Video documentary:- http://www.youtube.com/watch?v=GAIRyn_jvDQ
Following the election of the "socialist" government of José
Luis Rodríguez Zapatero that came to power on the 14 March 2004, Spain became
the first and currently only European country that has created Courts
exclusively for the protection of Women (The Women´s Courts start their
These Courts, named the Juzgados de Violencia sobre la
Mujer (Courts for Violence against Women), are based on the "organic"
law 1/2004, that allow them a range of special powers to protect the women that
report instances of domestic violence both physical and psychological, such as
the detention and placing of protective orders against men that have been
accused in order to accelerate the process of protection for potential victims.
There is considerable support for this "extraordinary" Court, including the Foundation of Progressive Women, Instituto de la Muyer (Women's Institute), Amnesty International and PSOE Socialist Party (current government), and there is also criticism from legal professionals and institutes, such as Judges and the General Council for Judicial Power (CGPJ Reports on-line), that question the Courts efficacy and claim that these Courts and the new "organic" Law are unconstitutional, violating fundamental articles of the Spanish Constitution and the United Nations Universal Declaration of Human Rights.
Constitutional Tribunal in Crisis (more details below)
In the autumn of 2007 the Spanish Constitutional Tribunal entered into what has been called a crisis due to the passing of the "organic" laws and alleged political manipulations.
The Court for Violence against Women came into operation
following the passing of "Organic" Law 1/2004, which aimed to provide
the necessary legislative and administrative framework required by the Court.
The contents of the offical statement regarding Law 1/2004
is as follows:-
Gender violence is not a problem confined to the private
sphere. On the contrary, it stands as the most brutal symbol of the inequality
persisting in our society. It is violence directed against women for the mere
fact of being women; considered, by their aggressors, as lacking the most basic
rights of freedom, respect and power of decision.
Article 1. Objective of the Law - Objeto de la Ley
The objective of the this Law is to act against the
violence that, originating from discrimination, the state of inequality and the
relation of the power of men over women, is to be exercised for and on behalf of
those that are or have been the spouses or of those that have been in
similar-type relationships, also in which the parties have lived apart.
Article 2. Governing Principles - Principios rectores
This integral Law implementes a set of directed measures to reach the following aims:
a. To fortify the measures of sensibilization of the
citizen in the aim of prevention, and equipping the public authorities with
effective instruments in the educative scope, including, social and health
services, advertising and communications.
b. To consecrate the rights of women victims of gender
violence, making these rights a prerequisite of Public Administrations, and thus
ensuring fast access to judicial services that are transparent and effective.
The '''King of Spain sanctioned the new law''' on the 29 December 2004, making the following public comments:-
JUAN CARLOS I, REY DE ESPAÑA/ KING OF SPAIN
To all that may see and understand this document.
Be it known: That the General Courts have approved and I have sanctioned the following organic Law
PRESENTATION OF MOTIVES
I. Domestic violence is not a problem that affects matters in the private scope. To the contrary, it manifests as the most brutal symbol of the inequality that exists in our society. This is violence against women for the fact of being women for being considered, by their aggressors, devoid of the minimum rights of freedom, respect and capacity for decision.
Our Constitution incorporates in article 15 the right of all to a life and the integrity of the person, physical and moral, without which in no case may be subject to torture nor to cruel pains or inhuman or degrading treatments. Furthermore, following our Magna Carta, these rights link to all the public powers and only by the law may its application be regulated.
Under the new Law,
domestic or gender violence in Spain has been defined as:-
Spain:- A violence originating from discrimination, the
state of inequality and the relation of the power of men over women, exercised
over those that are or have been the spouses or of those that have been in
similar-type relationships, also in which the parties have lived apart.
