis Structure

Following the introductory chapter, the dissertation will be structured as follows:

Chapter two presents an overview of ECHR and ECtHR legal doctrine and jurisprudence

regarding human rights and affirmative action, including its limitations under states’

obligation to protect. This chapter will also examine the ECtHR assessment mechanisms and

interpretative methods on cases of alleged state violation of ECHR provisions. Chapter three

presents an exhaustive examination of the Spain gender violence laws, identifying the gaps

16 Harold Cooke Gutteridge, Comparative Law: an introduction to the comparative method of legal study and research, 2012, Cambridge University Press, p. 03.

17 See “External comparative law I (homogeneous)” explained by Sebastian McEvoy, Descriptive and Purposive Categories of Comparative Law, published in Methods of Comparative Law, P.G. Monateri (ed.), 2012, Edward Elgar Publishing, p. 146.

18 David Maxwell Walker, The Scottish Legal System: An Introduction to the Study of Scots Law (5th edn), Revised 1981, W Green and Son Ltd, p.23.

19 Mike McConville and Hong Chui Wing (eds), Research Methods for Law, 2007, Edinburgh University Press, p. 19.

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between the substantive and procedural nature of the law as compared to ECHR doctrines in

subsequent areas of protection. Chapter four examines the adaptation of civil and family law

to the measures of protection against domestic violence and its legality under ECHR

provision for the protection of rights and freedoms. Subsequently, chapter five presents an

evaluation of the gender equality law, the utilitarian effect as expressed by lawmakers and the

relation with the ECHR. Herein the utility and consequences of affirmative measures are

analysed in line with the theoretical approach of John Stuart Mill’s utilitarianism. Finally,

chapter six provides an overall conclusion of the research findings.

Chapter Two: European Convention on Human Rights and the European Court Doctrines on Affirmative Action

2.1. IntroductionThe ECHR places responsibility on states to protect the rights and

freedoms mentioned therein and concedes to them the necessary “margin

of appreciation”20 in order to regulate the system of human rights

protection and freedoms in European society. Nonetheless, this obligation

and concession do not denote a prerogative for the promulgation of

measures contrary to the Convention. Scholars state that, “human rights have

a logic of their own [which] stems from the fact that they have originated in domestic

constitutional documents before becoming part of the corpus of international law”,21 hence

states’ institutional responsibility to protect human rights and uphold the treaty. For this

reason, the ECHR grants “supervisory”22 powers to the ECtHR, to ensure

the compliance of state laws with the standard of protection of rights and

20 ibid, no. 04, Article 1 of Protocol No 15.

21 Oliver de Schutter, International Human Rights; Cases, Materials, Commentary, 2010, Cambridge University Press, p. 11

22 ibid, no. 04, Article 1 of Protocol No. 15; See also Article 19(2).

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freedoms under the Convention. Thus, the ECtHR, under the Council of

Europe, receives pre-eminence under the treaty as the last instance for

effective judicial remedy to individual claims against states for human

rights violation.23 In the exercise of this duty, the ECtHR has, through the

evaluation of individual claims of violation and judgments thereto,

affected changes in state legislation which are divergent to the meaning

of the ECHR.24 In effect, the Court has established various mechanisms for

the assessment and interpretation of individual claims of state violations.

These violations are essentially derived from a state’s failure in

guaranteeing its “positive and negative obligation”25 under the ECHR to its

citizens.

Put concisely, a state’s positive and negative duty to guarantee individual

protection within the right to non-discrimination, as circumscribed by the

research objectives, involves a close examination of the ECHR and ECtHR

position on affirmative action. Article 14 of the ECHR guarantees equality

and the ECtHR has manifestly ensured the protection of this right. In

addition, Protocol No. 12 of the ECHR further expands the meaning of

Article 14 to extend the principle of non-discrimination to “any right set

23 ibid, no. 04, Articles 19 and 35 of the ECHR

24 See Tyrer v. the United Kingdom, App no. 5856/72, (ECtHR, April 25, 1978), paragraph 31 of the judgment: “the Convention is a living instrument which, as the Commission rightly stressed, must be interpreted in the light of present-day conditions”; See also, Dudgeon v. the United Kingdom, App no. 7525/76, (ECtHR, October 22, 1981), paragraph 60, see also Mamatkulov and Askarov v. Turkey, App no. 46827/99, (ECtHR, February 04, 2005), paragraph 121.

25 Ibid, no. 04, Article 1 and Article 1 of Protocol No. 12; see also paragraph 24 of Article 1, Protocol No. 12 of the ECHR Explanatory Report: “The prime objective of Article 1 is to embody a negative obligation for the parties, the obligation not to discriminate against individuals”.

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forth by law [unlimited to the] Convention rights”.26 Essentially, this has a

bearing on the state’s negative obligation to protect against

discrimination, even under affirmative action. The discretion to apply

affirmative action for the purpose of promoting equality between men and

women is accommodated in General Comment No. 18 of the International

Covenant on Civil and Political Rights (ICCPR). Protocol No. 12 of the ECHR,

therefore, allows the ECtHR to search beyond the Convention in

expressing its doctrinal position on progressive judgments. Hence, the

ECtHR states in its case law that “the Convention is a living instrument

which, as the Commission rightly stressed, must be interpreted in the light

of present-day conditions”.27 As a consequence, the Court is disposed to

listen to arguments in favour of affirmative action without deviating from

its core duty to protect every right and freedom mentioned in the

Convention. In view of this, the ECtHR manifests in numerous decisions

that it seeks to deliver rights that are “practical and effective, not

theoretical and illusory”,28 hence the principle of subsidiarity that compels

the Court to strike a “fair balance [between competing interests] and state

margin of appreciation”29 in examining individual applications for claims

26 ibid, no. 04, Article 1 of Protocol No. 12.

27 Ibid, no. 24, paragraph 31 of the judgment; it has also been repeated on countless occasions, from Dudgeon v. the United Kingdom (1981), paragraph 60, to Mamatkulov and Askarov v. Turkey (2005), paragraph 121.

28 See Stafford v. the United Kingdom, App no. 46295199, (ECtHR, May 28, 2002), paragraph 68; see also, Sitaropoulos & Giakoumopoulos v. Greece, App no. 42202/07, (ECtHR, March 15, 2012), paragraph 65; Konstantin Markin v. Russia, App no. 30078/06, (ECtHR, March 22, 2012), paragraph 126.

29 See Evans v. the United Kingdom, App no. 6339/05, (ECtHR, April 10, 2007), paragraph 12 of the dissenting opinion.

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against state violation of rights and freedoms. Consequently, its30

interpretative and assessment mechanisms have been used to ensure

that measures adopted by states for the purpose of guaranteeing, for

instance, equality are not disproportionate and do not undermine the

principle of non-discrimination.

Conversely, critics state that the ECtHR is convinced of or satisfied by a

claim of state discrimination only by the evidentiary existence of “very

weighty reasons”.31 The Court’s decisions on affirmative action vary,

therefore, on the basis of individual situations and factual evidence.

However, the Court’s jurisprudence reveals consistency in the observation

of its interpretative and assessment mechanisms. In D.H. and Others v.

the Czech Republic, where an affirmative action for the “placement of

Roma gypsy children in special schools [was considered] a violation” of

their Article 14 rights, the Court noted that “the relevant legislation as

applied at the material time had had a disproportionately prejudicial effect

on the Roma community”.32 In light of this Court’s reasoning, one could

surmise that the proportionate effect of an affirmative action does not

automatically constitute a breach of ECHR provision against

discrimination. Several of these measures will, therefore, be examined in

the course of this work in order to gain an overview of the Court’s

30 The European Court on Human Rights (ECtHR).

31 Arnardottir, Equality and Non-Discrimination under the European Convention on Human Rights (The Hague: Kluwer, 2002), pp. 141-154.

32 See D.H. and Others v. the Czech Republic, App no. 57325/00 (ECtHR, November 13, 2007) [GC], paragraph 209 of the judgment.

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potential interpretation regarding the conformity of the Spain gender laws

with the ECHR.

2.2. Principle of Equality: Articles 14 and Article 1 of Protocol No. 12 of the

Convention

An integral part of a consideration of human rights stems from the core

principle of “equality, dignity and respect between and for individuals”.33

ECHR provision has established this position in Article 14, which has been

further strengthened by Article 1 of Protocol No. 12 of the Convention. The

utilitarian concept of egalitarianism has generated divergent expression in

forms and theories.34 Hence the various movements, actions, rules or

regulations taken in the ambit of international law for the purpose of

preventing gender-based discrimination and promoting gender equality

are directed exclusively to empowering women and promoting actions

prejudicial to men.35 Against this background are conflicts stemming from

various competing interests in the protection against discrimination and

the divergent definitions of equality under international law which sets

limited or broader protection against discrimination. For instance, CEDAW

33 Preamble of the International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171

34 ibid, no. 31, p. 31; See also Fredman’s four distinctive aims of utilitarian equality: “break the cycle of disadvantage”, promote equal dignity, “entail positive affirmation and celebration of identity within community”, and promote participation: Sandra Fredman, "Providing Equality: Substantive equality and the positive duty to provide resources" (2005) 21 (2) South African Journal on HumanRights 163, 167.

35 ibid, no. 01; See also, Council Directive 2004/113/EC of 13 December 2004; and Regulation 606/13/EU on the Mutual Recognition of Civil Law Protection Measures adopted in June 2013 supplements Directive 2011/99/EU of 13 December 2011 on the European Protection Order.

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demands state-led action for specific protection,36 the Universal

Declaration of Human Rights (UDHR) states several grounds for non-

discrimination,37 the ICCPR and International Covenant on Economic,

Social and Cultural Rights (ICESCR) articulate similar grounds of protection

as the UDHR, and Protocol No. 12 institutes a system of protection against

inequality which stretches beyond the ECHR. Chapter six discusses in

detail the utilitarian construal of equality, using the philosophical precepts

of John Stuart Mill.

As a regional instrument for ensuring the protection of rights and freedoms in Europe, the

ECHR and ECtHR have embarked on deliberation to contain the excesses of many states in

the application of affirmative action and define standards for non-discrimination in different

sectors of European life. For this reason, for instance, European Union Council Directive

2000/78/EC, which regulates the scope of equal treatment in the workplace, also establishes

state responsibility in the event that such discrimination exists.38 In view of the apparent

conflict in regulating non-discrimination, there exists an acknowledgement of the excesses of

affirmative action which could possibly lead to the creation of a new form of discrimination.

The ECtHR, for instance, states that “not every difference in treatment amounts to

discrimination”.39 In the Abdulaziz, Cabales and Balkandali v. the United Kingdom judgment,

36 ibid, no. 10, Article 2(e) of CEDAW

37 Article 2 of the Universal Declaration of Human Rights, 10 December 1948, United Nations, 217 A (III), (UDHR)

38 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, Official Journal L 303, 02/12/2000 pp. 0016-0022: “when there is a prima facie case of discrimination the burden of proof shifts to the state”.

39 Explanatory Report on Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 177, paragraph 18; see also Abdulaziz, Cabales and Balkandali v. the United Kingdom, App No. 9214/80,

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the ECtHR proceeded to outline assessment and interpretative mechanisms for discrimination

and expressed the importance of “objective and reasonable justification [of an affirmative

action], the legitimacy of aim in pursuit and proportionate measures that adapt the means

employed with the set goals of the law or action”40 for states to satisfy the Court’s standard

for justification regarding affirmative action.

2.3. The State’s Positive and Negative Obligations under the European Convention

on Human Rights

The ECHR is a treaty between states that is protected under the sanctity

of contract as enshrined in “Pacta sunt servanda”, Article 2641 of the

Vienna Convention on the Law of Treaties (VCLT). Hence, Article 1 of the

ECHR and Article 1 of Protocol No. 12 of the ECHR express states’

commitment to guaranteeing the rights of their citizens protected under

the Convention. These commitments entail positive and negative duties

to protect human rights and freedom. In order to understand the essence

of the discussion on state obligation in this study, it is important to

examine a theoretical approach to the measure for individual rights under

a state’s positive and negative obligations. One theorist, John Finnis,

states that:

We may safely speak of rights wherever a basic principle orrequirement of practical reasonableness, or a rule derived therefrom,gives to A, and to each and every other member of a class to which Abelongs, the benefit of (i) a positive or negative requirement

9473/81, 9474/81, (ECtHR, May 28, 1985).

40 Abdulaziz, Cabales and Balkandali v. the United Kingdom, App No. 9214/80, 9473/81, 9474/81, (ECtHR, May 28, 1985), paragraph 72 of the judgement.

41 Article 26 of the Vienna Convention on the Law of Treaties (VCLT), 23 May 1969, United Nations, Treaty Series, vol. 1155, p. 331.

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(obligation) imposed upon B (including, inter alia, any requirement notto interfere with A’s activity or with A’s enjoyment of some other formof good or of (ii) the ability to bring it about that B is subject to such arequirement, or of (iii) the immunity from being himself subjected byB to any such requirement.42

This analogical reasoning denotes the obligation of states to protect people’s rights by acting

(including affirmative action) and by not overreaching (thus violating rights in the process).

For instance, Article 1 of Protocol No. 12 does not fundamentally prohibit discrimination but

does express a “prime objective […] to embody a negative obligation for the parties; the

obligation not to discriminate against individuals”.43 In other words, it “protects [individuals]

against discrimination by public authorities”.44 Against this complicated government duty to

abstain from violating people’s rights rests the obligation to protect, in this case, female

victims of domestic violence and abuse. Referring to the aforementioned theoretical analogy,

this metaphorically suggests that B (Spain - the State) has obligations required under the

ECHR to protect A (women) from other As (abusive men) and, significantly, assumes a duty

also to protect all As (women and men) from B (Spain - the State).

Regrettably, the Spanish laws on gender violence and equality protection are manifestly

inclined to the exclusive protection of women and are, consequently, persecutory for men.

This appears as institutional negligence, a breach of state pact sunt servanda and ECHR

treaty obligations45 which, as related to this study, are measured within the context of

“procedural [and] substantive obligations”.46 The issue with determining whether there has

been a breach of the state’s positive or negative obligation under the ECHR is that, according

42 John Finnis (ed) Natural Law and Natural Rights, 1980, Oxford, Clarendon Press, p. 205.

43 Explanatory Report, Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 177, Council of Europe, paragraph 24.

44 ibid, paragraph 25.

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to scholarly opinion, the “scope [of positive or negative obligation] appears open-ended [with

no] set general conceptual limitations for [ECtHR] interventions”.47 For this reason, each

individual application for a claim of violation to the ECtHR is pigeonholed as probable cause

from a breach of negative or positive obligation before proceeding to an assessment of the

facts, deliberation, and subsequent pronunciation of violation or no violation. On this note,

other ECtHR assessment and interpretative mechanisms such as the principle of

proportionality and margin of appreciation apply.

2.4. ECtHR Interpretative Mechanisms: The Principle of Proportionality and the

Margin of Appreciation Doctrine

The legal basis for the principle of proportionality can be found in ECtHR jurisprudence,

wherein the Court manifests the inherence of “fair balance”48 in the ECHR. Specifically, in

Soering v. the United Kingdom, the Court stated that “inherent in the whole of the Convention

is a search for a fair balance between the demands of the general interest of the community

and the requirements of the protection of the individual’s fundamental rights”.49 This refers us

again to the meaning of Article 1 of Protocol No. 12, which is channelled to the protection of

individuals against state discrimination.50 The essence of proportionality as an assessment

45 In Hokkanen v. Finland, App No. 19823/92, (ECtHR, September 23, 1994), the Court held that the “prime characteristics of positive obligation is that they in practice require national authorities to take necessary measure to safeguard a right”.

46 See Oneryaldiz v. Turkey, App No. 48939/99, (ECtHR [GC], November 30, 2004), paragraph 97 of the judgment.

47 See Dimitris Xenos, The Positive Obligations of the State under the European Convention of Human Rights, 2011, Routledge, p. 03.

48 See Soering v. the United Kingdom, App no. 14038/88, (ECtHR, July 07, 1989),paragraph 439 of the judgment.

49 ibid.

50 Ibid, no. 43, paragraph 26.

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mechanism of the Court is, therefore, relevant in understanding the excesses of the Spanish

gender violence and equality laws; specifically, where and when they have strayed from the

standard of protection guaranteed under ECHR provisions. For this reason, according to

scholarly view, by applying a proportionality check, “the Court searches for ‘impermissible

reasons’”51 in state action against an individual under the framework characteristics of the

positive and negative duty of the state. Occasionally, the ECtHR can, through an exhaustive

proportionality assessment, “follow a comparative approach [and] takes into account

international trends”.52 On this note, the Court applies the consensus doctrine, which often

works hand in hand with the margin of appreciation. Notably, this line of reasoning and

interpretation by the ECtHR is criticised by experts for creating a shift from the Convention

provisions to “majoritarian transgression”53 in the application of human rights protection

under the Convention. This implies an adhesion to popular society demands, elevated to law

under domestic jurisdiction and consequently assimilated into the ECHR.

Conversely, another important interpretative mechanism of the ECtHR – the margin of

appreciation – protects the principle of subsidiarity which is enshrined in the provisions of the

ECHR.54 Under this principle of subsidiarity, the Court plays a supervisory role. Thus the

ECtHR grants a margin of appreciation to states for the purpose of creating laws that protect

51 George Letsas, A Theory of Interpretation of the European Convention on Human Rights, Oxford University Press, 2007, p. 14.

52 Egbert Myjer (ed), The Conscience of Europe: 50 Years of the European Court of Human Rights, Council of Europe, October 2010. Available at: http://www.echr.coe.int/Documents/Anni_Book_Chapter13_ENG.pdf, accessed on 29/03/2014, p. 169.

