Spain: Legal remedies for domestic violence, including restraining orders, peace bonds and other forms of state protection; whether past abusive conduct of a parent is assessed when determining child custody (1996 to June 2001)
|Publisher||Canada: Immigration and Refugee Board of Canada|
|Author||Research Directorate, Immigration and Refugee Board, Canada|
|Publication Date||27 June 2001|
|Citation / Document Symbol||ESP37145.E|
|Cite as||Canada: Immigration and Refugee Board of Canada, Spain: Legal remedies for domestic violence, including restraining orders, peace bonds and other forms of state protection; whether past abusive conduct of a parent is assessed when determining child custody (1996 to June 2001), 27 June 2001, ESP37145.E, available at: http://www.refworld.org/docid/3df4be2e34.html [accessed 26 November 2015]|
The following information on domestic violence in Spain is additional to that already found in ESP35531.F of 6 October 2000.
In May 2001, the regional government of Castilla-La Mancha passed the Law for the Prevention of Domestic Abuse and the Protection of Abused Women; Castilla-La Mancha is the first region in Spain to pass legislation on domestic violence (EFE 17 May 2001). The Law provides, among other measures, the right to publish sentences of convicted aggressors of domestic violence (ibid.).
In the context of its 1998-2000 domestic violence plan, the Spanish government established the following protection measures to victims of domestic abuse: 103 information centres, 66 shelters, 54 police units specialized in domestic violence, offices of legal aid in 41 regional courts, and 27 local clinics (The Lancet 26 May 2001). Training in the treatment of domestic violence cases was delivered to over 60,000 health care professionals, social workers, teachers, counsellors, police and lawyers (ibid.). One of the milestones of the plan was to criminalize psychological violence (ibid.). In June 1999, the Ministry of Justice and the Ministry of Work and Social Affairs signed an agreement that would provide immediate legal assistance to victims of domestic violence by allocating 186 million pesetas (CDN$1.5 million) to train staff in matters related to violence against women (Terra 13 June 2000). The funding would improve legal assistance and strengthen the assistance offices for battered women (ibid.). These offices, which are located in judicial buildings, provide psychological and social services to victims, and provide information as to the process involved for lodging complaints with judicial or administrative authorities (ibid.).
Country Reports 2000 reported that the 1998-2001 domestic violence plan also made provisions for the criminalization of violating restraining orders (Section 5, 2001). However, the Spanish Federation of Separated and Divorced Women criticized the plan for not making the issuing of restraining orders automatic upon making a complaint of domestic violence; currently, restraining orders are only issued if the aggressor has been found guilty (ibid.).
In 1999, the Spanish government passed a law that would grant an "'immediate'" divorce to women whose husbands had been convicted of domestic violence (ibid.). Some political parties and women's group opposed the law saying that it would be ineffective in light of the lengthiness in which the Spanish judicial system renders decisions in criminal proceedings (ibid.).
Following on the heels of the first domestic violence plan, the Spanish government approved a second plan that would be carried out from 2001 to 2004 (The Lancet 26 May 2001). The second plan will have a budget of US$71 million, which is 63 per cent more than the budget of the first plan, and will be invested in the areas of care and social intervention, prevention, legal aid and research (ibid.). After the plan was announced, Juan Carlos Aparicio, Minister of Work and Social Affairs, stated that the new plan calls for the reform of the Penal Code to ensure that abusive men who are found guilty of domestic violence are denied paternal authority (ibid.).
The Website of the Spanish National Police Corps (Cuerpo Nacional de Policía de España) reports the following on recourse available to victims of domestic violence (2 June 2001).
Almost all police officers have information on how to lodge a complaint of domestic violence, on where women's shelters and foster homes are located, and other institutions where women may seek assistance. Most governments, at all levels, provide recourse to victims. There is an emergency hotline managed by the Women's Institute that victims may call for assistance. Victims may lodge complaints and ask about the procedures involved in obtaining a protection court order (orden judicial de protección) with the police court (Juzgado de Guardia). It is the responsibility of the police court to explain in detail protection measures available to victims, such as preventative custody for the accused aggressor (prisión preventiva), removal order (alejamiento), periodic visits of the accused to the courts, the withdrawal of weapons and police protection (La Opinión 30 Apr. 2001). Terra reported that victims also have recourse to a personal push-button alarm (pulsadores de alarma) that, when activated, alerts the local police station (18 May 2000).
