“Legal Measures to Combat Violence against Women,
including Domestic Violence”
The Hague, 21-22 February 2007
Speech by Elena Martínez
Professor, Faculty of Procedural Law,
University of Valencia, Spain
“Specialised courts on domestic violence”
Good evening Ladies and Gentlemen.
First of all, I would like to thank the Spanish Ministry of Justice, the Special Delegation against Gender-based Violence and the organisers of this Seminar for the opportunity they have offered me of being here today and being able to share my experience in this matter with all of you.
I am going to speak about the “Specialisation of the Violence against Women Courts in Spain”. I would like to start by making a confession. Despite the fact that when the parliamentary work on Organic Law 1/2004 began, I myself was slightly sceptical of how efficient this specialisation would be and even thought that these Courts might end up having a somewhat "short-sighted" view of the conflict, I must confess that now, more than two years after the Law was first applied, I am entirely convinced of the need, efficiency and importance of this judicial specialisation (as well as the specialisation required in the police forces, legal defence, social and medical services, etc.), because without this specialisation, it would be impossible to understand this very complex type of violence.
Organic Law 1/04 is based on four new initiatives of an organic-procedural nature:
1.- Provision of specialised jurisdictional bodies: Violence against Women Courts, Criminal Courts and Sections of the Provincial Court (Chapter I).
2.- Overcoming the traditional separation between criminal and civil competencies in the jurisdictional treatment of issues related to gender-based violence (Chapters II and III), in order to avoid victims having to go to various Courts.
3.- Specific regulation of protection and security measures for victims of gender-based violence (Chapter IV).
4.- Creation of the Office of the Public Prosecutor to combat Violence against Women (Chapter V).
From the judicial point of view, we are faced with a complex phenomenon which requires intervention from different legal perspectives.
Moreover, a Law on the prevention and eradication of violence against women must be a Law that will include procedural measures that will allow for fast, summary proceedings, but it must also combine, in the civil and criminal spheres, protection measures for the women and their children and injunctive relief, to be enforced on an urgent basis.
As regards the legal measures undertaken in order to guarantee adequate, efficient treatment of the legal, family and social situation of the victims of violence against women in intra-family relations, the following have been adopted: in conformity with Spanish legal tradition and in line with Recommendation R 13 (85) issued by the Council of Europe Committee of Ministers on Violence in the Family, the chosen option has been a formula of specialisation within the criminal order, of the Investigating Judges, creating the Violence against Women Courts and excluding the possibility of the creation of a new jurisdictional order or the undertaking of criminal competencies by Civil Judges. These Courts shall be informed of the investigations and where applicable, of the sentences on criminal cases in the area of violence against women, as well as related civil causes, so that the proceedings for both may be held at the same location.
As regards the Legal Nature involved, these would be specialised judicial bodies within the criminal jurisdictional order, with a preference towards certain family matters that belong to the civil jurisdictional order. The specialisation of these courts has been carried out on the basis of a scrupulous respect for the constitutional mandates: from the entitlement to the ordinary Judge or the Judge predetermined by the Law and the prohibition of the exception courts. In this regard, the Commercial Courts, Juvenile Courts and Penitentiary Surveillance Courts are also specialised.
Insofar as the judicial structure is concerned, article 43 of the Law, which adds article 87 bis to the LOPJ (Organic Law on the Judiciary), contemplates that each judicial district should include at least one judicial body to undertake the competencies of the Violence against Women Courts, so that all victims are guaranteed a specialised judicial response regardless of their place of domicile.
1) Competency in the criminal order
In the criminal order (art. 87ter. 1 LOPJ (Organic Law of the Judiciary), added by article 44 LVG (Gender-based Violence Law)) the Violence Against Women Courts shall deal with the following:
1) Initiating proceedings to demand criminal liability for crimes described in the titles of the Criminal Code regarding homicide, abortion, injuries, injuries to a foetus, crimes against liberty, crimes against moral integrity, against sexual liberty and indemnity or any other crimes committed with violence or intimidation, as long as they have been committed against someone who is or was the perpetrator's wife or a women that has been linked to the perpetrator for an analogous sentimental relationship, even without co-habitation, as well as crimes committed on the descendants, either of the perpetrator or of the wife or cohabitee, or on minors and invalids living with him or subject to guardianship, conservatorship or fostering by the wife or cohabitee, when an act of gender-based violence has also occurred.
