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THE UNIVERSITY OF HULL

Spain Gender Equality and Violence Laws and Their Compliance with European Convention on Human Rights; a Case of Affirmative Action against Men

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

in the University of Hull

by

Anthony Joseph O. Onoh

SEPTEMBER, 2014

Abstract

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 society. 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 practice.

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 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 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.

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 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.

Chapter One: Introduction

Spain’s efforts to act in response to demands from international organisations for measures that protect women from gender-based abuses has led to the adoption of a series of ground-breaking laws. 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”. 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, prohibits all forms of discrimination, remains a subject for legal discourse. Conversely, the international Human Rights Committee suggests that “The enjoyment of rights and freedoms on an equal footing, however, does not mean identical treatment in every instance” 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”. In light of the complexity in defining equality, affirmative action can be subject to interpretation. Consequently, the European Court of Human Rights (ECtHR) 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” 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” where women are abused and considered merely as domestic workers 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 1 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” 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. 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. In view of 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 beneficiaries 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 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”, 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.

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 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.

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.

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 closer relations between the legal institutions of the different countries”. In this case, the comparative 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”. 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”, with analysis and content that are consistent with the aims and objectives of this study.

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 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. Introduction

The ECHR places responsibility on states to protect the rights and freedoms mentioned therein and concedes to them the necessary “margin of appreciation” 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”, hence states’ institutional responsibility to protect human rights and uphold the treaty. For this reason, the ECHR grants “supervisory” powers to the ECtHR, to ensure the compliance of state laws with the standard of protection of rights and 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. 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. 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” 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 forth by law [unlimited to the] Convention rights”. 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”. 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”, hence the principle of subsidiarity that compels the Court to strike a “fair balance [between competing interests] and state margin of appreciation” in examining individual applications for claims against state violation of rights and freedoms. Consequently, its 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”. 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”. 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 potential interpretation regarding the conformity of the Spain gender laws with the ECHR.

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”. 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. 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. 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 demands state-led action for specific protection, the Universal Declaration of Human Rights (UDHR) states several grounds for non-discrimination, 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. 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”. In the Abdulaziz, Cabales and Balkandali v. the United Kingdom judgment, 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” for states to satisfy the Court’s standard for justification regarding affirmative action.

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 26 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 or requirement of practical reasonableness, or a rule derived therefrom, gives to A, and to each and every other member of a class to which A belongs, the benefit of (i) a positive or negative requirement (obligation) imposed upon B (including, inter alia, any requirement not to interfere with A’s activity or with A’s enjoyment of some other form of good or of (ii) the ability to bring it about that B is subject to such a requirement, or of (iii) the immunity from being himself subjected by B to any such requirement.

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”. In other words, it “protects [individuals] against discrimination by public authorities”. 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 obligations which, as related to this study, are measured within the context of “procedural [and] substantive obligations”. The issue with determining whether there has been a breach of the state’s positive or negative obligation under the ECHR is that, according to scholarly opinion, the “scope [of positive or negative obligation] appears open-ended [with no] set general conceptual limitations for [ECtHR] interventions”. 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.

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” 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”. 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. The essence of proportionality as an assessment 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’” 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”. 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” 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. 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 rights. In other words, and according to expert opinion, the margin of appreciation “allows human rights norms to take on local flavour”. 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 vary 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 26 provision. Howbeit, the regional dimension under the ECHR adopts a mere objective duty approach, which obliges states to guarantee the protection of human rights and freedoms. 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. 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” carries a weight of argument before the judges of the ECtHR.

Summary

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 Introduction

As 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. This legislation came with ample legislative guarantees, including educative and economic measures, and criminal penalties and civil and family law remedies for the protection of women who are victims of domestic violence. It accommodated virtually all the guiding principles expressed in Articles 2 and 3 of the Council of Europe Recommendations. 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), 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. 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 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. 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, 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. These murders denote desperation from men who could not avail themselves of state protection under this law against gender abuse from women.

Another example of gender-based legislation – the Gender Equality Law – 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” and as a response to the implementation of European Directives 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 large number of the child custodies in family cases are given to the mothers. 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. 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 legislations – 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 legislation. 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.

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 Court could be inconsistent with Spain’s constitutional provision on habeas corpus. It borders also on the preservation of the sanctity of the presumption of innocence, a right which is accommodated under Article 6(2) 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. 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. 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.

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 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. 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. 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) of the Spanish Constitution and Organic Law 6/1984 provisions. 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 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”. 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. 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.

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).

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”. This punitive measure is commonly endured by men under Law 1/2004.

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 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”, 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 Madrid 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” 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.

