JUAN CARLOS I
KING OF SPAIN
To all those who read and understand the present law
Be it known that Parliament has approved and I have signed into law the
following Organic Act:
PREAMBLE
I
Gender violence is not a problem confined to the private sphere. On the contrary,
it stands as the most brutal symbol of the inequality persisting in our society. It is
violence directed against women for the mere fact of being women; considered, by their
aggressors, as lacking the most basic rights of freedom, respect and power of decision.
Article 15 of our Constitution recognises the right of all people to life and to
physical and moral integrity, stating that they may in no case be subjected to torture or
to inhuman or degrading punishment or treatment. Our Magna Carta goes on to state
that these rights are binding on all public authorities, and that their exercise may only be
regulated by law.
The United Nations Organisation at its 4th World Conference in 1995 affirmed
that violence against women was an obstacle to the achievement of the objectives of
equality, development and peace and that it violated and impaired the enjoyment of
human rights and fundamental freedoms. It also defined such violence in a broad sense
as an expression of the historically unequal relations of power between men and
women. There is now even a technical definition of the battered woman syndrome
which comprises “the aggressions suffered by women as a result of the sociocultural
constraints acting on the male and female sex, placing them in a position of
subordination to men and expressed in the three basic settings of personal relations;
abuse within the partner relationship, sexual aggression in social life and harassment at
work”.
Aggressions against women have a particular incidence in the reality of Spain,
in that we now have a greater awareness than before about their repercussions, thanks
largely to the work of women’s organisations in their fight against all forms of gender
violence. They no longer constitute an “invisible crime” but are the object of collective
rejection and a clear cause of social alarm.
II
The public authorities cannot remain indifferent to gender violence, which
stands as one of the most flagrant attacks on the basic rights such as freedom, equality,
life, integrity and non discrimination defended by our Constitution. These same public
authorities are obliged under the terms of article 9.2 of the Constitution, to deploy
positive action measures to make these rights real and effective, removing any obstacles
which prevent or impede their full enjoyment.
In the last few years, Spanish legislation has seen a number of advances in the
fight against gender violence, including Organic Act 11/2003 of 29 September on
Specific Measures relating to Citizens’ Security, Domestic Violence and the Social
Integration of Foreign Nationals; Organic Act 15/2003 of 25 November, amending
Organic Act 10/1995 of 23 November on the Criminal Code, or Act 27/2003 of 31 July,
regulating the Protection Order for Victims of Domestic Violence; in addition to the
laws enacted by different Autonomous Communities within the scope of their powers.
The provisions of these legal texts have touched on different civil, criminal, social and
educational areas.
This Act will take up the recommendations of international bodies on providing
a global response to the violence exercised against women. We can quote in this regard
the 1979 Convention on the elimination of all forms of discrimination against women;
the United National Declaration on eradicating violence against women, issued in
December 1993 by the General Assembly; the resolutions of the last World Conference
on Women held in Beijing in September 1995; resolution WHA49.25 of the World
Health Assembly, issued by the WHO in 1996, declaring violence a priority public
health problem; the European Parliament report of July 1997; the resolution of the
United Nations Human Rights Commission of 1997; and the declaration of 1999 as the
European Year for Action to Combat Violence against Women, among others. Just
recently, Decision 803/2004/EC of the European Parliament approved a community
programme of action (2004-2008) to prevent and fight violence against children, young
people and women and protect its victims and groups at risk (the Daphne II
programme), which sets out the stance and strategy on this issue of the representatives
of Union citizens.
The Act extends its scope to preventive, educational, social, welfare and victim
support initiatives, as well as the civil law rules applying to the family or analogous
relational context where most aggressions take place, and the principle of government
authority subsidiarity. It is also resolute in addressing the punitive response to be meted
out to all manifestations of the violence dealt with.
Gender violence is approached from an integrated, multidisciplinary standpoint,
starting from the processes of education and socialisation.
The pursuit of equality and respect for human dignity and individual liberties
must be a priority objective at all levels of socialisation.
The Act introduces sensitisation and intervention measures in the education
sphere. It also seeks to reinforce an image of women that respects their dignity and equality, with particular reference to the world of advertising. Support is proffered to
the victims of violence by recognising their right to information, free legal counsel and
other measures of social protection and economic assistance. It thus provides an
integrated legal response that encompasses both trial proceedings, with the creation of
new courts, and substantive civil and criminal legislation, including specific training for
the health, police and judicial personnel entrusted with obtaining evidence and
enforcing the law.
Sensitisation and intervention measures are likewise directed at the health sector,
to optimise early detection as well as the physical and psychological care given to
victims, in conjunction with other support measures.
Situations of violence against women also affect minors sharing their family
environment, who may suffer their consequences both directly and indirectly. The Act
also addresses their protection, not only to safeguard their rights as minors but also to
ensure the effectiveness of the protection measures taken for women.
III
The Act is organised into a preliminary title, five titles, twenty additional
provisions, two transitional provisions, one derogatory provision and seven final
provisions.
The preliminary title sets out the general provisions of the Act with regard to its
purpose and guiding principles.
Title I sets out sensitisation, prevention and detection and intervention measures
in a number of contexts. In the education sphere, it specifies the duties of the system to
instil values of respect for the dignity of women and equality between men and women.
The essential goal of education is to give children the skills they need to form their own
identity, and to build a conception of reality which embraces both an understanding and
ethical valuation.
In secondary education, sexual equality and the rejection of violence against
women become part of the curriculum. Likewise, School Councils will henceforth have
a designated member to promote educational measures in favour of equality and against
gender violence.
In advertising, all materials must respect the dignity of women and their right to
an image that is neither stereotyped nor discriminatory, whether such materials are on
display in private or public communication media. The rules governing legal actions for
the withdrawal or rectification of advertisements are modified, whereby such actions
may now be initiated by institutions and associations working for equality between men
and women.
In the health sphere, new measures are envisaged regarding early detection and
assistance to victims, while specific protocols will be applied in the case of aggressions
resulting from gender violence, which shall be referred to the relevant courts in order to
speed up legal proceedings. A special Commission is created under the Interterritorial Council of the National Health Service to advise on, coordinate and evaluate the
healthcare measures established herein.
Title II deals with the rights of the female victims of violence. The text of
Chapter I guarantees their right to information and integrated social assistance through
permanent, emergency care services that offer specialized help delivered by
multidisciplinary professional teams. In order to help with the set-up of these services, a
Fund will be established which can be drawn on by Autonomous Communities under
objective criteria to be decided at the corresponding Sectoral Conference.
Victims will also be entitled to free legal assistance to ensure that those without
the economic means to litigate have the services of a lawyer for all the gender violence
processes and procedures to which they are a party, with the same counsel handling all
processes. This right is extended to those suffering damage in the event of the victim’s
death.
Protection measures are also deployed in the employment area, by an
amendment to Legislative Royal Decree 1/1995 of 24 March approving the consolidated
text of the Workers’ Statute Act which authorises the absence from work of gender
violence victims, while facilitating their geographical mobility, temporary suspension of
employment with reserve of post, and the termination of employment contracts.
Identical support measures are provided to civil servants suffering the violence
addressed herein by amending the corresponding sections of Civil Service Reform Act
30/1984 of 2 August.
Economic support measures are likewise established through the amendment of
Legislative Royal Decree 1/1994 of 20 June approving the consolidated text of the
General Social Security Act, such that the victims of gender violence are entitled to the
legal consideration of unemployed when they voluntarily terminate or suspend their
employment contract.
Special assistance is established for the victims of gender violence lacking
economic means, when it is considered that their age, general lack of specialist skills
and social circumstances are a handicap to substantially improving their employability.
In such cases, victims may join a targeted action programme aimed at their professional
insertion. This assistance, which will be scaled to the age and family responsibilities of
the victim, is designed basically to provide them with a minimum subsistence income
so they can live independently of their aggressor; such assistance will be compatible
with the aids envisaged in Act 35/1995 of 11 December on Aids and Assistance to the
Victims of Violent Crimes and Crimes against Sexual Liberty.
Title III, dealing with institutional protection, provides for the creation of two
administrative bodies. Firstly, the Special Government Delegation on Violence against
Women, within the Ministry of Employment and Social Affairs, whose functions will
include the drafting of Government policies on violence against women, and
coordinating and promoting all actions taken in this area, necessarily including actions
designed to enforce the guarantee of women’s rights. Secondly, the State Observatory
on Violence against Women, a collegiate body attached to the Ministry of Employment
and Social Affairs, whose main functions will be to serve as a centre of analysis regarding the status and evolution of violence against women, and to advise and
collaborate with the Delegation in drafting proposals and measures to eradicate this type
of violence.
Title IV introduces regulations under criminal law, creating a specific category
of serious assault, subject to increased penalties, when the injury is done to the wife or
former wife of the accused, or a woman with whom he shares or has shared an
analogous affective relationship, with or without cohabitation. Minor instances of
coercion or threats against such women shall likewise be regarded as punishable
offences.
The intention in this case is to provide a firm response to all citizens, women and
especially those suffering these kinds of aggression, by unhesitatingly categorizing them
as discrete criminal offences.
Title V establishes the judicial protection to be afforded to victims of gender
violence inside the family, to guarantee an appropriate and effective treatment of their
legal, family and social situation.
From a legal standpoint, this is a complex phenomenon that requires a multipronged
approach covering everything from procedural and substantive rules to
provisions for the care of victims. This is only possible through a specific legislative
text.
An Act to prevent and eradicate violence against women must establish rules of
procedure allowing fast-track, summary trials, as provided for in Act 27/2003 of 31
July. These must also be combined, in the criminal and civil spheres, with protection
measures for women and their children, and interim measures of urgent enforcement.
Current civil, criminal, advertising, employment and administrative regulations
have serious shortcomings in these respects, primarily because the question of gender
violence has not so far met with a global, multidisciplinary response. From the criminal
standpoint, the remedy must never result in a new injury to the woman.
Regarding judicial measures to ensure an appropriate and effective treatment of
the legal, family and special situation of the female victims of family violence, the
following provision have been made: in keeping with Spanish judicial tradition, the
formula chosen is one of the specialisation in the criminal system of Investigating
Judges, with the creation of specific Violence against Women Courts, rather than
creating a new jurisdictional system or assigning criminal law competences to Civil
Court Judges. These new Courts will examine and, where appropriate, rule on criminal
cases involving violence against women, as well as any related civil causes, such that
both are dealt with in first instance before the same bench. This assures a mediation that
guarantees due legal process with regard to the fundamental rights of the presumed
offender, without impairing the legal possibilities under this Act to give victims the
most immediate, complete and effective protection, and the means to avoid any
repetition of the abuse, or escalation in the degree of the violence.
Regarding the express regulation of the protective measures the Violence against
Women Judge can take, it has been decided that these should be explicitly stated. The reason is that they are not listed as interim measures in the Criminal Procedure Act,
which only regulates exclusion and restraining orders for the crimes stipulated in article
57 of the Criminal Code (article 544 bis of the Criminal Procedure Act, implemented by
Organic Act 14/1999). Interim measures, it has also been decided, may only remain in
force until the process has concluded. However, a clause is added whereby any of these
protection measures can be used as a security measure from the start or during the
enforcement of judgement, thereby enlarging the list in article 105 of the Criminal Code
(implemented by Organic Act 11/1999), and allowing the Judge to guarantee victims
protection beyond the termination of court proceedings.
Other regulations, affecting the Public Prosecutor’s Office, create the figure of
Public Prosecutor for Cases of Gender Violence, entrusted with supervising and
coordinating the actions of the said Office in this area, as well as an equivalent Section
in each Prosecutor’s Office of the Regional High Courts and County Courts, which will
likewise have specialist Prosecutors attached. These Prosecutors will appear in criminal
proceedings with regard to acts constituting crimes or offences within the jurisdiction of
the Violence against Women Courts, as well as intervening in civil processes of
annulment, separation and divorce, or hearings for the guardianship and custody of
minors in cases of alleged abuse of wife or children.
The Act’s additional provisions represent a far-reaching reform of the judicial
system to adapt current legislation to the new framework established by its text. In order
to harmonise existing rules and provide a coordinating nexus between legal texts, part
of this comprehensive reform is enacted by amending present regulations. Hence the
additional provisions implement the measures envisaged in its articles, but writing them
directly into current educational, advertising, employment, social security and civil
service legislation; likewise, these provisions devote specific attention to the recognition
of pension rights and allocations to the Fund envisaged in the Act to facilitate integrated
social assistance to the victims of gender violence.
