AVAILABLE AND ACCESIBLE JUSTICE
Everyone is entitled to effective judicial protection, even women and girls.
Since the Integral Law came into force in 2004 we have witnessed the signing of international treaties, regulation and directives of the European Council and Parliament.
Precisely the Istanbul Convention on prevention and fight against violence against women and domestic violence of 11/5/2011, has promoted, in part, this intense legislative activity, whose latest example is the Royal Decree-Law of last August, 2018.
In the instrument of ratification of the Convention of 18/3/2014 it is established that "Spain will carry out the measures that are necessary in its domestic legal system for the purposes of the application of the Convention in its entirety.
We will see the degree of adaptation of our legislation to the European framework, in particular the Istanbul Convention, and how can it serve as a guide and help to continue advancing in the fight against this social scourge, having in mind that criminalization should not be the sole purpose of the powers to be if they really intend to grant a comprenhensive and integral protection to the victims.
As a member of Female Judge Association of Spain said in view of recent dramatics crimes “the justice systeme is failing, but we keep expecting this problem can be solved by the judicial system; it is a social problema,and society needs to accept that, goes beyond legal practitioners, involving all of us”.
María Eugenia Prendes Menéndez
Deputy Prosecutor for Violence against Women and Domestic Violence in Asturias (Spain)
1. A QUICK VIEW TO CLARIFYING KEY CONCEPTS.
What do we mean by gender violence in Spain?
With this expression we refer to the violence suffered by women in the context of a partner relationship as a manifestation of dominance by men over women in such context, regardless of whether or not they were living together at the time the events occurred.
And its domestic violence that is perpertrated within the family relationship in a broad sense.
In gender violence, the victim is always a woman, the aggresor is always a man. It does not mean that homosexual relationship is outside of the criminal law, but it will be framed in the regulations regarding domestic violence and examining in ordinary courts.
Special courts called Court for Violence against Women have exclusive jurisdiction to deal with this cases and have both civil and criminal jurisdiction, which is highly positive to centralising upon a single judge all matters related to the couple and their offspring.
Precisely, those two days, is taking place in Madrid the anual meeting of the Observatory against Domestic and Gender Violence of the Judiciary, the 8th edition, and one of the proposals is to expand the concept including other forms of violence which occurs in differents aspects (bosses, colleagues, friends or strangers) and all women and girls and other types of violence, following the extensive concept offered by the Istanbul Treaty. So far, the previsión is that we will start including sexual crimes and trafficking for the purpose of sexual exploitation.
2. KEY LEGISLATION CONCERNING GENDER AND DOMESTIC VIOLENCE.
The Organic Act 1/2004, 28 December, regarding Integral Measures for Protection against Gender Violence, hereinafter Integral Law as it is known.
Although before 2004 there was a growing concern against this scourge, and successive reforms were made in the Criminal Code, it was not easy to find a formula which was a truly useful tool in the fight against gender violence, under whose name a number of offenses are still considered by many, invisible crimes.
Thanks to the work of certain women's organizations that carried out studies of gender violence and dealt with victims, and thanks to their insistence, when the need for a comprehensive law was raised, on the basis that it is a State problema, and it is necessary, therefore, to face it with policies in all areas.
It was soon understood that "living without violence" is a right of women that the State has the obligation to fulfill; it is recognized for the first time that we are facing a problem of socio-cultural roots and collective dimension, which manifests itself as the most brutal symbol of the inequality existing in our society: it is violence for the very fact of being a woman.
The Integral Law was a very important milestone, a great advance in this fight since it put us on the right track to do so from a multidisciplinary and integral perspective, without forgetting that the criminal response is necessary but not sufficient.
After that we had a prolific legislative activity involved some amendments in our Criminal, Civil and Procedural Code and specific laws that contribute to strength our institutional framework, like:
-Organic Act 3/2007, 22 March on effective equality between men and women.
-Organic Act 2/2009 on amending the Inmigration Organic Act from 2000 in this issue.
-The Istanbul Treaty 2011, which came into forcé in our country in August 2014 and since then is part of our internal law, directly applicable.
