The transgression of Spain's
Gender Equality to the European
convention:
My complaint at the European
Court of Human Right...
European Court of Human Rights - Application form 1/11
Reference number
If you already have a reference number from the
Co...
European Court of Human Rights - Application form 3/11
D. State(s) against which the application is
directed:
ESP – Kingdo...
E. Statement of the facts:
When I put my first complaint on 11.20.13 at the
European Court of Human Rights in Strasbourg (...
Now, I have as "new facts" in addition to knowledge of
the loss of custody of my son Daniel Cerón Escudero that I
just met...
The Judge of the second Court of the first appeal was
the same of the first Court of Divorce!
And he annulled the presenta...
Now I cannot appeal to the higher courts, with an
appeal at the Supreme Court, nor with another protection at
the Constitu...
2. Likewise, all persons have the right of access to the
ordinary judge predetermined by law; to the defence and
assistanc...
My ex-wife made me put in jail for "psychological"
violence (or "insults"), actions which have not been
facilitated to me ...
In my first lawsuit I request, and now I strongly
reiterate it:
I request to restore my authority of the father and the
gu...
I request the revocation, repeal, or cancellation, of the
Integral Law of Violence of Gender (LIVG) because its
manifest i...
I know that even if I had a favorable judgment, the bad
and the very serious damage to my minor child, it's done
forever, ...
This just satisfaction that I claim, never get to
compensate my son (and his brothers and myself) for their
great loss, an...
Free online reading, on the attached link below, to the
tetralogy of four books that I wrote, with more than three
thousan...
European Court of Human Rights - Application form 7/11
F. Statement of alleged violation(s) of the
Convention and/or Proto...
Violation of Article 10
Violation of Article 13
Violación del artículo número 14
Violation of Article 17
Violation of Arti...
Protocol No. 12 to the Convention for the Protection of
Human Rights and Fundamental Freedoms
Rome, 4.XI.2000
Violation of...
I was deprived of my liberty by arrest or detention and I
have not been entitled to take proceedings by which the
lawfulne...
Violation of Article 10: They violated my right to
freedom of expression and opinion, as I was in confinement
during the p...
Violation of Article 34: Individual applications.
It is systematically denied to me and a million more of
Spanish parents,...
Violation of Article 1, Protocol No. 12: General
prohibition of discrimination.
By my association with a national minority...
European Court of Human Rights - Application form 8/11
G. For each complaint, please confirm that you
have used the availa...
Third refusal by the Kingdom of Spain of the
presumption of innocence and the right to a fair trial.
Refusal by the Kingdo...
Refusal by the Kingdom of Spain of legal aid.
Letter requesting legal aid to the Bar (ICAMUR), on
06.10.13. (Document 15)....
First Refusal by the Kingdom of Spain of the
presumption of innocence and the right to a fair trial.
The divorce decree on...
European Court of Human Rights - Application form 9/11
Is or was there an appeal or remedy available to
you whom you have ...
H. Information concerning other international
proceedings (if any).
Have you raised any of these complaints in
another pro...
European Court of Human Rights - Application form 10/11
I. List of accompanying documents:
You should enclose full and leg...
4) Request "friendly" divorce signed by me and by my
ex-wife on 11.17.09. 4 sheets.
5) Shipping DHL Waybill signed by my e...
16) Letter to the President of the Justice Commission
of the Senate of Spain on 19.06.13. 3 sheets.
17) ICAMUR's letter as...
28) A CD with all the documents listed electronically
signed with FNMT certificate.
European Court of Human Rights - Application form 11/11
Any other comments
Do you have any other comments about your
appli...
Daniel very happy with his brothers Sergio and Rubén…
Daniel very happy with me…
(Free reading) The seizure of power by feminism in the
twenty-first century! The genocide of one million children
orphaned...
THE UNIVERSITY OF HULL
SPAIN GENDER EQUALITY AND VIOLENCE
LAWS AND THEIR COMPLIANCE WITH
EUROPEAN CONVENTION ON HUMAN RIGH...
SEPTEMBER, 2014
Acknowledgement:
I give glory to God Almighty for the grace to achieve this height.
I am forever grateful ...
Contents
Abstract
Human rights protection is the backbone of equality and freedom.
Consequently, it requires mechanisms fo...
Chapter One: Introduction
Spain’s efforts to act in response to demands from international organisations1
for measures tha...
discourse. Conversely, the international Human Rights Committee suggests
that “The enjoyment of rights and freedoms on an ...
ideological position has led to its absorption by an established international
legal regime that confers numerous rights o...
Inconsistencies over the use of such gender inequality laws to combat
discrimination and the expansion of these measures i...
which confirm the fragmentation of society as a result of the abusive nature of
the implementation of these laws. This is ...
limitations of affirmative action further suggest that state-approved measures to
protect women from “all kinds of violenc...
The objectives of this research include identifying gaps in the procedural and
substantive nature of Spain’s gender violen...
institutions of the different countries”.16
In this case, the comparative17
analysis
is between Spain’s domestic legislati...
Chapter two presents an overview of ECHR and ECtHR legal doctrine and
jurisprudence regarding human rights and affirmative...
stems from the fact that they have originated in domestic constitutional
documents before becoming part of the corpus of i...
Put concisely, a state’s positive and negative duty to guarantee individual
protection within the right to non-discriminat...
to listen to arguments in favour of affirmative action without deviating from its
core duty to protect every right and fre...
basis of individual situations and factual evidence. However, the Court’s
jurisprudence reveals consistency in the observa...
of international law for the purpose of preventing gender-based discrimination
and promoting gender equality are directed ...
excesses of many states in the application of affirmative action and define
standards for non-discrimination in different ...
2.3. The State’s Positive and Negative Obligations under the European
Convention on Human Rights
The ECHR is a treaty betw...
violating rights in the process). For instance, Article 1 of Protocol No. 12 does
not fundamentally prohibit discriminatio...
the state’s positive or negative obligation under the ECHR is that, according to
scholarly opinion, the “scope [of positiv...
of individuals against state discrimination.50
The essence of proportionality as an
assessment mechanism of the Court is, ...
Conversely, another important interpretative mechanism of the ECtHR – the
margin of appreciation – protects the principle ...
Reverting to the precedence from international human rights doctrines,
especially that in Article 1 of the UDHR which purp...
evidence to determine that the Spanish laws and measures in question
contradict the provisions of the ECHR. Besides, the m...
Conversely, the findings also suggest that as Europe’s democratic societies
vote to establish a more liberal government in...
gender violence. There is nothing wrong with Recommendation Rec(2002)5,
which aims to protect against gender-based violenc...
insistence on patriarchal traditions as the source of gender inequality.66
This
notion has been disproved by the dispropor...
not avail themselves of state protection under this law against gender abuse
from women.