Transitional provisions extend the application of this Act to the judicial
proceedings in progress when it comes into force, while respecting the competences of
each court.
Lastly, a series of final provisions confer enabling powers for the regulatory
implementation of its precepts.
PRELIMINARY TITLE
Article 1. Purpose of the Act.
1. The purpose of this Act is to combat the violence exercised against women by
their present or former spouses or by men with whom they maintain or have
maintained analogous affective relations, with or without cohabitation, as an
expression of discrimination, the situation of inequality and the power relations
prevailing between the sexes.
2. The present Act establishes integrated protection measures whose goal is to
prevent, punish and eradicate this violence and lend assistance to its victims. 3. The gender violence to which this Act refers encompasses all acts of physical and
psychological violence, including offences against sexual liberty, threats,
coercion and the arbitrary deprivation of liberty.
Article 2. Guiding principles.
This Act deploys a comprehensive battery of measures in pursuit of the
following ends:
a) Strengthen preventive awareness among citizens, providing the public
authorities with effective instruments to fulfil this goal in the educational, social
services, health, advertising and media spheres.
b) Establish the rights of women suffering gender violence, which shall be
enforceable through the public authorities, to ensure them rapid, transparent and
effective access to the services provided.
c) Improve the provision of information, care, crisis, support and integrated
recovery services at least to the minimum standards required under the
objectives of this Act, and establish a system to effectively coordinate existing
services at regional and municipal levels.
d) Guarantee employment conditions, in the private and public sectors, which
reconcile contractual requirements with the circumstances of workers or civil
servants suffering gender violence.
e) Guarantee economic rights for women suffering gender violence in order to
facilitate their social integration.
f) Establish a comprehensive system of institutional protection whereby the
General State Administration, through the Special Government Delegation on
Violence against Women in conjunction with the State Observatory on Violence
against Women, promotes public policies designed to offer safeguards to the
victims of gender violence.
g) Reinforce the criminal and procedural framework in place to ensure that gender
violence victims are accorded full protection by the courts.
h) Coordinate the range of resources and instruments deployed by different public
authorities to maximise the prevention of gender violence incidents, and ensure
that, when they occur, the authors receive appropriate penalties.
i) Promote the collaboration and involvement of civil entities, associations and
organisations engaged in the fight against gender violence.
j) Encourage the specialisation of the professional groups providing information,
care and protection to victims.
k) Uphold the principle of across-the-board application, so the specific needs and
demands of all women suffering gender violence are taken into account.
TITLE I
Sensitisation, protection and detection measures
Article 3. Sensitisation plans.
1. With immediate effect from the entry of this Act, and the corresponding
budgetary allocation, the Government shall launch a National Sensitisation and
Prevention Plan regarding Violence against Women which should at least:
Present to society of new scales of values based on respect for basic rights
and liberties and the equality of men and women, and on the exercise of
tolerance and freedom as part of the democratic principles of coexistence,
viewed within the context of gender relations.
Target both men and women from a platform of intercultural, communitybased
work.
Envisage a comprehensive supplementary training and recycling programme
for the professionals dealing with situations of gender violence.
Be overseen by a broad-based Commission, to be created within one month
at most, whose members shall include victims, institutions, professionals and
people of acknowledged repute for their work on this issue.
2. The public authorities shall also, within the scope of their powers, promote
specific information and sensitisation campaigns aimed at preventing gender
violence.
3. Information and sensitisation campaigns against this form of violence shall be
conducted in such a way as to ensure full disabled access to all activities.
CHAPTER I
In education
Article 4. Principles and values of the education system.
1. The Spanish education system shall make the teaching of respect for
fundamental rights and liberties and the equality of men and women a part of its
objectives, along with the exercise of tolerance and freedom within the
democratic principles of peaceful coexistence.
Likewise, the quality checkpoints of the Spanish education system shall
include the removal of obstacles in the way of full equality between men and
women, and education in the avoidance of conflicts or their peaceful solution.
2. Pre-school education will seek to develop conflict-solving ability from an early
age.
3. Primary education will help students to become skilled in the peaceful solution
of conflicts and to understand and defend sexual equality.
4. Compulsory secondary education will help develop students’ ability to relate
peacefully to others and to understand, value and defend the principle of equal
opportunities between men and women.
5. Upper secondary education and professional training will develop students’
ability to consolidate their personal, social and moral maturity, so they act
responsibly and independently, and to analyse and criticise gender inequalities
and foster real, effective equality between men and women.
6. Adult education will seek to develop skills in the peaceful solutions of conflicts
and promote respect for the dignity of the individual and equality between men
and women.
7. Universities will incorporate and encourage teaching and research on gender
equality across the full range of academic studies and activities.
Article 5. Immediate school enrolment in cases of gender violence.
The competent authorities shall provide for the immediate school enrolment of
children having to change residence due to acts of gender violence.
Article 6. Fostering equality.
In order to promote effective equality between men and women, the education
authorities shall ensure that sexist, discriminatory stereotypes are removed from all
educational materials, which should seek to instil values of sexual equality.
Article 7. Induction and ongoing training of teaching staff.
The education authorities shall take all necessary measures to ensure that
teaching staff induction and ongoing training courses include specific training on
equality issues, so they are equipped with the knowledge and techniques to
undertake the following:
a) Education in respect for basic rights and liberties and the equality of men and
women, and the exercise of tolerance and freedom within the democratic
principle of coexistence.
b) Education in conflict avoidance and peaceful conflict solving in all areas of
personal, family and social life.
c) The early detection of violence within the family, especially that directed at
women and children.
d) The development of attitudes favouring the exercise of equal rights and
obligations for men and women in the public and private sphere, and the sharing
of domestic tasks between both sexes.
Article 8. Participation in School Councils.
Steps shall be taken to ensure that School Councils work for educational
initiatives encouraging real and effective equality between men and women. To this
same end, the National Schools Council shall include representatives from the
Institute for Women’s Issues, and organisations defending women’s interests which
operate throughout national territory.
Article 9. The duties of educational inspection services.
Educational inspection services shall oversee the compliance with and
application of the principles and values set out in this chapter on the education
system, whose aim is to foster real equality between men and women.
CHAPTER II
In advertising and the communications media
Article 10. Illegal advertising
As provided by General Advertising Act 34/1988 of 11 November, advertising
material that uses the image of women in a degrading or discriminatory manner
shall be deemed to be illegal.
Article 11.
The public entity whose job it is ensure that audiovisual media meet their
obligations will take all necessary measures to ensure a portrayal of women
consistent with constitutional principles and values, without prejudice to any action
that may be initiated by other entities.
Article 12. Powers to apply for withdrawal or rectification.
The Special Government Delegation on Violence against Women, the Institute
for Women’s Issues or the equivalent body in each Autonomous Community, the
Public Prosecutor’s Office and Associations whose sole purpose is to defend the
interests of women are empowered to apply to the Courts for the withdrawal of
advertising material deemed illegal for using the image of women in a degrading
manner, under the terms of General Advertising Act 34/1988 of 11 November.
Article 13. Communications media.
1. The public authorities shall ensure strict compliance with current legislation as
regards the protection and safeguarding of fundamental rights, with particular
attention to eradicating media conducts that place women in a situation of
inequality.
2. The public authorities will promote self-regulation agreements complete with
effective preventive controls and mechanisms to favour the extrajudicial
resolution of conflicts, by this means favouring compliance with advertising
legislation.
Article 14.
The communications media shall work for the protection and safeguarding of
sexual equality, avoiding any discrimination between men and women. Reports concerning violence against women, within the requirements of
journalistic objectivity, shall do the utmost to defend human rights and the freedom
and dignity of the female victims of gender violence and their children. In particular,
they shall take special care in the graphic treatment of such items.
CHAPTER III
In healthcare
Article 15. Sensitisation and training.
1. The health authorities, through the Interterritorial Council of the National Health
Service, shall promote and facilitate actions among health professionals for the
early detection of gender violence, and will deploy all the means they consider
necessary to optimise the health sector’s contribution to combating this type of
violence.
2. In particular, sensitisation and ongoing training programmes shall be organised
for healthcare professionals in order to facilitate and improve early detection and
the care and recovery of women suffering gender violence.
3. The competent educational authorities shall ensure that degree and diploma
programmes and the specialisation courses aimed at social work and healthcare
professionals incorporate contents to skill them in the prevention and early
detection of gender violence, taking action in cases and providing supports to
victims.
4. National Health Plans shall include a section on the prevention and integrated
treatment of cases of gender violence.
Article 16. The Interterritorial Council of the National Health Service
Within a year of this Act coming into force, the Interterritorial Council of the
National Health Service shall set up a Commission against Gender Violence to
provide technical support and guidance in implementing the initiatives envisaged
herein, to evaluate and put forward the necessary measures for the application of the
health service protocol, and any other measures it deems of use in helping the health
service eradicate this kind of violence.
The Commission against Gender Violence of the Interterritorial Council of the
National Health Service shall be made up of representatives from all the
Autonomous Communities with powers in the matter.
Observatory on Violence against Women and the Plenum of the Interterritorial
Council. TITLE II
The rights of female victims of gender violence
CHAPTER I
The right to information, integrated social assistance
and free legal counsel
Article 17. The guarantee of victims’ rights.
1. All women suffering gender violence, regardless of their origin, religion or any
other personal or social condition or particular, are guaranteed the rights
recognised herein.
2. The information, integrated social assistance and legal assistance to gender
violence victims envisaged in this chapter shall help give real and effective
expression to their constitutional rights to physical and moral integrity, freedom,
security and equality and non discrimination on the grounds of sex.
Article 18. The right to information.
1. Female victims of gender violence have the right to receive comprehensive
information and advice adapted to their personal circumstances, through the
services, agencies and offices provided by the public authorities.
The said information shall include the measures envisaged in this Act for their
protection and security, and the rights and assistance provided therein, along
with details on the location of care, crisis, support and integrated recovery
services.
2. All necessary steps will be taken to ensure disabled women suffering violence
full access to information on their rights and the resources at their disposal. Such
information shall be provided in a format that is accessible and understandable
for people suffering disabilities, such as sign language or other communication
modes or options, including alternative or augmentative systems.
3. Likewise, the means shall be put in place so women suffering gender violence
whose personal and/or social circumstances may hinder their access to
information are assured the effective exercise of this right.
Article 19. The right to integrated social assistance.
1. The female victims of gender violence are entitled to receive care, crisis, support
and refuge, and integrated recovery services. The organisation of such services
by the Autonomous Communities and local authorities shall reflect the
principles of 24-hour attention, urgent action, specialised care and professional
multidisciplinarity.
2. Multidisciplinary care shall in all cases involve:
a) Information to victims
b) Psychological assistance
c) Social assistance
d) Monitoring of women’s rights claims
e) Educational support to the family unit f) Preventive training in the values of equality conducive to their personal
development and their skilling in non-violent conflict solving.
g) Support to employment training and insertion.
3. Services shall be organised to ensure the effectiveness of their delivery by means
of staff specialisation and one-stop capabilities.
4. Such services will act in coordination with each other and in collaboration with
the Police, Violence against Women Judges, the health services and the
institutions responsible for providing victims with legal counsel, in the
corresponding geographical zone. They may also apply to the Judge for any
emergency measures they deem necessary.
5. Minors under the parental authority, guardianship or custody of the victim shall
also be entitled to receive integrated assistance through these services. Social
service departments should have staff qualified in dealing with minors, in order
to prevent or avoid situations which might cause mental or physical harm to
minors living in a family setting where there is gender violence.
6. The cooperation instruments and procedures between the General State
Administration and the Autonomous Communities on matters regulated herein
shall include a commitment by the General State Administration to provide
funding earmarked for the provision of these services.
7. Equality bodies shall input to and evaluate the programmes and actions
undertaken and issue recommendations for their improvement.
Article 20. Legal aid
1. Women victims of gender violence who prove they have insufficient means to
initiate legal action, as stipulated in Act 1/1996 of 10 January on Free Legal Aid,
have the right to be defended and represented free of charge by a Lawyer or
Court Representative in all administrative processes and proceedings that ensue
directly or indirectly from the violence suffered. In such cases, a single legal
counsel shall take on the defence of the victim. This right is extensive to the
successors in interest in the event that a victim dies. In any case, all victims of
gender violence who so request shall be guaranteed free, specialist legal
services, immediately available, notwithstanding that if they are later refused
entitlement to free legal aid they must pay the appearing lawyer the fees
corresponding to his or her intervention.
2. In any event, the provision of legal representation and counsel to the victims of
gender violence shall be as prescribed by Act 1/1996 of 10 January on Free
Legal Aid.