Following the British Crime Reduction Report, it is defined as:-
UK:- Any incidence of threatening behavior, violence or
abuse (psychological, physical, sexual, financial or emotional) between adults
who are or have been intimate partners or family members, regardless of gender
Also from the UK report:- "We know that '''domestic
violence is a serious public health issue in the UK''' and that the statistics
are shocking. '''For women aged 19-44, domestic violence is the leading cause of
morbidity''' <!>, '''greater than cancer, war, and motor vehicle
accidents.''' 89% of the victims who suffer sustained domestic violence are
female, however we also know that domestic violence can affect the lesbian, gay,
bisexual and transgender community and male victims."
<!> The opinion given above from the '''UK report may
be confusing or incorrect'''. Official statistics show that 120 women are killed each year in
the UK, compared to 3,201 road deaths (both sexes), and 153,491 cancer deaths in
2005 (both sexes).
'''UK domestic violence deaths:-''' On average over 150 people (120 women, 30 men) are killed each year by a current or former partner. ESRC
Domestic violence costs the lives of more than 2 women every week. Crime Reduction Unit
'''UK road deaths:-''' The total number of deaths in road accidents fell slightly by 1 per cent to 3,201 in 2005 from 3,221 in 2004. UK Statistics
'''UK Cancer deaths:-''' In 2005, there were 153,491 deaths from cancer.. UK Statistics
As to the 22 November 2007 deaths have increased compared
to 2006 (Women´s
Institute), with TVE news reporting 69 deaths to date, of which 27 were
Note: There are minor variations in domestic violence deaths from independent sources, as such, statistics from the Institute of National Statistics and for 2006, from the CGPJ, are shown in the chart.
The Foundation of Progressive Women and other similar groups lobbied the PSOE to include plans to address the issue of domestic violence in their 2004 election campaign.
Once elected, the government of the PSOE allowed the Progressives to prepare an "integral" law, 1/2004, that was passed in the Congress of Deputies in December 2004.
Amnesty International "Spain - More than Words
In addition, Amnesty International has reported that in their dealings with public institutions, Spanish Women have often been left extremely frustrated after coming up against barriers and discouraging responses.
Organic Law of Protection against Domestic Violence - Intress Institute of Social Services
Margarita López Félix, a lawyer from the Centro María Zambrano supported the new law and wrote a number of supporting papers (Paper written by Margarita López Félix)
In one, she explains that the law '''can be viewed very positively''' because '''it recognises expressly that women are the exclusive victims of this type of violence'''. She goes on to say that this Law also has a declaration of good will to eradicate this terrible social damage that is for nothing if the project does not have sufficient resources to make it effective.
Critics of the Court claim that the official statement made by the King of Spain, which refers to the rights of Spanish and other non-national citizens, that is those of article 15, the right to life and the integrity of the person, upholds an article of the Constitution, however, they claim that the sanctioning of law 1/2004 gives rise to a conflict with articles such as 14, the right to equality in front of the law.
The critics of these Courts state (see links below) that women should be fully protected, however, not in a discrimatory and unconstitutional manner, and most have questioned why Courts that process cases of domestic violence cannot also offer equal protection to both sexes, including men and children, who are currently excluded.
The wording of the Spanish Constitution and Declaration of Human Rights:-
Article 14: The Spanish are equal before the Law, '''disallowing any discrimination''' for reason of birth, race, '''sex''', religion, opinion or any other condition or circumstance personal or social. [http://narros.congreso.es/constitucion/index.htm Constitution]
These special Courts, based on the "Organic" Law LO 1/2004 of 28 December 2004, are also considered, by the critics of the new law, to be in direct conflict with:-
Article 7 of the United Nation's Universal Declaration of Human Rights:-
All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination. (Universal Human Rights)
As of March 2008, over two hundred
"Questions" have been officially registered from Judges of the Court
for Violence against Women throughout Spain at the Ministry of the President
relating to the issue of unconstitutionality of the new laws and the
modifications to existing laws, in particular,
regarding penal codes 153.1, 171.2, 171.4, which impose higher penalties for
offences committed by men against women. (Official Source - see "Cuestiones" at end of
The origin of the campaign, known as "Tolerancia Cero" Zero Tolerance - Not one case more! clearly shows that a number of groups, including the [http://www.mtas.es/mujer/ Woman’s Institute], [http://www.fmujeresprogresistas.org/ Progressive Women], and a number of socialist politicians, lobbied the government of Zapatero prior to the 2004 elections demanding the creation of the campaign and the Courts for Women; President Zapatero has supported the plan and establishment of the Court since its conception, which became a manifesto item during his election campaign, whilst the conservative party, the PP, voiced concern that these Courts might be unconstitutional.