Therefore, the competency of the Violence against Women Judge is defined by the presence of the following elements:
a) In the first place, the legislator expressly establishes a catalogue of crimes that in principle shall be dealt with by the Judge, specifically homicide, abortion, injuries, injuries to a foetus, crimes against freedom, crimes against moral integrity, against sexual liberty and indemnity; adding a general reference to “any other crime committed with violence or intimidation”.
b) However, in order that these crimes may be dealt with by the Violence against Women Court, it is necessary for some specific circumstances to be present regarding the subjective elements, i.e. these crimes must have been committed against a woman that is or was the perpetrator’s wife or a woman that is or has been linked to the perpetrator by an analogous sentimental relationship, even if they have not lived together; as well as against the descendants, of the perpetrator or of the wife or cohabitee, or against minors or invalids living with him or subject to guardianship, conservatorship or fostering by the wife or cohabitee, when there has also been an act of gender-base violence. In other words, as regards minors or invalids related to the victim, the protection of this law and the competency of the Violence Against Women Courts is only extended when the event that has occurred is classified as gender-based violence.
It only contemplates “aggressions” committed by the man against the woman and the regulation may not be applied to identical behaviour when committed by the women against the man, or, in the case of homosexual couples, by one man against another. It is a very clear manifestation of the principle of positive discrimination, in this case on behalf of the woman, inspired by LO (Organic Law) 1/2004.
The rest of the situations that are not contemplated by the law are protected by the ordinary channels foreseen in the Criminal Code and the Criminal Procedure Law, which logically implies that these other aggressions are under no circumstances unprotected.
2) Initiating proceedings to demand criminal liability for any crime against family rights and obligations, when the victim is any of the persons named as such in the previous item.
This section is not exempt of problems either, as there may be various figures that are not included in the situations of violence against women, such as, for example, illegal marriages, alteration of paternity, infringement of the duties regarding the custody of minors and inducing minors to leave home.
3) Adopting the corresponding protection orders for victims, without detriment to the competencies assigned to the Duty Judge.
4) Investigating and issuing sentence on offences contains in titles I and II of book III of the Criminal Code, when the victim is one of the persons indicated as such in letter a) of this section.
2) Possible undertaking of competencies in the civil order
A fundamental element in the organic reform brought about by Organic Law 1/2004 and at the same time one of the most controversial provisions is the possibility that the Violence Against Women Courts may undertake, as well as the criminal competencies that we have just explained, competencies for certain civil issues that in accordance with the application of the rules on the allocation of competencies in the Criminal Procedure Law, are the competency of the Courts of First Instance, or, where applicable, of the Family Courts, bodies that are also specialised in the civil order.
Therefore, art. 87 ter. 2 LOPJ (Organic Law of the Judiciary), lays down that the Violence Against Women Courts may have competency in the civil order, in any case in accordance with the procedures and resources foreseen in the Civil Procedure Law, over the following matters:
a) Filiation, maternity and paternity.
b) Nullity of marriage, separation and divorce.
c) Paterno-filial relations.
d) Matters related to the adoption or modification of measures that are transcendent at family level.
e) Matters related exclusively to the guardianship and custody of minor sons and daughters or to alimony claimed by one parent from the other on behalf of minor sons and daughters.
f) Matters related to the need to free for adoption.
g) Matters aimed at opposing administrative decisions regarding the protection of minors.
h) As well as these competencies, it is necessary to add the cases of illicit advertising involving a degrading or discriminatory use of the image of women.
The allocation of civil competencies to this criminal jurisdictional body is justified by the need to provide comprehensive or total protection to women that are the victims of gender-based violence. The intention is to avoid the to-ing and fro-ing between jurisdictions that has been criticised so often and which is understood to merely victimise the woman once again, as well as the minors in her charge, where applicable.
Therefore, the Violence Against Women Judge is entrusted a series of civil competencies where it is believed that they may lead to or be caused by a situation of gender-based violence, because it is obvious that some civil proceedings, such as separations or divorce or proceedings involving children, may be the seedlings of situations of violence in the “domestic” domain.
Therefore, the civil judge will not deal with these matters when they occur in the context of a situation of gender-based violence and he/she shall cease to deal with them as soon as there is knowledge of this situation.
In the presence of the following circumstances, the Violence Against Women Court shall undertake the civil matters and shall further do so on an exclusive basis, only dealing with such matters, when the knowledge of other different issues not related to gender-based violence may not be allocated, and on an excluding basis, as it shall be the sole competent body and they may not be dealt with by another other body, i.e. it shall prevent other civil and criminal jurisdictional bodies from dealing with such matters.
This exclusive and excluding competency in the civil order requires that the following requirements be met on a simultaneous basis (art. 87 ter. 3 LOPJ (Organic Law of the Judiciary)):
a) It must be a civil proceeding regarding some of the matters indicated in item 2 of art. 44 LVG (Gender-based Violence Law).
b) One of the parties in the civil proceeding must be the victim of the gender-based violence acts, in the terms referred to in section 1,a) of this article, i.e. , “regarding homicide, abortion, injuries, injuries to a foetus, crimes against liberty, crimes against moral integrity, against sexual liberty and indemnity or any other crimes committed with violence or intimidation,”.
c) One of the parties in the civil proceeding must be accused of being the perpetrator, inducer or necessary co-operator in the commission of acts of gender-based violence, in the terms in which the latter is described in the law.
d) Criminal proceedings must have been initiated before the Violence against Women Judge for a crime or offence occurring as a consequence of an act of violence against women, or a protection order must have been adopted for a victim of gender-based violence.