3. Bar associations which require specialisation courses for future duty lawyers,
shall ensure that these include specific training to help them exercise an effective
professional defence of gender violence victims.
4. Bar associations shall likewise take the necessary steps to allow the urgent
appointment of a duty lawyer in gender violence proceedings. CHAPTER II
Employment rights and Social Security benefits
Article 21. Employment and Social Security rights.
1. Women workers suffering gender violence shall be entitled to a reduction or
reorganisation of their working hours, geographical mobility, change of
workplace, the suspension of employment with their post reserved, and the
termination of their employment contract, under the terms laid down in the
Workers’ Statute.
2. The suspension or termination of employment contracts as referred to above
shall entail a legal situation of unemployment under the terms envisaged in the
Social Security Act. The time employment is suspended shall be considered an
effective contribution period for the purposes of unemployment and Social
Security benefits.
3. Companies concluding interim supply contracts to cover for female workers
who are victims of gender violence and have suspended their employment or
exercised their right to geographical mobility or a change of workplace shall be
entitled to a 100% refund of their employer Social Security contributions for
common contingencies during the period the said workers’ employment is
suspended, or over a period of six months in the event of geographical mobility
or a change of workplace. Such workers returning to their posts shall enjoy the
same conditions as when their employment contract was suspended.
4. Worker absences or lateness motivated by the physical or mental effects of
gender violence shall be deemed to be justified when this is the opinion of the
relevant social services or health service department, as the case may be,
notwithstanding that the worker should advise her employer of such absences
with the greatest possible notice.
5. Self-employed workers who are the victims of gender violence and stop working
in the interests of protection or to exercise their right to integrated social
assistance shall be released from paying Social Security contributions for six
months, which period shall nevertheless count in full towards future Social
Security benefits. They shall likewise receive the same consideration as if they
were active.
For the purposes of the preceding paragraph, the contribution base applied shall
be equivalent to the average of the contribution bases paid in the six months
before the payment obligation was suspended.
Article 22. Specific employment programme.
A specific action programme will be introduced in the framework of the
Kingdom of Spain Employment Action Plan to cater for gender violence victims
registered as seeking work.
This programme will include measures to help them start up a new activity as
self employed. Article 23. Accreditation of situations of gender violence suffered by female workers.
The situations of violence activating the rights regulated in this chapter shall be
accredited by the protection order in the victim’s name. Exceptionally, a report of
the Public Prosecutor’s Office stating that evidence exists that the claimant is a
victim of gender violence may suffice as accreditation until a protection order is
issued.
CHAPTER III
The rights of civil servants
Article 24. Description of rights.
Female civil servants suffering gender violence shall be entitled to a reduction or
reorganisation of their working hours, geographical mobility, a change of workplace
and leave of absence under the terms laid down in government sector-specific
legislation.
Article 25. Justification of absences.
Total or partial absences from work motivated by the physical or mental effects
of the gender violence suffered by a female civil servant shall be deemed to be
justified under the terms laid down in government sector-specific legislation.
Article 26. Accreditation of situations of gender violence suffered by female civil
servants.
Accreditation of the situation of violence activating the rights to geographical
mobility, change of workplace, leave of absence and the reduction or reorganisation
of working hours shall be as established in article 23.
CHAPTER IV
Economic rights
Article 27. Social aids.
1. When the income of a victim of domestic violence, on a monthly basis, is no
more than 75 percent of the minimum interprofessional wage, excluding the part
corresponding to two extra payroll payments, she may receive a single, lumpsum
benefit if the presumption is that her age, lack of general or specialist skills
and social circumstances will make it particularly hard for her to find
employment, meaning she will not participate in the professional insertion
programmes provided.
2. The amount of this aid shall be equal to six months of unemployment subsidies.
When the victim of gender violence is officially categorised as having 33 percent or more disability, the amount will be equal to 12 months of
unemployment subsidies.
3. These aids, which are paid out of the General State Budget, shall be granted by
the competent social services department. The application file shall include a
report from the Public Employment Service confirming that, for the reasons set
out in 1. above, the victim’s employability is unlikely to be much improved by
her undertaking the employment programme.
The reality of the situation of violence suffered shall be accredited as set out in
the above article 23.
4. If the victim has family responsibilities, the amount of aids may equate to 18
months of subsidies; or 24 months if she or a family member living with her is
officially categorised as having 33 percent or more disability, under terms to be
specified in the implementing provisions to this Act.
5. These aids shall be compatible with those envisaged in Act 35/1995 of 11
December on Aid and Assistance to the Victims of Violent Crimes and Crimes
against Sexual Freedom.
Article 28. Access to housing and residences for the elderly.
Women suffering gender violence shall be considered priority groups for access
to subsidised housing and residences for the elderly under the terms laid down in the
applicable legislation.
TITLE III
Institutional protection
Article 29. The Special Government Delegation on Violence against Women.
1. The Special Government Delegation on Violence against Women, attached to
the Ministry of Employment and Social Affairs, shall draft the public policies on
gender violence matters to be implemented by the Government, and shall
coordinate and promote all actions taken in this regard, working in collaboration
and coordination with the competent authorities.
2. The head of the Special Government Delegation on Violence against Women
shall be empowered to intervene before the courts in defence of the rights and
interests upheld by this Act in collaboration and coordination with the competent
authorities.
3. The rank and specific functions to be exercised by the head of the Special
Government Delegation on Violence against Women shall be regulatorily
determined.
Article 30. The State Observatory on Violence against Women.
1. The State Observatory on Violence against Women shall be set up as a
collegiate body attached to the Ministry of Employment and Social Affairs to
provide advice and analysis on gender violence matters as well as handling
institutional collaboration, the preparation of reports and studies, and proposals
for action in the sphere. Such reports, studies and proposals shall lend particular
attention to the women most at risk of suffering gender violence or who have most difficulties accessing services. In any event, the data contained in these
reports, studies and proposals shall be presented with a breakdown by sex.
2. The State Observatory on Violence against Women shall send an annual report
to the Government and Autonomous Communities on the evolution of gender
violence, under the terms stated in article 1 of this Act, examining the types of
offences committed and the effectiveness of the measures deployed to protect
victims. The report shall also single out areas for legal reform to guarantee that
the measures adopted are in practice conferring strong enough protection on the
victims of gender violence.
3. Its functions, operational regime and composition shall be regulatorily
determined, with a role being assured, in any event, for the Autonomous
Communities, local authorities, the social agents, consumer and user
associations, and women’s organizations with a nationwide reach, as well as the
most representative employers’ and trade union organisations.
Article 31. National law enforcement and security agencies.
1. The Government shall set up dedicated units within the national law
enforcement and security agencies specialising in the prevention of gender
violence and supervising the enforcement of the legal measures adopted.
2. In order to maximise the effectiveness of protection measures, the Government
will take action to ensure that local police forces work along with the national
law enforcement and security agencies, within their existing collaborative
framework, to ensure the correct enforcement of the measures ordered by the
courts which figure among those envisaged in this Act or in article 544 bis of the
Criminal Procedure Act or article 57 of the Criminal Code.
3. The national law enforcement and security agencies shall be guided in their
actions by the Protocol for National Law Enforcement and Security Agency
Action and Coordination with the Courts for protection against gender and
domestic violence.
4. The terms of this article shall apply in the Autonomous Communities running
police forces entrusted with the protection of people and property and the
preservation of law and order in their respective territories, as provided in their
Statutes, in Organic Act 2/1986 of 13 March on Law Enforcement and Security
Agencies and in their police regulations; all this towards the common goal of
maximising victim protection.
Article 32. Collaboration plans.
1. The public authorities will draw up collaboration plans which ensure the
organised rollout of initiatives for the prevention and prosecution of gender
violence and the care of its victims, which should involve the health authorities,
the judicial authorities, national law enforcement and security agencies, social
services departments and equality organisations.
2. Protocols will be drawn up in implementation of these plans whose procedures
will ensure a global, integrated effort by the various authorities and services
involved, and secure the evidence stage during the proceedings under way.
3. The authorities with health competences shall promote the application, regular
update and dissemination of protocols setting out uniform procedures for healthcare providers, in both the public and private domain; in particular, the
Protocol approved by the Interterritorial Council of the National Health Service.
These protocols will facilitate the prevention and early detection of gender
violence and ongoing assistance to women suffering or at risk of suffering it.
As well as setting out the procedures to be followed, protocols should
make express reference to referrals to the judicial authorities where there is
evidence or a reasonable suspicion of physical or mental damage caused by
aggressions or abuse.
4. In implementing the actions prescribed herein, particular attention shall be given
to the situation of women whose personal and/or social circumstances put them
at greater risk of suffering gender violence, or may hinder their take-up of the
services envisaged herein. This definition may extend to women belonging to
minorities, immigrants and those suffering social exclusion or disability.
TITLE IV
Protection under criminal law
Article 33. Suspension of sentence.
Paragraph two of article 83, section 1.6 of the Criminal Code is given the
following reading in the text of Organic Act 15/2003:
“In the case of crimes related to gender violence, the Judge or Court shall
predicate any suspension on compliance with the obligations or duties specified
in rules 1, 2 and 5 of this section.”
Article 34. Commission of offences during a suspended sentence.
Article 84, section 3 of the Criminal Code is given the following reading in the
text of Organic Act 15/2003:
“When the suspended sentence is a custodial sentence for crimes related to
gender violence, the offender’s failure to comply with the obligations or duties
specified in rules 1, 2 and 5 of section 1 of article shall cause the revocation of
the suspension of imprisonment.”
Article 35. Penalties in lieu of a custodial sentence.
Paragraph 3 of section 1 of article 88 of the Criminal Code is given the
following reading in the text of Organic Act 15/2003:
“Where an offender has been sentenced for a crime related to gender
violence, a custodial sentence may only be replaced by community service. In
such cases, the Judge or Court shall order the offender’s observance of the
obligations and duties set out in rules 1 and 2 of section 1 of article 83 of this
Code as well as his attendance at specific re-education and psychological
therapy courses.” Article 36. Protection against injury.
Article 148 of the Criminal Code is amended to read as follows:
“The injuries specified in section 1 of the preceding article shall receive a
custodial sentence of two to five years depending on the sequels or the risk
engendered:
1. If the aggression involved the use of weapons, instruments, objects, means,
methods or forms specifically constituting a danger to the life or the physical
and mental health of the injured party.
2. If there was cruelty or malice aforethought.
3. If the victim was aged under 12 or incapacitated.
4. If the victims was or had been the wife of the aggressor or shared an
analogous affective relationship, with or without cohabitation.
5. If the victim was an especially vulnerable person living with the aggressor.
Article 37. Protection against abuse.
Article 153 of the Criminal Code reads as follows:
“1. Whoever causes another any mental damage or injury not defined as a
crime in this Code, by whatever means or process, or strikes or mistreats another
when that person is or has been his wife or shares or has shared an analogous
affective relationship, with or without cohabitation, or a specially vulnerable
person living with the aggressor, shall receive a custodial sentence of six months
to one year or else complete thirty-one to eighty days of community service and
will, in any case, be deprived of the right to have or carry weapons for one year
and a day to three years and, when the Judge or Court deems it to be in the
interest of the minor or incapacitated person, disqualified from the exercise of
parental authority, guardianship, custody or foster care for a period of up to five
years.
2. If the victim of the crime referred to in the preceding paragraph is among
the persons listed in article 173.2, excluding the persons specified in the
preceding section of this article, the perpetrator shall receive a prison sentence of
three months to one year, or else complete thirty-one to eighty days of
community service and will, in any case, be deprived of the right to have or
carry weapons for one year and a day to three years and, when the Judge or
Court deems it to be in the interest of the minor or incapacitated person,
disqualified from the exercise of parental authority, guardianship, custody or
foster care for a period of six months to three years.
3. The sentences envisaged in sections 1 and 2 shall be imposed in the upper
half of their range when the offence was perpetrated in the presence of minors,
or using weapons or took place in the shared home or the home of the victim, or
was in violation of a sentence among those envisaged in article 48 of his Code or
of an interim or security measure of the same nature.
4. Notwithstanding that set out in the preceding sections, the Judge or Court
may impose the lower sentence, stating reasons in the judgement, in allowance for the personal circumstances of the offender, or the circumstances surrounding
the crime.”
Article 38. Protection against threats.