Another example of gender-based l...
that, in the Spanish courts, a large number of the child custodies in family cases
are given to the mothers.72
What the fa...
In consequence to these legislations74
– wherein lie the gaps for the breach of
the ECHR – and a state’s sovereign right t...
subsequent arraignment before the Court76
could be inconsistent with Spain’s
constitutional provision on habeas corpus.77
...
constitutional prerogatives.81
Finally, an examination of remedies for the
prevention of the abusive use of these laws by ...
characterised by urgency and the necessity to guarantee effective legal
protection for victims of domestic violence, has p...
judge before being granted bail with the habitual protective measures in place.
The question is whether, in the absence of...
additional flagrant abuses of the right of men to protection and treatment
equivalent to that of women in a similar incide...
In the event of the occurrence of an identical situation of the violation of the right
to non-aggression between a man and...
exceeding thirty days. The options for fines are regulated in article 620(2) of the
Criminal Code and relate to mild econo...
interpretative criterion that was in line with the objective pursued by the law, and
by utilitarianism, the Madrid court s...
numerous decisions. Nonetheless, the European Convention, as well as
Spanish constitutional doctrine, disallows such measu...
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!
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The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!

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Spain gender equality and violence laws and their noncompliance with the European convention on human rights!

The seizure of power by feminism in the twenty-first century!

The genocide of one million children orphaned by Spain's Gender Equality!

My complaint at the European Court of Human Rights: Francisco Antonio Ceron Garcia TDEH's Application Form!

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The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights!

  1. 1. The transgression of Spain's Gender Equality to the European convention: My complaint at the European Court of Human Rights! (Versión original en Castellano en el enlace: http://www.slideshare.net/fcerong/mi-segunda-denuncia- ante-el-tribunal-europeo-de-justicia-por-la-violacion-de-los- derechos-humanos-por-la-incomunicacin-con-mi-hijo-y-mi- exilio-forzoso)
  2. 2. European Court of Human Rights - Application form 1/11 Reference number If you already have a reference number from the Court in relation to these complaints, please indicate it 78090/13 A. The applicant (Individual). This section refers to applicants who are individual persons only. Francisco Antonio Cerón García Address & email (if any): 4.400 Salta Argentina fcerong@gmail.com
  3. 3. European Court of Human Rights - Application form 3/11 D. State(s) against which the application is directed: ESP – Kingdom of Spain European Court of Human Rights - Application form 4/11 Subject matter of the application: All the information concerning the facts, complaints and compliance with the requirements of exhaustion of domestic remedies and the six-month time-limit laid down in Article 35 § 1 of the Convention must be set out in this part of the application form (sections E., F. and G.) (Rule 47 § 2 (a)). The applicant may supplement this information by appending further details to the application form. Such additional explanations must not exceed 20 pages (Rule 47 § 2 (b)); this page limit does not include copies of accompanying documents and decisions.
  4. 4. E. Statement of the facts: When I put my first complaint on 11.20.13 at the European Court of Human Rights in Strasbourg (ECHR), (Attachment No. 22 on 11.20.13), I claim only for refusing to me the Kingdom of Spain the legal aid, and I need it to claim at the Court for the lack of communication with my son. But I did not know the result of the judgment of divorce (where I lost legal custody of my son), because the celebration of that judgment was not communicated to me, like the conclusion of the trial, then I could not claim before at the ECHR, because I have been lost the guardianship of my son, which is what I am now demanding. During my first complaint with the ECHR, the legal aid turned to me arbitrarily granted by the Kingdom of Spain, by letter to ICAMUR from the President of the Justice Commission of the Senate of Spain (Attachment No 17 06.19.13), although the legal aid has been denied before by ICAMUR (attachment No. 18 on 11.08.13, the annulment of office and file, by the Legal Officer of the Bar Association of Murcia, of the request of legal aid, under Article 14 of Law 1/96 and Article 10 of Royal Decree number 996/2003, on July 25), and it was then that against my will, I have ended up violating the Article No. 35 of the Convention the European Court of Human Rights (ECtHR) (Document No. 24 of 08.03.15).
  5. 5. Now, I have as "new facts" in addition to knowledge of the loss of custody of my son Daniel Cerón Escudero that I just met on 12.30.13 (attachment No. 23 on 01.25.12), three new judicial rulings, the aforementioned divorce (attachment No. 23 on 01.25.12 that I just met on 30.12.13), the first appeal (attachment No. 25 on 05.11.15), and the second appeal at the Provincial Court (attachment No. 26 on 02.10.15). Also I just could know almost five years later, that I lost custody because I was not notified of the trial of divorce, and I was not notified by the blatant perjury of my ex-wife, and lack of rigor in the procedure of the court of the first instance to order to the police to find out my whereabouts (using the presumption of guilt of Article No. 1 of the Law on Gender Violence – LIVG -), it was not unknown by the judge, because it was known for my check at the Ministry of Foreign Affairs of Spain that I signed before to travel to Argentina with FMNT's ID (attachment No. 6 on 12.10.09), contrary to falsely declared for my ex- wife, and my ex-wife also signed the DHL's waybill shipping of my books to Argentina (attachment No. 5 of 12.09.09). I have attached the copy of such documents.
  6. 6. The Judge of the second Court of the first appeal was the same of the first Court of Divorce! And he annulled the presentation of evidence and witnesses (for the inquisitorial nature of the procedure and the reversal of the presumption of innocence of the first article of the LIVG) literally saying this Judge in the judgment: "Because I was absent from the court!" Although I was represented in the trial by my attorney and public defender. After my appeal to the Court, the Judges upheld, abounding in the presumption of guilt, treating me as a convicted felon, and confirming my ex-wife's perjury, and prevarication of Justice of the previous instances. All this could happen because it was annulment the presumption of innocence at the trial of divorce, by the first article of the law on gender violence, and it also happened by the inquisitorial test procedure, which gives absolute power only to the judge of the first instance, to accept or reject the evidence of the defence, and that was what prevented to the Audience’s Court will review the evidence because, as has also instructed me in writing my public defender, the power is the trial court that heard the divorce, under the inquisitorial procedure and the first article of the law on gender violence.
  7. 7. Now I cannot appeal to the higher courts, with an appeal at the Supreme Court, nor with another protection at the Constitutional Court of Spain, without the agreement of counsel (Attachment No. 27 of 10.15.15), which tells me that she will not accept my defence, because it does not qualify for such resources, since nobody cannot review the evidence of my innocence whose absolute authority is of the first judge in the first trial of divorce, and as I am a pauper man, I cannot afford a private attorney to make such demands, and I have thus exhausted all judicial means in my power to appeal against the Kingdom of Spain, for the violation of numerous articles of the European Convention of Human Rights, and the same Spanish Constitution, including Article number 24 of the presumption of innocence. Article 24 of the Spanish Constitution 1. Every person has the right to obtain the effective protection of the Judges and the Courts in the exercise of his or her legitimate rights and interests, and in no case may he go undefended.