53 Helen Fenwick, Gavin Phillipson and Roger Masterman, Judicial Reasoning under the UK Human Rights Act, 2010, Cambridge University Press, p. 349.

54 Ibid, no. 04, Article 1 of the ECHR; see also Scordino v. Italy, App No. 36813/97, (ECtHR, March 26, 2006), paragraph 140

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rights. In other words, and according to expert opinion, the margin of appreciation “allows

human rights norms to take on local flavour”.55 It is, however, precisely the exceptional

nature of the Spanish gender protection laws that gave rise to the eventual question of its

conformity with the general standard of protection guaranteed in the ECHR. Furthermore, the

divergent criteria applied in determining the scope of a state’s margin of discretion in any

individual complaint vary56 and further stretches the uniqueness of a state’s action and the

ECtHR interpretation of it. The Court’s application of European consensus

appear to be self-contradictory because of the ambiguity on who decides

what human rights are. As stated earlier with regard to “majoritarian

transgression”, the epicentre of the debate is on whether it is the majority,

the state parliament or the Court that establishes what human rights are.

Reverting to the precedence from international human rights doctrines,

especially that in Article 1 of the UDHR which purports rights on the basis

of “freedom, equality and the spirit of brotherhood”, there is no discretion

for states to adopt affirmative action. In addition, the Preamble of the

ICCPR stresses the “human dignity” of individuals’ civil rights and that

political rights require states to respect everyone equally in accordance

with its Article 2657 provision. Howbeit, the regional dimension under the

ECHR adopts a mere objective duty approach, which obliges states to

55 Kanstantsin Dzehtsiarou, Interaction between the European Court of Human Rights and Member States: European Consensus, Advisory Opinions and the Question of Legitimacy, 2013; published in: The European Court of Human Rightsand its Discontents: Turning Criticism into Strength, Spyridon Flogaitis, Tom Zwartand Julie Fraser (eds), Edward Elgar Publishing, p. 120.

56 S.H. and Others v. Austria, App no. 57813/00, (ECtHR, November 03, 2011), paragraph 11 of the Dissenting Judgments of Judges Tulkens, Hirvela, Lazarova, Trajkovska and Tsotsoria.

57 ibid, no. 33, Article 26

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guarantee the protection of human rights and freedoms.58 Thus, in the

absence of a clear and unified definition of human rights, the

determination of what human rights are in Europe depends on the

evolution of the society, state parliamentary actions and the European

Court’s absorption of these preponderant views on human rights into the

new European standard.59 This background knowledge of the ECtHR’s

interpretative and assessment mechanisms lessens the prospect of

finding a suggestion or evidence to determine that the Spanish laws and

measures in question contradict the provisions of the ECHR. Besides, the

mere state justification that these laws are “necessary in a democratic

society”60 carries a weight of argument before the judges of the ECtHR.

2.5. Summary

58 ibid, no. 04, Article 1

59 See Vallianatos and Others v. Greece, App nos. 29381/09 and 32684/09, (ECtHR, November 07, 2013), paragraphs 32 and 91 of the Judgment; see also Dean Spielmann, Allowing the Right Margin the European Court of Human Rights and the National Margin of Appreciation Doctrine: Waiver or Subsidiarity of European Review?, 2012, CELS Working Paper Series, Vol. 4, p. 22: "It is possible to look into the reasons for the existence or absence of a consensus in terms of finding a solution to the problem"; see also Andreas Vosskuhle, Pyramid or Mobile? – Human Rights Protection by the European Constitutional Courts, Opening of the Judicial Year 2014 at the European Court of Human Rights, Strasbourg, 31 January 2014, Available at: http://www.echr.coe.int/Documents/Speech_20140131_Vosskuhle_ENG.pdf, accessed on 14/04/2014, p. 05: “The more the implementation of the Conventionis devolved to the national authorities and courts, the better the ECtHR – in view of its limited resources – can focus on its role as the guardian of a common core standard of human rights”.

60 ibid, no. 04, Article 8(2): “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”.

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The objectives in the chapter were to establish evidence regarding equality, affirmative

action, state obligations under the ECHR, and the ECtHR’s supervisory mechanisms for the

enforcement of the rights of individuals to the protection and enjoyment of rights and

freedom. Having established that state duty to protect individual rights and freedoms is

enshrined, not just under general international law provisions but also in the ECHR; that the

ECtHR assessment and interpretative mechanisms of proportionality and the margin of

appreciation underpin the existence of an alternative legal remedy for disenchanted men in

Spain; these assessment mechanisms and interpretative method of the ECtHR encompass,

therefore, diverse legal components for the appraisal of Spain’s gender violence and equality

laws and find alternative judicial conclusions for the nonconformity of those specific

protections contained in Spanish law with the standard of protection mentioned in the ECHR.

Conversely, the findings also suggest that as Europe’s democratic societies vote to establish a

more liberal government in power, if this government in its democratic exercise generates

laws or trends on human rights protection, it could, potentially, influence the outcome of the

European Court’s decisions in line with the consensus doctrine. The outcome of a democratic

exercise that enthrones ideology-based government in power is elucidated in the next chapter

wherein the gender violence laws are examined.

Chapter Three: Spain’s Gender Violence and Equality Laws

3.1 IntroductionAs stated in the introductory chapter of this study, Spain’s gender violence and equality laws

represent a package of responses to a growing international demand for state-adopted

measures to guarantee protection for female victims of domestic violence and tackle

inequality in society.61 This legislation came with ample legislative guarantees, including

educative and economic measures, and criminal penalties and civil and family law remedies

61 Ibid, no. 02, Preamble of Law 1/2004 and Organic Law 3/2007.

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for the protection of women who are victims of domestic violence.62 It accommodated

virtually all the guiding principles expressed in Articles 2 and 3 of the Council of Europe

Recommendations.63 Spain not only adhered strictly to the six guiding principles in the

Council of Europe Recommendation Rec(2002)5, but extended it to the adoption of measures

under national policies to ensure protection against gender violence. There is nothing wrong

with Recommendation Rec(2002)5, which aims to protect against gender-based violence.

However, the vague expressions in the guiding principles of the implementation of the

aforementioned Recommendation, especially the content in Article 3(f)64, have allowed for a

more radicalised political action which deprives men of the same rights protection it

expressly aims to achieve for women.

Article 1(1) of the Spanish Law on Gender Violence establishes the subject and object of the

law. It clearly defines and identifies who the victims and aggressors are throughout.65

Reaffirming the aim and scope of this study, this law creates a two-fold problem: one is

evidence of the impediment for men’s protection under this law; secondly, there is a

stereotypical notion of men as domestic criminals, as abusers, as violent and abusive before

the law, which, it is suggested, creates a presumption of guilt rather than of innocence for the

accused. These problems will be examined in subsequent chapters. However, it is important

to note that if this law is applicable to women as well as to men, if abused men are able to

62 ibid, no. 02, Title(s) I to V of Law 1/2004.

63ibid, no. 01, Articles 2 and 3 of the Rec[2002]5; see also Article 2 of Organic Law 1/2004 of 28 December on Integrated Protection Measures against Gender Violence.

64 ibid, no. 01, Article 3(f) of Rec(2002)5.

65 ibid, no. 02, Article 1 of Law 1/2004: “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.

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access protection parallel to that offered to abused women, then equality would have been

achieved.

Apparently, this is not the case, because, it has been argued, a primary cause of these

discriminatory and protective measures against men is the continued insistence on patriarchal

traditions as the source of gender inequality.66 This notion has been disproved by the

disproportionate effect of these laws, which have reversed the so-called male dominance and

enthroned female dominion in society. This is evident in the number of false reports recorded

and concealed under the legal terminology of a stay of proceedings,67 together with the

severity of the punishments endured by alleged and convicted offenders in Spain. If men

could survive outside the protection of the law, then the decision to isolate them from the

protection of this law in Spain is justified. However, it has become evident that men also

require state protection under the law, hence the desperation that impels men towards the

murder of a great number of women each year in Spain.68 These murders denote desperation

from men who could not avail themselves of state protection under this law against gender

abuse from women.

66 Carol Hegemann-White and Sabine Bohn, Protecting Women against Violence;analytical study of the result of the second round of monitoring the implementation of Recommendation Rec(2002)5 on the protection of women against violence in Council of Europe member states, 2007, Council of Europe; CDEG (2007)3 rev, p. 07. Available at: http://www.coe.int/t/dghl/standardsetting/equality/03themes/violence-against-women/CDEG(2007)3_en.pdf, states that: “Gender-based violence is rooted in patriarchal traditions that have found expression in laws, institutions, attitudes and perceptions”; see also Paragraph I of the Preamble, Spanish Organic Law 1/2004: “Gender violence is […] directed against women for the mere fact of being women; considered, by their aggressor, as lacking the most basic rights of freedom, respect and power of decision”.

67 See General Council of the Judiciary (Spain), Section of Justice Statistics, Violence against women in judicial statistics: Annual Data 2013, 7 April 2014, Available at: http://www.poderjudicial.es/cgpj/es/Temas/Violencia_domestica_y_de_genero/Actividad_del_Observatorio/Datos_estadisticos/La_violencia_sobre_la_mujer_en_la_estadistica_judicial__Datos_anuales_de_2013, accessed on 12/08/2014

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Another example of gender-based legislation – the Gender Equality Law69 – provides polemic

affirmative measures which provide a framework for the professional development of

women. This law was produced, in principle, against the background of John Stuart Mill’s

(1806-1873) philosophical precept on “perfect equality”70 and as a response to the

implementation of European Directives71 on gender-related discrimination in the workplace

and society. However, the Gender Equality Law, which is ostensibly meant to guarantee equal

rights between men and women, has collapsed through the absorptive effect of the Law on

Gender Violence by civil and family law. Evidence of this is that, in the Spanish courts, a

68 See Spanish Government Statistics of Mortal Victims of Gender Violence, 2014, available at https://www.msssi.gob.es/ssi/violenciaGenero/portalEstadistico/docs/VMortales_2014_18_08.pdf, accessed on 19/08/2014; see also National Institute of Statistics, Statistics on Mortal Victims from Gender Violence by their Actual or Ex Partners, 2014, Available at: http://www.ine.es/ss/Satellite?L=es_ES&c=TFichaIOE_C&cid=1259931150856&p=1254735038414&pagename=IOEhist%2FIOEhistLayout, accessed on 19/08/2014; and also Judicial Council, Report on fatal victims of domestic violence and domestic violence in the area of partner or former partner in 2011, (June, 2011), Available at: http://www.poderjudicial.es/cgpj/es/Poder_Judicial/Sala_de_Prensa/Archivo_de_notas_de_prensa/Informe_sobre_victimas_mortales_de_la_violencia_de_genero_y_de_la_violencia_domestica_en_el_ambito_de_la_pareja_o_ex_pareja_en_2011, accessed on 19/08/2014.

69 Organic Law 3/2007 of 22 March for effective equality between women and men, published in BOE [State Official Gazette] No. 71 of 23 March, 2007.

70 John Stuart Mill, The Subjection of Women, 1869, Longmans, Green, Reader and Dyer, p. 01.

71 See Council Directive 1997/80/EC of December 1997 on the burden of proof incases of discrimination based on sex, Official Journal, L 14, 20/1/1998, p. 6-8; Seealso Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards to access to employment, vocational training and promotion, and working conditions, OJ L269, 5/10/2002; and, Council Directive 2004/113/EC of 13 December 2004, implementing the principle of equal treatment between men and women in the access to and supply of goods and services, Official Journal of the European Union, L373/37, 21/12/2004.

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large number of the child custodies in family cases are given to the mothers.72 What the

family courts do in almost all cases is to grant custody to women, which this study finds

absurd because it may not be helpful in the furtherance of women’s professional life and

independence from men.

Child custody ought not to be considered a reward, but rather a sentence, since if a woman

alone is responsible for the care and education of children, i.e., full responsibility for a child,

she will have no time or opportunity for developing her own personal and professional space,

which is so essential for being a human being. Consequent to that, the children are deprived

of a major part of their family, not only of their father, because, as stated earlier, custody is

given to the mother in most cases. In addition, article 92(7) of the Spanish Civil Code

rescinds every chance for joint custody in the event of a gender violence report.73 The Spanish

criminal justice system, therefore, affords women the freedom to persecute or prosecute men

and weakens the independence of women in the workplace.

In consequence to these legislations74 – wherein lie the gaps for the breach of the ECHR –

and a state’s sovereign right to regulate the function of society, the ECtHR has maintained a

doctrinal approach which does not exclude the possibility of the breach of the EHCR by state

72 See Institute of National Statistics (INE), Press Notes, 26 September, 2013, Available at: http://www.ine.es/prensa/np800.pdf, accessed on 13/08/2014.

73 Article 92(7) of the Spanish Civil Code, Royal Decree of July 24, 1889, edition of the text of the Civil Code sent post in compliance with the Law of 26 May last (Effective till July 15, 2015), Available at: http://www.elra.eu/wp-ontent/uploads/file/Spanish_Civil_Code_(C%C3%B3digo_Civil)%5B1%5D.pdf, accessed on 27/08/2014: “No joint custody shall be granted when either parent should be subject to criminal proceedings as a result of an attempt against the life, physical integrity, freedom, moral integrity or sexual liberty and integrity of the other spouse or the children who live with both of them. Neither shall it applywhere the Judge should observe, from the parties’ allegations and the evidenced practiced, that there is well-founded circumstantial evidence of domestic violence”.

74 ibid, no. 02

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legislation.75 On this premise, this study now embarks on an exhaustive examination of the

procedural nature of the Law on Gender Violence (Law 1/2004) concerning criminal

procedures, its conflict with the ECHR, and the effect on men in Spain.

3.2. Criminal Measures to Protect Women from Domestic Abuse/Violence (Special

Court, Procedural Matters)

A couple of procedural elements of the Law on Gender Violence – as mentioned earlier –

contain caveats for understanding its nonconformity with the ECHR. One area is the right to a

fair trial under Article 6 of the ECHR. The unification of measures to protect women from

gender violence with family law regarding separation, divorce, child custody and the

concentration of judicial responsibility under the jurisdiction of one court, often a special

court, gives room for the misapplication of the law in obtaining advantageous gain in the

justice system, as follows.

Firstly, the actions of the authorities (the police) from the first instance of an alleged victim’s

report, which usually proceeds with an arrest, detention and subsequent arraignment before

the Court76 could be inconsistent with Spain’s constitutional provision on habeas corpus.77 It

75 Thlimmenos v. Greece, App no. 34369/97, (ECtHR, April 6, 2000), paragraph 48 of the judgement; see also Chassagnou and Others v. France, App. nos. 25088/94, 28331/95 and 28443/95, (ECtHR, April 29, 1999), paragraph 113 of the judgement. “The Court has never excluded that legislation may be found to be in direct breach of the Convention.”

76 See Article 520(1) of Criminal Proceeding Act, Royal Decree of 14 September 1882 on the Criminal Procedure Act was adopted, published in BOE [State OfficialGazette) No. 260 of 17 September 1882, Effective until 25 of September 2014 (Hereinafter referred to as LeCrim): “The arrest and provision detention should be exercised in the manner least prejudicial to the detainee or prisoner in his person, reputation and heritage”.

77 See Article 17 of the Spanish Constitution of 1978, published in BOE [State Official Gazette] No. 311, 29 December 1978.

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borders also on the preservation of the sanctity of the presumption of innocence,78 a right

which is accommodated under Article 6(2)79 of the ECHR. Secondly, the judicial action from

the moment of arraignment of suspects, in which the accused is usually remanded or

protective orders are issued subsequent to a fast track or summary trial, provides another

discursive element for this study.80 Thirdly, the system of proof, the weight of the alleged

victim’s statement and the special court’s investigative powers, raise questions regarding the

preservation of the accused’s right to effective defence under the ECHR, as well as Spain’s

constitutional prerogatives.81 Finally, an examination of remedies for the prevention of the

abusive use of these laws by women, whether victims or not of domestic violence, and the

punishment for false accusation under Spanish criminal law, reveals incongruities in the

procedural and substantive elements of the law against gender violence.

3.3. Police Arrest and Detention of Suspects (“Habeas Corpus”, Article 17(1) of the

Spanish Constitution) and Unequal Treatment in the Commission of Similar Crimes

(Articles 617(1) v. 153 of the Criminal Code)

The examination of institutional response to a victim’s complaint is crucial in determining the

standard of treatment and protection afforded to the accused – the man – in the circumstance

78 ibid, no. 02, Article 1 of Law 1/2004

79 ibid, no. 04, Article 6(2).

80 ibid, no. 76, Article 795(1): "Without prejudice to the special processes, the proceeding regulated under this Title shall to the investigation and prosecution ofoffenses punishable by imprisonment not exceeding five years, and with any other penalties, whether single, joint or alternatives, which duration does not exceed ten years, regardless of the amount, provided that the criminal proceeding is brought under a police report and that the judicial police has arrested a person and made available to the summary court or even without being detained, has been summoned to appear before the summary court as an accused in the police report and, also, meet any of the following circumstances”.

81 ibid, no. 77, Article 24(2): “Everyone is entitled to […] not to testify against themselves, do not plead guilty and the presumption of innocence”.

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under consideration. In practice, when a woman accuses a man of domestic violence, the man

is arrested, detained, arraigned before a judge for 48 hours, released on bail with stringent

protective measures, or remanded in prison custody.82 In effect, the man is immediately

considered guilty until he proves his innocence, which is against article 24(2) of the Spanish

Constitution. Interestingly, article 13 of Spain’s Criminal Procedure law (LECrim) also

endorses this procedure in gender-violence-related cases.83 This provision, characterised by

urgency and the necessity to guarantee effective legal protection for victims of domestic

violence, has produced damaging procedural actions in violation of multiple rights of the

accused. One of the areas of contention is the right to habeas corpus, enshrined in article

17(1)84 of the Spanish Constitution and Organic Law 6/1984 provisions.85 In light of this

constitutional provision, which ostensibly guarantees the liberty of all against unlawful

detention, this raises questions regarding the need to arrest and detain an individual without

evidence of a crime, except for the verbal accusation of the alleged victim.