Three sections are added to article 171 of the Criminal Code with the numbers 4,
5 and 6, reading as follows:
“4. Whoever issues minor threats to someone who is or has been his wife or
shares or has shared an analogous affective relationship, with or without
cohabitation shall receive a prison sentence of six months to one year or else
complete thirty-one to eighty days of community service and will, in any case,
be deprived of the right to have or carry weapons for one year and a day to three
years and, when the Judge or Court deems it to be in the interest of the minor or
incapacitated person, disqualified from the exercise of parental authority,
guardianship, custody or foster care for a period of up to five years.
The same sentence shall be imposed on whoever issues mild threats to
another, especially vulnerable person sharing his abode.
5. Whoever issues minor threats any of the persons referred to in article
173.2, excepting those envisaged in the preceding section of this article, with
weapons or other dangerous instruments shall be issued with a prison sentence
of three months to one year, or else complete thirty-one to eighty days of
community service and will, in any case, be deprived of the right to have or
carry weapons for one to three years and, when the Judge or Court deems it to be
in the interest of the minor or incapacitated person, disqualified from the
exercise of parental authority, guardianship, custody or foster care for a period
of six months to three years.
The sentences envisaged in sections 4 and 5 shall be imposed in the upper
half of their range when the offence was perpetrated in the presence of minors,
or took place in the shared home or the home of the victim, or was in violation
of a sentence among those envisaged in article 48 of his Code or of an interim or
security measure of the same nature.
6. Notwithstanding that set out in the preceding sections, the Judge or Court
may impose the lower sentence, stating reasons in the judgement, in allowance
for the personal circumstances of the offender or the circumstances surrounding
the crime.”
Article 39. Protection against coercion.
The present contents of article 172 of the Criminal Code are assigned the
number 1, and a section 2 added to read as follows:
“2. Whoever uses minor coercion against someone who is or has been his
wife or shares or has shared an analogous affective relationship, with or without
cohabitation shall receive a prison sentence of six months to one year or else
complete thirty-one to eighty days of community service and will, in any case,
be deprived of the right to have or carry weapons for one year and a day to three
years and, when the Judge or Court deems it to be in the interest of the minor or
incapacitated person, disqualified from the exercise of parental authority,
guardianship, custody or foster care for a period of up to five years. The same sentence shall be imposed on whoever so coerces another,
specially vulnerable person sharing his abode.
The sentences envisaged in sections 4 and 5 shall be imposed in the upper
half of their range when the offence was perpetrated in the presence of minors,
or took place in the shared home or the home of the victim, or was in violation
of a sentence among those envisaged in article 48 of his Code or of an interim or
security measure of the same nature.
Notwithstanding that set out in the preceding sections, the Judge or Court
may impose the lower the sentence, stating reasons in the judgement, in
allowance for the personal circumstances of the offender or the circumstances
surrounding the crime.”
Article 40. Violation of sentence.
Article 468 of the Criminal Code is amended to read as follows:
“1. Those who violate their sentence, security measure, imprisonment,
interim measure, removal or custody shall receive a prison sentence of six
months to one year, if they were under a custodial sentence, and a fine of twelve
to twenty-four months in all other cases.
2. In any event, a prison sentence of six months to one year will be imposed
on whoever violates a sentence of those envisaged in article 48 of this Code or
an interim or security measure of the same nature issued in criminal proceedings
where the victim was one of the persons referred to in article 173.2.”
Article 41. Protection against minor abuses
Article 620 of the Criminal Code is amended to read as follows:
“Sentences of ten- to twenty-day fines will be imposed on:
1. Those who issue minor threats to another with weapons or dangerous
instruments, or engage them in a fight, for reasons other than justified defence,
unless the act constitutes a criminal offence.
2. Those who threaten, coerce, harm or mistreat another, in a minor degree,
unless the deed constitutes a criminal offence.
The acts described in 1 and 2 above shall only be prosecuted if charges are
brought by the injured party or the legal representative of the same.
In the cases described in 2 of this article, when the victim is one of the
persons referred to in article 173.2, the sentence shall be one of permanent
surveillance over four to eight days at an address other than and distant from the
address of the victim, or five to ten days of community service. In these cases,
the need for the charges referred to in the preceding paragraph of this article is
dispensed with, except in claims for damages”. Article 42. Prison authorities.
1. The prison authorities shall provide specific programmes for inmates sentenced
for crimes related to gender violence.
2. Review Boards shall take the satisfactory completion of these specific
programmes into account when deciding matters of regime, leave and
conditional liberty with regard to the inmates referred to in the preceding
section.
TITLE V
Judicial protection
CHAPTER I
On Violence against Women Courts
Article 43. Territorial structure.
An article 87 bis is added to Organic Judiciary Act 6/1985 of 1 July to read as
follows:
“1. There shall be one or more Violence against Women Courts in each
judicial district, with its seat in the capital of the same and jurisdiction over all
its territory.
2. Notwithstanding the above, Violence against Women Courts may
exceptionally be set up with jurisdiction over two or more judicial districts
within the same province. It will take its name from that of the municipality
where it has its seat.
3. The General Council of the Judiciary may resolve, on the basis of a
report from the Government Divisions, that in circuits where the existing
workload so advises, the hearing of cases referred to in article 86 ter of this
Organic Act should correspond to one of the First Instance and Magistrates
Courts, or Magistrates Court as the case may be. In such situations, only one of
the said bodies shall be designated to hear such cases within the judicial district,
be it in on an exclusive basis or dealing with other matters at the same time.
4. In the judicial districts served by a single First Instance and Magistrates
Court it shall be that court which hears the cases referred to in article 87 ter of
this Act.”
Article 44. Jurisdiction..
An article 87 ter is added to Organic Judiciary Act 6/1985 of 1 July, to read as
follows:
“1. The Violence against Women Courts shall deal with the following cases
under criminal law in accordance with the procedures and appeals set out in the
Criminal Procedure Act:
a) The investigation of cases involving the crimes listed in the Criminal Code
relative to murder, injury, injury to the foetus, crimes against a person’s freedom, against a person’s moral integrity, against a person’s sexual
freedom and inviolability, and any other crime involving violence or
intimidation, when it is committed against a person who is or has been his
wife or shares or has shared an analogous affective relationship, with or
without cohabitation, and those committed against his descendents or those
of his spouse or cohabiting partner, or against minors or incapacitated
persons living with him or under the parental authority, guardianship,
custody or foster care of his spouse or cohabiting partner, when an act of
gender violence has also occurred.
b) The investigation of cases involving crimes against family rights and duties,
when the victim is among the persons specified in a) above.
c) Adoption of the corresponding victim protection orders notwithstanding the
competences assigned to the Duty Judge.
d) The hearing and determination of responsibility for offences listed under
titles I and II of book III of the Criminal Code, when the victim is among the
persons specified under a) above.
2. The Violence against Women Courts shall deal with the following cases
under civil law in accordance with the procedures and appeals set out in the
Civil Procedure Act:
a) Those of filiation, maternity and paternity.
b) Those of matrimonial annulment, separation and divorce.
c) Those involving parent-child relations.
d) Those whose purpose is the adoption or modification of important measures
affecting the family.
e) Those exclusively concerning the guardianship and custody of minors or
alimony claims by one parent against the other on behalf of minors.
f) Those concerning obligatory consent in cases of adoption.
g) The contesting of administrative decisions regarding the protection of
minors.
3. The Violence against Women Courts will have sole and exclusive powers
under civil law when all the following requisites simultaneously obtain:
a) That of being a civil process whose purpose is one of the matters stated in 2
of this article.
b) That one of the parties in the civil process is a victim of acts of gender
violence under the terms referred to in 1 a) of the present article.
c) That one of the parties in the civil process stands accused of perpetrating acts
of gender violence or aiding or abetting in the same.
d) That criminal proceedings have been brought before the Violence against
Women Judge for an act of violence against the woman, or a protection order
issued in such respect.
4. When a Judge is confident that the acts presented do not constitute an
expression of gender violence, he or she may refuse leave to proceed in respect
of the claim, referring it to the competent judicial body.
5. Mediation is prohibited in all the above cases.” Article 45. Criminal law appeals.
A new item 4 is added to article 82.1 of Organic Judiciary Act 6/1985 of 1 July,
to read as follows:
“Regarding the appeals provided by law against the criminal law judgements
handed down by the Violence against Women Court of the province. In order to
facilitate the hearing of such appeals and depending on the number of such
cases, one or several of its sections should specialise accordingly, as established
in article 98 of the aforementioned Organic Act. This specialisation shall extend
to cases where it is the County Court that is called upon to judge in first instance
the cases heard by the Violence against Women Courts of the province.”
Article 46. Civil law appeals.
A new paragraph is added to article 82.4 of Organic Judiciary Act 6/1985 of 1
July, to read as follows:
“The County Courts shall likewise hear the appeals provided by law against
the judgements handed down under civil law by the Violence against Women
Courts of the province. In order to facilitate the hearing of such appeals and
depending on the number of such cases, one or several of its sections should
specialise accordingly, as established in article 98 of the aforementioned
Organic Act.”
Article 47. Training.
The Government, the General Council of the Judiciary and the Autonomous
Communities, within the scope of their respective powers, shall ensure that training
courses for judges and magistrates, prosecutors, court clerks, national law
enforcement and security agents and coroners include specific training on sexual
equality, non discrimination for reasons of sex, and issues of gender violence. Such
training shall in all cases focus on the vulnerability of the victims.
Article 48. Jurisdiction of the Courts.
Article 4, section 1 of Act 38/1988 of 28 December on Judicial Organisation is
amended to read as follows:
“1. The First Instance and Magistrates Courts and the Violence against
Women Courts shall have jurisdiction in their respective districts.
Notwithstanding the foregoing, where geographical, location and population
circumstances so advice, the same Violence against Women Court may cover
more than one judicial district.” Article 49. Seat of the Courts.
Article 9 of Act 38/1988 of 28 December on Judicial Organisation is amended to
read as follows:
“The First Instance and Magistrates Courts and the Violence against Women
Courts shall have their seats in the capital of the judicial district.”
Article 50. Organisation of the Violence against Women Courts.
An article 15 bis is added to Act 38/1988 of 28 December on Judicial
Organisation, to read as follows:
“1. The initial organisation of the Violence against Women Courts shall be
as established in annex XII hereto:
2. Specific details on the initial organisation and later development shall be
provided by Royal Decree in accordance with the terms of article 20 of this Act,
and shall respond to the following criteria:
a) Violence against Women Courts shall be set up in those administrative areas
where the workload so advises.
b) In those judicial districts where the caseload is not deemed to warrant a
separate judicial structure, certain of the First Instance and Magistrates
Courts serving the area may be transformed into Violence against Women
Courts.
c) Likewise, when the workload is not deemed to warrant the creation of a
specific judicial body, and the area is served by several First Instance and
Magistrates Courts, one court will be appointed, on an exclusive basis, to
hear cases of violence against women as provided by article 1 of the Organic
Act on Integrated Protection Measures against Gender Violence, along with
the remaining cases corresponding to the criminal or civil jurisdiction of the
court in question.
3. The Violence against Women Courts based in provincial capitals shall be
served by a magistrate, as shall the remaining courts specified in annex III
hereto.
Article 51. Courts served by magistrates.
Section 2 of article 21 of Act 38/1988 on Judicial Organisation shall read as
follows:
“2. The Ministry of Justice may order that the Courts of First Instance and
Magistrates Courts or the First Instance and Magistrates Courts and the Violence
against Women Courts should be served by magistrates, provided that they are
located in a judicial district with an official population of over 150,000
inhabitants or whose actual population has surpassed this number, and that the
relevant caseload so warrants.” Article 52. Constitution of the Courts.
A new article 46 ter is added to Act 38/1988 of 28 December on Judicial
Organisation, to read as follows:
“1. The Government, within the framework of the General State Budget Act,
and having canvassed the opinion of the General Council of the Judiciary and,
where appropriate, the Autonomous Community concerned, shall proceed in a
phased manner and by means of Royal Decree to the constitution, harmonisation
and transformation of Magistrates Courts and of First Instance and Magistrates
Courts in order to complete the organisational structure of the Violence against
Women Courts.
2. Where Autonomous Communities do not specify a seat for the Violence
against Women Courts, this shall be understood to be in the locality specified in
annex XIII hereto.”
Article 53. Notification of judgements handed down by the Courts.
A new paragraph is added to article 160 of the Criminal Procedure Act, to read
as follows:
“When the investigation of a case would rightfully correspond to a Violence
against Women Court, the judgement shall be notified to the said court without
delay, stating whether it is final and binding or otherwise.”
Article 54. Specialisation in the event of fast-track criminal proceedings.