-Act 4/2015, 27 April on Crime Victim´s Rights, adapting the corresponding EU Directive (also to fulfill the reconmendations of CEDAW).
-Organic Act 8/2015, 22 July, on amending the protection system for childhood and adolescence.
-Act from 2018, 8 August, on urgents measures for development of the State Pact against violence reach for the political parties en September 2017.
All this legislation meets a need to fulfill our international commitments.
In 2004 was a pioneering, innovative law that served as an example to other legislations, but, fourteen years later, we must reflect and do self-criticism. Are we really effective in combating gender-based violence or are there only a semblance of effectiveness?, because, of course, the results are not what we expected,
Identifying the failures and weaknesses of the system will help us to improve it, but the same question always rings in our heads: what is failing?
Since, for example, the number of femicides has not decreased significantly despite all the efforts (it is true that it is difficult to make a real balance of the evolution of these crimes because it is only treated separately in the statistics since 2003, but 966 women were killed since then), on the date on which this work is done in this year, a total of 40 murdered women, and 5 minors were killed at the hands of theirs fathers as a revenge against theirs mothers. 28 of the women had never filed a complaint, the last 2, reported the violence advising even the danger and the fear for their kids. The system failed in assesing risk, they don´t get protection orders.
After that, we´ve realized that we need to raise the standars of training, for instance, to obtain a post in Courts for violence against women, judges are obligued to attend ten days online course and some practices; those days is debating the need to pass an selective exam and more targeted preparation and practising during at least a year.
3. CAN WE SPEAK OF A RIGHT OF ACCESS TO JUSTICE FROM A GENDER PERSPECTIVE?
The answer must be affirmative because the only way to guarantee the effectiveness of the judicial process is to take into account all factors of real inequality suffered by women that limit their possibilities of access to justice. Only by considering these vulnerability factors and establishing compensation mechanisms can the existing disadvantages be alleviated.
Erradicating stereotyping from our judicial systems must be a priority.
To this end, gender training is essential, initial and continuous for all legal practitioners involved -judges, prosecutors, lawyers, police officers and so on -in order to be able to identify and isolate them.
What are they?Well simplified and strongly rooted ideas about characteristics, attitudes and skills that are attributed to men and women by the mere fact of being, that is, labels that place us at birth.
Based on these stereotypes roles are assigned. A role is a sociological concept that refers to behavior patterns that society imposes and expects from an individual in a given situation. Gender roles are patterns of behavior that are considered appropriate and desirable for each sex, the social role we must play and the distribution of tasks assigned to us by society.
What does all this have to do with law? Because Law is not neutral but has also contributed to the subordination of women. It does not mean that gender perspective implies always to make an analysis in favor of women, but to be able to identify practices that discriminate against women in access to justice, for example, the testimony of the woman or the girl is excluded or they are given lower value.
A very recurrent stereotype in crimes of gender violence is the fact of doubting the testimony of the victims and the lack of credibility that women suffer. For instance it is quite common, even today, read in judicial decisions “her behavior does not prove the fear that she says she feels”.
Any judicial action that is not capable of addressing the situation of vulnerability that victims are inmersed implies secondary victimization.
In one of the specialised courts in Asturias, last September, the judge denied a protection order on the grounds that there was no evidence of any previous complaints, despite the fact that the wife said she had been suffering from mistreatment over a long period of her marriage, as well as the lack of credibility of the victim, due to her delay in reporting the complaints which means she could not have been afraid of her husband and therefore she wasn´t at risk.
Whoever goes to the criminal jurisdiction to report an offense cannot be subject to a routine and unacceptable protocol aimed at verfying if they tell the truth.
I said `whoever´, should I have said a woman reporting this type of crimes? It doesn´t happen if I report that my handbag has been stolen, but if I say that my husband hits me or threats me, things change and sometimes, even today, we had had to stop the bad practice in our courts consisting in asking for an expert report in order to evaluate the degree of credibility from a statement made by a grown adult woman.
How are women going to trust in justice if justice distrusts them?
The disease of stereotyping is cured by the vaccine of the training at all levels.