Notably, under article 1 of Law 1/2004, a woman does not need to provide proof or

evidence; only her word is sufficient to trigger a legal ordeal for the male accused. A case in

82 ibid, no. 02, Article 64(1-6) of Law 1/2004

83 ibid, no. 76, Article 13: “it is considered as the preliminary investigation for recording the evidence of the crime which may disappear, the arrest and detention – with regards to verification and identification – of the offender, to detain, if applicable, the alleged perpetrators of the crime and to protect the offended or prejudiced by it, to relatives or other persons may be issued to that effect the precautionary measures referred to in art. 544 bis of this Act”.

84 ibid, no. 77, Article 17(1) provides that: "[e]veryone has the right to liberty and security. No one can be deprived of his liberty, but compliance with the provisions of this article and in the cases and in the manner provided by law”.

85 Spanish Organic Law 6/1984 of 24 May, regulating the Procedure of habeas corpus,published in BOE [State Official Gazette] No. 126, 26 of May 1984; also, Article 17.4 ofthe Spanish Constitution provides that "[t]he law shall regulate habeas corpusproceedings for the immediate handing over to judicial authorities of any person illegallyarrested".

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point is Antonieta v. Cipriano in Provincial Court judgment no. 000025/2014-02, where the

accused (Cipriano) was acquitted after being found guilty of a misdemeanour – and going

through an ordeal – for allegedly saying to Antonieta, in the absence of any witness, that

“she is a whore”.86 Cipriano was arrested, detained and arraigned before an investigative

judge before being granted bail with the habitual protective measures in place. The question

is whether, in the absence of evidence of a crime, a person ought to be arrested by the police.

Article 167 of the Spanish Criminal Code penalises the arbitrary arrest or illegal detention of

an individual by the state or its agents.87 The imminent arrest and detention of a man based on

a woman’s complaint, without credible or even no evidence, amounts to an infringement of

this provision and the constitutional regime; and even, also, Article 13 of the ECHR. In light

of this, the substantive and procedural nature of the application of the Law on Gender

Violence violates these legal principles because it grants excessive weight to the word of the

victim. The intrinsic nature of article 167 of the Spanish Criminal Code provision is that it is

an offence of false imprisonment or kidnapping as committed by a public official or authority.

Thus, the perpetrator can only be a person in authority, a public official in the exercise of

his/her duty in detaining a person in conformity with the legal requisites or illegal practices as

typified in articles 163, 164, 165 and 166 of the Criminal Code.88

86 See SAP v. 1307/2014, Provincial Court of Valencia, Appeal Judgment No. 25/2014, Resolution No. 144/2014, Available at: CENDOJ Id: 46250370012014100082: p. 01 of the judgment.

87 Article 167 of the the Organic Law 10/1995 of 23 November 1995, Spanish Criminal Code, published in BOE [State Official Gazette] No. 281, 24 November 1995 (Hereinafter referred to as Criminal Code) states: “The authority or public official, except in cases permitted by law, and without cause offense, commits any of the acts described in the preceding articles shall be punished with respectively punishments provided by them, in the upper half and also with the time of disqualification for eight to twelve years”.

88 ibid, Articles 163, 164, 165 and 166.

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Parenthetically, the Law 1/2004 procedure which enables the quasi-arbitrary arrest of the

accused under the Spanish Law on Gender Violence permits additional flagrant abuses of the

right of men to protection and treatment equivalent to that of women in a similar incident or

crime. The arrest and detention of suspects in domestic violence cases – without evidence of

an offence – violates the individual’s right to freedom. The right to habeas corpus under

article 17(1) of the Spanish Constitution as regulated and preserved in articles 163 to 167 of

the criminal provision has been systematically violated in the practical exercise of Law

1/2004. Apparently, it is enough evidence – of crime under gender violence law – for the

testimony of a victim (a woman) to trigger the arrest, detention and arraignment of the

suspect (a man).89

In the event that a complaint is made by a man, it would be treated as a misdemeanour under

article 617 of the Spanish Criminal Code, which does not require the arrest of the accused. It

is common knowledge that the arrest and detention of a suspect is not an isolated incident

with minor consequences, but generates substantial far-reaching effects on the daily social

and professional life of the individual concerned. A Council of Spanish Lawyers report

weighs the implication of this form of deprivation of liberty and states that the consequences

may include “the loss of his/her job, accommodation [also] making it difficult for the accused

to prepare his/her defence and undermining the courts impartiality when the accused is

brought before it from prison”.90 This punitive measure is commonly endured by men under

Law 1/2004.

89 ibid, no. 02, Article 1 of Law 1/2004

90 See the General Council of Spanish Lawyers, Response from the General Council of Spanish Lawyers to the Green Paper on Detention, 2011, European Commission: Available at: http://ec.europa.eu/justice/newsroom/criminal/opinion/files/110510/es_general_council_of_spanish_bar_en.pdf, accessed on 11/08/2014.

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In the event of the occurrence of an identical situation of the violation of the right to non-

aggression between a man and a woman, both cases are treated differently under Spanish law.

First of all, a woman’s complaint is often assigned to specialised court on gender violence

and every protective remedy is activated, including the automatic deprivation of the accused

(the man) of his freedom, in accordance with article 153 of the Criminal Code.

Conversely, if the complainant is a man, the case is treated under normal criminal procedures

as provided in article 617 of the Criminal Code, which generally culminates in misdemeanour

charges against the woman with no arrest and detention applicable. The distinction between

these criminal law procedures and Law 1/2004 on domestic violence is the applicable system

of proof and the presumption of innocence, which preserves and also guarantees no violation

of the right to liberty under article 17(1) of the Spanish Constitution.

In the event of a complaint of domestic violence against a woman, the accuser must produce

enough evidence to prove the crime; otherwise, the case will be thrown out. If admitted for

trial, a lesser penalty under article 617 of the Spanish Criminal Code applies to the offender.

Thus, article 617 of the Spanish Criminal Code is the legal regime that applies when a man

complains of domestic violence against a woman. In light of this, the applicable penalty for a

similar offence of domestic violence when a man files a complaint is stipulated in article

617(1) and 617(2) of the Spanish Criminal Code. This provision – article 617(1) – stipulates a

penalty of six to twelve days of confinement to a permanent location or an option of a fine

not exceeding two months when bodily harm is caused to the victim. Subsequently, article

617(2) provides a penalty of confinement to a permanent location between two and six days

or a fine not exceeding thirty days. The options for fines are regulated in article 620(2) of the

Criminal Code and relate to mild economic sanction. Conversely, when the criminal

complaint is filed by a woman, under the gender violence laws, penalties under article 153(1)

of the Criminal Code apply. These penalties include a minimum prison confinement of six

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months or a maximum of three years. They also include a sustained restraining order, ranging

from one to five years, and automatic incapacitation from enjoying the paternal rights of child

custody.

There have been incongruities in the Spanish appellate courts’ jurisprudence on this question.

In judgment no. 1025/08 of the Spanish Provincial Court of Barcelona where the “two

spouses in equal condition indicate [the] existence of mutual aggression”,91 the court held that

article 153(1) of the Criminal Code does not apply in the circumstance where the couples

were, admittedly, mutually belligerent and the application of the aforementioned provision

would suppose a higher sentence for the man. Subsequently, the Provincial Court of Madrid92

interpreted a similar case using a contrasting deliberation. It held that article 153 of the

Criminal Code applies since the accused – the husband – “hit [his] wife”93 and that is all that

matters. While the Barcelona court applied an interpretative criterion that was in line with the

objective pursued by the law, and by utilitarianism, the Madrid court simply applied a

substantive interpretation of the law using a completely objective criterion. The stronger

physique of the man is, therefore, the wording which inclines judicial balance in the Law on

Gender Violence.94

Regrettably, article 1 of Law 1/2004 establishes a punitive difference between the protection

of men and the protection of women from gender-related violence or abuse. In the first

91 Judgment No. 1025/08 of the Provincial Court of Barcelona, Section XX, AppealNo. 96/2008 – APPRA, Resolution No. 1025/2008, Available at CENDOJ ID: 08019370202008100363, paragraph 03, p. 03 of the Judgment.

92 Judgment No. 982/10 of the Provincial Court of Madrid, Section XX, Appeal No.102/2010, Resolution No. 982/2010, Available at CENDOJ ID: 05267392038008476212.

93 ibid, p. 05 of the Judgment

94 ibid, no. 02, Article 1 of Law 1/2004

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instance, it states that the purpose of the law “is to combat the violence exercised against

women by men [...] as an expression of discrimination, the situation of inequality and the

power relations prevailing between the sexes”.95 Here lies the fundamental justification for

affirmative action under Spanish law 1/2004: the power of men over women. The power

prevalence does not specify whether it is concerned with physical or economic privileges. It

is, therefore, basically a discordant referral point in line with the feminist conceptual exertion

that essentially influenced the promulgation of this legislation.

ECHR provision96 provides a framework for the protection of individuals from a state breach

of negative duty related to the rights of its citizens. The ECtHR, in its case laws, 97 disallows

such measures of inequality, as expressed in numerous decisions. Nonetheless, the European

Convention, as well as Spanish constitutional doctrine, disallows such measures that violate

the principle of liberty and equality as defined in both Articles 5 and 14 of the ECHR and

articles 17(1) and 14 of the Spanish Constitution, yet these violations persist. Most

importantly, there is some respite for most Spanish men, as Spanish Constitutional Judgment

No. 032/201498 has restored sanity to the habitual immediate police detention of men accused

of domestic violence. This case concerns not just habeas corpus, but also procedural defects

in the application of Law 1/2004, as well as false accusation by a woman. The narrative of the

case is that the applicant was arrested based on a complaint in which “the police statement

tagged the case as domestic abuse reasons without explaining facts about the arrest”.99 The

95 ibid, no. 02, Article 1(1) of Law 1/2004

96 ibid, no. 04, Article 1 of Protocol No. 12

97 ibid, no. 32

98 See Spanish Constitutional Court Judgment No. 032/2014, of February 2014; published in BOE [State Official Gazette] No. 73, of 25 of March, 2014: Application for Constitutional Protection “Amparo” no. 3485-2013 by Abel de Cespedes Gamero.

99 ibid, paragraph 1: The Facts.

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applicant was arraigned before a specialised court the next day and the judge changed the

classification to “illegal detention [and] forwarded the case file to the prosecutor’s office”.100

Upon his arraignment, the investigative judge, through the ruling, “registered the application

as illegal detention proceeding [and] forwarded the case file to the prosecutor’s office to

report on the origin to initiate the corresponding proceeding”.101 Upon consultation with the

office of the State Prosecutor and the defence lawyer, the court issued a decree “dismissing

the proceedings of illegal arrest”.102 The judges of the Constitutional Court noted that the

specialised court for domestic violence felt so emboldened by its jurisdictional powers that it

had usurped the competence of the Constitutional Court, ruling that habeas corpus did not

apply in the accused’s case.103 Ultimately, the court did not just rule on the violation of the

applicant’s right to freedom, but also annulled the entire proceeding on domestic violence

because the violation had fractured the establishment of “factual circumstances alleged by the

appellant in support of these other prejudices during the examination of evidence”.104 On this

note, suffice it to say that the practical application of domestic violence/abuse law in Spain

results in the accumulation of a succession of incongruities from questionable motives for

arrest, unlawful deprivation of liberty and a fast track trial which potentially impedes the

right to a fair hearing or effective remedy under the ECHR.

100 ibid, no. 98, paragraph 2(a): The Facts.

101 Ibid, no. 98, paragraph 2(b): The Facts.

102 Ibid, no. 98, paragraph 2(b): The Facts.

103 ibid, no, 98, paragraph 3(c) of the Judgment: “The Court decision was not to admit for processing the proceedings of Habeas Corpus, rejecting that the situation by which the applicant based his illegal detention existed and, therefore, put forward in depth reasoning, which is contrary, in terms set forth in Article 17(4) of the Constitution”.

104 ibid, no. 98, paragraph 05 of the Judgment.

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3.4. Fast Track or Summary Trials (Act 27/2003 of July)

Fast track or summary trials are additional to the many areas of possible conflict of Law

1/2004 with ECHR provisions. The ECHR provides for the need for a fair trial in Article 6 of

the Convention. The utilitarian understanding of this law includes a reasonable duration for

the resolution of a complaint under judicial process.105 In light of this, an examination of the

substantive and procedural difficulties in applying swift trials to domestic violence/abuse

cases elucidates how Law 1/2004 conflicts with the provisions of ECHR in this respect. The

contentious and discursive elements of this kind of judicial practice are quite succinct and

confined to the guarantee of an effective defence for the accused in domestic violence.

According to Spanish criminal proceeding laws, in order to apply speedy trial proceedings for

offences committed under Law 1/2004, two requisites ought to exist. First, the process for

dealing with the victim’s complaint ought to have been initiated via a police report.106

Specifically, it is necessary that the victim’s complaint is initiated via a police report,

105 Nuala Mole and Catharina Harby, The right to a fair trial, A guide to the implementation of Article 6 of the European Convention on Human Rights, 2006, Council of Europe Human Rights Handbooks, No. 3, p. 27; see also: I.M. v. France,App No. 9152/09, (ECtHR, February 02, 2012), paragraph 154 of the judgment: the Court noted: “the automatic classification of their cases as ‘fast track’, the difficultly to gather evidence, and the shorter delays to claim asylum (5 days)”; see also Vernillo v. France, App No. 11889/85, (ECtHR, February 20, 1991), paragraph 38 of the judgment.

106 Article 795(1) of the Criminal Proceedings Law 38/2002 (Law 38/2002, of 24 October, the partial reform of the Law of Criminal Procedure, on procedure for processing rapid trial and immediate prosecution of certain offenses and misdemeanours, and the amendment of the summary procedure), published in BOE [State Official Gazette] No. 258 of 28 October, 2002, states: "Without prejudice to other special processes, the proceeding regulated under this Title shall to the investigation and prosecution of offenses punishable by imprisonment not exceeding five years, and with any other penalties, whether single, joint or alternatives, which duration does not exceed ten years, regardlessof the amount, provided that the criminal proceeding is brought under a police report and that the judicial police has arrested a person and made available to the summary court or even without being detained, has been summoned to appear before the summary court as an accused in the police report and, also, meet any of the following circumstances”.

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otherwise a fast track trial can not be ordered. In addition, fast track trials are set aside for

those crimes of which the investigation is not particularly complex because they are less

grievous or punishable by less than five years’ imprisonment,107 among which are included

offences related to domestic violence or abuse. Therefore, the entire proceedings for fast track

trials revolves around a police report and the provisions of criminal proceedings laws.108 The

Spanish Judicial Council states in its Law 03/2003 that the fundamental reason for the

application of rapid trials in domestic violence cases is that “the victim cannot be exposed to

constant journey through the courts”, insisting that “if the victim has filed a complaint in the

police station or civil guard station, and the action is a crime”109 the court ought to pronounce

– in a judicial decree – the need for a speedy trial.

Article 757110 of Spanish Organic Law 38/2002 regulates the nature of cases where summary

trials apply, while article 795(2)(a)111 incorporates fast track trials into domestic

abuse/violence-related cases through article 37 of the Law on Gender Violence amendment of

article 153 of the Criminal Code. As highlighted earlier, the intrinsic element regarding fast

track trials is the Article 6 provision of the ECHR, which protects the right to a fair trial. The

ECtHR has upheld the inviolability and relevance of this provision in criminal proceedings. A

case in point is Karalevicuis v. Lithuania, wherein the ECtHR noted that “Article 6 [of the

107 ibid

108 ibid, no. 106, Articles 757, 795, 962, 964 and/or 965

109 See Article 3(1) of Law 3/2003, the Legal Proceeding 3/2003 of 9 April, of theCGPJ (Consejo General del Poder Judicial – General Council of Judicial Power), on Standards of Distribution of Criminal and Computer Record on Domestic Violence.

110 ibid, no. 106, Article 757

111 ibid, no. 106, Article 795(2)(a), states: “Whether it be any of the following offenses: a) Crimes of injury, coercion, threats, and physical or mental violence habitual committed against persons referred to in Article 153 of the Penal Code”.

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ECHR] is essentially concerned with whether an applicant was afforded ample opportunities

to state his case and contest the evidence that he considered false, and not with whether the

domestic courts reached a right or wrong decision”.112 Therefore, the essence of a speedy trial

in a case which has far-reaching stigmatic consequences for the accused in society and, in

most cases, in the absence of evidence of a crime, is that it denotes judicial misappropriation.

3.5. Burden of Proof (Presumption of Guilt/Article 13 of the Organic Law on

Equality)

Article 24 of the Spanish Constitution guarantees the presumption of innocence. However,

the violation of this principle is permitted with the enactment of article 1 of the Law 1/2004,

which typifies the very essence of the law, the amendments of article 153 of the Spanish

Criminal Code, and articles 299 and 777 of the criminal justice procedure (LeCrim) permits

the violation of this principle. Since the word/complaint of a woman is sacrosanct and

weighty under Law 1/2004, the right of the accused to the presumption of innocence basically

translates into a presumption of guilt. In addition, article 13 of the Equality Law, which is

deemed “applicable in other areas of law”,113 has further corrupted this system of proof.