A new article 779 bis is added to the Criminal Procedure Act, to read as follows:
“1. In the event that jurisdiction is vested with the Violence against Women
Court, the proceedings and resolutions specified in the preceding articles shall
be performed and adopted during court hours.
2. The Judicial Police shall make the summonses referred to in article 796 to
appear before the Violence against Women Court on the nearest working day out
of those regulatorily established.
Nonetheless, the detainee, as the case may be, shall be brought before the
Duty Magistrates Court for the sole purpose of regularising his personal
situation, when it is not possible to present the case before the competent
Violence against Women Court.
3. In making the summonses referred to above, the Judicial Police shall set
the day and the time of the appearance in consultation with the Violence against
Women Court. The General Council of the Judiciary shall issue the necessary
regulations to ensure such coordination, in accordance with article 110 of the
Organic Judiciary Act.”
Article 55. Notification of judgements handed down by Criminal Courts.
A new section 5 is added to article 789 of the Criminal Procedure Act, to read as
follows: “5. When the investigation of a case would rightfully correspond to a
Violence against Women Court, the judgement shall be notified to the said court
without delay. The Violence against Women Court shall also be sent the
declaration that the judgement is final and binding, and the judgement in second
instance should such judgement wholly or partially revoke the judgement
previously issued.”
Article 56. Specialisation in the event of fast-track proceedings for misdemeanours.
A new section 5 is added to article 962 of the Criminal Procedure Act, to read as
follows:
“5. In the event that the jurisdiction for hearing the case is vested with the
Violence against Women Court, the Judicial Police must make the summonses
referred to in this article to appear before the Violence against Women Court on
the nearest working day. In making such summonses, the Judicial Police shall
set the day and the time of the appearance in consultation with the Violence
against Women Court.
The General Council of the Judiciary shall issue the necessary regulations to
ensure such coordination, in accordance with article 110 of the Organic
Judiciary Act.”
TITLE II
Civil rules of proceeding
Article 57. Loss of jurisdiction in cases of acts of violence against women.
A new article 49 bis is added to the Civil Procedure Act 1/2000 of 7 January, to
read as follows:
“Article 49 bis. Loss of jurisdiction in cases of acts of violence against
women.
1. When a Judge hearing a civil case in first instance has cognisance of the
commission of an act of violence among those defined in article 1 of the Organic
Act of Integrated Protection Measures against Gender Violence in respect of
which criminal proceedings have been brought or a protection order issued, after
verifying that the conditions set out in paragraph three of article 87 ter of the
Organic Judiciary Act are met, he or she shall recuse him or herself and refer the
case records as they stand to the competent Violence against Women Judge,
except where verbal testimony has begun.
2. When a Judge investigating a civil case has cognisance of the possible
commission of an act of violence among those defined in article 1 of the Organic
Act of Integrated Protection Measures against Gender Violence in respect of
which criminal proceedings have not been brought and no protection order
issued, after verifying that the conditions set out in paragraph three of article 87
ter of the Organic Judiciary Act are met, he or she shall immediately summons
the parties to an appearance in the Public Prosecutor’s Office, to be held within
24 hours, so the latter may be informed of all relevant details on the facts. At this point, the Prosecutor shall have to decide immediately whether, in the next
24 hours, to report the acts of gender violence or apply for a protection order to
the competent Violence against Women Judge. In the event that a charge is
made or a protection order applied for, the Prosecutor shall deliver a copy of the
charge sheet or application to the Court, which shall continue hearing the case
until such time as it may be called to recuse itself by the competent Violence
against Women Judge.
3. When a Violence against Women Judge hearing a criminal case of gender
violence has cognisance of the existence of a civil case, and verifies that the
conditions set out in paragraph three of article 87 ter of the Organic Judiciary
Act are met, he or she shall call for the recusal of the Civil Court, which shall
immediately accept such recusal sending the case records to the body issuing the
request.
For the purposes of the preceding paragraph, the recusal order shall be
accompanied by evidence of the commencement of earlier discovery or
misdemeanour proceedings and the record of the leave to proceed or the
protection order adopted.
4. In the cases envisaged in sections 1 and 2 of this article, the Civil Court
shall send the records to the Violence against Women Court, regardless of the
terms of article 48.3 of the Civil Procedure Act, which shall not apply. From that
moment on, it is before the latter court that the parties must appear.
The remaining rules of this section shall not apply in the above cases, nor
shall any recusal motion be accepted, and the parties advocating the competence
of the Violence against Women Court shall produce in support some decision
issued by the said Court of those referred to in the final paragraph of 3 above.
5. The Violence against Women Courts shall exercise their powers in civil
matters in a sole and exclusive manner, in accordance at all times with the
procedures and appeals envisaged in the Civil Procedure Act.”
CHAPTER III
Criminal rules of proceeding
Article 58. Jurisdiction under criminal law.
Article 14 of the Criminal Procedure Act is amended to read as follows:
“Excepting the cases which the Constitution and laws assign expressly and
restrictedly to determined Judges and Courts, the distribution of jurisdiction
shall stand as follows:
1. For the hearing and determination of misdemeanour proceedings: the
Investigating Judge, unless competences lie with the Violence against
Women Judge in accordance with section five of this article. Nonetheless,
the cases of misdemeanours typified in articles 626, 630, 632 and 633 of the
Criminal Code shall be heard by the Justice of the Peace in the place they
were committed. Justices of the Peace shall also hear the cases of
misdemeanours typified in article 620.1 and 620.2 of the Criminal Code,
except when the victim is among the persons referred to in article 173.2 of
the said Code.
2. For the investigation of causes: the Investigating Judge of the judicial district
where the crime was committed or the Violence against Women Judge, or
the Chief Investigating Judge with respect to the offences specified by law.
3. For the hearing and determination of criminal causes for which the law
prescribes a custodial sentence of no more than five years or a fine of
whatsoever amount, or any other sentence of a different nature, whether
single, joint or alternative, provided the duration of the same is not greater
than ten years, and for misdemeanours, incidental or otherwise, imputable to
the perpetrators of these offences or to other persons, when the commission
of the misdemeanour or its evidence are related to the same: the Criminal
Court Judge of the circuit where the offence was committed or the Criminal
Court Judge corresponding to the circuit of the Violence against Women
Court, as the case may be, or the Chief Criminal Court Judge in his or her
jurisdiction, without prejudice to the powers of the Duty Investigating Judge
of the place where the offence was committed to issue an undefended
judgement or those of the competent Violence against Women Judge, as the
case may be, in accordance with article 801.
Nonetheless, in the cases attributed to the Criminal Court Judge, it shall fall
to the Jury Court to hear and determine when the offence is among those
assigned thereto.
4. For the hearing and determination of remaining causes: the County Court of
the circuit where the offence was committed, or the County Court
corresponding to the circuit of the Violence against Women Court, as the
case may be, or the Criminal Division of the National Court.
Nonetheless, in the cases attributed to the County Court, it shall fall to the
Jury Court to hear and determine when the offence is among those assigned
thereto.
5. The Violence against Women Courts shall have jurisdiction in the following
matters, in accordance with the procedures and appeals envisaged herein:
a) The investigation of criminal causes for the offences listed in the
Criminal Code relative to murder, injury, injury to the foetus, crimes
against a person’s freedom, against a person’s moral integrity, against a
person’s sexual freedom and inviolability, and any other offence
involving violence or intimidation, when it is committed against a
person who is or has been his wife or shares or has shared an analogous
affective relationship, with or without cohabitation, and those committed
against the offender’s descendents or those of his spouse or cohabiting
partner, or against minors or incapacitated persons living with him or
under the authority, guardianship, custody or foster care of his spouse or
cohabiting partner, when an act of gender violence has also occurred.
b) The investigation of criminal causes for any offence against family rights
and duties, when the victim is among the persons specified in a) above.
c) Adoption of the corresponding victim protection orders notwithstanding
the competences assigned to the Duty Judge.
d) The hearing and determination of liability for misdemeanours listed
under titles I and II of book III of the Criminal Code, when the victim is
among the persons specified under a) above.” Article 59. Territorial jurisdiction.
A new article 15 bis is added to the Criminal Procedure Act, to read as follows:
“In the case of crimes or misdemeanours whose investigation or hearing
corresponds to the Violence against Women Judge, territorial jurisdiction shall
be determined by the place of the victim’s abode, without prejudice to any
protection order, or urgent measures as specified in article 13 herein being
adopted by the Judge of the place where the offence was committed”.
Article 60. Competence by association.
A new article 17 bis is added to the Criminal Procedure Act, to read as follows:
“The competence of the Violence against Women Courts shall extend to the
investigation and hearing of associated crimes and misdemeanours provided the
association originates in one or more of the cases envisaged in sections 3 and 4
of article 17 herein.”
CHAPTER IV
Judicial measures of victim protection and security
Article 61. General provisions.
1. The protection and security measures envisaged in this chapter shall be
compatible with any interim or precautionary measures adopted in civil or
criminal proceedings.
2. In all proceedings to do with gender violence, the competent Judge shall, of his
or her own motion or upon the petition of the victims, the children, the persons
sharing their abode or under their guardianship or custody, the Public
Prosecutor’s Office or the Authority responsible for providing assistance or
refuge to the victims, rule on the advisability of adopting the interim and
precautionary measures envisaged in this chapter, determining the duration of
the same, as the case may be.
Article 62. On the protection order.
On receipt of an application for a protection order, the Violence against Women
Court and the Duty Judge, as the case may be, shall act as prescribed by article 544
ter of the Criminal Procedure Act.
Article 63. On data protection and publicity restrictions.
1. The privacy of victims shall be protected in all acts and proceedings relating to
gender violence; with particular regard to their personal data, those of their
descendents and those of any other person under their guardianship or custody. 2. The competent Judges may decide of their own motion or on the petition of a
party to hear the case behind closed doors and that proceedings should not be
made public.
Article 64. On exclusion and restraining orders and prohibition of contact.
1. The Judge may order a person accused of gender violence to leave the abode he
shared with the victim or where the family unit has its residence, and prohibit his
return to the same.
2. The Judge may exceptionally authorise the protected person to exchange the use
of the family home co-owned with the accused, to which she is entitled, for the
use of another home for the time and under the conditions determined, by
arrangement with an agency, or public company where such an entity exists,
whose activities include the leasing of housing properties.
3. The Judge may place the accused under a restraining order, such that he may not
approach the protected person at any place, or go near her home, her workplace
or any other place that she frequents.
Technological means may be used in order to immediately alert to non
compliance with such orders.
4. The restraining order can be imposed regardless of whether the person it affects
or those it is intended to protect have already left the place.
5. The Judge may prohibit the accused from entering into any kind of contact with
the person or persons specified, with the warning that he will otherwise incur
criminal liability.
6. The measures referred to in the preceding sections may be decided on
cumulatively or separately.
Article 65. On measures to suspend parental authority or legal custody of minors.
The Judge may suspend the alleged perpetrator of acts of gender violence from
exercising parental authority, custody or guardianship with regard to the minors he
or she specifies.
Article 66. On suspension of visiting rights.
The Judge may order the suspension of the child visiting rights in the case of
persons accused of gender violence.
Article 67. On suspension of the right to possess, carry or use weapons.
The Judge may order the suspension of the right to possess, carry and use
weapons in the case of those accused of offences relating to the violence referred to
in this Act, with the obligation to deposit such weapons in the terms established by
current legislation.
Article 68. Guarantees for the adoption of measures.
The rights-restrictive measures contained in this chapter shall be adopted by
means of a reasoned order justifying their proportionality and necessity and, in any event, with the intervention of the Public Prosecutor’s Office and respecting the
principles of objection, hearing and defence.
Article 69. Maintenance of protection and security measures.
The measures referred to in this chapter may be maintained beyond the issuing
of a final judgment and during the process of any appeals lodged. In such case, the
maintenance of measures shall be stated in the judgement.
CHAPTER VI
The Public Prosecutor for cases of Violence against Women
Article 70. Functions of the Public Prosecutor for cases of Violence against Women.