  8. 8. 2. Likewise, all persons have the right of access to the ordinary judge predetermined by law; to the defence and assistance of a lawyer; to be informed of the charges brought against them; to a public trial without undue delays and with full guarantees; to the use of evidence appropriate to their defence; to not make self-incriminating statements; to not declare themselves guilty; and to be presumed innocent. Moreover also I am requesting, because the injustices that generated the LIVG and inquisitorial procedure are such that there are in Spain, more than one million orphans of living parents, and there are already in Spain also over one hundred thousand parents who have committed suicide because of the persecution of the LIVG and the Justice of the Kingdom of Spain, being innocent all of them of any wrongdoing and title, having done so the Kingdom of Spain legally, but violating all human rights, the biggest genocide in Europe since the Second World War. So, what I demand against Spain, is the inquisitorial procedure, which allowed the judge to annul the evidence of my innocence, and I am also suing the comprehensive law of the genre (LIVG) in all its articles, and in particular in its first Article, that prevented my presumption of innocence, and being guilty me in advance before all trials.
  9. 9. My ex-wife made me put in jail for "psychological" violence (or "insults"), actions which have not been facilitated to me until now, and I cannot contribute with them in my case at the ECHR. After I was leaving the jail in Liberty, my ex-wife tried to kill me in front of my six-year-old son with a large kitchen knife, of which I do not have the evidence to provide it, as it was in the privacy of home, as they had not given me a restraining order (as I have never attacked my ex-wife), then I signed a proposal for "friendly" divorce or by mutual agreement (Document No. 4 of 11.17.09), also attached document, and I forcibly exiled in Argentina for the persecution of my ex-wife, the Integral Law of Gender Violence (LIVG), the Justice of Spain, and the Kingdom of Spain. I cannot prove her attempt to kill me, but there is no evidence, no witnesses, that I had mistreated her ever. I neither nor attacked my wife, physically or psychologically, as she reported falsely to pressure me to sign a divorce and automatically keep all my possessions, and even worse losing myself the guardianship of my six-year-old son.
  10. 10. In my first lawsuit I request, and now I strongly reiterate it: I request to restore my authority of the father and the guardianship on my son, Daniel Cerón Escudero, taken away by a judicial error with the Judge's prevarication and my ex-wife's perjury, in order to re-communicate with my minor child, fundamental human right violated by the justice of Spain and the Kingdom of Spain. I request to revoke, to repeal, and to annuls forever the unconstitutional law, the Law of Violence of Gender (LIVG), for the violation of my human rights, because this law violated and cancelled my constitutional right to presumption of innocence, to a fair trial, and a dignified and free life, why I ended up living like a real beggar, in forced exile, for to not continue in prison for my ex-wife's perjury and the prevarication of Justice of the Kingdom of Spain; law that also violated the human rights of my son, a minor, Daniel Cerón Escudero, among others unconstitutional law, violated their right to have a father; law that also violated their human right to see his two older brothers, Sergio David and Ruben Dario Cerón Soria (and the human rights of their older brothers to see his younger brother), having been also separated Daniel Cerón Escudero with this terrible injustice, to see and speak with his two older brothers.
  11. 11. I request the revocation, repeal, or cancellation, of the Integral Law of Violence of Gender (LIVG) because its manifest injustice has meant that in Spain there are already a million parents who cannot see their children, or communicate with them, and there are a million children, minor children, who cannot communicate with their parents, because their rights to have a father, have been violated by the widespread transgression of the Spanish justice and a million mothers, and his maternal relatives, who committed perjury by making false allegations widely, using the absence of the presumption of innocence that establishes this law, in a flagrant violation of human rights and the constitution of the Kingdom of Spain. And this genocide was made by mothers (in addition to keeping the assets of the parents leaving them in an absolute misery), by the lawyers and feminists law, by the fabulous "business" European subsidies to Spain, more than fifty billion euros per year!
  12. 12. I know that even if I had a favorable judgment, the bad and the very serious damage to my minor child, it's done forever, without remedy at all. That my child has lost the presence of his father throughout his childhood, and now is also losing it on his adolescence, has already marked his life so far, and the mark on his future is forever... But if it were to accept my request, I claim then for my son (and also for each of his two brothers and me), an amount equivalent to one thousandth of the total value of grants awarded to Spain for the genre for more than a decade, which are more than fifty thousand million euros per year, which for ten years of "aid" to violate all human rights' children (and all human rights' parental), is a total amount of more five hundred billion euros...
  13. 13. This just satisfaction that I claim, never get to compensate my son (and his brothers and myself) for their great loss, and for the grave moral, educational, emotional, and personal injury, and of all kinds in human rights suffered by my son, minor child, deprived of their siblings, orphaned of living father, and also suffered by his two brothers, and finally also been suffered by myself, in the privation of my parenting and my son, and forced myself to exile, that I was forced to undertake it by my ex-wife's perjury and the blatant transgression of Justice of the Kingdom of Spain. And I request for to be completely fair, at least, there will be never any one case more, in which children are deprived of the presence and communication with his father, for an unconstitutional law, which violates all human rights of humans been, by an unfair law as the Integral Law on Gender Violence (LIVG). (Versión original en Castellano en el enlace: http://www.slideshare.net/fcerong/mi-segunda-denuncia- ante-el-tribunal-europeo-de-justicia-por-la-violacion-de-los- derechos-humanos-por-la-incomunicacin-con-mi-hijo-y-mi- exilio-forzoso)
  14. 14. Free online reading, on the attached link below, to the tetralogy of four books that I wrote, with more than three thousand and five hundred pages, and over three hundred and fifty thousand words, with all my whole story of my emigration, and my forced exile, and the story of my beloved son Daniel, who was orphaned of father alive against my will and my desire...! Tetralogy of "The Promise" (Deputy also copies of these books on the DVD): http://issuu.com/franciscoantoniocerongarcia/stacks/ca 3cd68a1ed446209eebddb0c6f12a6a Finally, I have added to this document an annex, with some legal considerations and case law, of the violations of Law of Violence of Gender, to the laws and the Constitution of the Kingdom of Spain, to the European Convention of Human Rights signed by Spain, and the conventions and protocols of human rights signed also by Spain with the UN.