As mentioned earlier, article 24(2) of the Spanish Constitution provides that the plaintiff

bears the burden of proof both in providing credible evidence or reasonable grounds for

investigation of the complaint. In this way, the presumption of innocence is blunted under the

Spanish Constitution. To reiterate, this measure is often applied when a man is the plaintiff

and under article 617 of the Criminal Code. Ostensibly, the Law on Gender Violence – as

explained earlier in this work – deviates from this constitutional doctrine and permits the

burden of proof to shift to the accused when the plaintiff is a woman and the presumption of

112 See Karalevicuis v. Lithuania, App. No. 53254/99, (ECtHR, April 7, 2005), paragraph 38 of the judgement.

113 Ibid, no. 02, Article 13 of Law 03/2007

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innocence is reversed to a presumption of guilt. Spanish Supreme Court judgments also

create gaps for understanding the specialised courts’ status quo on the presumption of

innocence under the new protection regime for female victims of domestic violence. A

judicial decree wherein the Supreme Court resolved a petition for cassation from a convict on

the presumption of innocence114 reveals the operational method of the Spanish courts’ proof

system, which disregards the right of the accused to a fair trial in domestic violence/abuse

cases. Therein, the Supreme Court dismissed the convict’s application where it was evident

that “the petitioner was condemned by police and forensic generated proof of evidence”,115

and not by the alleged victim’s evidence but by the victim’s mother’s complaint and

subsequent police investigation, even though the victim’s evidence did not corroborate the

mother’s claim. In other words, Law 1/2004 allows a third-person complaint to serve as

sufficient evidence to convict an accused. Thus, a brief examination of the Spanish criminal

law system of proof unveils the extent to which the application of the Law on Gender

Violence infringes upon the rights of the accused: men.

Commonly, Spanish criminal investigative procedure adopts an inquisitorial system of proof

which is the backbone of criminal procedure law.116 This procedure puts the judge at

the centre of the entire process. Although there are provisions that allow

the recusal117 of bad judges, a bad judge has a proclivity to aggravate the

accused’s defence by discarding certain evidence which could favour the

114 See Spanish Supreme Court Judicial Decree No. 5725/2014, Supreme Court Section 1 - Criminal Division, Section: 1, Appeal No.: 10122/2014, Resolution No.:1020/2014, CENDOJ Id: 28079120012014201432.

115 ibid, paragraph C, part II of the Judicial Decree.

116 ibid, no. 76, Articles 299 to 305

117 ibid, no. 76, Articles 52, 53, 54, 55, and 56

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defence. One law expert explicates the “subsidiary role” 118of defence and

prosecution lawyers in an inquisitorial system of proof which leaves the

judge in the “central role”119 in examining evidence and witnesses and

making choices on the admissibility or otherwise of certain evidence. This

power regarding the initiation of judicial proceedings is encapsulated in

the disposition of the judge to make an advantageous or disadvantageous

decision for the accused. Article 299 of LECrim defines the criminal preliminary

investigative procedure as “the actions that are directed to prepare for trial and practices for

ascertaining and establishing the perpetration of the crimes with the circumstances that could

influence in the classification, and the culpability of the offenders, by ensuring their

individual and pecuniary responsibilities thereof”.120 Against this background is the

procedural rights of the accused, which are often compromised. Substantially, under the Law

on Gender Violence, the specialised courts tend to adopt a more inquisitorial than accusatorial

system of proof, which gives enormous weight to the alleged victim’s statement. This system

of proof gives rise to the problem of discrimination and unfair trials, especially in such pre-

trial investigative procedures that incline specialised judges to “give too much weight to [the]

evidence”121 of the accuser.

Law 1/2004 has encouraged the inquisitorial system of proof in domestic violence

proceedings through the expressed classification of men as the subject of the law. However,

ECtHR case law has established that “in a criminal case in particular, respect for the rights of

118 Roger Hopkins Burke, Criminal Justice Theory: An Introduction, 2013, Routledge, p. 120:

119 ibid

120 ibid, no. 76, Article 299

121 Andrew Sanders, Richard Young, and Mandy Burton, Criminal Justice (3rd Edition), 2010, Oxford University Press, p. 14.

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the defence requires that in principle all evidence must be produced in the presence of the

accused at a public hearing where it can be challenged by way of adversarial procedure”.122

Withal, the adversarial system is commonly applied during a public hearing but under the

strict control of the presiding judge, who often places restrictions on the defence lawyer’s

cross-examination of the victim as a form of protection. In addition, reports from

investigative judges in the specialised courts are weighty in deciding the outcome of a public

hearing since the examination of evidence is the sole competence of this court.123

For this reason, there exists the prospect of a breach of the right to a fair trial when the

accused is charged with the responsibility of producing evidence of his innocence. This

concern is shared among the judges and magistrates in the specialised courts on domestic

violence. A case in point is Spanish Constitutional Court judgment 45/2010, which proceeds

from a “judicial decree of approach”124 from the magistrate of a specialised criminal court for

domestic violence, court no. 2 of Albacete, Spain. Therein, the magistrate impugns the

“constitutionality of Articles 148(4) and 153(1) of the Spanish Criminal Code, from an

122 See Yonko Grozev (ed), Dovydas Vitkauskas and Sîan Lewis-Anthony, INTERIGHTS Manual for Lawyers – Right to A Fair Trial under the ECHR (Article 6), 2009, the Open Society Institute, p. 34; see also Barbera, Messegue and Jabardo v Spain, App. No. 10590/83, (ECtHR, December 6, 1988), paragraph 78 of the judgement.

123 ibid, no. 76, Article 303: “The formation of summary, commence ex oficio, atthe request of the part, corresponds to the judges of the preliminary investigation for the crimes committed within their respective group or demarcation, and in its procedural defect to others of the same city or populationor by delegation, to the municipal judges”; see also Spanish Supreme Court Judicial Decree No. 5725/2014, Supreme Court Section 1 - Criminal Division, Section: 1, Appeal No.: 10122/2014, Resolution No.: 1020/2014, CENDOJ Id: 28079120012014201432, paragraph 09 of the Judgment.

124 Spanish Constitutional Court Judgment (STC) Sentence 45/2010, of July 28, 2010, published in BOE [State Official Gazette] No. 195 of August 12, 2010, Available at: http://www.tribunalconstitucional.es/es/jurisprudencia/Paginas/Sentencia.aspx?cod=16133, accessed on 12/08/2014, paragraph 1 of the judgment.

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interpretation of the same, in which the subject is necessarily male and the object can only be

a woman”.125 The magistrate issued this decree of approach to the Constitutional Court,

requesting that the court determine the constitutionality of a law the cognition of which, as

established in article 1(1) of Law 1/2004, “emanates from the introduction of a ‘presumption

juris et de iure’126 in the exercise of domestic violence by men towards their partners based on

mere statistical criteria”.127 In addition, this magistrate considered that the law created a

“double dilemma to human dignity: of the man, who is presented as a habitual abuser, and of

the woman, who is esteemed as an especially vulnerable case”.128 In this sense, the judges

considered the provisions of the law an insult to the dignity of both men and women, who

ought to be considered equals but are distinguished by the biased wordings of domestic

violence law. Their allegations support a clear rejection of the system of proof and a

declaration of a breach of the constitutional and ECHR rights of men in Spain. In their

judgment, however, the judges of the Constitutional Court dismissed “the question of

unconstitutionality” raised by the magistrate of the specialised court by arguing the need for

affirmative action to ensure the protection of women.129 Apparently, they did not consider the

allegations and concerns of the lower court on the discriminatory aspect of the law and the

125 ibid, paragraph 3 of the judgment.

126 See Juris et de jure: Jonathan Law and Elizabeth A. Martin, A Dictionary of Law (7ed.), 2014, Oxford University Press, p. 104.

127 ibid, no. 124, paragraph 3(a) of the judgement.

128 ibid, no. 124, paragraph 3(a) of the judgment.

129 Ibid, no. 124, paragraph 4(b) of the judgment: “it is not unreasonable to understand, in short, that in male aggression towards a woman who is or was his partner is peculiarly damaging to the freedom of the same, it’s evident her intensified subjection to the will of the aggressor and its peculiarly damaged her dignity, as an assaulted person under an inegalitarian structure which considers her as inferior, as a being with lower skills, abilities and rights to which every person is worthy”.

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effects on the rights of men to equality; rather, they reiterated their stance in previous

challenges of, and the decisions of the Constitutional Court on,130 the incongruities in this law

with an elucidation that is analogous to its purpose.

Ergo, the ECtHR assessment and interpretative mechanism – as discussed earlier in this work

– delves into the utilitarian aspect of the measures adopted by the State towards society. Legal

experts have explained the “teleological interpretation”131 of Articles 6(1) and 6(2) of the

ECHR right to a fair trial which protects the right of the accused/suspect in a criminal

proceeding and that the “other participants in the trial (victims and witnesses, etc.) have no

standing to complain under it”.132 Furthermore, the ECtHR, in Sakhnoyskiy v. Russia,

reasoned on an Article 6 of the ECHR complaint by adopting a utilitarian interpretative

approach which sought to achieve the ends this provision serves.133 In light of this, the right

to a fair trial is an integral part of the ECHR supervisory instrument on criminal proceedings

among member states.

In consequence, the ECtHR attaches greater importance to states’ domestic court proceedings,

especially during the investigative phase of an alleged criminal offence and the methods of

questioning a suspect in criminal proceedings.134 Although under Article 6 of the ECHR states

enjoy a margin of discretion in the promulgation of domestic law, it is confined to the

130 See Spanish Constitutional Court Judgment (STC) No. 127/2009 of 26 of May 2009, published in BOE: Official Gazette No. 149 of 20 of June, 2009; see also, STC No. 45/2009 of 19 of February, 2009, published in BOE [State Official Gazette] No. 195, of 12 of August 2010; see also, STC No. 59/2008, of 14 of May 2008, published in BOE [State Official Gazette] 100 of 26 June 2008.

131 Dovydas Vitkauskas and Grigoriy Dikov, Protecting the right to a fair trial under the European Convention on Human Rights, 2012, Council of Europe Human Rights Handbook, p. 07.

132 ibid, p. 07

133 Sakhnovskiy v. Russia, App. no. 21272/03, (ECtHR [GC], November 2, 2010),paragraph 99-107

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substantive and procedural provisions and not to subtle areas of discrimination, as expressed

in Article 14 of the Convention. For instance, in Khan v. the United Kingdom, the ECtHR

held that a procedural defect in a state domestic law will not automatically qualify as a breach

of the provision of the right to a fair trial.135 Conversely, in Roche v. the United Kingdom, the

Court conducted an applicability test on domestic law in order to ensure that there was no

breach in its application or “vagueness”136 in its provisions wherein the Court could find

reason to declare a breach of Article 6 provisions of the ECHR. Incidentally, one of the

questions formulated by the magistrate of the specialised criminal court in Albacete, Spain

was on the “vagueness in Article 153(1) of the Criminal Code”,137 which he considers in

violation of article 25(1) of the Spanish Constitution and sanctions violations in Spanish

family law on separation, divorce and child custody.

This current work has observed evidence of enormous pressure on judges to apply Spanish

law in a substantive manner. All the pressure seems to be loaded on the judges’ shoulders,

who, being apprehensive of social alarm if an alleged victim is denied protection, apply the

law, in most cases, instinctively. When a woman asks for a protection or restraining order,

they are conceded automatically, almost without taking into account the existing evidence,

134 Imbrioscia v. Switzerland, App no. 13972/88, (ECtHR, November 24, 1993), paragraphs 39-44; Salduz v. Turkey App no. 36391/02, (ECtHR [GC], November 28, 2008), paragraphs 56 -62; Panovits v. Cyprus, App no. 4268/04, (ECtHR, December 11, 2008), paragraphs 66-77.

135 Khan v. The UK, App no. 35394/97, (ECtHR, May 12, 2000), paragraphs 34-40

136 Radio Twist A.S. v. Slovakia, App no. 62202/00, (ECtHR, December 19, 2006),paragraphs 62 -72; see also DH and Others v. the Czech Republic, App no. 57325/00, (ECtHR [GC], November 13, 2007).

137 Ibid, no. 124, paragraph 3(c) of the judgment: “In addition, it is difficult to understand its conformity with Article 25(1) of the Constitution the vagueness in Article 153(1) of the Criminal Code in the order of determination of the minimum of penalty for incapacitation to exercise the parental right, custody, guardian or fostering”.

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and this has caused serious harm because the police have proceeded to arrest thousands of

men upon very thin evidence and judges have released the men again, but with these

protective measures in place.138 On this note, it is important to recall that the essence of

Article 6 of the ECHR, as stated by the ECtHR in Karalevicuis v. Lithuania, is concern over

“whether an applicant was afforded ample opportunity to state his case and contest the

evidence that he considered false”.139 Evidently, the ECtHR has a strong commitment to

preserving and protecting the rights mentioned in the ECHR. However, the principle of

subsidiarity as accommodated in the ECHR still constrains judges. In addition, there are

measures adopted within the Council of Europe treaty which provide coverage for states’

laws on affirmative action. These directives provide states with advice on how to justify the

discrimination of “a substantially higher proportion of the members of one sex”140 under

European laws. In essence, justification regarding factors unrelated to gender refers back to

the ECtHR assessment doctrine, in which a teleological interpretation could suppose a

consideration on whether an action is “necessary in a democratic society”.141

138 ibid, no. 76, Article 544 bis; See also Judicial Statistical Data in Application LO 1/2004 Summary of 7 years (data from July 2005 to June 2012 (21 November 2012). Available at: http://www.poderjudicial.es/cgpj/es/Temas/Violencia_domestica_y_de_genero/Actividad_del_Observatorio/Datos_estadisticos/Balance_de_siete_anos_de_la_creacion_de_los_Juzgados_de_Violencia_sobre_la_Mujer__2005_2012_, accessed on 19/08/2014, p. 02: “The Courts of Violence against Women adopted since 2005 605.966 criminal protective measures. Of these, 236,686 were issued restraining orders; 199,413 bans communication with the victim [woman]; 44.330 prohibitions to return to the scene of the crime; 42,315 suspensions of possession or use of weapons; 39,885 orders 19,066 out of the home and custodial measures”.

139 ibid, no. 112, paragraph 45 of the judgement

140 See Article 2(2) of the Council Directive 97/80/EC of 15 December 1997 on the Burden of Proof in Cases of Discrimination Based on Sex, OJL 14, 20/01/1998,pp. 6-8.

141 ibid, no. 04, Article 8(2)

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3.6. False Accusations and State Measures Against It

There have been numerous outcries142 over the notoriety of abuse through false accusations of

this protection regime for female victims of domestic violence. One jurist states that the

courts “have consented to the detention of thousands of men who afterwards, in most cases,

have been acquitted, and probably have convicted more than one innocent in the application

of some laws which denominate the accused as ‘aggressor’ even before any investigation

aimed at discovering the certainty of the incident”.143 False accusation is penalised under

article 456 of the Spanish Criminal Code.144 This provision of the law contains severe

punishment, including a prison sentence for offenders. However, article 457 of the Criminal

Code, which also prohibits false accusation, is often used to penalise false accusation by the

alleged victims of domestic violence. This is because article 457 of the Criminal Code carries

the penalty of a fine and no privation of liberty.

Many women opt to continue with an accusation until the man is found guilty of a crime he

had not committed or discontinue the accusation and lay claim to rights under article 416 of

LeCrim.145 This provision of the law permits a direct family member to refuse to testify

against the accused. In some cases, women who have instituted a false accusation have laid

claim to rights under article 416 of LECrim in order to discontinue the criminal procedure

142 See Forum for the Abused Men, 2013, Available at: http://hombres-maltratados.com/foro2/viewtopic.php?f=11&t=2784&sid=6100d01a9d4944a4580e9b02e003cb25, accessed on 11/08/2014.

143 Maria Sanahuja Buenaventura, Las Denuncias Falsas, El Pais Newspaper, 22 of December, 2008, Available at: http://elpais.com/diario/2008/12/22/opinion/1229900405_850215.html, accessed on 11/08/2014.

144 Organic Law 10/1995 of 23 November, of the Penal Code, published in BOE [State official Gazette] No. 281 of November 24, 1995.

145 ibid, no. 76, Article 416

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against their husband. According to an annual state official observatory report on domestic

violence regarding cases from the prosecutor’s office, in 2012 an estimated 138 women out of

243 who withdrew their accusation had presented a claim of gender violence and abuse

against their conjugal partner146 and this figure has been on the increase.147 This record

indicates the existence of false accusations by women whose intentions were to abuse or take

advantage of the protection regime for personal vendetta. There are several cases of false

accusations which have led to Provincial Court judgments that overturned the initial

conviction. There are also cases wherein evidence of false complaint existed and the court

had no alternative than to acquit the accused.148

In Case No. 456/2009 of the Criminal Court of Malaga, a man accused of domestic violence

was acquitted of several felonious offences, ranging from “coercion, slander and death threat

146 See ‘Noticias Juridicas’, The refusal of women to testify against her husband,the main cause which obliges the Prosecutor to withdraw charges against a perpetrator, 2012, Available at: http://noticias.juridicas.com/actual/3182-la-negativa-de-la-mujer-a-declarar-en-contra-de-su-marido-principal-causa-que-obliga-a-la-fiscalia-a-retirar-cargos-a-un-maltratador.html, accessed on 28/08/2014.

147 See Conclusions from the VIII Seminar of the Delegate Prosecutors in Domestic Violence against Women - in the Year 2012, Madrid, 8 to 9 October, 2012, Available at: http://www.fiscal.es/Home.html?pagename=PFiscal%2FPage%2FFGE_home&cid=1240559967365&_charset_=utf-8&buscador=2&palabra=violence+genero+denuncia+falsa&btnBuscar=Buscar, accessed on 14/08/2014, p. 04: “The Prosecutors alert that ‘while it is observed in the appeals for review by the Second Chamber of the Supreme Court’ that the convicted domestic violence lodged a complaint against the victim, her family, claiming that the ‘sole basis’ for his conviction was the unique and exclusive declaration of the victim. The woman gave conformity on the charge and is sentenced".