This loss of competency has led to the introduction of a new article 49 bis in the Civil Procedure Law, which is intended to coordinate the proceedings of civil and criminal courts in this sphere, establishing the “procedure” that will allow such competencies to be undertaken:
a) The civil judge who is investigating a civil proceeding in the first instance must inhibit his/her competency as soon as he/she becomes aware that an act of gender-based violence has been committed, according to the meaning regulated in art. 1 LO (Organic Law) 1/2004, which has led to the initiation of a criminal proceeding or the adoption of a protection order for the victim, after the prior requirements foreseen in the third paragraph of article 87 ter LOPJ (Organic Law of the Judiciary) have been verified. Once these circumstances have been checked, he/she should forward the court documents, as they are, to the competent Violence against Women Judge, unless in order to guarantee the principle of immediacy, the civil proceeding is already at the oral judgement stage.
This inhibition is foreseen only in such cases in which the civil proceeding is at the first instance as, despite the fact that the specialisation of Sections of the Provincial Court has been foreseen, the transfer of proceedings in the second instance does not make sense. In such a case, it is more effective for the Judge of First Instance or, where applicable, the Court, to notify the Violence against Women Judge as to the decisions and measures adopted that may influence the gender-based violence situation being judged by the latter.
b) If the Judge that is investigating a civil proceeding becomes aware of the possible commission of an act of gender-based violence, but has not initiated a criminal proceeding or issued a protection order; after verifying that the requirements in the third paragraph of article 87 ter of the Organic Law of the Judiciary are met, the procedure shall be as follows: He/she shall immediately summon the parties to a hearing before him/her, with the necessary presence of the Office of the Director of Public Prosecutions, so that the latter may take note of the events that have occurred and proceed, if deemed to be necessary, to report such acts in considering that they qualify as gender-based violence or, where applicable, directly request the protection order from the competent Violence Against Women Court. The Prosecutor must deliver a copy of the report or of the request for the protection order to the civil judge, who will have to continue to investigate the deeds within his/her competency until his/her inhibition is requested by the competent Violence against Women Judge.
The hearing shall be held within the 24 hours after it is summoned and the Prosecutor must make a decision on the deeds reported in the following 24 hours.
c) Finally, when it is the Violence Against Women Judge that in the course of investigating a criminal process becomes aware of the existence of a civil proceeding and the circumstances in the third paragraph of article 87 ter of the Organic Law of the Judiciary are present, he/she shall expressly request inhibition from the civil court, which must necessarily immediately cease to investigate and forward the deeds to the requesting body.
The request for inhibition shall be accompanied by proof of the initiation of prior proceedings or judgement of offences, the document proving that the claim has been admitted by the court or the protection order adopted, without which documents the inhibition shall not take effect.
From the functional point of view, the Violence against Women Court is mainly an investigatory body, with the exception of the judgement of certain offences.
It is also possible, when the case is dealt with by the special fast trial process for certain crimes, for the Violence Against Women Court to issue a conformity sentence.
As regards the judgement of these crimes and offences, I should point out that the sentencing body has also been specialised.
LO (Organic Law) 1/2004 introduces a new article 15 bis in the Criminal Procedure Law, which implies the creation of a new territorial venue in such cases where crimes or offences that fall under the jurisdiction of the Violence Against Women Judge are being investigated, as in these cases, the territorial competency is determined by the place of domicile of the victim at the time that the events were committed; allowing for the possibility that for reasons of urgency, the protection order or other urgent measures described in art. 13 LECrim (Criminal Procedure Law) may be adopted by the Judge in question according to the general criterion of allocation of territorial competency in the criminal order, i.e. the place where the events were committed.
The reasons alleged for the establishment of a new jurisdictional venue reiterate the arguments that have so often been raised in these pages, i.e. better protection for the victim of gender-based violence and the will to avoid inflicting additional suffering with the criminal proceeding on the victim.
The problem is that precisely under the terms of LO (Organic Law) 1/2004, one of the measures to protect the victim is the possibility of moving house (and jobs) until a higher degree of calm or safety is reached, in a separate territory from the aggressor, which means that there are cases where the criminal proceeding is being held in a particular location and the victim is living either in another location or is obliged to move house on more than one occasion, which complicates the problem still further
Well, in general terms, that was an approximate description of these Courts. If there is anything you would like to clarify further, I am available now or at the e-mail provided. Thank you very much.