  15. 15. European Court of Human Rights - Application form 7/11 F. Statement of alleged violation(s) of the Convention and/or Protocols and relevant arguments Article invoked (& Explanation): Convention for the Protection of Human Rights and Fundamental Freedoms Rome, 4.XI.1950 Violation of Article 1 Violation of Article 3 Violation of Article 5 Violation of Article 6 Violation of Article 8 Violation of Article 9
  16. 16. Violation of Article 10 Violation of Article 13 Violación del artículo número 14 Violation of Article 17 Violation of Article 34 Violation of Article 41 Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms Strasbourg, 22.XI.1984 Violation of Article 3, Protocol No. 7 Violation of Article 5, Protocol No. 7
  17. 17. Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms Rome, 4.XI.2000 Violation of Article 1, Protocol No. 12 Explanation: Violation of Article 1: Obligation to respect human rights. The Kingdom of Spain has violated the human rights and fundamental freedoms of my son, his brothers, and me. Violation of Article 3: Prohibition of torture. I have been undergone to torture or to inhuman or degrading treatment or punishment during my detention. Violation of Article 5: Right to liberty and security. I was arrested, and I have not been brought promptly before a judge or other officer authorised by law to exercise judicial power, and I have not been entitled to trial within a reasonable time or to release pending trial.
  18. 18. I was deprived of my liberty by arrest or detention and I have not been entitled to take proceedings by which the lawfulness of my detention will be decided speedily by a court and my release will be ordered if my detention is not lawful. I was arrested and I have been not informed promptly of the reasons for my arrest and of any charge against me. Violation of Article 6: Right to a fair trial. In the determination of my civil rights and obligations or of any criminal charge against me, I have not been entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. I was charged with a criminal offence but I not have been presumed innocent until proved guilty according to law. I was charged with a criminal offence and I have not the following minimum rights: To be informed promptly of the nature and cause of the accusation against me; to have adequate time and facilities for the preparation of my defence; to defend myself in person or through legal assistance; to examine or have examined witnesses against me and to obtain the attendance and examination of witnesses on my behalf under the same conditions as witnesses against me.
  19. 19. Violation of Article 10: They violated my right to freedom of expression and opinion, as I was in confinement during the procedure, and locked in jail along with criminals and convicts. Violation of Article 13: Right to an effective remedy. My rights and freedoms as set forth in this Convention have been violated and I have not an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity. Violation of Article 14: Prohibition of discrimination The enjoyment of my rights and freedoms were violated absolutely, by my association with a national minority, being a father, and my manhood. Violation of Article 17: Prohibition of abuse of rights. The Kingdom of Spain has been consistently dedicated to pursuing the activity of all parents like me doing any act aimed at the destruction of all my rights recognised in the present Convention freedoms. In particular, the annulment of the presumption of my innocence, to legislate knowingly and prevaricating the LIVG and other laws that violated this convention.
  20. 20. Violation of Article 34: Individual applications. It is systematically denied to me and a million more of Spanish parents, my right to the ECHR can meet my demands regarding the multiple violations of the Kingdom of Spain to my rights under the Convention or its Protocols. And it continues to put all possible obstacles to the effective exercise of this right, preventing such appeal to the Supreme and Constitutional; and if they could, the same Justice of Spain also fail against me, as it has done so far, to cover up their own transgressions. Violation of Article 41: Just satisfaction. I claim for me and my three son’s just satisfaction. Violation of Article 3, Protocol No. 7: Compensation for wrongful conviction. I demand my right to compensation for miscarriage of justice committed against me and with my three children. Violation of Article 5, Protocol No. 7: Equality between spouses. I have not enjoyed either as a spouse of equal rights and civil obligations to my former wife nor in my relationship with my son in the dissolution of marriage; I've only suffered miscarriages.
  21. 21. Violation of Article 1, Protocol No. 12: General prohibition of discrimination. By my association with a national minority, the set of all the men who have the status of parents, I was discriminated against by the public, judicial, executive and legislative authorities.
  22. 22. European Court of Human Rights - Application form 8/11 G. For each complaint, please confirm that you have used the available effective remedies in the country concerned, including appeals, and also indicate the date when the final decision at domestic level was delivered and received, to show that you have complied with the six-month time-limit. Complaint (Information about remedies used and the date of the final decision): Refusal by the Ombudsman of Spain of justice. Refusal by the Kingdom of Spain of legal aid. Denial of my right to appeal to the European Courts to not get a fair trial. First Refusal by the Kingdom of Spain of the presumption of innocence and the right to a fair trial. Second refusal by the Kingdom of Spain of the presumption of innocence and the right to a fair trial.
  23. 23. Third refusal by the Kingdom of Spain of the presumption of innocence and the right to a fair trial. Refusal by the Kingdom of Spain of my right to appeal to the Supreme and Constitutional Courts to not get a fair trial. Information about remedies used and the date of the final decision: Refusal by the Ombudsman of Spain of justice. First order of justice to the Ombudsman of Spain, on 11.26.12. (Document 13). Letter demanding justice to the Ombudsman of Spain, on 12.30.12. (Document 14). Letter to the Ombudsman alleging against the file, on 11/12/2013. (Document 20).
  24. 24. Refusal by the Kingdom of Spain of legal aid. Letter requesting legal aid to the Bar (ICAMUR), on 06.10.13. (Document 15). ICAMUR's letter, asking to me the divorce decree that I had not, on 30.10.13. (Document 17). Day November 8, 2013, cancellation by the Legal Officer of the Bar Association of Murcia (ICAMUR), of my request for legal aid under Article 14 of Law 1/96 and Article number 10 Royal Decree 996/2003 on 25 July. (Document 18). Letter file to ICAMUR claiming against the cancellation of justice, on 11.11.13. (Document 19). Letter to the President of the Senate Judiciary Committee, on 19.06.13. (Document 16). ICAMUR's letter, granting legal aid, on 20.11.13. (Document 21). Denial of my right to appeal to the European Courts to not get a fair trial. Action against Spain for the file my order of justice, on 11.20.13. (Document 22). The ECHR letter rejecting my claim that I met on 03.08.15. (Document 24).
  25. 25. First Refusal by the Kingdom of Spain of the presumption of innocence and the right to a fair trial. The divorce decree on 01.24.12, which met on 30.12.13. (Document 23). Second refusal by the Kingdom of Spain of the presumption of innocence and the right to a fair trial. Judgment of first appeal, and documents submitted to the judgment on 11.05.15. (Document 25) Third refusal by the Kingdom of Spain of the presumption of innocence and the right to a fair trial. Judgment of the second appeal to the Court on 10.02.2015. (Document 26). Refusal by the Kingdom of Spain of my right to appeal to the Supreme and Constitutional Courts to not get a fair trial. ICAMUR's letter justifying not appeal to the Supreme and Constitutional, on 15.10.15. (Document 27).
  26. 26. European Court of Human Rights - Application form 9/11 Is or was there an appeal or remedy available to you whom you have not used? Yes, it was. If you answered Yes above, please state which appeal or remedy you have not used and explain why not. Now I cannot appeal to the higher courts, with an appeal at the Supreme Court, nor with another protection at the Constitutional Court of Spain, without the agreement of counsel (Attachment No. 27 of 10.15.15), which tells me that she will not accept my defence, because it does not qualify for such resources, since nobody cannot review the evidence of my innocence whose absolute authority is of the first judge in the first trial of divorce, and as I am a pauper man, I cannot afford a private attorney to make such demands, and I have thus exhausted all judicial means in my power to appeal against the Kingdom of Spain, for the violation of numerous articles of the European Convention of Human Rights, and the same Spanish Constitution, including Article number 24 of the presumption of innocence.