148 See Provincial Court, Section 1 of Valencia, Judgment No. 131/2014, CENDOJ Id: 46250370012014100092; see also (Brigida v. Jose Ramon) Provincial Court, Section, of Valencia, Judgment No. 000136/2014, CENDOJ Id: 46250370012014100093, Section 2 of the judgment: “The Court acquits the accused – Jose Ramon – because ‘there was no record on January 29, 2013, the relationship being already broken, that the defendant contacted Ms Bridgida by telephone, with expression or expressions such as “at eight I will stop by, if I don’t see him (their child), I will kill you”’”.

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to [his] wife”.149 His acquittal was not as a result of the court’s benevolence, but because the

two daughters of the accused gave a witness statement indicating how their “mother was

cutting herself with a knife, hitting her head on the wall and [sometimes] flogging herself on

both legs, leaving bruises”,150 thus inflicting injuries on herself in order to accuse her

husband. Surprisingly, the prosecutor simply warned the woman to “desist from presenting

false claim”151 and no further action was taken.

In view of the foregoing, it is obvious that the state is not concerned with the number of false

accusation made by women, but that women embrace the law for their protection. Hence the

State Interior Ministry created, in 2011, a Department for Women under the Ministry of

Health.152 This department embarked on a programme of negative propaganda against men,

putting up billboards on the streets that portray men as evil. Some of the billboards carry

indicting claims against men and were displayed in every corner of the city, including areas

near schools, so were visible to children. Some of the billboards contained the image of a

child saying to his mother “MAMA, do it for us, ‘Act’”.153 In addition, there were billboards

portraying women as the ‘good” one: the victim. One such bears the inscription “Don’t ever

think of raising your hands to me, ‘NEVER’”.154 The propaganda machine of the Interior

149 See Málaga Criminal Court No. 11, Judgment No. 456/09, 17 of November, 2009, Cendoj Id: 18079120012010100683, paragraph 03.

150 ibid, paragraph 08 of the judgement

151ibid, no. 149, paragraph 01 of the prosecutor’s note

152 See Ministry of Health, Social Services and Equality, created under the RoyalDecree(s) 1823/2011, of 21 December 2011; 1887/2011, of 30 December 2011 and 200/2012 of 23 January, 2012: Available at: https://www.msssi.gob.es/ssi/violenciaGenero/Sensibilizacion/CampanasPublicitarias/OtrasCampanas/home.htm, accessed on 19/08/2014.

153 ibid

154 See The video ‘No se te ocurra levantarme la mano jamas’, Available at: https://www.youtube.com/watch?v=7Jt1Ofuba3w&feature=youtu.be, accessed on 11/08/2014.

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Ministry took a calculated step to demonise men in what the ministry termed a “sensitization

campaign”.155 Using children, they aired many television commercials that prompted children

to be wary of their father. The objective of these actions was to encourage women to

denounce violent or abusive actions against them, hence any measure to prosecute false

accusations would prolong the embrace of this legislation championed by the socialist

government for their protection. The measure of suffering endured by male victims of Law

1/2004 is only gratified by the consolation that they are free and have overcome the entire

nightmarish episode.156 Evidently, the fact that these “sensitization” mechanisms are found

even in police stations, where women are expected regulars,157 encourages spitefulness in the

ambit of the family.

It, consequently, produces numerous omissions, flagrant judicial errors and anomalies in the

functioning of the administration of justice – in protecting the rights of the victims as well as

the rights of the accused to justice – that infringes upon the right to liberty as stated in Article

5(1) of the ECHR. And in gross judicial malpractices, article 121158 of the Spanish

155 ibid, no. 152, “Sensibilización”

156 See (Brigida v. Jose Ramon) Provincial Court, Section, of Valencia, Judgment No. 000136/2014, CENDOJ Id: 46250370012014100093, Section 2 of the judgment: “The complaint of Brigida gave rise to, not just the arrest of Jose Ramon, but the activation of protective measures against him. These measures included restraining order prohibiting approach and/or communication to the alleged victim”.

157 See VI ‘Informe De España Convención Para La Eliminación De Todas Las Formas De Discriminación Contra La Mujer (VI Report of Spain Convention for theElimination of all Forms of Discrimination Against Women), Marzo De 2008’, Available at: http://www.msssi.gob.es/ssi/igualdadOportunidades/internacional/onu/Documentos/VI_Infor_marzo_2008. pdf, accessed on 11/08/2014: “Within the police are instruments to encourage victims to report abuse and maltreatment and operations of special police services such as Care for Women (SAM) and the Foreign Citizen”, p. 87 paragraph 416.

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Constitution ought to apply in order to provide effective redress for the harms suffered by

many men who have experienced Law 1/2004 in practice.

Chapter Four: Family Law (International Law Prerogative on the Right to Family life)

4.1 IntroductionThe ECHR prerogative on the right to family life includes the right to

privacy, which is fundamental to preserving the rights of both women and

men under human rights protection. Article 8(1) of the ECHR provides the

inviolability of family life and privacy in their private spaces and

interactions. Subsequently, Article 8(2) explicitly prohibits states from any

“interference”159 in these rights, except where “necessary in a democratic

society [in the interest of] national security and public safety”160 or for the

exercise of the state’s positive obligation to other citizens. The clauses in

this provision form the basis for the ECtHR proportionality assessment of

state actions in order to ensure that states, in the exercise of this positive

obligation, do not infringe on their negative duty to abstain from the

violation of other people’s rights and freedom. References can be made to

SH and Others v. Austria, and, most recently, Vallianatos and Others v.

Greece as some of the many cases where the ECtHR expressed versatility

in scrutinising state compliance with the right to family life. In SH and

158 See Article 121 of the Spanish Constitution of 1978, published in BOE [State Official Gazette] no. 311 of 29 December 1978: “Damages caused by judicial error and those which result from the abnormal operation of the Administration of Justice ought to provide the right to an indemnification by the State, in accordance with the law”.

159 ibid, no. 04, Article 8(2)

160 ibid, no. 04, Article 8(2)

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Others v. Austria, the Court held “that there has been no violation of

Article 8 of the Convention”161 because it was satisfied with the state

justification for intrusion into the decisions of the family. Thus, the state,

according to the Court, did not “exceed the margin of appreciation

afforded to it”.162 This “margin of appreciation can be restricted”,163 as is

the case in Vallianatos and Others v. Greece, where the ECtHR ruled that

the state violated Article 8 of the Convention because the laws were

discriminatory. In other words, the nonconformity of state regulation with

a provision of the ECHR within the state’s exercise of its positive duty

amounts to a breach of the Convention. This work acknowledges that the

ECtHR recognises “gender-based violence [as] a form of discrimination

against women”,164 thereby aligning with international regimes in relation

to equality. Consequently, the ECtHR could be sympathetic to the

measures adopted for the protection of female victims due to its

progressive judgement doctrine.165

161 ibid, no. 56, paragraph 02 of the Court Decision

162 ibid, no 56, paragraph 115 of the judgement; see also Evans v. the United Kingdom, App no. 6339/05 (ECtHR, April 10, 2007), paragraph 77 of the judgment; X., Y. and Z. v. the United Kingdom, App no. 21830/93, (ECtHR, September 13, 1995), paragraph 44 of the judgment; Frette v. France, no. 36515/97, App no. 36515/97, (ECtHR, February 26, 2002), paragraph 41 of the judgment; Christine Goodwin v. the United Kingdom, App no. 28957/95, (ECtHR, July 11, 2002), paragraph 85 of the judgment; and A. B. and C. v. Ireland, App no.25579/05, (ECtHR, December 16, 2010), paragraph 232 of the judgment

163 Evans v. the United Kingdom, App no. 6339/05 (ECtHR, April 10, 2007), paragraph 77 of the judgement

164 See Opuz v. Turkey, App no. 33401/02, (ECtHR, June 9, 2009), paragraph 200of the judgement.

165 ibid no. 24

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On the above note, Law 1/2004, which adopted measures that extend

beyond protection from criminal behaviour to the application of family

laws on separation, divorce and child custody – in cases of domestic

violence or abuse – has characteristics of incongruent conceptual

inference which are capable of generating conflicting goals with those of

the ECHR on equality. Article 49 bis of the Civil Procedure Act 1/2000 of 7

January, as amended by article 57 of Law 1/2004, gave the specialised

courts on gender violence exclusive jurisdiction to entertain civil

matters.166 However, article 87 ter of the Organic Judiciary Act 6/1985, as

amended in article 44 of Law 1/2004, awarded express jurisdictional

powers to the judges in specialised courts on decisions regarding the law

on separation, divorce, child custody, adoption and administrative

decisions regarding the protection of minors.167 These laws contain explicit

measures applicable to both victim and offender under domestic violence

law which are at the disposal of the investigative and trial judges during

the investigative and trial process. The weight of this study is on

establishing the effectiveness of these provisions as a measure of the

protection of women’s rights, equality and freedom and, simultaneously,

respecting the rights of men. For instance, when someone has been

convicted of domestic violence and served his/her conviction, is the

166 See paragraph 5 of Article 49 bis of the Civil Procedure Law 1/2000 of 7 January, 2000, published in BOE [State Official Gazette] No. 7, 08/01/2000: “The Violence against Women Courts shall exercise their powers in civil matters in a sole and exclusive manner, in accordance at all times with the procedures and appeals envisaged in the Civil Procedure Act".

167 See paragraph 2(a) to 2(g) of Article 87 ter, Spanish Organic Law 6/1985 on the Judicial Power, published in BOE [State Official Gazette] no. 157 of July 2 1985.

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application of further punitive measures such as the deprivation of the

parental rights of the offender suitable under the ECHR? Does it represent

double jeopardy? How proportionate is that to the child’s right to family

life?

The interpretation of these actions as an example of double jeopardy

would reveal a contravention of both ICCPR and ECHR provisions. Article

14(7) of the ICCPR states that “No one shall be liable to be tried or

punished again for an offence for which he has already been finally

convicted or acquitted in accordance with the law and penal procedure of

each country”.168 Similarly, Article 4(1) 169of Protocol 7 to the ECHR

expresses the prerogative against double jeopardy.

In view of the foregoing situation of long-drawn-out punishments for

domestic-violence-related offences which stretch from punitive measures

to banishment from exercising parental rights, Law 1/2004 contains a

substantive rule which violates both men’s and children’s rights to family

life. Article 81(2) of the Civil Procedure Code relating to separation and

divorce as amended in Law 15/2005 (Express Divorce Law) establishes

rapid divorce and defines conditions which qualify for the application of

“express divorce law” in cases of domestic violence. This Law contains

vague expressions with conditions that are laid down for the purpose of

facilitating rapid divorce in cases involving the specifications mentioned in

168 ibid, no 08, Article 14(7) of ICCPR

169 ibid, no. 04, Article 4(1) of Protocol No. 7

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the law.170 However, the underlying issue with this law is its application as

an additional and/or prolonged measure against domestic violence. Thus,

it is used in civil divorce cases – in the form of incapacitating the

exercising of parental rights within divorce proceedings and judgments –

to further castigate men for the offence of domestic violence for which

they have been tried under criminal law. As stated earlier, several ECtHR

case laws indicate a doctrinal opposition to dual punishment under the

ECHR.

To further buttress this argument regarding the nonconformity of double

jeopardy in the ECHR, the ECtHR, in Thlimmenos v. Greece, held that “the

Court considers that imposing a further sanction on the applicant was

disproportionate”.171 In addition, in Sergey Zolotukhin v. Russia, the ECtHR

held that “the aim of Article 4 of Protocol No. 7 is to prohibit the repetition

of criminal proceedings that have been concluded by a ‘final’ decision”.172

170 See Article 81(2) of the Code of Civil procedure relating to separation and divorce as amended in law 15/2005 (Express Divorce Law), published in BOE [State Official Gazette] no 163: “At the request of one of the spouses, once three months since the celebration of the marriage elapse. It will not be necessary the elapsing of this period for the interposition of demand when the existence of a risk to life, physical integrity, freedom, moral integrity orsexual freedom and integrity of the applicant spouse or children of bothattesting or any member of marriage. A proposal based demand of the measures to regulate it will accompany the effects of separation”.

171ibid, no. 75, Thlimmenos v. Greece, paragraph 47 of the judgement

172 See Sergey Zolotukhin v. Russia, App no. 14939/03, (ECtHR, February 10, 2009), paragraph 107 of the judgment; see also Franz Fischer v. Austria, App no. 27569/02, (ECtHR, May 6, 2003), paragraph 22 of the judgement; and Gradinger v. Austria, App no. 15963/90, ECtHR, October 23, 1995), paragraph 26 and 53 of the judgement: “This article embodies the principle that a person may not be tried or punished again in criminal proceedings under the jurisdiction of the sameState for an offence for which he has already been finally acquitted or convicted (non bis in idem)”.

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This interpretation is also noted in the Explanatory Report to Protocol No.

7, which itself refers back to the European Convention on the International

Validity of Criminal Judgments: a “decision is final ‘if, according to the

traditional expression, it has acquired the force of res judicata. This is the

case when it is irrevocable, that is to say when no further ordinary

remedies are available or when the parties have exhausted such remedies

or have permitted the time-limit to expire without availing themselves of

them’”.173 This approach is entrenched in the Court’s case law.174 In light of

this, there is no justification for the application of Law 1/2004 in family law

wherein contentious issues such as separation, divorce and child custody

are regulated.

4.2. Separation, Divorce and Child Custody A review of the consequential bearing of incorporating criminal, civil and

family actions in cases of gender violence aids in establishing the features

of Law 1/2004 and its conformity with the ECHR. Notably, this combination

of judicial remedies – often triggered by one woman’s phone call to the

police – is against, not just the ECHR, but other international human rights

regimes such as the UN Convention on the Rights of the Child. Article 65

of Law 1/2004 provides for the specialised courts to “suspend the alleged

perpetrators of acts of gender violence from exercising parental authority,

173 See Explanatory Report on Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 117, Council of Europe.

174 See Nikitin v. Russia, App no. 50178/99, (ECtHR, July 20, 2004), paragraph 37 and Horciag v. Romania, App no. 70982/01, (ECtHR, March 15, 2005).

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custody or guardianship with regards to minors he or she specifies”.175 The

application of this provision is at the discretion of the judge and the

request of the victim. Apparently, the arguments employed by the courts

in awarding custody rights to the mother are underlined in article 3(3) of

Law 15/2005 prerogatives and based on “the adequate protection of the

Child’s interest”.176 In the UN Convention on the Rights of the Child,

different wordings are also used to express the same vague concept of

“the best interest of the child”.177 However, in the absence of a clear

definition of the meaning behind the interest of the child, the separation

of a child from his/her father can be interpreted as a clear violation of this

principle.

The Convention advocates the respect of a child’s right to “family,

privacy” etc. Nonetheless, the consequences of judicial decisions to

separate a child from the father for the child’s right to the enjoyment of

family life appear to be ignored.178 In fact, clauses under Article 9 of the

UN Convention on the Rights of the Child are clear in expressing

circumstances for which the separation of a child from one of his/her

parents is permissible. The proliferating trend of rapid divorce facilitated

by Law 1/2004 underpins the widespread abuse of children under Spanish

law.

175 ibid, no. 02, Article 65 of Law 1/2004

176 ibid, no. 170, Article 3(3) of Law 15/2005

177 ibid, no, 08, Article 18(1) of the Convention on the Rights of the Child

178 ibid, no. 08, Article 9(1) of the Convention on the Rights of the Child

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A General Council of the Judicial Power (GCJP) report states the following:

The total marital breakdown reached 907,292 in thesame period, which runs from the second quarter of2005 to 2012. The courts adopted 141,465 civilpreventive measures while processing the claim. Ofthese, 134,834 civil measures were adopted in form ofprotective orders, which are valid for 30 days until thefiling of the civil suit, renewable once filed. Of all civilmeasures included the food allowance (46,775measures); housing allocation (41,961); suspension ofcustody when a previous civil resolution exists aboutchildren (14,496); suspension of visitation by the samereason as above (6,932); suspension of parental rights(709) or referral to child protective services (1,382).179

Based on this report from the highest judicial organ of power in Spain, the

effect of Law 1/2004 on the preservation of the right to family life is

evidently devastating. The Spanish Government’s decision to consider

violence against women as “the most brutal symbol of inequality in

society”180 has become a major concern to the other gender in society

because it has created a possible reversal of the situation of

discrimination in a flagrant breach of the state’s negative duty under the

ECHR. Consequently, Spanish society is fragmented and the objective

sought under Law 1/2004, which was to “protect women” as victims of

gender-related violence, has furthered discrimination against men.

179 See Judicial Statistical Data in Application LO 1/2004 Summary of 7 years (data from July 2005 to June 2012, Available at: http://www.poderjudicial.es/cgpj/es/Temas/Violencia_domestica_y_de_genero/Actividad_del_Observatorio/Datos_estadisticos/Balance_de_siete_anos_de_la_creacion_de_los_Juzgados_de_Violencia_sobre_la_Mujer__2005_2012_, accessed on 19/08/2014, pp. 02-3.

