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
Anthony Joseph O. Onoh
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.