4. WE MUST LEARN TO RULE WITH GENDER PERSPECTIVE.
At this point the Istanbul Treaty in its article 49.2 establishes that the parties shall take the necessary legislatives or other measures, in conformity with the fundamental principles of human rights and having regard to the gendered understanding of violence, to ensure the effective investigation and prosecution of offences.
Our Supreme Ccourt applies this tecnique for the first time in criminal cases in two rulings from last May and June 2018. In both the version of the victim was questioned due to the delay in reporting, the first judge concluded that the woman must have had perverse reasons to report the incident (like to get a quick divorce, or some advantages, economical support…). The Supreme Court says the marital mistreatment produces a constant and continuous damage, many times at a psychological level and the victim thinks she can´t be free from it. So there are situations of prolonged silence because she hides it from fear, but her silence can not be turned against them. It can not admit that the state of panic and terror that they suffer, is a hindrance to their credibility, since the delay in reporting is not synonimous with falsehood in a statement.
So we have to keep in mind that victims are qualified witnesses because they have not only seen the facts but also suffered them.
It´s all about them, or it should be.
The woman victim of the gender violence requires a specific treatment, according to her situation of marked lack of protection but the procedural duties are identical to those of any other person.
Before continuing, it should be remembered that the majority of citizens and, therefore, the victims of misteatment in all forms completely ignore the functioning of the criminal justice system, the itinerary followed by the complains, the successive formalities and precise procedures for the formation of criminal cases, until the opening of the oral trial and its result.
The lack of information and understanding about the operation of the legal system favours that many behaviors go unpunished since victims are unaware of the importance of their active participation in the judicial process.
They are not standards victims, that is to say, they do not act like the rest of the victims, or at least, as a battered woman is supposed to behave, on the contrary in many cases they retract, they accept their right not to declare, or even worse, they affirm that what they denounced was not true, risking an accusation by false testimony, in other occasions they favour the breach of the prohibitions of approach and communication with which it is intended to protect them.
So often our criminal legislation ignores the will of the victim, when I´m at work, I used to ask women, what do they really want and the answer is invariably the same, ´I want him to leave me alone´, they are not looking for a prison sentence, so if that is the result, sometimes, even, they drop the charges, feeling overwhelmed by the magnitude what is coming to them and their family.
Once again, the public interest in punishing does not meet their prívate, and if they dont have enough information, assesment and support, also psycological, they withdraw the proceedings, empowering their aggressor, increasing their own risk, as a result.
Institutional campaigns carried out in Spain put the stress on the need to report the violence `Report, Denounce, You´re not alone, Don´t be quiet´.
The ball is always in their court, the message that comes to them and society is always `Why do you put up with that´ `Why don´t you report it´ `Why do you remain silent´ and the preconceived idea of the `Victim Standard´ or the `Victim should be´ appears.
All this ends up turning against them, however, we keep asking why women do not report more instead of asking why the state does not protect them better.
Another of the success aspects of the Istanbul Treaty is that refocuses the anti-violence strategy against aggressors. The public authorities should show to the citizens the real face of the aggressors that does not correspond with the kind face that they offer in their closest social environment. That´s why their neirghbours, friends, after a murder, don´t understand why that nice guy suddenly killed his shy and quiet girlfriend, it´s never suddenly and he was never so nice. We must make aggressors and their violence more visible. The media has an immensely important role top lay here, both in keeping people informed and shaping how society perceives this issue. So many times we see in the headlines`A woman died from stabbing by her husband´ instead of `A husband killed his wife´.
We not only have to facilitate the acces to justice for women, we need them for doing so.
Because there is a considerable percentage of criminal proceedings that end without conviction due to:
-the victim does not report.
-the victim complain and afterwards withdraws.
In Spain all these crime can be prosecuted ex officio except minor offence like “verbal abuse”, so the notitia criminis can reach the court by different ways: injury report form the hospital, police intervention due to anonymous phone call or whatever.
The victim´statmente is crucial, becasuse is a primary evidence, essential for the charges in these type of crimes due to theirs own characteristics of clandestinity, privacy, abscence of witness…
However all this normative deployment that we have been talking about and all its effect enhanced by the legislator fails to achieve its objective due to the existence of a mere article : the 416 of our Criminal Procedural Code which confers to the victim the right not to testify against her partner, husband, relatives, etc, in some conditions.