180 ibid, no. 02, paragraph 01, Preamble of Law 1/2004

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In light of this striking report, in recalling that the ECtHR has repeatedly

held that states have a “margin of appreciation”181 in the Article 8

provision of the ECHR, it is unclear whether the content of this report and

others similar contain sufficient evidence of “disproportionate effect in the

application”182 of this law on men to satisfy the criteria for a verdict of

violation of this Convention provision. Furthermore the ECtHR states that

under Article 8 of the ECHR, “the boundaries between the State’s positive

and negative obligations do not lend themselves to precise definition”.183

Thus, it is hard to determine the existence of state interference with the

right to family life in Article 8(2) of the ECHR without the application of a

proportionality test. Hence, a wide margin of appreciation, as it appears in

this case, means a laxer test of proportionality. In other words, when a

provision of the Convention contains clauses that allow a state a margin of

appreciation to regulate its application in society, the Court application of

a proportionality test is narrowed. Notably, Law 1/2004 stipulates that

“gender violence is not a problem confined to the private sphere”, thereby

departing from Article 8 of the ECHR prerogatives, bracing for potential

judicial battle before the ECtHR by exhibiting an eagerness to use Article

8(2) as justification of the measures as being “necessary in a democratic

society”.184

181 See Fernandez Martinez v. Spain, App no. 56030/07, (ECtHR, June 12, 2014), paragraph 89 of the judgment; see also Lopez Ostra v. Spain, App no. 16798/90 (ECtHR, December 09, 1994), paragraphs 51 and 58 of the judgment.

182 ibid, no. 32, paragraph 209 of the judgement

183 ibid, no. 181, Fernandez Martinez v. Spain, paragraph 78 of the Judgment.

184 ibid, no. 181, Fernandez Martinez v. Spain, paragraph 78 of the Judgment.

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Another astonishing element of Law 1/2004 during the application of Civil

Code prerogatives on family law is its appropriation by women for judicial

benefits. The settings of the law provide guarantees for child custody in

favour of the woman.185 Against this background, one jurist vehemently criticised

the culture of the automatic concession of child custody to women and opined that “it is a

scam to request, in the name of feminism, that only the women assume the custody of the

children”.186 She consequently questioned the motivation of women who appropriate Law

1/2004 for the purpose of gaining child custody. In addition, she queried the “exertion in

recent years [by women] in wanting to seclude again in the home” through the “manifest

ferocity against joint custody of the children [by the feminist majority] knowing that the only

possibility of women, workers and mothers to have personal and professional space is not by

carrying alone the care and education”187 of children. This issue hints at the utilitarianism of

Law 1/2004 in fostering equality or dynamism in society because, apparently, the substance

of Law 1/2004 does not permit equal guarantees in separation, divorce and child

185 Ibid, no. 02, Article 65 of Law 1/2004; see also Judicial Statistical Data in Application LO 1/2004 Summary of 7 years (data from July 2005 to June 2012, Available at: http://www.poderjudicial.es/cgpj/es/Temas/Violencia_domestica_y_de_genero/Actividad_del_Observatorio/Datos_estadisticos/Balance_de_siete_anos_de_la_creacion_de_los_Juzgados_de_Violencia_sobre_la_Mujer__2005_2012_, accessed on 19/08/2014, pp. 02-3: “The courts adopted 141,465 civil preventive measures while processing the claim. Of these, 134,834 civil measures were adopted in theform of protective orders, which are valid for 30 days until the filing of the civil suit, renewable once filed. Of all civil measures included the food allowance (46,775 measures); housing allocation (41,961); suspension of custody when a previous civil resolution exist about children, minor o both parent (14,496); suspension of visitation by same reason as above (6,932); suspension of parentalrights (709) or referral to child protective services (1,382)”.

186 Maria Sanahuja Buenaventura, Mujeres Trabajo y Custodia Compartida, 16 June, 2010, El Pais Newspaper, 16 June 2010, Available at: http://elpais.com/diario/2010/06/16/opinion/1276639205_850215.html, accessed on 11/08/2014.

187 ibid

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custody; it also hinders any alternative settlement remedies such as

family mediation. Thus, it prohibits all forms of negotiated settlement

between the offender and the victim of domestic violence in family law

separation, divorce and custody proceedings. Article 87 ter of the Organic

Judiciary Act 6/1985, as amended in Article 44 of Law 1/2004, states that

“mediation is prohibited in all the above cases”,188 indicating the moment

at which Law 1/2004 applies to separation, divorce and child custody

cases. This can only indicate an obsessive desire to inflict severe

punishment on any offender of the law without recourse to proportionate

measure which could diminish the alarm created by the procedural rules

of this law in Spanish society. In addition, there is – seemingly – a political

agenda for allowing women to lead a revenge action against men, thus

empowering them above men.

4.3. Summary: Law 1/2004 has spun a web of disparaging legal growth through its

substantive construal in the ambit of judicial investigation and, primarily,

court measures which have disadvantaged men and thwarted the

objectives of affirmative action. The general practice in the event of a

complaint of domestic violence or abuse by a woman is the immediate

arrest, detention, arraignment before a court and committal to prison

custody or enabled bail with stringent protective measures, such as a

restraining order against approaching or communicating with the alleged

victim, and usually without substantial evidence of the alleged crime. A

number of the provisions of Law 1/2004 examined and mentioned above

188 ibid, no. 167, Article 87 ter(5) of the Organic judicial Act 6/1985

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are found to be in breach of the constitutional provisions of Spain.189

Several conflicts between domestic legislations are found within Criminal

Proceedings Law. For instance, the conflict between articles 153 and 617

of the Criminal Code was evident in the determination of proceedings

against women’s and men’s complaints regarding domestic violence. This

has evidenced prejudice under the law in the treatment of domestic

violence when it is committed by a man and when the same

circumstances apply to a woman.

Howbeit, the Spanish Constitutional Court has – in several statements on

jurisprudence – justified this practice and the convoluted reasoning in

support of this practice by lower court judgments. Concomitantly, the

Criminal Chamber of the Spanish Supreme Court has laboured

tremendously to mitigate the unbalancing effect of the law by delving

into, and defining the criminal proceedings law, to establish principles for

the conduct of the lower courts in the areas of conflict with the judicial

norms – such as the right to a fair trial, liberty, burden of proof and no

discrimination. By so doing, the Supreme Court has guaranteed one of

the fundamental provisions of the ECHR, which is the right to effective

remedy. The Constitutional Court, alongside the Supreme Court and the

various Provincial Courts, has guaranteed the right to effective remedy for

most aggrieved men as seen in appeal decisions that have overturned

most of the lower court decisions on domestic violence and abuse. Barring

the eventual intervention from a succession of courts in Spain, which in

189 ibid, no. 158, Articles, 14, 17, 24(2) of the Constitution on non-discrimination, habeas corpus and the burden of proof

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most cases provide redress for wrongful judgments, the ECtHR would have

found the violation of several ECHR provisions. Granted, the next chapter

presents an exhaustive evaluation of the utilitarian value on affirmative action measures in the

pursuit of equality.

Chapter Five: Gender Equality and Utilitarian Factors in Civil Society (Dynamism or Lethargy)

5.1. IntroductionSpain Spain’s gender equality law190 was conceived as a gallant effort to

develop the philosophical ideals of utilitarianism. Law 3/2007 cites John

Stuart Mill’s philosophical precept on equality, which expresses the

characteristics of a “perfect equality”191 that dispels discrimination but

with evident silence on affirmative action. Thus, this “perfect equality” of

which Mill spoke does not bear exact comparison to the protection

guaranteed in the aforementioned laws wherein the teleological

understanding has been distorted by the insertion of discriminatory

actions. John Stuart Mill stated that

the principle which regulates the existing socialrelations between the two sexes – the legalsubordination of one sex to the other – is wrong initself, and now one of the chief hindrances tohuman improvement; and that it ought to bereplaced by a principle of perfect equality,admitting no power or privilege on the one side,nor disability on the other.192

190 Ibid, no. 02, Law 3/2007

191 Ibid, no. 02, paragraph 1(c) of the Preamble of Law 3/2007

192 John Stuart Mill, The Subjection of Women, 1869, Green, Reader and Dyer, p.01.

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The interpretation of this philosophical precept elucidates the absence of

subordination or subjugation of one gender to another. It insists that laws

regulating rights should be equitably measured by congenial dynamics in

order to be legitimized in society.193 However, the substantive nature of

Law 3/2007 and the definition of the principle of equality therein contain

expressions which philosophers summarize as the “dilemma of

utilitarianism [wherein it] admits justified punishment of the innocent”.194

Thus, the law interprets the essence of equality inversely for the purpose

of facilitating its ideological appropriation by the State. Ergo, the notion of

perfect equality is dispelled as the utilitarian theoretical approach on

equality presents a denouncement of discrimination against either gender.

Thus, Mill rejected “the legal subordination of one sex to the other [and

advocated] a principle of perfect equality”.195 In addition, he expressly

rejected the imbalanced exertion of “power or privilege on the one

side”,196 in which case the reversal effect of the gender equality laws has

become a misrepresentation of the fundamental meaning of this

theoretical approach.

193 See Louis Kaplow and Steven Shavell, Fairness Versus Welfare, 2009, Harvard University Press, p. 338.

194 See Michael Philips, ‘The Inevitability of Punishing the Innocent’, 1985, Philosophical Studies: An International Journal for Philosophy in the Analytic Tradition, Vol. 48, No. 3, p. 389; see also Kent Greenawalt, Discrimination and Reverse Discrimination, 1983, Knopf, p. 353.

195 ibid, no. 192, p. 01

196 ibid, no. 192, p. 01

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On this note, it appears relevant to juxtapose Law 1/2004 with Law 3/2007

and observe the contradictions between them that highlight a “situation

of inequality and power relationship prevailing between sexes”.197 In other

words, Law 1/2004 sustains an idea that men and women are unequal,

hence men should be castigated under the drastic measures adopted

therein. Conversely, Equality Law 3/2007 assumes that men and women

are equal in professional life and that women should receive remuneration

and treatment equal to that of men in the workplace. Thus, on the one

hand is a law which considers women to be vulnerable and incapable of

using invective, or of being psychologically abusive and violent198 towards

men. On the other is a law that states that men and women are equals in

every condition.199 Under the Law 1/2004, men are targeted and branded

as abusers. Furthermore, men are unprotected under both pieces of

legislation. Howbeit, compared to Law 1/2004, it appears that the equality

which is recommended under Law 3/2007200 is related to the social status

of each gender as defined in article 9(2) of the Spanish Constitution. In

light of this, Law 3/2007 can be deemed a legislative product of material

equality rather than the assumed response to the numerous European

Council Directives. Article 9(2) of the Spanish Constitution states:

It is the responsibility of the public authorities topromote conditions for freedom and equality of

197 ibid, no. 02, Article 1 of Law 1/2004

198 ibid, no. 02, Article 1, Law 1/2004

199 ibid, no. 02, Preamble of Law 03/2007

200 ibid, no, 02, Law 3/2007.

Page 64 of 95

individuals and groups to which they belong to be realand effective; remove the obstacles that prevent orhinder their plenitude and facilitate the participation ofall citizens in political, economic, cultural and sociallife.201

In view of this, this constitutional provision has served as a justification for

the law to sail through court challenges to its constitutionality. However,

the underlying question is whether this constitutional prerogative of

government has, in practice, been employed effectively in line with the

objective of “perfect equality”202 as justified in Law 3/2007. In a different

consideration, the same constitution, in article 14, together with ECHR

provisions,203 prohibits discrimination, thus setting a limitation to the

extent to which the state could go in regulating the function of society as

stipulated in the provisions of article 9(2). Furthermore, part of the

measures may have sown inequality into the democratic roots of society,

enshrining it to the detriment of men. This measure is found in article 16

of Law 3/2007.

6.1. Parity in the Government: Article 16 of Law 3/2007A contentious area of this law is the idea of parity in the election of public

servants which is reiterated in several provisions of Law 3/2007.204 Article

16 and the Second Additional Provision of Law 3/2007 have been set apart

by this work for their relevance as discursive elements.

201 ibid, no. 158, Article 9(2)

202 ibid, 192, p. 01

203 ibid, no. 04, Article 14 and Article 1 of Protocol No. 12

204 ibid, no. 02, Articles 15 and 16 and the Second Additional Provision of Law 3/2007

Page 65 of 95

Although Law 3/2007 aims to implement the principle of equal treatment

and opportunities for women by eliminating discrimination against women

in all ambits of social, civil, political, professional, economic and cultural

life,205 it contains practical measures which undermine the relevance of

the egalitarian rights of men. Consequently, it establishes two strands of

affirmative measures. First is the regulation of employers’ conduct and a

demand to adopt affirmative action for the purpose of ensuring equal

opportunities for women in the workplace and in professional life. Second

is the alteration of the “constituent powers”206 in democratic society in

favour of female political candidates against the provision of article 1(2) of

the Spanish Constitution207. There are several question marks regarding

the constitutionality of this action as can be seen in the challenge

regarding the constitutionality of the efforts to achieve parity in the

electoral process. Although Spanish Constitutional Court Judgment No. STC

12/2008 has cleared doubts about the constitutionality of Law 3/2007, as

of 22 March, on the effective equality of women and men in the ambit of

parity or proportional representation in the government, the substantive

nature of the law raises the issue of “majoritarianism”208 in the political

environment.

205 ibid, no. 02, Articles 1(1), 1(2) and 14(2) of Law 3/2007

206 See article 44 bis of Organic Law 5/1985, of the General Electoral Regime, published in BOE [State Official Gazette] No 147 of 20 June 1985, as amended in the Second Additional Provision of Organic Law 3/2007 on Equality between Women and Men.

207 ibid, no. 158, Article 1(2): “National sovereignty is vested in the Spanish people, from whom emanate the powers of the State.”

Page 66 of 95

This contentious measure stems from the modification of article 44 bis of

Organic Law 5/1985 of the general electoral system by the Second

Additional Provision of Organic Law 3/2007 of 22 March to effective

equality of women and men for possible violation of Art. 23, regarding

[possible] violation of articles. 6 and 14, all of the Constitution209. The

additional provision of Law 3/2007 states that the list of political

candidates in the regional elections ought to “have a balanced

composition of women and men”210 and an imposition of a minimum quota

of “forty percent of women in each space of five positions”211 in the

electoral list. This contentious issue goes against the discourse on who

decides what human rights are. Article 1(2) of the Spanish Constitution

states that “the constituent power is held by the Spanish people”212. Thus,

Spanish women and men, in their majority, decide who rules and,

consequently, the degree of prevailing legislative content in society. It

becomes a matter of the prevalence of the majoritarian principle over the

principle of equality in human rights. The notion of equality and freedom,

therefore, has been converted to affectations by political parties and their

208 See Helen Fenwick, Gavin Philipson and Roger Masterman, Judicial Reasoning under the UK Human Rights Act, 2007, Cambridge University Press, p.349: “Majoritarian transgression”; see also Andrew Fagan, Human Rights: Confronting Myths and Understandings, 2009, Edward Elgar Publishing, pp. 99-100.

209 See paragraph 01 of the Spanish Constitutional Court, Plenary Judgment No. 12/2008 of 29 January 2008, published in BOE: State Official Gazette, 52 of 29 February 2008).

210 ibid, no. 206

211 ibid, no. 206, paragraph 2 of the Article 44-bis

212 ibid, no. 158, Article 1(2)

Page 67 of 95

ideological inclination wherein justification for the promulgation of

affirmative measures exists.

The content of the Second Additional Provision of Law 3/2007 reflects an

imposition of the majority. It does not matter whether the majority are a

combination of women and men; instead, it develops into a prevailing

ideological precept which favours a radical feminist approach.213 The

imposition of a proportional number of female candidates goes against the

effectiveness of article 1(2) provision of the Spanish Constitution. It is

seemingly a legislation, contrary to the law, which empowers a particular

gender influence to sit in parliament where laws are enacted and

truncates the process of a free and fair electoral process, in conflict,

therefore, with Article 3 of Protocol No. 1 of the ECHR. The provisions of

article 9 of the Spanish Constitution may not have anticipated its

appropriation for affirmative action measures which diminish the very

principle of equality. Conversely, it is important to note that “equality is

not only measured in the initial inequality but also in the result of certain

conducts formally [such as] non-discriminatory behaviour that put women

at a disadvantage”.214 However, nothing of the existing economic-political

situation seems to have expressly obstructed women’s access to it.

213 Katharine T Bartlett and Rosanne Kennedy, Feminist Legal Theory: reading in law and gender, 1991, Westview Press, p. 207.

214 Rosario Serra Cristobal, “La discriminación indirecta por razón de sexo”, published in Mª Josefa Ridaura Martinez and Mariano J. Aznar Gomez (eds.), Discriminación versus diferenciación: Especial referencia a la problemática de la mujer, 2004, Tirant Lo Blanch, p. 397.

Page 68 of 95

For this reason, a utilitarian analysis of Law 3/2007 underlines a problem

of definition for which the success of a man is assumed to be a product of

discrimination and thereby lacks utility for society. Therefore, the problem

with assuming that society is ineffectively served when women are not

serving society through equal representation215 is erroneous. This is

because this assumption is based on statistics and other reports which do

not represent the facts or the demands of society.216 The problem is,

therefore, that these measures often ignore diversity or dynamism in

society217 and focus on the satisfaction of a particular “interest group”218 in

society.

The Council of Europe framework on equality between women and men

provides various Directives219with vague expressions which fit the

argument both against and in favour of affirmative action. For instance,

Article 2(b) of the Council’s Directive 2004/113/EC on the one hand

establishes prohibition of indirect discrimination, yet supports affirmative

action based on “a legitimate aim, appropriate and necessary”220 in a

supposedly democratic society. Indeed, this Article is also commonly

215 Kent Greenawalt, Discrimination and Reverse Discrimination, 1983, Alfred A. Knopf, p. 63.

216 ibid, no. 124

217 See Richard F Tomasson, Faye J Crosby and Sharon D Herzberger, AffirmativeAction: The Pros and Cons of Policy and Practice, 2001, Rowman and Littlefield, pp. 123-124.