An article 18 quater is added to Act 50/1981 of 30 December regulating the
Organic Statute of the Public Prosecutor’s Office, to read as follows:
“1. The Head of the Public Prosecutor’s Office, after consultation with the
Prosecutors’ Council, shall appoint, as attorney, a Public Prosecutor for cases of
Violence against Women with the status of Divisional Prosecutor, to exercise
the following functions:
a) To conduct the legal formalities referred to in article 5 of the Organic Statute
of the Public Prosecutor’s Office, and appear directly in criminal proceedings
which the Head of the Public Prosecutor’s Office deems of special import,
with regard to the gender violence offences set out in article 87 ter. 1 of the
Organic Judiciary Act.
b) Appear by power of attorney of the Head of the Public Prosecutor’s Office in
the civil proceedings set out in article 87 ter. 2 of the Organic Judiciary Act.
c) Supervise and coordinate the actions of Violence against Women sections
and request reports from the same, relaying their contents to the Head of the
Prosecutor’s Office they come under.
d) Coordinate the action guidelines of Prosecutor’s Offices in gender violence
matters, and propose the issue of the corresponding instructions to the Head
of the Public Prosecutor’s Office.
e) Draw up a six-monthly report on the procedures followed and action taken
by the Public Prosecutor’s Office with regard to gender violence, for
submission to the Head of the Public Prosecutor’s Office and subsequent
referral to the Divisional Prosecutors Board of the Supreme Court and the
Council of Public Prosecutors.
2. So it may properly perform its functions, the office of the Public
Prosecutor for cases of Violence against Women shall be assigned such
professional and expert support as may be necessary on a permanent or
occasional basis.” Article 71. Violence against Women sections.
Paragraphs two and three of article 18, section 1 of Act 50/1981 of 30 December
regulating the Organic Statute of the Public Prosecutor’s Office, are replaced by the
following text:
“The Prosecutor’s Office of the National Court and each Prosecutor’s Office
in the Regional High Courts and the County Courts shall have a Juvenile
Division to be entrusted with the functions and faculties attributed to the Public
Prosecutor’s Office by the Organic Act regulating the Criminal Liability of
Minors. Each Prosecutor’s Office in the Regional High Courts and the County
Courts shall also have a Violence against Women section. These sections will
have their own Prosecutors drawn from the staff of the corresponding court, with
preference going to those who for reasons of past duties, courses given or
completed or some other, analogous circumstance, have specialised in the
subject matter. However, when the service so requires, they may also act in other
areas or subject matters.
The Prosecutor’s Offices of the Regional High Courts and the County Courts
will have such permanent staff attachments as are regulatorily determined.
The Violence against Women section shall have the following functions:
a) Appear in criminal proceedings for acts constituting crimes or
misdemeanours whose jurisdiction has been assigned to the Violence against
Women Courts.
b) Appear directly in civil proceedings whose jurisdiction has been assigned to
the Violence against Women Courts.
A record will be kept of related procedures within the Violence against
Women section, which Prosecutors may consult when they are advised of a case
for which they have competence.”
Article 72. Attorneys of the Chief Prosecutor.
A new section 6 is added to article 22 of Act 50/1981 regulating the Organic
Statute of the Public Prosecutor’s Office, to read as follows:
“6. Attorneys of the Chief Prosecutor may be appointed to take on
specified management and coordination functions in Prosecutor’s Offices where
the caseload so warrants and there are no organisational impediments, subject to
a favourable report from the Council of Public Prosecutors. The organic staff
shall decide the maximum number of such attorneys that can be appointed in
each Prosecutor’s Office. In any event, each Prosecutor’s Office shall have an
attorney to take on management and coordination functions, as provided for in
this section, with regard to gender violence offences, crimes against the
environment and prison supervision, exercising such functions on either an
exclusive basis or jointly with other responsibilities.
The said attorneys shall be appointed and, as the case may be, removed
by means of a resolution issued by the Head of the Public Prosecutor’s Office on
the basis of a reasoned proposal from the corresponding Chief Prosecutor and
after consultation with the Public Prosecutors’ Board. When the resolution of the Head of the Public Prosecutor’s Office does not concur with the proposal of the
respective Chief Prosecutor, the reasons must be stated.
The places to be filled shall be announced to staff Prosecutors before the
Chief Prosecutor makes his or her proposal. Such proposal shall be accompanied
by a list of the other Prosecutors who sought the place along with the documents
supporting each application.”
First additional provision. Pensions and aids.
1. A person sentenced in a final and binding judgement for crimes of culpable
homicide, in any of its forms, or bodily harm, whose victim was his spouse or ex
spouse, shall have no entitlement to the corresponding widower’s pension under
the public pension system, except in the case of a later reconciliation.
2. A person sentenced in a final and binding judgement for crimes of culpable
homicide, in any of its forms, or bodily harm, whose victim was his spouse or ex
spouse, or a person with whom he shared or had shared an analogous affective
relation, with or without cohabitation, shall in no event receive the orphan’s
pension to which his children may be entitled under the public pensions system,
except in the case of a later reconciliation.
3. A person sentenced for crimes of culpable homicide, in any of its forms, or
bodily harm, whose victim was his spouse or ex spouse, or a person with whom
he shared or had shared an analogous affective relation of a stable nature,
irrespective of his sexual orientation, for at least the two years before the time of
death shall not be entitled to benefit, as an indirect victim, of the aids envisaged
in Act 35/1995 of 11 December concerning Aid and Assistance to Victims of
Violent Crimes and Crimes against Sexual Freedom, unless there are children in
common in which case cohabitation shall suffice.
Second additional provision. Protocols of conduct.
The Government and the Autonomous Communities exercising devolved powers
in legal matters shall organise integrated forensic evaluation units within their
respective coroner’s services in charge of designing global, integrated protocols of
conduct for cases of gender violence.
Third additional provision. Amendment of the Organic Act regulating the Right to
Education.
One. Letters b) and g) of article 2 of Organic Act 8/1985 of 3 July regulating
the Right to Education, shall read as follows:
“b) Education in respect for basic rights and freedoms, equality between men
and women and the exercise of tolerance and liberty within the democratic
principles of coexistence.
g) Education in peace, cooperation and solidarity among peoples, in
prevention of conflict and peaceful conflict solving, and the habit of non
violence in all areas of personal, family and social life.” Two. Three new letters are added to section 1 of article 31 of Organic Act
8/1985 of 3 July regulating the Right to Education, to read as follows:
“k) Women’s organisations with a nationwide reach.
l) The Institute for Women’s Issues.
m) Personalities of acknowledged repute in the fight to eradicate gender
violence.”
Three. Letter e) of article 32, section 1 of Organic Act 8/1985 of 3 July
regulating the Right to Education, shall read as follows:
“e) Provisions referring to the development of equal rights and opportunities
and the promotion of real, effective equality between men and women in
education.”
Four. Article 33, section 1 of Organic Act 8/1985 of 3 July regulating the Right
to Education, shall read as follows:
“1. The State Schools Council shall draw up and publish an annual report on
the education system, describing and evaluating the diverse aspects of the same,
including any situation of violence being exercised in the educational
community. An account will also be given of measures taken by the educational
authorities to prevent violence and to promote sexual equality.”
Five. A seventh entry (-) is added to section 1 of article 56 of Organic Act
8/1985 of 3 July regulating the Right to Education, to read as follows:
“- A person, elected by the members of the Centre’s School Council, to
promote education measures favouring real, effective equality between men and
women.”
Six. A new letter m) is added to article 57 of Organic Act 8/1985 of 3 July
regulating the Right to Education, to read as follows:
“m) Propose measures and initiatives to favour coexistence in the centre,
sexual equality and peaceful conflict solving in all areas of personal, family and
social life.”
Fourth additional provision. Amendment of the Organic Act on the General
Organisation of the Education System.
One. Letter b) of article 1, section 1 of Organic Act 1/1990 of 3 October on the
General Organisation of the Education System is amended to read as follows:
“b) Education in respect for basic rights and freedoms, equality between
men and women and the exercise of tolerance and liberty within the democratic
principles of coexistence.” Two. Letter e) of article 2, section 3 of Organic Act 1/1990 of 3 October on the
General Organisation of the Education System is amended to read as follows, and a
new letter l) added with its text as shown below:
“e) Development of the habits of democratic conduct and the skills and
techniques of conflict avoidance and peaceful conflict solving.
l) Education in the avoidance of conflict and peaceful conflict solving in
all areas of personal, family and social life.”
Three. Section 3 of article 34 of Organic Act 1/1990 of 3 October on the
General Organisation of the Education System is amended to read as follows:
“3. The didactic methodology of specific professional training shall seek
the integration of scientific, technological and organisational contents. Likewise,
it shall seek to develop students’ ability to learn for themselves and work in a
team, and instruct them in the avoidance of conflict and peaceful conflict solving
in all areas of personal, family and social life.”
Fifth additional provision. Amendment of the Organic Act on Quality in Education.
One. A new letter b) is added to article 1 of Organic Act 10/2002 of 23
December on Quality in Education, with subsequent letters shifting one down, and
three new letters n), ñ) and o) are added to the list, with the following contents:
“b) The removal of obstacles in the way of full equality between men and
women.
n) Education in respect for basic rights and freedoms, equality between
men and women and the exercise of tolerance and liberty within the democratic
principles of coexistence.
ñ) Education in conflict avoidance and peaceful conflict solving, and the
habit of non violence in all areas of personal, family and social life.
o) The development of affective skills.”
Two. Two new letters e) and f) are added to article 12, section 2 of Organic Act
10/2002 of 23 December on Quality in Education, shifting subsequent letters one
down and reading as follows:
“e) Gain experience in the avoidance of conflicts and peaceful resolution
of the same.
f) Develop their affective skills.”
Three. Three new letters b), c) and d) are added to article 15, section 2 of
Organic Act 10/2002 of 23 December on Quality in Education, shifting subsequent
letters one down and reading as follows:
“b) Acquire skills in conflict avoidance and the peaceful resolution of the
same, so they can conduct themselves independently in the domestic and family
setting and the social groups they move in.”
c) Understand and defend the equality of the sexes.
d) Develop their affective skills.” Four. Three new letters b), c) and d) are added to article 15, section 2 of
Organic Act 10/2002 of 23 December on Quality in Education, shifting subsequent
letters one down, and reading as follows:
“b) Understand, value and defend the principle of equal opportunities
between men and women.
c) Relate to others without violence, settling differences in a peaceful
manner.
d) Develop their affective skills.”
Five. Letter f) of article 33, section 1 of Organic Act 10/2002 of 23 December
on Quality in Education is amended to read as follows, and a new section 5 added to
the same article with its text as shown below:
“1. f) Ethics and equality between men and women.”
“5. The Ethics syllabus shall include specific contents on equality
between men and women.”
Six. Two new letters b) and c) are added to article 34, section 2 of Organic Act
10/2002 of 23 December on Quality in Education, shifting subsequent letters one
down and reading as follows:
“b) Gain a personal, social and moral maturity so they can act
responsibly and independently, and avoid and resolve personal, family and
social conflicts in a peaceful manner.
c) Foster real, effective equality between men and women, and analyse
inequalities with a critical mind.”
Seven. A new section 3 is added to article 40 of Organic Act 10/2002 of 23
December on Quality in Education, to read as follows:
“3. In order to promote effective equality between men and women, the
education authorities shall ensure that all curricula and educational materials
recognise the equal worth of men and women, and are prepared on the basis of
premises that are not discriminatory to women. Curricula and materials should
likewise foster respect for equal rights and obligations.”
Eight. Two new letters e) and f) are added to article 52, section 2 of Organic
Act 10/2002 of 23 December on Quality in Education, to read as follows:
“e) Develop skills in the peaceful resolution of conflicts in personal,
family and social relations.
f) Foster respect for the dignity of persons and equality between men and
women.”
Nine. Letter d) of article 56 of Organic Act 10/2002 of 23 December on Quality
in Education is amended to read as follows:
“d) The tutoring of students to direct their learning, instil values and
help them, in conjunction with parents, to overcome their difficulties and settle
their differences in a peaceful manner.” Ten. A new letter g) is added to article 81, section 2 of Organic Act 10/2002 of
23 December on Quality in Education, converting the current letter g) into h) and
reading as follows:
” A person who promotes educational measures that foster real, effective
quality between men and women, resident in the town where the centre is sited
and elected by that centre’s School Council.”
Eleven. Letter k) of article 82, section 1 of Organic Act 10/2002 of 23
December on Quality in Education is amended to read as follows:
“k) Propose measures and initiatives to favour coexistence in the centre,
equality between men and women, and peaceful conflict solving in all areas of
personal, family and social life.”
Twelve. A new letter g) is added to article 105, section 1 of Organic Act
10/2002 of 23 December on Quality in Education, to read as follows:
“g) Oversee compliance with and application of educational measures
and initiatives whose aim is to foster real equality between men and women.”
Sixth additional provision. Amendment of the General Advertising Act.