From several years we have been asking for ammend this article 416, which represents one of the holes of our system of protection, and now in the Istanbul treaty we find more compelling reasons to do so. Because it clases forntally with the article 55 referring to ex parte and ex officio procedures, “ the parties will ensure that the investigations or proceedings related to crime provided in articles 35 or 39 ( vilence physical, sexual, forced marriages, genital mutilation…) do not depend totally on a complaint or claim of the victim” and to ensure it can continue even when the victim withdraws her complaint.
This article is key, and we need to uses it in order to change our law, because, it could be inferred that the witness o victim is granted a certain power of disposition, or that forgiveness could has some effects in this type of crimes, which is forbidden, althoug, in practise is what happen, and this resource ends up becoming a new instrument of domination at the service of the perpetrator, using it to make pressure, threats.
So far, but not for long, I hope, our Supreme Court remains anchored in the idea that the object of protection which underlying this right is the family peace, emotional and familiar ties.
However, all this is broken by the violence.
The ECHR said this try to free the witness from a situation that can create him problems of conscience.
It is not referred when the witness is the victim herself, we do not distinguishes between those two positions.
We garnished them with a wide catalogue of rights in the Estatute of 2015, but we leave them in identical procedural position as any other witness and their duties.
Again a right turns against women.
To avoid institucional victimization, we can use video conference, preconstitued proof by recording previous statment, so the victimm only have to go to the courtroom once, unless she requests to do so.In addition we solve the problem of the undesirables face-to-face encounters since court buildings are not designed for this.
6. THE THREE BASIC PILLARS OF THE ISTANBUL TREATY ARE THE THREE “P”: PREVENTION PROTECTION PUNISHMENT
Briefly, I´d like to point out this question
Should we protect women even against their will?
Could be their will freely formed and expressed under a prolonged violence situation?
Our Criminal Code in certain crimes imposes as a mandatory punishment the ban of approacching to the victim.
This have serious consequences in breach sentences crimes.
As I said, living without violence is a right.
Article 51 the Istanbul treaty establishes the obligation to adopt the necessary measures to carry out an assesment of lethality risk, the seriousness of the situation and the risk of recidvism… and ensure the coordination of security and support.
Risk is that we fear may happen, this is the “Gordian knott”
We have a system of pólice evaluation of risk (VPR, capitals in spanish) since 2007, revised in 2016 and currently under review again after some horrendous murders that had taken place last month.
It is carried out using a computer program answering some ítems tested for this purpose, automatically assigns one of the following levels of risk: extreme, high, médium, low and unappreciate. Only if the risk is extreme the victim is phsysically protected.
However, this protocol does not offer the expected results and some failures were detect, one reason is because is answering only by the victim at the pólice station when she reports and in the majority of the cases they trend to minimize the real dangerous situation in which they are inmersed or their offsprings.
It is quite common after describing some terribles acts suffered, if you ask if she thinks that her children are in any risk being with their father, they usually say: “no, no, he is a good father, he take care of them…”.
We also have or should have so far, the Integral Forensic Valuation Units created in the Integral Law in 2004, but not sufficiently developed in all specialised courts. They are composed of a muktidiscilinary team responsable to carry out an “urgent risk assesmente report“, theorically in 72 hours, to help judgesin their legal reasonig in order to adopt a protection order or whatever, they are also useful when it comes of psycological violencia as a expert evidence and uses as a basis for adress a compensation for non-material damages.
7. WHAT AMENDMENTS HAVE WE MADE UNDER THE UMBRELLA OF THE ISTANBUL TREATY?
Compulsory, specialised, previous assesment for lawyers who attend all the procedures referrig to the same victim.
We need to defined clearly pysichic impairment, and habitual pyshic violence, be generous with the damages. Prosecutors ask for them in the same criminal procedure unless victim expresses her renounce.
We need a basic and unified regulation at the state level on the so-called Family Meeting Points, useful for supervising visits. We have the Cedaw opinión and the rule of our Suprenme Court from last July. In the so-called Angela case.
We changed our law to take into account incidents of violence when it come to stablish custody or visit arragements, Family judges must also be training to avoid stereotyping and detect violent situations.