218 UN General Assembly, Convention on the Elimination of All Forms of Discrimination against Women, 18 December 1979, United Nations, Treaty Series, vol. 1249

219 ibid, no. 71

Page 69 of 95

adopted in other Directives bearing equivalent wording as a judicial

norm.221 This justification222 serves as an extra limitation in states’

application of affirmative measures and, in the case of Spain, where the

“disproportionate effect in the application”223 of the law is felt among the

male community, there is a conviction that the ECtHR will be pleased with

divergent ideological precepts224 for assessing and interpreting its

compliance with the Convention. First, the Directive warns against the use

of its provisions as a justification for any “regression” to the status quo

ante in the respective member countries.225 This warning was intended to

act as a deterrent against governments deviating from the fundamental

aim of fostering equality between women and men.

6.2. Consequences: Lethargy?Affirmative action has both positive and negative effects. It advantages

some individuals and disadvantages others, as well as fostering

resentment, and “it is exceedingly difficult to balance the benefits and

220 ibid, no. 71, Article 2(b) of Council Directive 2004/113/EC

221 ibid, no. 71, Article 2 of Directive 2002/73/EC

222 ibid, no. 04, Article 8(2): “A legitimate aim, proportionality and necessary in a democratic society”; see also, Douwe Korff, The Standard Approach under Articles 8-11 ECHR and Article 2 ECHR, 2008, London Metropolitan University, Available at: http://ec.europa.eu/justice/news/events/conference_dp_2009/presentations_speeches/KORFF_Douwe_a.pdf, accessed on 31/08/2014.

223 ibid, no. 32

224 See Spyridōn I. Phlogaitēs, Tom Zwart, Julie Fraser, The European Court of Human Rights and its Discontents: Turning Criticism Into Strength, 2013, Edward Elgar Publishing, p. 60

225 ibid, no. 71, paragraph 26 of the Preamble, Council Directive 2004/113/EC

Page 70 of 95

cost thereof in an attempt to establish whether the end result is positive

or negative”.226 This is striking because it reintroduces the question of the

limitations of affirmative action as stated earlier in chapter one.

One consequence of discriminatory measures as a means of enhancing

equality is the effect on freedom. Affirmative action, as argued by

opponents, “lowers standards” and creates enormous consequences for

the “creation of welfare in the society”.227 Thus, experts opine, it limits the

freedom of employers to determine who they hire and in adhering to a

meritocratic consideration of candidates rather than an imposed action

under the law. The role of the State as impartial is compromised by the

intrusion of discriminatory action into the libertarian concepts of

freedom.228 Consequently, this inequitable action conflicts with the

libertarian concepts of freedom,229 thereby creating a breach of the State’s

negative duty as expressed in the ECHR. Hence, any evidence of gaps in

utilitarianism which permit the punishment of the innocent and

exoneration of the guilty230 remains a concern in both the substantive and

procedural elements of these equality laws.

226 Johan Rabe, Equality, Affirmative Action and Justice, 2001, BoD – Books on Demand, p. 99

227 ibid, no. 215, p. 66

228 Andrew Koppelman, Antidiscrimination Law and Social Equality, 1998, Yale University Press, p. 181

229 ibid

230 Michael Philips, ‘The Inevitability of Punishing the Innocent’, 1985, Philosophical Studies: An International Journal for Philosophy in the Analytic Tradition, Vol. 48, No. 3, p. 389.

Page 71 of 95

Most EU Directives contain provisions for “positive action” that encourage

states to adopt “specific measures to prevent or compensate for

disadvantages linked to sex”.231 Thus, the effect of any existing sexual

inequality ought to the compensated through affirmative measures. As is

evident, positive measures affect the right to freedom of employers and

others. Although there are no specific provisions regarding the protection

of employees or employers under the ECHR, Articles 6, 8 and 14 of the

Convention have been used to challenge employment disputes. In this

vein, ECtHR case law has been used in determining violations of

employees’ or employers’ rights; these case laws present judgments for

and against the freedom of employers to employ or dismiss any individual

they choose.232 Scholarly opinion suggests a precautionary principle

regarding divergent judicial outcomes within the ECtHR that translates to

a “consequential calculation”233 of the utilitarianism approach, a human

rights-balanced consideration of “the effects [of inaction] on rights”,234

and the dignitarian approach that supports jurisdictional restraint “where

activities compromise human dignity”.235 There are seemingly various

231 ibid, no. 71, Article 6 of Directive 2004/113/EC

232 See Michael Obst v. Germany, App no. 425/03, (ECtHR, September 23, 2010); Bernhard Schüth v. Germany, App no. 1620/03, (ECtHR, September 23, 2010); Larissis and Others v. Greece, App nos. 140/1996/759/958 – 960, (ECtHR, February 24, 1998); Fernandez Martinez v. Spain, Fernandez Martinez v. Spain, App no. 56030/07, (ECtHR [GC], June 12, 2014).

233 Roger Brownsword, ‘Making People Better and Making Better People: Bioethics and the Regulation of Stem Cell Research’, 2005, Journal of Academic Legal Studies, Vol. 1, pp. 05-13 (p. 10).

234 ibid

235 ibid, no. 233

Page 72 of 95

violations of the ECHR’s or its Court’s jurisprudence. However, a

determination of the extent of the breach of Law 3/2007 of the ECHR

depends on the facts surrounding each case.

Chapter Seven7.1. Conclusion

Throughout this research study, it has been demonstrated that the

elimination of all forms of discrimination against women as a common

21st-century agenda for states – under international law – precipitated the

regulation of Spanish domestic legislation in line with international human

rights conventions, directives and recommendations. In light of this, the

ECHR established a treaty commitment which compels states to

guarantee the fulfilment of positive and negative duties to individuals at

all levels of society236. Conversely, the treaty presents an exemption for

positive action aimed at balancing equality among genders, races and

interest groups in society. In addition, states’ obligations are supervised by

the ECtHR, which has a clear stance on affirmative action, insisting that

affirmative action measures must not create a disproportionate effect on

others in its practice237.

Suffice it to say that the ECHR as well as the ICCPR admit these forms of

discriminatory measure for the purpose of providing reparation for the

imbalance represented by discrimination against a particular group in

society. However, the ECtHR sets limitations on affirmative action through

236 ibid, no. 04, Article 1 of the ECHR

237 ibid, no. 32

Page 73 of 95

precedent, in which the interpretation of ECHR provisions in Article 14 and

Article 1 of Protocol No. 12 is a focal point. These provisions of the ECHR

have the legal purpose of ensuring states’ observation of negative

obligations in the treaty towards citizens. Nevertheless, as outlined in this

work, Spanish laws contain gaps that allow the breach of the

aforementioned state negative duty.

Fundamentally, the issue with these Spanish laws is the essence of the

laws themselves as expressed in their common article 1 which, ab initio, is

clearly discriminatory in its content by disallowing protection of men

under the same laws.

In light of this, and in the procedural rules that apply in the application of

these laws, this work has identified discrimination in various provisions of

these pieces of state legislation. For example, articles 153(1) and 617 of

the Criminal Code present evidence of extra limitations imposed by the

state in its prerogative to regulate positive action under domestic law,

wherein women and men are penalised differently in the commission of

similar crimes. Proceedings on domestic violence crimes by men are

referred to a special court and prosecuted under article 153(1) of the

Criminal Code, which adopts a more stringent investigative procedure

whereby the arrest, detention and arraignment of suspects is an habitual

practice. The commission of a similar offence by a woman is, however,

treated under criminal law provision of article 617 of the Criminal Code,

which carries lighter sentences and requires no automatic arrest of the

suspect. Such discrimination, as this work has observed, is facilitated by

Page 74 of 95

the establishment of a special court on gender violence and the

amendment of the aforementioned Criminal Code provision under Law

1/2004.

In addition, these discriminatory procedural rules permit violation of men’s

rights in Spain during investigative proceedings. Notably, this procedural

system of protection also violates several provisions of the Spanish

Constitution, although the Spanish Constitutional Court stated the

contrary in its landmark judgment of 2008. However, this work considers

that the arrest, detention and arraignment of suspects with little or no

evidence do not comply with the rights protected under Article 5(1) of the

ECHR.

Even the criminalisation of offences against individual honour, such as

slander – under Law 1/2004 – aggravates the breach of men’s rights.

Conscious of the difficulty in proving the commission of these crimes or

the innocence of the accused, the law provides for evidence to be derived

by means of an inquisitorial system of proof. The judge in each case,

therefore, exerts great power in admitting or rejecting evidence or witness

statements.

Consequently, wrongfully accused men experience difficulty in defending

their innocence under this law because the weight of evidence given to

the word of the alleged victim creates an automatic presumption of the

guilt of the accused. This goes against the obligation of the burden of

evidence on the side of the prosecution as expressed in article 24(2) of

the Spanish Constitution and Article 6(2) of the ECHR.

Page 75 of 95

In addition, this research highlighted a number of cases of false

accusation against men. Many cases are dismissed or overturned in the

upper tribunal where evidence of false accusation exists. In most cases,

the judges of the special courts mitigate the seriousness of the crime of

false accusation by de-emphasising the judicial proceeding and

subsequently issuing a stay of execution order. Thus, this work contends

that the appearance of a stay of proceedings in the observatory reports

denotes clear evidence of false accusation because, under Law 1/2004,

the word of the woman in a case is given enough weight of evidence to

convict any man who has insufficient proof of innocence.

Other important legal issues that border on the utility of the laws in

Spanish society include the Law 1/2004 double jeopardy effect in the

application of family law proceedings on separation, divorce and child

custody. The absorption of civil and family law by Law 1/2004 does not

simply conflict with Article 14(7) of the ICCPR which has been adopted in

ECtHR case law, therefore in contravention of the rights of men under the

ECHR, but also goes against the rights of a child to family life.

This work discussed a number of provisions under the UN Convention on

the Rights of the Child which specify the right of children to the enjoyment

of both parents and exceptional cases in which the deprivation of the

aforementioned rights could be justified, respecting, at all times, the

interests of the child. However, under Law 1/2004, children are

automatically deprived of a large part of their family, especially from their

father’s side, because in most cases, as proven in the Spanish General

Page 76 of 95

Council of the Judicial Power observatory report, child custody is

commonly given to the mother.

Even if there were doubts about the law 1/2004’s constitutionality – which

the Constitutional Court has clarified by ruling that the law is

constitutional – there are enough legal grounds to believe that these laws

conflict with the ECHR in several of its articles, such as Articles 14, 6, 5(1)

and 8, for the following reasons: first, there is no equality in the process;

second, the process does not guarantee a fair trial; third, only men are

deprived of their right to liberty; and, finally, the process is often very slow

and noxious, breaking or imperilling the relationship between parents and

children until the court resolves the criminal matter. The laws do not

represent legitimate affirmative action because they are unequivocally

discriminatory against men. Ultimately, they do not respect the process of

equality and are, therefore, contrary to or in conflict with the European

Convention on Human Rights.

7.2. Recommendations This work recommends the amendment of article 1 of Law 1/2004 to

include an additional clause which specifies the enjoyment of protection

afforded under this law to men in Spain. Subsequent to this amendment,

the wording of articles 153 and 173 of the Criminal Code ought to be

reviewed in order to avail men of protection against gender violence equal

to that afforded to women in Spain. Fundamentally, these legislative

amendments would align the concept of equality to its original meaning of

“perfect equality”, which the laws allege are the reason for their

promulgation. If amended, Spanish society would enjoy more dynamic

Page 77 of 95

prospects for women’s empowerment in their professional and private life

and reassurance for men who have felt themselves to be defenceless and

unprotected under these Spanish laws.

Bibliography:

a) Primary Sources

Cases:

Judgment No. 982/10 of the Provincial Court of Madrid, Section XX, Appeal No. 102/2010,

Resolution No. 982/2010, CENDOJ ID: 05267392038008476212.

Judgment No. 1025/08 of the Provincial Court of Barcelona, Section XX, Appeal No.

96/2008 – APPRA, Resolution No. 1025/2008, CENDOJ ID: 08019370202008100363.

Málaga Criminal Court No. 11, Judgment No. 456/09, 17 of November, 2009, Cendoj Id:

18079120012010100683.

Provincial Court, Section 1 of Valencia, Judgment No. 131/2014, CENDOJ Id:

46250370012014100092.

Provincial Court, Section, of Valencia, Judgment No. 000136/2014, CENDOJ Id:

46250370012014100093.

SAP v. 1307/2014, Provincial Court of Valencia, Appeal Judgment No. 25/2014, Resolution

No. 144/2014, Available at: CENDOJ Id: 46250370012014100082.

Spanish Constitutional Court, Plenary Judgment No. 12/2008 of 29 January 2008, published

in BOE [State Official Gazette] No. 52 of 29 February 2008.

Spanish Constitutional Court Plenary Judgment No. 59/2008, of 14 May 2008, published in

BOE [State Official Gazette] No. 135 of 4 June 2008.

Page 78 of 95

Spanish Constitutional Court Judgement (STC) No. 59/2008, of 14 of May 2008, published in

BOE [State Official Gazette] No. 100 of 26 June 2008.

Spanish Constitutional Court Judgment (STC) No. 127/2009 of 26 of May 2009, published in

BOE [State Official Gazette] No. 149 of 20 of June 2009.

Spanish Constitutional Court Judgment (STC) Sentence 45/2010, of July 28, 2010, published

in BOE [State Official Gazette] No. 195 of August 12, 2010.

Spanish Constitutional Court Judgement (STC) No. 45/2009 of 19 of February, 2009,

published in BOE [State Official Gazette] No. 195, of 12 of August 2010.

Spanish Constitutional Court Judgment (STC) No. 032/2014, of February 2014, published in

BOE [State Official Gazette] No. 73, of 25 of March, 2014.

Spanish Supreme Court Judicial Decree No. 5725/2014, Supreme Court Section 1 - Criminal

Division, Section: 1, Appeal No.: 10122/2014, Resolution No.: 1020/2014, CENDOJ Id:

28079120012014201432.

A.B. and C. v. Ireland, App no. 25579/05, (ECtHR, December 16, 2010).

Abdulaziz, Cabales and Balkandali v. the United Kingdom, App No. 9214/80, 9473/81,

9474/81, (ECtHR, May 28, 1985).

Barbera, Messegue and Jabardo v Spain, App. No. 10590/83, (ECtHR, December 6, 1988).

Bernhard Schüth v. Germany, App no. 1620/03, (ECtHR, September 23, 2010).

Chassagnou and Others v. France, App. nos. 25088/94, 28331/95 and 28443/95, (ECtHR,

April 29, 1999).

Christine Goodwin v. the United Kingdom, App no. 28957/95, (ECtHR, July 11, 2002).

Page 79 of 95

D.H. and Others v. the Czech Republic, App no. 57325/00 (ECtHR [GC], November 13,

2007) .

Dudgeon v. the United Kingdom, App no. 7525/76, (ECtHR, October 22, 1981).

Evans v. the United Kingdom, App no. 6339/05, (ECtHR, April 10, 2007).

Fernandez Martinez v. Spain, App no. 56030/07, (ECtHR [GC], June 12, 2014).

Franz Fischer v. Austria, App no. 27569/02, (ECtHR, May 6, 2003).

Frette v. France, no. 36515/97, App no. 36515/97, (ECtHR, February 26, 2002).

Gradinger v. Austria, App no. 15963/90, ECtHR, October 23, 1995).

Hokkanen v. Finland, App No. 19823/92, (ECtHR, September 23, 1994).

Horciag v. Romania, App no. 70982/01, (ECtHR, March 15, 2005).

Imbrioscia v. Switzerland, App no. 13972/88, (ECtHR, November 24, 1993).

I.M. v. France, App No. 9152/09, (ECtHR, February 02, 2012).

Karalevicuis v. Lithuania, App. No. 53254/99, (ECtHR, April 7, 2005).

Khan v. The UK, App no. 35394/97, (ECtHR, May 12, 2000).

Konstantin Markin v. Russia, App no. 30078/06, (ECtHR, March 22, 2012).

Larissis and Others v. Greece, App nos. 140/1996/759/958960, (ECtHR, February 24, 1998).

Lopez Ostra v. Spain, App no. 16798/90 (ECtHR, December 09, 1994).

Mamatkulov and Askarov v. Turkey, App no. 46827/99, (ECtHR, February 04, 2005).

Michael Obst v. Germany, App no. 425/03, (ECtHR, September 23, 2010).

Nikitin v. Russia, App no. 50178/99, (ECtHR, July 20, 2004).

Page 80 of 95

Oneryaldiz v. Turkey, App No. 48939/99, (ECtHR [GC], November 30, 2004).

Opuz v. Turkey, App no. 33401/02, (ECtHR, June 9, 2009).

Panovits v. Cyprus, App no. 4268/04, (ECtHR, December 11, 2008).

Radio Twist A.S. v. Slovakia, App no. 62202/00, (ECtHR, December 19, 2006).

Sakhnovskiy v. Russia, App. no. 21272/03, (ECtHR [GC], November 2, 2010).

Salduz v. Turkey App no. 36391/02, (ECtHR [GC], November 28, 2008).

Sergey Zolotukhin v. Russia, App no. 14939/03, (ECtHR, February 10, 2009).

Scordino v. Italy, App No. 36813/97, (ECtHR, March 26, 2006).

S.H. and Others v. Austria, App no. 57813/00, (ECtHR, November 03, 2011).

Sitaropoulos & Giakoumopoulos v. Greece, App no. 42202/07, (ECtHR, March 15, 2012).

Soering v. the United Kingdom, App no. 14038/88, (ECtHR, July 07, 1989).

Stafford v. the United Kingdom, App no. 46295199, (ECtHR, May 28, 2002).

Thlimmenos v. Greece, App no. 34369/97, (ECtHR, April 6, 2000).

Tyrer v. the United Kingdom, App no. 5856/72, (ECtHR, April 25, 1978).

Vallianatos and Others v. Greece, App nos. 29381/09 and 32684/09, (ECtHR, November 07,

2013).

Vernillo v. France, App No. 11889/85, (ECtHR, February 20, 1991).