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 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”. 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 provision 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, 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. 032/2014 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”. The 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”. 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”. Upon consultation with the office of the State Prosecutor and the defence lawyer, the court issued a decree “dismissing the proceedings of illegal arrest”. 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. 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”. 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.

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. 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. Specifically, it is necessary that the victim’s complaint is initiated via a police report, 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, 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. 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” the court ought to pronounce – in a judicial decree – the need for a speedy trial.

Article 757 of Spanish Organic Law 38/2002 regulates the nature of cases where summary trials apply, while article 795(2)(a) 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 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”. 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.

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”, 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 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 innocence 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”, 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. This procedure puts the judge at the centre of the entire process. Although there are provisions that allow the recusal of bad judges, a bad judge has a proclivity to aggravate the accused’s defence by discarding certain evidence which could favour the defence. One law expert explicates the “subsidiary role” of defence and prosecution lawyers in an inquisitorial system of proof which leaves the judge in the “central role” 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”. 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” 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 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”. 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.

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” 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 interpretation of the same, in which the subject is necessarily male and the object can only be a woman”. 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’ in the exercise of domestic violence by men towards their partners based on mere statistical criteria”. 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”. 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. Apparently, they did not consider the allegations and concerns of the lower court on the discriminatory aspect of the law and the 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, 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” 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”. 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. 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. Although under Article 6 of the ECHR states enjoy a margin of discretion in the promulgation of domestic law, it is confined to the 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. 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” 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”, 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, 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. 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”. 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” 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”.

False Accusations and State Measures Against It

There have been numerous outcries 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”. False accusation is penalised under article 456 of the Spanish Criminal Code. 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. 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 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 partner and this figure has been on the increase. 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.

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 to [his] wife”. 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”, thus inflicting injuries on herself in order to accuse her husband. Surprisingly, the prosecutor simply warned the woman to “desist from presenting false claim” 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. 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’”. 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’”. The propaganda machine of the Interior Ministry took a calculated step to demonise men in what the ministry termed a “sensitization campaign”. 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. Evidently, the fact that these “sensitization” mechanisms are found even in police stations, where women are expected regulars, 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 121 of the Spanish 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 Introduction

The 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” in these rights, except where “necessary in a democratic society [in the interest of] national security and public safety” 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 Others v. Austria, the Court held “that there has been no violation of Article 8 of the Convention” 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”. This “margin of appreciation can be restricted”, 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”, 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.

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. 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. 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 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”. Similarly, Article 4(1) of 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 the law. 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”. 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”. 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’”. This approach is entrenched in the Court’s case law. 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, custody or guardianship with regards to minors he or she specifies”. 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”. 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”. 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. 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.

A General Council of the Judicial Power (GCJP) report states the following:

The total marital breakdown reached 907,292 in the same period, which runs from the second quarter of 2005 to 2012. The courts adopted 141,465 civil preventive measures while processing the claim. Of these, 134,834 civil measures were adopted in form 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 exists about children (14,496); suspension of visitation by the same reason as above (6,932); suspension of parental rights (709) or referral to child protective services (1,382).

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” 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.

In light of this striking report, in recalling that the ECtHR has repeatedly held that states have a “margin of appreciation” 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” 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”. 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”.

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. 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”. 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” 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 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”, 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 are found to be in breach of the constitutional provisions of Spain. 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 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. Introduction

Spain Spain’s gender equality law 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” 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 social relations between the two sexes – the legal subordination of one sex to the other – is wrong in itself, and now one of the chief hindrances to human improvement; and that it ought to be replaced by a principle of perfect equality, admitting no power or privilege on the one side, nor disability on the other.

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. 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”. 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”. In addition, he expressly rejected the imbalanced exertion of “power or privilege on the one side”, in which case the reversal effect of the gender equality laws has become a misrepresentation of the fundamental meaning of this theoretical approach.

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”. 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 violent towards men. On the other is a law that states that men and women are equals in every condition. 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 3/2007 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 to promote conditions for freedom and equality of individuals and groups to which they belong to be real and effective; remove the obstacles that prevent or hinder their plenitude and facilitate the participation of all citizens in political, economic, cultural and social life.

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” as justified in Law 3/2007. In a different consideration, the same constitution, in article 14, together with ECHR provisions, 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 3/2007

A 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. Article 16 and the Second Additional Provision of Law 3/2007 have been set apart by this work for their relevance as discursive elements.

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, 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” in democratic society in favour of female political candidates against the provision of article 1(2) of the Spanish Constitution. 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” in the political environment.

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 Constitution. 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” and an imposition of a minimum quota of “forty percent of women in each space of five positions” 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”. 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 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. 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 onl