  27. 27. H. Information concerning other international proceedings (if any). Have you raised any of these complaints in another procedure of international investigation or settlement? No, I haven’t. Do you (the applicant) currently have, or have you previously had, any other applications before the Court? Yes, I do. If you answered yes above, please write the relevant application number(s) in the box below. 78090/13
  28. 28. European Court of Human Rights - Application form 10/11 I. List of accompanying documents: You should enclose full and legible copies of all documents. No documents will be returned to you. It is thus in your interests to submit copies, not originals. You MUST: - arrange the documents in order by date and by procedure; - number the pages consecutively; - NOT staple, bind or tape the documents. In the box below, please list the documents in chronological order with a concise description. 1) My ID of Spain, and two pictures in black and white, with my son and his brothers. 3 sheets. 2) My job application receipt signed in Spain on 06.11.09. 3) My proof of employment demand in Spain signed on 10.23.09.
  29. 29. 4) Request "friendly" divorce signed by me and by my ex-wife on 11.17.09. 4 sheets. 5) Shipping DHL Waybill signed by my ex-wife to Argentina on 12.09.09. 2 sheets. 6) Registration from and to of MAEC, with Electronic ID, on 12.10.09. 2 sheets. 7) Boarding card and passage of Iberia to Argentina, back and forth, on 10/12/2009. 2 sheets. 8) My passport with my temporary entry of "tourist" in Argentina on 12.10.09. 2 sheets. 9) Police Residence Certificate on 12.30.09, with the same address as DHL. 10) My proof of employment demand in Spain on 07.26.10 signed from Argentina. 11) My ID of Argentina issued on 03.16.11. 2 sheets. 12) Certificate of Marriage in Argentina on 07.11.12. 2 sheets. 13) First order of justice to the Ombudsman of Spain on 11.26.12. 4 sheets. 14) Letter for justice to the Ombudsman of Spain on 12.30.12. 30 sheets. 15) Letter requesting legal aid for my poverty to the Bar on 10.6.13. 3 sheets.
  30. 30. 16) Letter to the President of the Justice Commission of the Senate of Spain on 19.06.13. 3 sheets. 17) ICAMUR's letter asking the divorce decree that I did not possess on 30.10.13. 10 sheets. 18) ICAMUR's letter informing me that there were no judicial files of my divorce proceeding, rejecting my request for legal aid and filing it on 11.08.13. 19) Letter to ICAMUR arguing against the file of my order of justice on 11.11.13. 2 sheets. 20) Letter to the Ombudsman alleging file against my order on 11.13.13. 2 sheets. 21) ICAMUR's letter granting legal aid, which reached me after on 20.11.13. 22) The lawsuit against Spain for the file my order of justice to ECHR on 11.20.13. 8 sheets. 23) The divorce decree on 25/01/2012, which recently got to know on 12.13.13. 10 sheets. 24) The ECHR letter rejecting my request I could just announce on 08.03.15. 3 sheets. 25) The judgment of the first appeal and documents submitted to the judgment on 05.11.15. 35 sheets. 26) The judgment of the second appeal to the Court on 10.02.15. 8 sheets. 27) Letter justifying ICAMUR not appeal to the Supreme and Constitutional on 15.14.15. 5 sheets.
  31. 31. 28) A CD with all the documents listed electronically signed with FNMT certificate.
  32. 32. European Court of Human Rights - Application form 11/11 Any other comments Do you have any other comments about your application? Deputy DVD, with a copy of this same claim and all documents, electronically signed with the FNMT Digital ID. From my previous demand, I never had communication. Then as I had claimed several times, I was notified by electronic mail, not by postal mail, just only two years later. I pray then if my current complaint will be not accepted by the ECHR, that I will be notified by mail to: fcerong@gmail.com, or with a registered letter to my postal address. The completed application form should be signed and sent by post to: The Registrar European Court of Human Rights Council of Europe 67075 STRASBOURG CEDEX FRANCE
  33. 33. Daniel very happy with his brothers Sergio and Rubén…
  34. 34. Daniel very happy with me…
  35. 35. (Free reading) The seizure of power by feminism in the twenty-first century! The genocide of one million children orphaned by Spain's Gender Equality! http://www.slideshare.net/fcerong/the-promise-4 Watch the Video: The genocide of one million children orphaned by the Equality! Do not go away, Dad! http://youtu.be/rqUIMakhxE8?a (You could download this document in the next link) SPAIN GENDER EQUALITY AND VIOLENCE LAWS AND THEIR UNCOMPLIANCE WITH THE EUROPEAN CONVENTION ON HUMAN RIGHTS http://www.slideshare.net/fcerong/spain-gender- equality-and-violence-laws-and-their-compliance-with- european-convention-on-human-rights
  36. 36. THE UNIVERSITY OF HULL SPAIN GENDER EQUALITY AND VIOLENCE LAWS AND THEIR COMPLIANCE WITH EUROPEAN CONVENTION ON HUMAN RIGHTS; A CASE OF AFFIRMATIVE ACTION AGAINST MEN in the University of Hull by Anthony Joseph O. Onoh
  37. 37. SEPTEMBER, 2014 Acknowledgement: I give glory to God Almighty for the grace to achieve this height. I am forever grateful to my wife and children for their enduring patience and support. Many thanks to my supervisor who saw and squeezed out those potential in me that enabled the successful completion of this work.
  38. 38. Contents Abstract Human rights protection is the backbone of equality and freedom. Consequently, it requires mechanisms for protection that create a balance between the different parties and interests in society. This balance is often developed within the scope of domestic law provision on affirmative/positive action, which discriminates yet does not generate an imbalance in equality or violate human rights. In consequence, when a state’s affirmative action policy produces paradoxical results that discriminate against one interest or party to empower another, the policy creates a situation of illegality that disturbs other ambits of human rights protection regimes. Hence, this research was undertaken to examine the compliance of Spanish domestic legislation that regulates equal rights and protection for women against domestic violence with the standards of human rights protection and freedom set in the European Convention on Human Rights.