X., Y. and Z. v. the United Kingdom, App no. 21830/93, (ECtHR, September 13, 1995).

Charter; Conventions; Treaties, Constitution:

Page 81 of 95

The Convention on the Elimination of All Forms of Discrimination Against Women, 18

December 1979, United Nations, Treaty Series, Vol. 1249.

The Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty

Series, Vol. 1577.

The European Convention on Human Rights, Convention for the Protection of Human Rights

and Fundamental Freedoms, Rome, 4.XI.1950, Available at:

http://www.echr.coe.int/Documents/Convention_ENG.pdf, accessed on 26/08/2014.

The International Covenant on Civil and Political Rights (ICCPR), 1966, Available at:

http://www.ohchr.org/Documents/ProfessionalInterest/ccpr.pdf, accessed on 26/08/2014.

The Spanish Constitution of 1978, published in BOE [State Official Gazette] No. 311, 29

December 1978.

The Universal Declaration of Human Rights, 10 December 1948, United Nations, 217 A (III)

The Vienna Convention on the Law of Treaties (VCLT), 23 May 1969, United Nations,

Treaty Series, vol. 1155.

UN General Assembly, Declaration on the Elimination of Violence against Women, 20

December 1993, A/RES/48/104.

Legislations:

Council Directive 76/207/EEC on the implementation of the principle of equal treatment for

men and women as regards to access to employment, vocational training and promotion, and

working conditions, OJ L269, 5/10/2002.

Page 82 of 95

Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for

equal treatment in employment and occupation, Official Journal L 303, 02/12/2000 pp. 0016-

0022.

Council Directive 1997/80/EC of December 1997 on the Burden of Proof in Cases of

Discrimination Based on sex, Official Journal, L 14, 20/1/1998.

Council Directive 2002/73/EC of the European Parliament and of the Council of 23

September 2002, Official Journal, L 18, 05/3/2003.

Council Directive 2004/113/EC of 13 December 2004, implementing the principle of equal

treatment between men and women in the access to and supply of goods and services,

Official Journal of the European Union, L373/37, 21/12/2004.

Regulation 606/13/EU on the Mutual Recognition of Civil Law Protection Measures adopted

in June 2013, Official Journal of the European, C 039, 8/02/2014.

The Spanish Civil Code, Royal Decree of July 24, 1889, Effective till July 15, 2015,

Available at: http://www.elra.eu/wp-ontent/uploads/file/Spanish_Civil_Code_(C

%C3%B3digo_Civil)%5B1%5D.pdf, accessed on 27/08/2014.

The Spanish Code of Civil procedure relating to separation and divorce as amended in law

15/2005 (Express Divorce Law), published in BOE [Official State Gazette] no 163.

The Spanish Criminal Proceeding Act, Royal Decree of 14 September 1882 on the Criminal

Procedure Act was adopted, published in BOE [Official State Gazette) No. 260 of 17

September 1882, Effective until 25 of September 2014.

The Civil Procedure Law 1/2000 of 7 January, 2000, published in BOE [State Official

Gazette] No. 7, 08/01/2000.

Page 83 of 95

The Spanish Organic Law 6/1984 of 24 May, regulating the Procedure of habeas corpus,

published in BOE [State Official Gazette] No. 126, 26 of May 1984.

The Spanish Organic Law 5/1985, of the General Electoral Regime, published in BOE [State

Official Gazette] No 147 of 20 June 1985.

The Spanish Organic Law 6/1985 on the Judicial Power, published in BOE [Official State

Gazette] no. 157 of July 2 1985.

The Spanish Organic Law 10/1995 of 23 November 1995, Spanish Criminal Code, published

in BOE [State Official Gazette] No. 281, 24 November 1995.

The Spanish Criminal Proceedings Law 38/2002 (Law 38/2002, of 24 October, the partial

reform of the Law of Criminal Procedure, on procedure for processing rapid trial and

immediate prosecution of certain offenses and misdemeanours, and the amendment of the

summary procedure), published in BOE [State Official Gazette] No. 258 of 28 October, 2002.

The Spanish Organic Law 3/2003, the Legal Proceeding 3/2003 of 14 March, of the CGPJ

(Consejo General del Poder Judicial – General Council of Judicial Power), on Standards of

Distribution of Criminal and Computer Record on Domestic Violence, published in BOE

[State Official Gazette] No. 65 of 17 March 2003.

The Spanish Organic Law 1/2004 of 28 December on Integrated Protection Measures against

Gender Violence, published in BOE [State Official Gazette] No. 313 of 29 December, 2004.

The Spanish Organic Law 3/2007 of 22 March for effective equality between women and

men, published in BOE [State Official Gazette] No. 71 of 23 March, 2007.

Official Reports/Recommendations:

Conclusions from the VIII Seminar of the Delegate Prosecutors in Domestic Violence against

Women - in the Year 2012, Madrid, 8 to 9 October, 2012, Available at:

Page 84 of 95

http://www.fiscal.es/Home.html?pagename=PFiscal%2FPage

%2FFGE_home&cid=1240559967365&_charset_=utf-

8&buscador=2&palabra=violence+genero+denuncia+falsa&btnBuscar=Buscar, accessed on

14/08/2014.

Explanatory Report, Protocol No. 12 to the Convention for the Protection of Human Rights

and Fundamental Freedoms, ETS No. 177, Council of Europe.

Explanatory Report on Protocol No. 7 to the Convention for the Protection of Human Rights

and Fundamental Freedoms, ETS No. 117, Council of Europe.

Recommendation Rec(2002)5 of the Council of Europe Committee of Ministers to Member

States on the protection of women against violence (adopted by the Committee of Ministers

on 30 April 2002 at the 94th meeting of the Ministers’ Deputies).

The Platform for Action adopted at the Fourth World Conference on Women (Beijing, 1995)

and the Resolution on Further actions and initiatives to implement the Beijing Declaration

and Platform for Action adopted by the United Nations General Assembly (23rd extraordinary

session, New York, 5-9 June 2000).

The General Council of Spanish Lawyers, Response from the General Council of Spanish

Lawyers to the Green Paper on Detention, 2011, European Commission:

Available at:

http://ec.europa.eu/justice/newsroom/criminal/opinion/files/110510/es_general_council_of_s

panish_bar_en.pdf, accessed on 11/08/2014.

The Human Rights Committee, General Comment 18, Non-discrimination (37th session,

1989), Compilation of General Comments and General Recommendations Adopted by

Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.1 at 26 (1994).

Page 85 of 95

Spanish Ministry of Health, Social Services and Equality, created under the Royal Decree(s)

1823/2011, of 21 December 2011; 1887/2011, of 30 December 2011 and 200/2012 of 23

January, 2012: Available at:

https://www.msssi.gob.es/ssi/violenciaGenero/Sensibilizacion/CampanasPublicitarias/OtrasC

ampanas/home.htm, accessed on 19/08/2014.

VI ‘Informe De España Convención Para La Eliminación De Todas Las Formas De

Discriminación Contra La Mujer (VI Report of Spain Convention for the Elimination of all

Forms of Discrimination Against Women), Marzo De 2008’, Available at:

http://www.msssi.gob.es/ssi/igualdadOportunidades/internacional/onu/Documentos/VI_Infor

_marzo_2008. pdf, accessed on 11/08/2014.

Official Statistics:

General Council of the Judiciary (Spain), Section of Justice Statistics, Violence against

women in judicial statistics: Annual Data 2013, 7 April 2014, Available at:

http://www.poderjudicial.es/cgpj/es/Temas/Violencia_domestica_y_de_genero/Actividad_del

_Observatorio/Datos_estadisticos/La_violencia_sobre_la_mujer_en_la_estadistica_judicial__

Datos_anuales_de_2013, accessed on 12/08/2014.

Institute of National Statistics (INE), Press Notes, 26 September, 2013, Available at:

http://www.ine.es/prensa/np800.pdf, accessed on 13/08/2014.

Judicial Council, Report on fatal victims of domestic violence and domestic violence in the

area of partner or former partner in 2011, (June, 2011), Available at:

http://www.poderjudicial.es/cgpj/es/Poder_Judicial/Sala_de_Prensa/Archivo_de_notas_de_pr

ensa/Informe_sobre_victimas_mortales_de_la_violencia_de_genero_y_de_la_violencia_dom

estica_en_el_ambito_de_la_pareja_o_ex_pareja_en_2011, accessed on 19/08/2014.

Page 86 of 95

Judicial Statistical Data in Application LO 1/2004 Summary of 7 years (data from July 2005

to June 2012 (21 November 2012), Available at:

http://www.poderjudicial.es/cgpj/es/Temas/Violencia_domestica_y_de_genero/Actividad_del

_Observatorio/Datos_estadisticos/Balance_de_siete_anos_de_la_creacion_de_los_Juzgados_

de_Violencia_sobre_la_Mujer__2005_2012_, accessed on 19/08/2014.

National Institute of Statistics, Statistics on Mortal Victims from Gender Violence by their

Actual or Ex Partners, 2014, Available at:

http://www.ine.es/ss/Satellite?

L=es_ES&c=TFichaIOE_C&cid=1259931150856&p=1254735038414&pagename=IOEhist

%2FIOEhistLayout, accessed on 19/08/2014.

Spanish Government Statistics of Mortal Victims of Gender Violence, 2014, available at

https://www.msssi.gob.es/ssi/violenciaGenero/portalEstadistico/docs/VMortales_2014_18_08

.pdf, accessed on 19/08/2014.

b) Secondary Sources

Articles:

Andreas Vosskuhle, Pyramid or Mobile? – Human Rights Protection by the European

Constitutional Courts, Opening of the Judicial Year 2014 at the European Court of Human

Rights, Strasbourg, 31 January 2014, Available at:

http://www.echr.coe.int/Documents/Speech_20140131_Vosskuhle_ENG.pdf, accessed on

14/04/2014.

Carol Hegemann-White and Sabine Bohn, Protecting Women against Violence; analytical

study of the result of the second round of monitoring the implementation of Recommendation

Rec(2002)5 on the protection of women against violence in Council of Europe member

states, 2007, Council of Europe; CDEG (2007), 3 rev, Available at:

Page 87 of 95

http://www.coe.int/t/dghl/standardsetting/equality/03themes/violence-against-

women/CDEG(2007)3_en.pdf, accessed on 12/08/2014.

Douwe Korff, The Standard Approach under Articles 8-11 ECHR and Article 2 ECHR, 2008,

London Metropolitan University, Available at:

http://ec.europa.eu/justice/news/events/conference_dp_2009/presentations_speeches/KORFF

_Douwe_a.pdf, accessed on 31/08/2014.

Dovydas Vitkauskas and Grigoriy Dikov, Protecting the right to a fair trial under the

European Convention on Human Rights, 2012, Council of Europe Human Rights Handbook.

Egbert Myjer (ed), The Conscience of Europe: 50 Years of the European Court of Human

Rights, Council of Europe, October 2010. Available at:

http://www.echr.coe.int/Documents/Anni_Book_Chapter13_ENG.pdf, accessed on

29/03/2014.

‘Noticias Juridicas’, The refusal of women to testify against her husband, the main cause

which obliges the Prosecutor to withdraw charges against a perpetrator, 2012,

Available at: http://noticias.juridicas.com/actual/3182-la-negativa-de-la-mujer-a-declarar-en-

contra-de-su-marido-principal-causa-que-obliga-a-la-fiscalia-a-retirar-cargos-a-un-

maltratador.html, accessed on 28/08/2014.

Nuala Mole and Catharina Harby, The right to a fair trial, A guide to the implementation of

Article 6 of the European Convention on Human Rights, 2006, Council of Europe Human

Rights Handbooks, No. 3.

Books:

Andrew Fagan, Human Rights: Confronting Myths and Understandings, 2009, Edward Elgar

Publishing.

Page 88 of 95

Andrew Koppelman, Antidiscrimination Law and Social Equality, 1998, Yale University

Press.

Andrew Sanders, Richard Young, and Mandy Burton, Criminal Justice (3rd Edition), 2010,

Oxford University Press.

Arnardottir, Oddny Mjoll, Equality and Non-Discrimination under the European Convention

on Human Rights, 2002, Kluwer.

David Maxwell Walker, The Scottish Legal System: An Introduction to the Study of Scots

Law (5th edn), Revised 1981, W Green and Son Ltd.

Dimitris Xenos, The Positive Obligations of the State under the European Convention of

Human Rights, 2011, Routledge.

George Letsas, A Theory of Interpretation of the European Convention on Human Rights,

Oxford University Press, 2007.

Harold Cooke Gutteridge, Comparative Law: an introduction to the comparative method of

legal study and research, 2012, Cambridge University Press.

Helen Fenwick, Gavin Phillipson and Roger Masterman, Judicial Reasoning under the UK

Human Rights Act, 2010, Cambridge University Press.

Jillah R Eisenstein, Capitalist Patriarchy and the Case for Socialist Feminism, 1979, Monthly

Review Press.

Johan Rabe, Equality, Affirmative Action and Justice, 2001, BoD – Books on Demand.

John Finnis (ed) Natural Law and Natural Rights, 1980, Oxford, Clarendon Press.

John Stuart Mill, The Subjection of Women, 1869, Longmans, Green, Reader and Dyer.

Page 89 of 95

Jonathan Law and Elizabeth A. Martin, A Dictionary of Law (7ed.), 2014, Oxford University

Press.

Kanstantsin Dzehtsiarou, Interaction between the European Court of Human Rights and

Member States: European Consensus, Advisory Opinions and the Question of Legitimacy,

2013; published in: The European Court of Human Rights and its Discontents: Turning

Criticism into Strength, Spyridon Flogaitis, Tom Zwart and Julie Fraser (eds), Edward Elgar

Publishing.

Katharine T Bartlett and Rosanne Kennedy, Feminist Legal Theory: reading in law and

gender, 1991, Westview Press.

Kent Greenawalt, Discrimination and Reverse Discrimination, 1983, Knopf.

Louis Kaplow and Steven Shavell, Fairness Versus Welfare, 2009, Harvard University Press.

Mike McConville and Hong Chui Wing (eds), Research Methods for Law, 2007, Edinburgh

University Press.

Oliver de Schutter, International Human Rights; Cases, Materials, Commentary, 2010,

Cambridge University Press.

Richard F Tomasson, Faye J Crosby and Sharon D Herzberger, Affirmative Action: The Pros

and Cons of Policy and Practice, 2001, Rowman and Littlefield.

Roger Hopkins Burke, Criminal Justice Theory: An Introduction, 2013, Routledge.

Rosario Serra Cristobal, “La discriminación indirecta por razón de sexo”, published in Mª

Josefa Ridaura Martinez and Mariano J. Aznar Gomez (eds.), Discriminación versus

diferenciación: Especial referencia a la problemática de la mujer, 2004, Tirant Lo Blanch.

Page 90 of 95

Sebastian McEvoy, Descriptive and Purposive Categories of Comparative Law, published in

Methods of Comparative Law, P.G. Monateri (ed.), 2012, Edward Elgar Publishing.

Spyridōn I. Phlogaitēs, Tom Zwart, Julie Fraser, The European Court of Human Rights and

its Discontents: Turning Criticism Into Strength, 2013, Edward Elgar Publishing.

Yonko Grozev (ed), Dovydas Vitkauskas and Sîan Lewis-Anthony, INTERIGHTS Manual

for Lawyers – Right to A Fair Trial under the ECHR (Article 6), 2009, the Open Society

Institute.

Journals:

Dean Spielmann, Allowing the Right Margin the European Court of Human Rights and the

National Margin of Appreciation Doctrine: Waiver or Subsidiarity of European Review?,

2012, CELS Working Paper Series, Vol. 4.

Egbert Myjer (ed), The Conscience of Europe: 50 Years of the European Court of Human

Rights, Council of Europe, October 2010. Available at:

http://www.echr.coe.int/Documents/Anni_Book_Chapter13_ENG.pdf, accessed on

29/03/2014.

Michael Philips, ‘The Inevitability of Punishing the Innocent’, 1985, Philosophical Studies:

An International Journal for Philosophy in the Analytic Tradition, Vol. 48, No. 3.

Roger Brownsword, ‘Making People Better and Making Better People: Bioethics and the

Regulation of Stem Cell Research’, 2005, Journal of Academic Legal Studies, Vol. 1, pp. 05-

13.

Sandra Fredman, Providing Equality: Substantive equality and the positive duty to provide

resources (2005) 21 (2) South African Journal on Human Rights 163 -167.

c) Miscellaneous Sources

Page 91 of 95

Newspapers:

Forum for the Abused Men, 2013, Available at: http://hombres-

maltratados.com/foro2/viewtopic.php?

f=11&t=2784&sid=6100d01a9d4944a4580e9b02e003cb25, accessed on 11/08/2014.

Maria Sanahuja Buenaventura, ‘Las Denuncias Falsas’, El Pais Newspaper, 22 of December,

2008, Available at:

http://elpais.com/diario/2008/12/22/opinion/1229900405_850215.html, accessed on

11/08/2014.

Maria Sanahuja Buenaventura, ‘Mujeres Trabajo y Custodia Compartida’, 16 June, 2010, El

Pais Newspaper, 16 June 2010, Available at:

http://elpais.com/diario/2010/06/16/opinion/1276639205_850215.html, accessed on

11/08/2014.

Video:

The video ‘No se te ocurra levantarme la mano jamas’, Available at:

https://www.youtube.com/watch?v=7Jt1Ofuba3w&feature=youtu.be, accessed on

11/08/2014.

Page 92 of 95

The seizure of power by feminism in the twenty-first century!: The genocide of

one million children orphaned by Spain's Gender Equality!

http://www.slideshare.net/fcerong/the-promise-4

Video: The genocide of one million children orphaned by the Equality! Do not go

away, Dad!

http://youtu.be/rqUIMakhxE8?a

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