Media campaigns were also launched on State Television and other media channels to promote the "Zero Tolerance" campaign to the Spanish public, however, the main aim is to communicate to the male population that any and all types of violence against women (physical and emotional) will be severely punished.
Examples from Spanish television are the reports now being shown on the national television channel, TVE, of interviews with directors of the project and judges of the Woman’s Court, including showing a handcuffed accused man, head down, sitting in front of the judges, with the woman judge explaining (as was broadcast on the evening news 18 October 2007) that although some women later withdraw complaints, such as in the case of this man sentenced to 6 months in prison for bad treatment, he must serve his sentence to prevent other men from attempting to pressurize their partners into renouncing their reports.
In this manner, the overall campaign takes precedence over individual cases being heard in the Women's Courts across Spain.
Detailed document giving advice on how to manage the television campaign: The Representation of Gender Violence in State Television: Conclusion
The aim of the "Zero Tolerance" program is to impose sufficiently harsh punishments in order that deaths of women are "eradicated".
An example is the recently requested sentence of 20 years of prison for a married man whose wife reported him for alleged double-rape, only to later try, unsuccessfully, to withdraw her complaint because it was, as stated by the wife "a bad period in our relationship that simply translated into my report to the police".
It was reported that the wife claimed that she was already sleeping when her husband entered the bedroom, he woke her and stated he wished to have intercourse, which she rejected. She claimed that she did not resist so as not to awaken their children.
Critics claim that even without the wife's withdrawal of the complaint, such situations are impossible to safely judge:- the couple are married, there were no witnesses to what happened in the bedroom, there was no evidence of physical force, the wife withdrew the complaint as they had resolved their problems, however, with this background the prosecutor continued to seek a full term of 20 years imprisonment.
The General Council of Judicial Power (CGPJ Reports available on-line) has criticised in a number of reports the Law against domestic violence for ineffectiveness and being unconstitutional.
The commission of studies of the CGPJ approved a critical report about the application for an integral Law against violence to women in which it questioned its effectiveness and constitutionality, denouncing that it failed to protect the rest of the victims of domestic violence.
In one report issued by the CGPJ, approved by three votes of the "conservatives" (in judicial terms), Adolfo Prego, José Luis Requero y Javier Laorden, against the "progressives", Montserrat Comas y Luis Aguiar, that took a specific vote, found that the"integral" law 1/2004 must protect not only the women and children, but also the elderly, and specifically that it must not exclude men.
The opinion of the CGPJ given in the draft report, was that
defining crimes as a function of gender establishes "penal right's of the
perpertrator", doing so openly and against the the norm, which has come to
be called "the healthy sense of the people", concepts better belonging
"to the School of Kiel, of such sad recollection in Germany of the 1930's
(see University of Kiel). Further, with these special Courts of the Violence
against Women, they have created a specific jurisdiction, "something
belonging to the old regime (see Francisco Franco) and fortunately largely
overcome in the 19th century.
In October 2007 the government stated that it wished to reform the General Council of Judicial Power (CGPJ), the judicial body that had strongly criticised the government for passing law 1/2004.
The opposition party stated that the government wished to create a judicial system to its "own measure", meaning a system to its own liking (Bermejo plan).
CGPJ to be reduced from 12 to 5 Magistrates
The reforms of the government, if passed, will change the Council of the Constitutional Tribunal such that it will be composed of just 8 magistrates, including 5 progressives (supporters of the current government reforms) and 3 conservatives (against the reforms).