  39. 39. Chapter One: Introduction Spain’s efforts to act in response to demands from international organisations1 for measures that protect women from gender-based abuses has led to the adoption of a series of ground-breaking laws2 . The application of these laws and measures has, however, not only come to be pioneering, but also controversial and expressly discriminatory against men. Hence, the constitutionality and legality of these laws and measures have been contentious ab initio in Spain’s Constitutional Court, which delivered a narrowly split judgment in favour of the laws that are widely known as “positive discrimination”.3 Even so, the extent to which these laws are admissible under the European Convention of Human Rights (hereinafter referred to as the Convention or ECHR) which, in its provisions,4 prohibits all forms of discrimination, remains a subject for legal 1 See Articles 2 and 3 of Recommendation Rec(2002)5 of the Council of Europe Committee of Ministers to Member States on the protection of women against violence (adopted by the Committee of Ministers on 30 April 2002 at the 94th meeting of the Ministers’ Deputies); see also the United Nations Declaration on the Elimination of Violence against Women (1993), The United Nations Convention on the Elimination of All Forms of Discrimination against Women (1979); see also the Platform for Action adopted at the Fourth World Conference on Women (Beijing, 1995) and the Resolution on Further actions and initiatives to implement the Beijing Declaration and Platform for Action adopted by the United Nations General Assembly (23rd extraordinary session, New York, 5-9 June 2000); see also the Preamble of the Convention on the Elimination of All Forms of Discrimination against Women, 1979 (CEDAW). 2 Spanish Organic Law 1/2004 of 28 December on Integrated Protection Measures against Gender Violence, published in BOE [State Official Gazette] No. 313 of 29 December, 2004 (Hereinafter referred to as Law 1/2004); Organic Law 3/2007 of 22 March for effective equality between women and men, published in BOE [State Official Gazette] No. 71 of 23 March, 2007. 3 See paragraph 12 of Spain’s Constitutional Court Judgment 59/2008, of 14 May 2008, published in BOE [State Official Gazette] No. 135 of 4 June 2008. 4
  40. 40. discourse. Conversely, the international Human Rights Committee suggests that “The enjoyment of rights and freedoms on an equal footing, however, does not mean identical treatment in every instance”5 and granted leave for “states to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the Covenant”.6 In light of the complexity in defining equality, affirmative action can be subject to interpretation. Consequently, the European Court of Human Rights (ECtHR)7 has mechanisms for determining whether a law meets the standard of the Convention provisions on the protection of human rights. These interpretative mechanisms are embedded within the doctrines of proportionality and consensus. In recent years, men have benefited from no significant ideological transformation or specific legal recognition under international law. Hence, there is no supportive system derived from being members of a “particular social group”8 in global society. Consequently, the dissemination of a strong feminist See See Article 14 of The European Convention on Human Rights, Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4.XI.1950, Available at: http://www.echr.coe.int/Documents/Convention_ENG.pdf, accessed on 26/08/2014; see also the expansion of the guarantee of equality in Article 1 of Protocol No 12 of the European Convention on Human Rights. 5 See paragraph 8 of the Human Rights Committee, General Comment 18, Non- discrimination (37th session, 1989), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.1 at 26 (1994). 6 ibid, paragraph 10. 7 European Court on Human Rights (hereinafter referred to as the ECtHR or the Court). 8
  41. 41. ideological position has led to its absorption by an established international legal regime that confers numerous rights on women. Perhaps the feminist ideological approach, which presents “the structure of oppression [of women under a] patriarchal society”9 where women are abused and considered merely as domestic workers and subordinates in the family, has influenced the decline of the protection of men’s rights under domestic and international law. The underpinning question is whether the development of women’s protection to women’s empowerment has overturned the intended result of Article 110 of the interpretation of discrimination from the Convention on the Elimination of All forms of Discrimination against Women (CEDAW). Noticeably, Spain has witnessed a polarising of society due to the unravelling of procedural rules in the application of these laws, which have dramatically raised concerns regarding a new form of discrimination. This raises questions as to whether these gender protection laws are in breach of the state’s “negative obligation”11 relating to the protection of men’s rights and freedom under the ECHR. See, The International Covenant on Civil and Political Rights (ICCPR), 1966, Available at: http://www.ohchr.org/Documents/ProfessionalInterest/ccpr.pdf, accessed on 26/08/2014 (ICCPR); the Convention on the Elimination of All Forms of Discrimination against Women, 1979 (CEDAW); and Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577, p. 03. 9 Jillah R Eisenstein, Capitalist Patriarchy and the Case for Socialist Feminism, 1979, Monthly Review Press, p. 05. 10 Article 1 of the Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, United Nations, Treaty Series, vol. 1249, p. 13, (CEDAW). 11 Ibid, no. 04, Article 1 of the European Convention on Human Rights; see also paragraph 24 of Article 1, Protocol 12 of the ECHR Explanatory Report: “The prime objective of Article 1 is to embody a negative obligation for the parties, the obligation not to discriminate against individuals”.
  42. 42. Inconsistencies over the use of such gender inequality laws to combat discrimination and the expansion of these measures into criminal law present doubts about their compatibility with the ECHR. It is also important to note that gender violence law has been absorbed by three domestic regulations.12 These include criminal, civil and family law with the establishment of a special court that confers powers on a magistrate to decide on all cases that originate from a complaint over domestic abuse: specifically of a woman.13 In view of the foregoing, there is evident malaise regarding these processes conferring benefits exclusively on women. It also raises questions relating to where the limitations of affirmative action end. Ergo, this researcher takes the position that the practical exercise of Spain’s gender equality and violence laws constitutes a prime example of discrimination and is, therefore, inconsistent with the provisions of the ECHR with regard to the protection of human rights and freedoms. In 2004, the Spanish parliament enacted these laws, which continue to generate controversy due to the abusive nature of the laws themselves and the evident exclusion of men from protection under these regulations. These are manifest in Spain’s official statistical data, 12 See Titles III, IV and V of the Spanish Organic Law 1/2004 of 28 December on Integrated Protection Measures against Gender Violence, published in BOE [State Official Gazette] no. 313 of 29 December, 2004. 13 See paragraph 5, Title V of the Organic Law 1/2004 of 28 December on Integrated Protection Measures against Gender Violence, published in BOE [State Official Gazette] No. 313: “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 cases, such that both are dealt with in the first instance before the same bench”.
  43. 43. which confirm the fragmentation of society as a result of the abusive nature of the implementation of these laws. This is evident from the number of men who have lost their paternal rights, grandparents (mostly from the father’s side) who have no relationship with their grandchildren, uncles and aunts who cannot enjoy family life with their nieces and nephews and, of course, children who are deprived of their right to family life as a result of the abusive application of these gender laws in family law relating to separation and divorce. All these measures are to the detriment of men, as the laws specify that women are the sole beneficiaries14 of protection. It is these incongruities that this study seeks to understand and explain. In the light of the continued unfolding of discrimination against men brought about by the enactment of affirmative action to protect women’s rights through Spain’s Law on Gender Violence and the Equality Law, the imbalance in criminal responsibility between men and women for similar offences and the abusive application of family law, it is unclear as to whether, under the ECHR, this constitutes a proportionate measure or a breach of the state’s negative duty to protect the rights and freedom of men. The obvious inference is that there exist gaps in the law which produce abusive results in relation to men’s rights and freedom. In other words, there are elements of discrimination against men which have been laid bare in the procedural application of the laws. Conversely, the lack of clarity in the definition of what constitutes inequality and the 14 ibid, no. 13, Article 1 of Law 1/2004: “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”.