One. Article 3, letter a) of General Advertising Act 34/1988 of 11 November is
amended to read as follows:
“The following shall be illegal:
a) Advertisements which act against the dignity of persons or are contrary to
the values and rights enshrined in the Constitution, especially those referred
to in its articles 18 and 20, section 4. This category shall be understood to
include advertisements depicting women in a degrading manner, either by
directly using their bodies or parts of the same as a mere object unrelated to
the product being promoted, or by associating their image to stereotyped
roles antithetical to the principles of our law, thus contributing to the
violence referred to in the Organic Act on Integrated Protection Measures
against Gender Violence.”
Two. A new section 1 bis is added to article 25 of General Advertising Act
34/1988 of 11 November, to read as follows:
“1 bis. When an advertisement is deemed illegal for its degrading or
discriminatory use of women’s image, the following organisations may
approach the advertiser requesting its withdrawal and rectification:
The Special Government Delegation against Violence against Women.
b) The Institute for Women’s Issues or the equivalent regional body.
c) Legally constituted organisations whose sole objective is the defence of
women’s interests, and which do not include for-profit legal entities
among their members.
d) Those with a legitimate right or interest.”
Three. An additional provision is added to General Advertising Act 34/1988 of
11 November, to read as follows:
“The act of withdrawing an advert when it is deemed illegal for its degrading
or discriminatory use of women’s image, shall be carried out in the way and
under the terms envisaged in articles 26 and 29, except regarding the right to
action which, in addition to the Public Prosecutor’s Office shall correspond to
the persons and institutions referred to in article 25.1 bis of this Act.”
Seventh additional provision. Amendment of the Workers’ Statute Act.
One. A new section 7 is added to article 37 of the Workers’ Statute Act, whose
consolidated text is approved by Legislative Royal Decree 1/1995 of 24 March, with
contents as follows:
“7. Female workers who are the victims of gender violence shall have the
right to a reduction in their working day, with a proportional reduction in wages,
or the reorganisation of work time, through the adaptation of working hours, the
application of flexitime or some other form of work time organisation used
within the company, in the interests of their protection or to exercise their
entitlement to integrated social assistance.
These rights shall be exercised under the concrete terms established for
such cases in collective bargaining agreements or agreements between the
company and workers’ representatives, or the direct arrangement made between
the company and the worker concerned. Failing this, the concrete expression of
these rights shall be left to the worker in accordance with the rules set out in the
previous section, including those on the settlement of discrepancies.”
Two. A new section 3 bis) is added to article 40 of the Workers’ Statute Act,
whose consolidated text is approved by Legislative Royal Decree 1/1995 of 24
March, with contents as follows:
“3 bis) Female workers suffering gender violence who are obliged to
leave their jobs in the localities where they were working in the interests of their
protection or to exercise their right to integrated social assistance, shall have the
pre-emptive right to occupy any vacancy of the same professional grade or
equivalent category which the company has in another of its workplaces.
In such cases, the company shall inform the worker of the posts vacant at
that moment or those that may become so in future.
The transfer or change of workplace shall initially be for a period of six
months, during which the company shall hold the worker’s previous post in
reserve for her.
At the end of this period, the worker may opt either to return to her
previous post or stay on in the new one. If she chooses the latter, the obligation
to reserve her previous post shall automatically lapse.” Three. A new letter n) is added to article 45, section 1 of the Workers’ Statute
Act, whose consolidated text is approved by Legislative Royal Decree 1/1995 of 24
March, with contents as follows:
“n) By decision of the worker obliged to leave her job as a consequence
of being the victim of gender violence.”
Four. A new section 6 is added to article 48 of the Workers’ Statute Act, whose
consolidated text is approved by Legislative Royal Decree 1/1995 of 24 March, with
contents as follows:
“6. In the case envisaged in letter n) of article 45, section 1, the
suspension shall initially be for a period of no more than six months, unless it is
deemed that the victim’s safety can only be ensured by the prolongation of the
same. In this case, the Judge may extend the suspension for three-month periods
up to a maximum of eighteen months.”
Five. A new letter m) is added to article 49, section 1 of the Workers’ Statute
Act, whose consolidated text is approved by Legislative Royal Decree 1/1995 of 24
March, with contents as follows:
“m) By decision of the worker obliged to leave her job as a consequence
of being the victim of gender violence.”
Six. The second paragraph of letter d) of article 52 of the Workers’ Statute Act,
whose consolidated text is approved by Legislative Royal Decree 1/1995 of 24
March, is amended to read as follows:
“For the purposes of the preceding paragraph, workers shall not be
deemed to be absent from work in the case of absences due to official strike
action, for the duration of the same, or to the exercise of workers’ representation,
accidents at work, maternity, risk during pregnancy, illness caused by
pregnancy, childbirth or breastfeeding, leave of absence and holidays, non
occupational accident or disease, when the leave has been advised by official
healthcare services and lasts for over twenty consecutive days, or in the case of
the physical or psychological consequences of gender violence, as accredited by
the corresponding social services or health services.”
Seven. Letter b) of article 55, section 5 of the Workers’ Statute Act, whose
consolidated text is approved by Legislative Royal Decree 1/1995 of 24 March, is
amended to read as follows:
” That of pregnant workers, from the start of pregnancy to the start of the
suspension period referred to in a); that of workers who have applied for one of
the types of leave referred to in sections 4 and 5 of article 37 of this Act, or are
currently enjoying such leave, or have applied for the leave of absence provided
for in article 46, section 3 thereof; and that of female workers suffering gender
violence pursuant to their rights to the reduction or reorganising of working hours, geographical mobility, a change of workplace or suspension of work
under the terms and conditions envisaged in this Act.”
Eighth additional provision. Amendment of the General Social Security Act.
One. A new section 5 is added to article 124 of the General Social Security Act,
whose consolidated text is approved by Legislative Royal Decree 1/1994 of 20 June,
with the following contents:
“5. The period of suspension of employment with reservation of post
envisaged in article 48.6 of the Workers’ Statute shall be considered an effective
contribution period for the purposes of Social Security entitlements for
retirement, permanent disability, death or survival, maternity and
unemployment.”
Two. Section 1.1e) and section 1.2 of article 208 of the General Social Security
Act, whose consolidated text is approved by Legislative Royal Decree 1/1994 of 20
June, are amended to read as follows:
“1.1e) By voluntary decision of the worker, in the circumstances
envisaged in articles 40, 41.3, 49.1m) and 50 of the Workers’ Statute.
1.2 When the employment relation is suspended by virtue of an
approved layoff plan, or a court ruling issued in the course of bankruptcy
proceedings, or in the circumstance envisaged in article 45, section 1 of the
Workers’ Statute.”
Three. Section 2 of article 210 of the General Social Security Act, whose
consolidated text is approved by Legislative Royal Decree 1/1994 of 20 June, is
amended to read as follows:
“2. Calculations of the in-work contributions referred to in the
preceding section shall factor all the contributions not assigned to a previous
entitlement, whether on a contributory or a welfare basis. However, those rights
recognised by virtue of the suspension of employment envisaged in article
45.1n) of the Workers’ Statute shall not be considered a previous entitlement.
Contributions corresponding to the period over which benefit is paid by
the manager or the company, as the case may be, shall not count towards
entitlement, except when the benefit is received by virtue of the suspension of
employment envisaged in article 45.1n) of the Workers’ Statute, as established
by article 124.5 of this Act.”
Four. Section 2 of article 231 of the General Social Security Act, whose
consolidated text is approved by Legislative Royal Decree 1/1994 of 20 June, is
amended to read as follows:
“2. For the purposes of this title, the jobseeker’s commitment shall be
understood as the commitment acquired by claimants or beneficiaries to actively
look for work, accept a suitable post and take part in motivation, information,
guidance, training, recycling or professional insertion actions to improve their
employability, and to meet the remaining obligations set forth in this article. In applying the rules set out in the preceding paragraph, the competent
Public Employment Service shall give special consideration to the cases of
gender violence victims, releasing them, where necessary, from full compliance
with the conditions deriving from the signed commitment.”
Five. A new additional provision is added to the General Social Security Act,
whose consolidated text is approved by Legislative Royal Decree 1/1994 of 20 June,
with the following contents:
“Fortieth additional provision. Accreditation of legal situation of unemployment.
The legal situation of unemployment envisaged in articles 208.1.1e) and 208.1.2
herein, when referring, respectively, to articles 49.1m) and 45.1n) of the Workers’
Statute Act, shall be accredited by a written communication from the employer of
the termination or suspension of employment, together with the protection order in
the victim’s name or, failing that, a report from the Public Prosecutor’s Office stating
that evidence exists that the claimant is a gender violence victim.”
Ninth additional provision. Amendment of the Civil Service Reform Act.
One. Section 3 of article 1 of Civil Service Reform Act 30/1984 of 2 August
shall read as follows:
“3. The following shall be considered bases of the civil servants code,
pursuant to article 149.1.18 of the Constitution, and therefore applicable to all
government authority staff: articles 3.2e) and f); 6; 7; 8; 11; 12; 13.2; 3 and 4;
14.4; and 5; 16; 17; 18.1 to 5; 19.1 and 3; 20.1a), b), first paragraph, c), e), g) in
its first to fourth paragraph, e i); 2 and 3; 21; 22.1, excepting the two last
paragraphs; 23; 24; 25; 26; 29, excepting the final paragraph of its sections 5, 6
and 7; 30.5; 31; 32; 33; its third, 2 and 3, fourth, twelfth and fifteenth additional
provisions; second, eighth and ninth transitional provisions.”
Two. A new section 3 is added to article 17 of Civil Service Reform Act
30/1984 of 2 August.
“3. In the framework of the Agreements concluded by the government
authorities to facilitate civil servant mobility, special consideration shall go to
female civil servants who are the victims of gender violence”.
Three. A new letter i) is added to article 20, section 1 of the Civil Service
Reform Act 30/1984 of 2 August , to read as follows:
“i) Female civil servants suffering gender violence who are obliged to
leave their job in the locality whether they were working in the interests of their
protection or to exercise their entitlement to integrated social assistance, shall
have a pre-emptive right to occupy another post within their corps or grade of
analogous characteristics which is vacant or of a statutory nature. The competent
government authority in each case shall inform the victim of the statutory posts
to be filled in the same locality or any other localities she may specify.” Four. A new section 8 is added to article 29, section 8 of the Civil Service
Reform Act 30/1984 of 2 August , to read as follows:
“8. Leave of absence for reasons of violence against women civil servants.
Female civil servants suffering gender violence may apply for leave of
absence in the interests of their protection or to exercise their right to integrated
social assistance, whether or not they have completed a minimum length of
service and with no limitation on the leave period. Their post shall be reserved
for them over the first six months, which period shall also count towards
promotion, seniority payments and retirement entitlement.
Despite the foregoing, when legal protection measures require so for the
victim’s safety, the period of leave over which the post is reserved under the
terms of the preceding paragraph may be extended for three-month periods up to
a maximum of eighteen months, with identical effects to those expressed
therein.”
Five. A new section 5 is added to article 30 of the Civil Service Reform Act
30/1984 of 2 August, to read as follows:
“5. In cases where female civil servants suffering gender violence have
had to be absent from work for related causes, such absence, whether total or
partial, shall be deemed to be justified, for the time and under the conditions
stipulated by the social services or health services, whichever is relevant.
Female civil servants who are the victims of gender violence shall have
the right to a reduction in their working day, with a proportional reduction in
wages, or the reorganisation of work time, through the adaptation of working
hours, the application of flexitime or some other available form of work time
organisation, in the interests of their protection or to exercise their entitlement to
integrated social assistance, under the terms laid down by the government
authority competent in each case.”
Tenth additional provision. Amendment of the Organic Judiciary Act.
One. Article 26, section 2 of Organic Judiciary Act 6/1985 of 1 July is
amended to read as follows:
“Article 26.
First Instance and Magistrates Courts, Commercial Courts, Violence against
Women Courts, Criminal Courts, Administrative Law Courts, Employment Law
Courts, Juvenile Courts and Courts of Prison Vigilance.”
Two. The heading of book I, title IV, chapter V of Organic Judiciary Act
6/1985 of 1 July is amended to read as follows:
“Chapter V. On the First Instance and Magistrates Courts, Commercial Courts,
Criminal Courts, Violence against Women Courts, Administrative Law Courts,
Employment Law Courts, Juvenile Courts and Courts of Prison Vigilance.” Three. Article 87, section 1 of Organic Judiciary Act 6/1985 of 1 July is
amended to read as follows:
“Article 87.