The Spanish Constitutional Tribunal experienced a crisis in the autumn of 2007 due to the reforms instigated by the socialist government of José Luis Rodríguez Zapatero.
On the 16 November 2007 the President of the Constitutional Tribunal (TC), María Emila Casa, appeared on national television denouncing the "intolerable intent to destabilize the TC" and the "disrespectful" voices that are being heard against the TC.
During the national news the President of the TC appealed for politicians to "stop manipulating the Constitutional Tribunal" because it is an "important part of Spain's democratic system".
The crisis relates to a number of "organic" laws that the government passed that contain elements that are contradictory to articles of the Constitution, such as the right to equality, with organic law 1/2004 allowing the creation of a judicial sub-system exclusively on behalf of one group of society, which have been challenged as unconstitutional by the opposition PP party and also by the General Council of Judicial Power.
The TC, blocked by political challenges to its members, has yet to release its verdict regarding the legislative content of the first mandate of Zapatero: pending the resolution of the issue of unconstitutionality of the laws for same-sex marriage and domestic violence (1/2004), and also the status of the region of Catalunia.
The following day ABC News reported that if there were concrete cause for the destabilization of the TC, it would have to be the '''determination of the PSOE''' (the party of the current government) '''in approving laws without any consideration of the judicial regulations''', and the socialist intolerance for the independence of the jurisdictional institutions.
'''The government's reforms''' aim to change the Tribunal’s voting system, effectively giving the current government majority. The members of the Tribunal, García Calvo, Rodríguez Zapata (moderates and both challenged by the government), Sala, Aragón y Pérez Tremps ("progressives"), are unable to vote because the two judges that have been challenged by the government have abstained, leaving insufficient members to enable a vote to be taken.
Depending on the outcome of the current deadlock, the various "organic" laws of the current government, including Law 1/2004, the law that enabled the creation of courts and penalties exclusively in favor of women, may be revoked, leaving up to 40 Women's Courts suspended from operation, and the transfer of domestic violence cases back to their original courts.
The Constitutional Tribunal faces one of the most critical moments in all its history due to the long list of challenges that threaten to block its operation.
The article from El País explains that "The Constitutional Tribunal deferred the hearing of the challenges to 5 of its members in order to refer the matter to the government, Congress, Senate and Partido Popular."
What seems to have happened is that the government, in attempting to remove two members of the Tribunal, has prompted the opposition party to attempt to remove other members that support the government.
The official objective of the government is to "reform" the judicial system, and the opposition is trying to prevent this from happening.
In 2005, the 17 new Courts specialised in domestic violence assumed exclusive rights for cases of domestic violence against women. The Courts are only accessible to Women, a restriction that was criticised by the judicial sector, in particular the General Council for Judicial Power, and the Professional Association of Magistrates, who stated that Spain "has become the only country with specific tribunals for just one sex". The CGPJ questioned the constitutionality of these Courts, and produced a number of critical reports that were made public.
By the end of December 2007 some 80 Courts will have been established, doubling the figure from early 2007.
Expert view on the Law of Violence against Women
The Senior Public Prosecutor of the Court for Violence against Women from Córdoba, Borja Jiménez, publicly explained during an interview with ABC News some of the details of the integral Law 1/2004 that was and still is causing argument between Judges and Prosecutors, stating that the law has come to be called, by some, the “penal rights of the perpetrator”, as for example, in question of gender.
Mr. Jiménez, the Senior Public Prosecutor, stated that with the new Law 1/2004 the judgment is harsher if a man attacks or threatens a woman that the reverse.
He confirmed that what is in some cases a crime for men, is a misdemeanor when committed by women, and that this is how the Law of Violence against Women works, by introducing changes to the Penal Code, and in which many judges consider exist unconstitutionalities in various aspects that they have put before the Constitutional Tribunal, and yet have been left unresolved.