  44. 44. limitations of affirmative action further suggest that state-approved measures to protect women from “all kinds of violence” which, according to the Spanish Constitutional Court, “do not lead to disproportionate consequences”,15 are in compliance with ECHR provisions. This study will, therefore, focus on uncovering those gaps in the practical implementation of these laws, which show nonconformity with ECHR provisions. 1.1. Aims and Scope: Thesis Statement This research examines the compliance of Spain’s controversial Law on Gender Violence and its Equality Law with the principles of human rights protections for all under the European Convention on Human Rights. Although this thesis is concerned with the comparative and analytical examination of Spanish domestic laws along with the regional human rights regime, it inevitably addresses the issue of affirmative action and men’s rights in Spain and Europe. It is an academic study of international human rights law wherein the principle of equality and non-discrimination under the ECHR and the limitations of affirmative action in addressing the problem of inequality will also constitute an integral part. Given evidence of social malaise among men as a result of these laws in Spain, the absence of any challenge of their legality before the European Court of Human Rights (ECtHR) gives relevance to this study. 1.2. Research Objectives 15 Plenary Judgment 59/2008, of the Spanish Constitutional Court of 14 May 2008, published in BOE [State Official Gazette] No. 135 of June 4, 2008, para 12 of the Judgment.
  45. 45. The objectives of this research include identifying gaps in the procedural and substantive nature of Spain’s gender violence laws that conflict with the ECHR, determining the legal constraints or consequences in adopting affirmative action juxtaposed with the principle of equality, and examining the disproportionate effect of these laws on the rights of Spanish men and their impact on fostering lethargy rather than dynamism in Spanish society. Ultimately, the study holds out the hope that pursuing these objectives will shed light on the compliance of Spain’s Law on Gender Violence and Equality Law with the European Convention on Human Rights, or, alternatively, lead to an understanding of the reason(s) for the existence of considerable discontent among Spanish men in relation to these laws. 1.3. Methodology For the purpose of achieving an objective study outcome, a comparative analysis research method will be used in the interpretation of legislations, ECtHR case laws, Spanish jurisprudence and other international human rights law doctrines. A range of primary source materials such as international conventions and human rights protection regimes, the Spanish gender violence and equality laws – including criminal, civil and family law – will be used to examine the thesis question. A comparative method is necessary in this study because it is “a branch of legal science whose object it is to bring about systematically the establishment of closer relations between the legal
  46. 46. institutions of the different countries”.16 In this case, the comparative17 analysis is between Spain’s domestic legislation and an international regime for the protection of human rights, freedom and equality. Hence, this comparative methodology will help to “stimulate awareness of the cultural and social characters of the [Spanish and ECHR] law”.18 Some empirical evidence obtained from the Spanish Judicial Commission will be used to explain the complexity of guaranteeing equality under affirmative action. A limited number of secondary materials such as academic books and journals will be used to produce evidence of support for and/or opposition to these laws. It is intended that this methodology will produce a piece of “legal research [that is] descriptive and exploratory”,19 with analysis and content that are consistent with the aims and objectives of this study. 1.4. Thesis Structure Following the introductory chapter, the dissertation will be structured as follows: 16 Harold Cooke Gutteridge, Comparative Law: an introduction to the comparative method of legal study and research, 2012, Cambridge University Press, p. 03. 17 See “External comparative law I (homogeneous)” explained by Sebastian McEvoy, Descriptive and Purposive Categories of Comparative Law, published in Methods of Comparative Law, P.G. Monateri (ed.), 2012, Edward Elgar Publishing, p. 146. 18 David Maxwell Walker, The Scottish Legal System: An Introduction to the Study of Scots Law (5th edn), Revised 1981, W Green and Son Ltd, p.23. 19 Mike McConville and Hong Chui Wing (eds), Research Methods for Law, 2007, Edinburgh University Press, p. 19.
  47. 47. Chapter two presents an overview of ECHR and ECtHR legal doctrine and jurisprudence regarding human rights and affirmative action, including its limitations under states’ obligation to protect. This chapter will also examine the ECtHR assessment mechanisms and interpretative methods on cases of alleged state violation of ECHR provisions. Chapter three presents an exhaustive examination of the Spain gender violence laws, identifying the gaps between the substantive and procedural nature of the law as compared to ECHR doctrines in subsequent areas of protection. Chapter four examines the adaptation of civil and family law to the measures of protection against domestic violence and its legality under ECHR provision for the protection of rights and freedoms. Subsequently, chapter five presents an evaluation of the gender equality law, the utilitarian effect as expressed by lawmakers and the relation with the ECHR. Herein the utility and consequences of affirmative measures are analysed in line with the theoretical approach of John Stuart Mill’s utilitarianism. Finally, chapter six provides an overall conclusion of the research findings. Chapter Two: European Convention on Human Rights and the European Court Doctrines on Affirmative Action 2.1. Introduction The ECHR places responsibility on states to protect the rights and freedoms mentioned therein and concedes to them the necessary “margin of appreciation”20 in order to regulate the system of human rights protection and freedoms in European society. Nonetheless, this obligation and concession do not denote a prerogative for the promulgation of measures contrary to the Convention. Scholars state that, “human rights have a logic of their own [which] 20 ibid, no. 04, Article 1 of Protocol No 15.