Several sources report that although Spain provides legal recourse to victims of domestic abuse, the recourse has its limitations (Mujeres en red 14 Feb. 2001; The Times 9 Mar. 2000; Terra 18 May 2000; ibid. 24 May 2000). The Times states that the Spanish courts do not "always punish those who raise their hands to their spouses" (9 Mar. 2000). Terra reported that it was difficult to obtain the proof required to lodge a complaint against an abusive spouse and that in most cases of domestic violence, the alleged aggressor remained in liberty despite the potential risks to the victim (18 May 2000). Concepción Dancausa, Secretary General of Social Affairs, confirmed that proof in domestic violence cases was difficult to present (ibid.). According to Terra, in 82 per cent of the cases, men who mistreat their spouses or partners were not punished and in many cases, victims of domestic violence were killed by their aggressors at the moment they decided to report the violence to the authorities (ibid.). The Madrid Forum Against Violence of Women (Foro de Madrid contra la Violencia a las Mujeres) stated that legal protection was often lacking at the moment when victims denounced situations of domestic violence (ibid. 24 May 2000). The Forum has asked the government that it invest in effective measures of protection against domestic violence and the judicial system in applying legislation in a non-"macho" way (no realice interpretaciones machistas de la Legislación) (ibid.).
Please consult the attached excerpt of a commentary written by a network of women's groups on 14 February 2001 for additional information on the limitations of precautionary measures and the judicial system in general in Spain.
With regard to child custody, the New Jersey Law Journal stated the following on abusive conduct by a parent:
There exist procedures for emergent applications to the Spanish courts as to issues of child abuse and medical emergencies.
In custody issues, psychological reviews are routinely required.
Spanish courts, under a common-law rule now supplemented by a statute, require consultation with mature children as to their desires for custody and where they wish to live (20 Jan. 1997).
In a 21 June 2001 telephone interview, a lawyer with the international adoption section at the Ministry of Work and Social Affairs in Madrid stated that it was difficult to generalize about the granting of custody as each case depends on specific circumstances. In general terms, however, the lawyer stated that in cases where there is abuse towards a child, the first level of intervention is carried out by the child protection services of the government of the autonomous regions (administración de la comunidades autónomas) that would separate the child from the abusive parent. After evaluating the situation, the child protection services would issue a wardship resolution (dicta una resolución de tutela) that would determine the custody of the child. In cases where a parent or both parents disagree with the resolution, he/she may appeal the decision before a family judge (Juzgado de Familia) who would either confirm the resolution dictated by the child protection services or issue another one.
This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum.
Country Reports on Human Rights Practices for 2000. 2001. United States Department of State. Washington, DC.
Cuerpo Nacional de Policía de España. 2 June 2001. "La Violencia Doméstica."
[Accessed 20 June 2001]
EFE. 17 May 2001. "Spanish Region Passes Controversial Law to Name and Shame Wife-Beaters." (FBIS-WEU-2001-0517 17 May 2001/WNC)
The Lancet [London]. 26 May 2001. Xavier Bosch. "Spain's Government Puts Domestic Violence Protection Plan as Top Priority." (NEXIS)
Ministry of Labour and Social Affairs, Madrid, Spain. 21 June 2001. Telephone interview with a lawyer with the international adoption section.
Mujeres en red. 14 February 2001. Comentarios a algunos aspectos juridicos del borrador del C.G.P.J. sobre la problemática juridica derivada de la violencia domestica.
El Mundo [Madrid]. 4 February 2000. VIOLENCIA DOMESTICA/PRIMEROS DATOS DE UNA MACROENCUESTA A 20.000 MUJERES http://www.el-mundo.es/2000/02/04/sociedad/04N0029.html
New Jersey Law Journal. 20 January 1997. "Family Law – Child Abduction – Hague Convention." (NEXIS)
La Opinión [Tenerife, Spain]. 30 April 2001. "El CGPJ aconseja la videograbación de la denuncias por violencia doméstica."
Terra. 13 June 2000. "Asistencia Jurídica inmediata para las víctimas de malos tratos."
_____. 24 May 2000. "Según el Foro de Madrid contra la Violencia a Mujeres."
_____. 18 May 2000. "Medidas contra un problema social." <
The Times [London]. 9 March 2000. Giles Tremlett. "Aznar's Pledge to Curb Wife Beaters." (NEXIS)
Mujeres en red. 14 February 2001. Comments on some legal aspects of the draft by the General Council of the Judicial Branch (C.G.P.J.) on legal issues arising from domestic violence.