We have as an agravatting circunstance to commit the crime under motivation or gender reasons, article 21.4 from our Criminal Code, altough, it would had been easier for the purpose of the prosecution to create the crime of feminicide, following internationals recommendations. We comply with the provisions of Article 46 of the Treaty, but there is also a debate and recommendations that ask to go further and qualify the murder of women for reasons of gender as feminicide and to develop the necessary legal framework to eradicate it, but such recommendation, which comes from the European Parliament, refers exclusively to the classification, not to the legal consequence, because we would apply two aggravating circunstamces- art. 21.4 (geder-based reasons) art.23 ( famuliar relationship or kinshisp).
As my colleague Teresa Peramato says, poses problems of application, since this motivation must be perfectly accredited in the conduct of the author, and is something to remain inside, so demostrating the existence of this specific intent always proved difficult, with the incongruity that implies demanding such accreditation for a serious violent act and not for the milder manifestations of this violence (ex: if you give a slap, not if you kill ).
It was applied for the first time in Rule dated. 18/2/2017 of the third section of the Criminal Court of Oviedo (TJ 24/16) and recently for our Supreme Court in Cassation Rule 25/9/2018 for the first time
It was a sexist murder and the Court argued that "it is based on the greater culpability of the author for the greater responsibility of the motive that impels him to commit the crime, being decisive that the intention of committing a crime is proven. the fact of being a woman as an act of domination and superiority ... ..and so it was proved (thanks to a witness, intimate friend of the victim who made a precise portrait of what she was like before and after her relationship with the accused) as how him was moving her away of her circle of friends, keeping her isolated and subjected to exert absolute control all over aspects of her life, both affective and familiar, imposing his criteria regarding social relations and economic issues, annulling her capacity for decision, until ending her life as the final act of domination.
8. WHAT HAVE WE LEARNT ALL THOSE YEARS?
I will remember and quote the words of one General Attorney of Spain in a speech in the 10 th anniversary of the Integral Law.
We´ve learnt that the action of killing is not the first manifestation of violence, but the last act of contempt,
We´ve learn that many victims, specially the younger ones, do not even know they are victims,
They are so vulnerable that they often do not demand justice and if they do so, they need to be very brave.
We can´t afford as a society that the woman who trusts and complain be a victim of violence again, let us become sensitive enough so that our first objective is to realize the right of victims to understand and be understood.
Our challenge is to reach the silent victims.
We must insist in education at all levels, at all ages, and training in gender issues.
Encouraging iniciatives like the program promote by The Association of Women Judges in Spain called “Educating in Equal Justice” launched in Canary Islands and in Asturias, engagedment schools, students and judges, lawyers and prosecutors, working in these concepts among the younger population so they can recognize discriminatory situations and gender stereotypes, silent violence and, also approach them to the world of the judicial system through guided visits, as well as attendance public trials.
If I above mentioned the three pillars of the Istanbul Treaty were the three “P”: protection, prevention and punishment”, I will finish insisting in the need to use it as an unique tool to reach the three “E”:
EDUCATION, EMPOWERING EQUALITY.
Macroencuesta de Violencia contra la Mujer de 2015.
Memoria de la Fiscalía General del Estado de 2017
Dación de Cuentas de la Fiscal de Sala Delegada contra la Violencia sobre la Mujer 1º semestre 2018.
Enfoque de Género en la actuación letrada, Fundación Abogacía española (autoras principales Maria Martín González y Elene Ocejo Álvarez)
Amnesty International Spain.
Diagnóstico del sistema de protección y propuestas de inervención para la predicción y prevención de feminicidios en contexto de pareja o expareja (Catedrático de la Universidad de Oviedo de Derecho Penal. Javier Gustavo FernándezTeruelo (2017).
L.O.1/2004 Alcance y Retos; La incidencia de reformas en la prevención y lucha contra la violencia, el marco europeo; sexo y género. Estudios y ponencias deTeresa Peramato Martín, Fiscal adscrita a la Fiscal de Sala contra la Violencia sobre la Mujer.
Eliminating judicial stereoyipyng, final paper, 9/june/2014, Simone Cusack.