Up to November 2007, 130 judges have detected signs of unconstitutionality at the moment of trying to apply the new Law.
An "Effective Law"
The question of unconstitutionality that Penal Judges have raised, or Judges from the Courts of Instruction or Violence against Women, relates to Constitutional conformity.
There are diverse opinions regarding this issue:- The legal spokeswoman of the PP (Conservative Party), Ana Tamayo, an expert lawyer in Domestic Violence, has said that issues are indeed raised of inequality of treatment, but "we have to take into consideration the background of the situation of inequality".
In the opinion of the Spokeswoman for the Platform against Violence to Women, Carmen León, she stated that the Law is "effective and absolutely necessary". And furthermore, León insisted, “to those that believe the Law is unconstitutional, take a look back at what women have had to suffer in the past.”.
Many Judges that have transferred cases to the Constitutional Tribunal for presumed unconstitutionality against article 153.1, precisely against the law that is being applied in these cases, noting a harsher punishment for men. For example, if a man commits the crime, the punishment is 6 months to a year in prison, but for women, the same crime oscillates between just 3 months and a year.
"Law against Violence to Women unconstitutional "
- General Council for Judicial Power (ABC
" - General Council for Judicial Power (ABC News)
The General Council for Judicial Power (CGPJ) stated in its
report that the first-draft of the law against Violence against Women, as
approved by the government, was "incompatible with the Constitution,
unfortunate, censurable, unacceptable and unjustified in some of its
aspects", according to Jose Luis Requero, editor of the mandatory report of
the General Council of Judicial Power.
The opinion given in the report is that "it is constitutionally
objectionable that threats in themselves and mild coercions
become a crime when the victim is a woman. What these crimes amount to is based
only in the fact that the aggressor is a man and that the Law presumes his
intencion, and applies penal measures against him, being as such, incompatible
with the Constitution.
In regards to the positive discrimination in favor of the woman as established by the Law, the opinion given was that "elevating [threats and coercion] to the penal and judicial scope results in censurable negative discrimination. In these regards the situation departs from equality: yet nothing is added to the judicial care of the woman by the exclusion of men from the care of these Courts of Violence against the Woman ", explains Requero. In addition, the document says that the exclusive "concept of violence against the woman is not acceptable -- on which all the application of the Law revolves -- based on the [predetermined] intention of the aggressor [that are exclusively men]".
From the report of the CGPJ: 8a. WLa llamada discriminación positiva llevada al ámbito penal y judicial conduce a la censurable discriminación negativa. En estos ámbitos se parte de situaciones de igualdad: nada se añade a la tutela judicial de la mujer el hecho de excluirse a los hombres de la tutela de los Juzgados de Violencia sobre la mujer.)
The political party of the current government, the PSOE,
announced in the September of 2007 that it wishes to expand these special laws
The socialist Euro-deputies, Elena Valenciano and Joan
Calabuig presented an amendment to the general budget of the European Union for
2008, in which they requested the creation of a budget for a project destined to
unify the national legislations regarding domestic violence in the EU. They
requested financial studies to analyze the effectiveness of legislations on
domestic violence in the EU members states and on the limitations that exist in
their application, with the objective to commence a process of harmonization at
The Euro-deputies raised the issue that between 80 and 100 million women in the EU have suffered, at some moment in their lives, gender violence, "that is equivalent to 1 out of every 5 women having been a victim of this type of act. (PSOE Euro-deputies call for unification of EU laws on gender violence)
As of 27th November 2007, the situation is ongoing, the Tribunal Council and CGPJ are either blocked or undergoing government reforms, and as such, the conflicts over this Court are yet to be resolved. A number of critical reports made by the CGPJ seem to have been recently removed from their website.
It can clearly be seen from the wide range of public statements and official reports that the legislation that was introduced by the Progressive movement has caused deep divisions within Spain's judiciary, and between politicians, and related groups.
Reports from the General Council of Judicial Power here (click on the left-side "Informes del CGPJ, and select año/year 2004")
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