1. The Magistrates Courts shall deal with the following matters under
criminal law:
a) Investigation of criminal causes to be heard in County Courts and
Criminal Courts, except those coming under the jurisdiction of the
Violence against Women Courts.
b) They shall also hand down judgement in undefended cases when the
law so provides.
c) Hearing of misdemeanour proceedings, except those under the
jurisdiction of Justices of the Peace or Violence against Women
Courts.
d) “Habeas corpus” proceedings.
e) Legal appeals against the decisions of Justices of the Peace in their
judicial district, and questions of assigning competence between
them.
f) The issue of protection orders for victims of violence against women
when acting as a duty court, provided such order may not be issued
by the Violence against Women Court.”
Three bis. A new paragraph is added to article 89 bis, section 2 of Organic
Judiciary Act 6/1985 of 1 July, with contents as follows:
“To facilitate the hearing of cases investigated by Violence against Women
Courts, one or several courts in each province should specialise, depending on
the caseload, in accordance with article 98 of the present Act.”
Four. Article 210, section 1 of Organic Judiciary Act 6/1985 of 1 July is
amended to read as follows:
“1. The Judges of First Instance and Magistrates Courts, Commercial
Courts, Criminal Courts, Violence against Women Courts, Administrative Law
Courts, Juvenile Courts and Employment Law Courts shall take turns in
localities where there are several judges of the same court, in the form laid down
by the Government Division of the Regional High Court, at the proposal of the
Board of Judges.
Five. A new paragraph is added to article 211, section 3 of Organic Judiciary
Act 6/1985 of 1 July, with contents as follows:
“Violence against Women Judges shall be replaced by Investigating Judges
or Judges of the First Instance and Magistrates Court in the order established by
the Government Division of the corresponding Regional High Court.” Eleventh additional provision. Evaluation of the Act’s implementation.
The Government, in collaboration with the Autonomous Communities, shall
prepare a report evaluating the effectiveness of this Organic Act in combating
violence against women three years after its entry to force, which report shall be
presented to the Congress of Deputies.
Twelfth additional provision. Amendment of the Criminal Procedure Act.
A fourth additional provision is added to the Criminal Procedure Act, with
contents as follows:
“1. The references made to the Investigating Judge and the Judge of the
Court of First Instance in article 554 ter of this Act, sections 1 and 7, in the
reading given by Act 27/2003 of 31 July, regulating the Protection Order of
Victims of Domestic Violence shall be understood as extensive to the Violence
against Women Judge.
2. The references made to the Duty Judge in book IV, title III and articles
962 to 971 of this Act shall be understood as extensive, where appropriate, to the
Violence against Women Judge.”
Thirteenth additional provision. Establishment of the Fund.
In order to contribute to the start-up of the services provided for in article 19 of
this Act, and ensure interterritorial equity in its implementation, a Fund shall be
established which Autonomous Communities may draw on during the two years
following the entry to force of this Act, in accordance with the objective criteria
defined by the corresponding Sectoral Conference. Notwithstanding this, the
Autonomous Communities of the Basque Country and Navarre shall be governed in
these financial aspects by their special economic regimes.
The Autonomous Communities, in the exercise of their powers, shall undertake
a joint diagnosis with local authorities on the impact of gender violence in their
region, along with an assessment of their needs, resources and service requirements
pursuant to article 19 of this Act. The said analyses shall be conducted during the
first year after the Act is approved.
Allocation to the Fund shall be as specified in respective General State Budget
Acts.
Fourteenth additional provision. Economic impact report.
Notwithstanding the financial responsibility of Autonomous Communities, as
established in Act 21/2001 of 27 December, and in accordance with the principle of
constitutional loyalty enshrined in article 2.1e) of Organic Act 8/1980 of 22
September on Autonomous Community Financing, the competent ministries shall, at
the instance of the corresponding interterritorial bodies, draw up reports on the
economic implications of this Act. These reports shall be presented to the Ministry
of Finance which shall refer them to the Council of Fiscal and Financial Policy. Fifteenth additional provision. Agreements on housing matters.
The Government may, through agreements with the competent authorities,
promote special access to subsidised housing for the victims of gender violence.
Sixteenth additional provision. Coordination of Public Employment Services.
Pursuant to Employment Act 56/2003 of 16 December, steps will be taken to
coordinate Public Employment Services so as to facilitate the labour market access
of gender violence victims when they change residence in the exercise of their right
to geographical mobility, and such change of residence of is from one Autonomous
Community to another.
Seventeenth additional provision. School enrolment.
The education authorities shall take the necessary steps to ensure the immediate
school enrolment of children when a woman changes residence for reasons of
gender violence.
Eighteenth additional provision. Organisation of Violence against Women Courts.
“2. In exceptional circumstances, the change may be authorised by Royal Decree
at the proposal of the Ministry of Justice, after consultation with the Council of
State, even though the requisites stated in the said article are not met. Where the
person applying for a change of surname is a victim of gender violence, and in any
other case where the urgency of the matter so advises, the change may be authorised
by a Ministry of Justice Order under the terms set by the Regulation.”
An annex XIII is appended to Act 38/1988 of 28 December on Judicial
Organisation, whose text is annexed to this Organic Act.
Nineteenth additional provision. Pension Guarantee Fund.
The State shall guarantee the payment of accrued and overdue alimony to the
underage children as set in a court-approved settlement or by means of a court order,
through specific legislation laying down a coverage system for such eventualities.
The said text shall deal expressly with the case of gender violence victims.
Twentieth additional provision. Change of surname.
Article 58 of the Civil Registry Act of 8 June 1957, shall read as follows:
First transitional provision. Application of measures.
Civil or criminal proceedings relating to gender violence which are under way at
the time of entry to force of this Act shall remain under the jurisdiction of the bodies
hearing them until a final and binding judgement is issued. Second transitional provision. Transitional law.
The Courts or Tribunals dealing with cases of gender violence which are being
heard when this Act comes into force may adopt the measures set out in title V,
chapter IV.
Single derogatory provision.
All legal provisions of the same or lower level that are inconsistent with the
terms of this Act are hereby repealed.
First final provision. Legal references.
All references and mentions to Investigating Judges contained in criminal
proceedings legislation shall be understood as referring also to Violence against
Women Judges in their area of competences.
Second final provision. Competence authority.
This Act is enacted in reliance upon article 149.1, sections 1, 5, 6, 7, 8, 17, 18
and 30 of the Spanish Constitution.
Third final provision. Status of this Act.
This Act has the status of an Organic Act, with the exception of the following
precepts: title I, title II, title III, articles 42, 43, 44, 45, 46, 47, 70, 71, 72, and its
first, second, sixth, seventh, eighth, ninth, eleventh, thirteenth, fifteenth, sixteenth,
seventeenth, eighteenth, nineteenth and twentieth additional provisions, its second
transitional provision and its fourth, fifth and sixth final provisions.
Fourth final provision. Statutory faculty.
1. The Government is empowered to issue all necessary provisions for the
application of this Act within six months of its publication in the “Official State
Gazette”.
Within this term, the Ministry of Justice shall make all necessary
arrangements for the establishment of the Violence against Women Courts, and to
make the changes prescribed in the organisational structure of the Public
Prosecutor’s Office.
2. Within six months from the entry to force of this Organic Act, the General
Judiciary Council shall issue the necessary regulations for the adaptation of duty
services to the existence of the new Violence against Women Courts, the
organisation of their timetable and appointments system, and proper coordination
between the Judicial Police and the said Courts.
Fifth final provision. Regulatory amendments.
Within six months from the approval of this Organic Act, the Government shall
amend article 116.4 of Royal Decree 190/1996 of 9 February approving the Prison
Regulations, making it incumbent on the Prison Authorities to organise the specific inmate programmes envisaged herein. It shall also, within the same term, amend
Royal Decree 738/1997 of 23 May and Royal Decree 996/2003 of 25 July.
Within the term referred to in the preceding paragraph, the Central Government
and Autonomous Communities shall adapt their legislation to the provisions of this
Act in their respective areas of competence.
Sixth final provision. Amendment of Act 1/1996 of 10 January on Free Legal Aid
Article 3, section 5 of Act 1/1996 of 10 January on Free legal Aid is amended to
read as follows:
“5. Nor shall the victims of gender violence be required to give prior proof of
inadequate means when applying for specialist free legal counsel, which they
shall immediately be assigned, irrespective of whether they are later refused
such entitlement and have to pay the lawyer the fees due for his or her services.”
Seventh final provision. Entry into force.
This Organic Act shall come into force on the thirtieth day following its
publication in the “Official State Gazette”, except for the provisions of titles IV and
V, which shall come into force in six months.
In consequence, I hereby order all Spaniards, individuals and authorities, to obey and uphold this organic act.
Madrid, 28 December 2004.
JUAN CARLOS R.
President of the Government
JOSE LUIS RODRIGUEZ ZAPATERO
According to Jose Ignacio Francés Sanchez, from the beginning of the creation of this law, a gray cloud was stopping to guess between the professional near to the right a difference sensation with the rest of the laws.
Let’s analyze these 3 points and let’s discover the problem of a law badly applied.
The article 14 of the Spanish constitution says textually: ” The Spanish are equal in the eyes of the law, without some discrimination could prevail because of birth, race, sex, religion, opinion or any other condition or personal or social circumstance. “
If we analyze this point and realize a comparison between the denunciation presented by the man and the woman, this law is literally contradictory with the article in question, and to go out of doubts, let’s put a royal example of the hundreds that we might include and that this lawyer knows in the first person: ” a discussion between a pair in the one that is insulted mutually, both being threatened equally you divide with future aggressions, even being attacked slightly (for weigh anchor we can speak about a push, insisting in that we reject any type of action that is not the dialog) “. We must clarify that at this moment of the situation they are denunciations and not proven facts “.
Of both presented denunciations and unlike what says the article 14 of the constitution the opposite is deduced rightly, since they should follow the same way according to the right to the equality, but not beyond at all of the reality or of the constitution
· In case of the denunciation interposed by the man, this one will direct for herself an examining magistrate’s court that will give origin to a judgment of lack, in fact, probably the police call to declaring the denounced one to police station and it will return to his house calmly, until the day of the judgment, being all the same the fact that there have been contributed tests that at first seem to be irrefutable “
· In case of the denunciation interposed by the woman, it will derive in the automatic detention of the man, it is all the same where it is, his work (with the repercussion of his damaged image, in a bar or in a park with his children), it will be handcuffed, moved to dependences police and bound to happen the night in jails, be innocent or guilty. Likewise there will be all the same the tests that he presents, if he presents them, since they are not obligatory; the result, the incarceration.
Fundamental beginning damaged in this first action.
Art.14 of the Spanish Constitution ” the right to the equality ” there does not apply the law of the same form to him that to her.
Art 17.1 of the Spanish Constitution ” the right to the freedom ” since it is not necessary to have any more than a simple declaration without test to enclose the man, is all the same the used word, to enclose, to stop, to retain, in the end it is the same thing, you are behind bars with other arrested who yes can be delinquents.
Art. 167 of the Penal Code. Since it is not even the first one, not the second time that this lawyer has met in police station a video of the happened where the falsehood of the denunciation was verified and the arrested has continued happening the night in jails.
Art. 24 of the Spanish Constitution, right to the judicial guardianship and to the presumption of innocence.
Art. 24.2 of the Spanish Constitution: The load of the test relapses into the penal procedure on the claimant, and this load can consist of tests or rational indications.
Unlike what it dictates our classification, the load of the test in the denunciation of the woman towards his ex-pair, pair …
Relapses on the denounced one. In such a way that if there are neither witnesses nor tests how can it demonstrate the denounced one that has not happened what has not happened?
Simply you cannot, and it is what receives the name of diabolical test. Other examples can be the insults and threats, which in case of the denunciation interposed by the man take prepared sorrow of fines from 10 to 20 days according to the article 620.2 economic slight sanctions.
And in the denunciations presented by the woman, sorrow from 6 months to 3 years of prison (article 173), carrying equally order of withdrawals from 1 to 5 years and the disability to practise the guard of the common children, on having been considered to be a crime of gender violence.
At first I do not believe that it was negative to eradicate the automatism so much in the automatic accusation on the part of the district attorney’s office, since in the detention and join jails, except that they appreciate royal indications, since it is not the first time that the happened be demonstrated by video before police station they have continued supporting in jails to the innocent one, that is to say an unlawful arrest on the part of the bodies of national security that has a sorrow superior to two years.
The aim of this law must be always chase the delinquent, though assuring not to apply judicial sorrow to innocent.
Extract his own conclusions.
Jose Ignacio Francés Sanchez, IFS Lawers
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