  48. 48. stems from the fact that they have originated in domestic constitutional documents before becoming part of the corpus of international law”,21 hence states’ institutional responsibility to protect human rights and uphold the treaty. For this reason, the ECHR grants “supervisory”22 powers to the ECtHR, to ensure the compliance of state laws with the standard of protection of rights and freedoms under the Convention. Thus, the ECtHR, under the Council of Europe, receives pre-eminence under the treaty as the last instance for effective judicial remedy to individual claims against states for human rights violation.23 In the exercise of this duty, the ECtHR has, through the evaluation of individual claims of violation and judgments thereto, affected changes in state legislation which are divergent to the meaning of the ECHR.24 In effect, the Court has established various mechanisms for the assessment and interpretation of individual claims of state violations. These violations are essentially derived from a state’s failure in guaranteeing its “positive and negative obligation”25 under the ECHR to its citizens. 21 Oliver de Schutter, International Human Rights; Cases, Materials, Commentary, 2010, Cambridge University Press, p. 11 22 ibid, no. 04, Article 1 of Protocol No. 15; See also Article 19(2). 23 ibid, no. 04, Articles 19 and 35 of the ECHR 24 See Tyrer v. the United Kingdom, App no. 5856/72, (ECtHR, April 25, 1978), paragraph 31 of the judgment: “the Convention is a living instrument which, as the Commission rightly stressed, must be interpreted in the light of present-day conditions”; See also, Dudgeon v. the United Kingdom, App no. 7525/76, (ECtHR, October 22, 1981), paragraph 60, see also Mamatkulov and Askarov v. Turkey, App no. 46827/99, (ECtHR, February 04, 2005), paragraph 121. 25
  49. 49. Put concisely, a state’s positive and negative duty to guarantee individual protection within the right to non-discrimination, as circumscribed by the research objectives, involves a close examination of the ECHR and ECtHR position on affirmative action. Article 14 of the ECHR guarantees equality and the ECtHR has manifestly ensured the protection of this right. In addition, Protocol No. 12 of the ECHR further expands the meaning of Article 14 to extend the principle of non-discrimination to “any right set forth by law [unlimited to the] Convention rights”.26 Essentially, this has a bearing on the state’s negative obligation to protect against discrimination, even under affirmative action. The discretion to apply affirmative action for the purpose of promoting equality between men and women is accommodated in General Comment No. 18 of the International Covenant on Civil and Political Rights (ICCPR). Protocol No. 12 of the ECHR, therefore, allows the ECtHR to search beyond the Convention in expressing its doctrinal position on progressive judgments. Hence, the ECtHR states in its case law that “the Convention is a living instrument which, as the Commission rightly stressed, must be interpreted in the light of present-day conditions”.27 As a consequence, the Court is disposed to listen to arguments in favour of affirmative action without deviating from its core duty to protect every right and freedom mentioned in the Convention. In view of this, the ECtHR manifests in numerous decisions that it seeks to deliver Article 1 is to embody a negative obligation for the parties, the obligation not to discriminate against individuals”. 26 ibid, no. 04, Article 1 of Protocol No. 12. 27 Ibid, no. 24, paragraph 31 of the judgment; it has also been repeated on countless occasions, from Dudgeon v. the United Kingdom (1981), paragraph 60, to Mamatkulov and Askarov v. Turkey (2005), paragraph 121.
  50. 50. to listen to arguments in favour of affirmative action without deviating from its core duty to protect every right and freedom mentioned in the Convention. In view of this, the ECtHR manifests in numerous decisions that it seeks to deliver rights that are “practical and effective, not theoretical and illusory”,28 hence the principle of subsidiarity that compels the Court to strike a “fair balance [between competing interests] and state margin of appreciation”29 in examining individual applications for claims against state violation of rights and freedoms. Consequently, its30 interpretative and assessment mechanisms have been used to ensure that measures adopted by states for the purpose of guaranteeing, for instance, equality are not disproportionate and do not undermine the principle of non-discrimination. Conversely, critics state that the ECtHR is convinced of or satisfied by a claim of state discrimination only by the evidentiary existence of “very weighty reasons”.31 The Court’s decisions on affirmative action vary, therefore, on the Ibid, no. 24, paragraph 31 of the judgment; it has also been repeated on countless occasions, from Dudgeon v. the United Kingdom (1981), paragraph 60, to Mamatkulov and Askarov v. Turkey (2005), paragraph 121. 28 See Stafford v. the United Kingdom, App no. 46295199, (ECtHR, May 28, 2002), paragraph 68; see also, Sitaropoulos & Giakoumopoulos v. Greece, App no. 42202/07, (ECtHR, March 15, 2012), paragraph 65; Konstantin Markin v. Russia, App no. 30078/06, (ECtHR, March 22, 2012), paragraph 126. 29 See Evans v. the United Kingdom, App no. 6339/05, (ECtHR, April 10, 2007), paragraph 12 of the dissenting opinion. 30 The European Court on Human Rights (ECtHR). 31 Arnardottir, Equality and Non-Discrimination under the European Convention on Human Rights (The Hague: Kluwer, 2002), pp. 141-154.
  51. 51. basis of individual situations and factual evidence. However, the Court’s jurisprudence reveals consistency in the observation of its interpretative and assessment mechanisms. In D.H. and Others v. the Czech Republic, where an affirmative action for the “placement of Roma gypsy children in special schools [was considered] a violation” of their Article 14 rights, the Court noted that “the relevant legislation as applied at the material time had had a disproportionately prejudicial effect on the Roma community”.32 In light of this Court’s reasoning, one could surmise that the proportionate effect of an affirmative action does not automatically constitute a breach of ECHR provision against discrimination. Several of these measures will, therefore, be examined in the course of this work in order to gain an overview of the Court’s potential interpretation regarding the conformity of the Spain gender laws with the ECHR. 2.2. Principle of Equality: Articles 14 and Article 1 of Protocol No. 12 of the Convention An integral part of a consideration of human rights stems from the core principle of “equality, dignity and respect between and for individuals”.33 ECHR provision has established this position in Article 14, which has been further strengthened by Article 1 of Protocol No. 12 of the Convention. The utilitarian concept of egalitarianism has generated divergent expression in forms and theories.34 Hence the various movements, actions, rules or regulations taken in the ambit 32 See D.H. and Others v. the Czech Republic, App no. 57325/00 (ECtHR, November 13, 2007) [GC], paragraph 209 of the judgment. 33 Preamble of the International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171 34
  52. 52. of international law for the purpose of preventing gender-based discrimination and promoting gender equality are directed exclusively to empowering women and promoting actions prejudicial to men.35 Against this background are conflicts stemming from various competing interests in the protection against discrimination and the divergent definitions of equality under international law which sets limited or broader protection against discrimination. For instance, CEDAW demands state-led action for specific protection,36 the Universal Declaration of Human Rights (UDHR) states several grounds for non- discrimination,37 the ICCPR and International Covenant on Economic, Social and Cultural Rights (ICESCR) articulate similar grounds of protection as the UDHR, and Protocol No. 12 institutes a system of protection against inequality which stretches beyond the ECHR. Chapter six discusses in detail the utilitarian construal of equality, using the philosophical precepts of John Stuart Mill. As a regional instrument for ensuring the protection of rights and freedoms in Europe, the ECHR and ECtHR have embarked on deliberation to contain the ibid, no. 31, p. 31; See also Fredman’s four distinctive aims of utilitarian equality: “break the cycle of disadvantage”, promote equal dignity, “entail positive affirmation and celebration of identity within community”, and promote participation: Sandra Fredman, "Providing Equality: Substantive equality and the positive duty to provide resources" (2005) 21 (2) South African Journal on Human Rights 163, 167. 35 ibid, no. 01; See also, Council Directive 2004/113/EC of 13 December 2004; and Regulation 606/13/EU on the Mutual Recognition of Civil Law Protection Measures adopted in June 2013 supplements Directive 2011/99/EU of 13 December 2011 on the European Protection Order. 36 ibid, no. 10, Article 2(e) of CEDAW 37 Article 2 of the Universal Declaration of Human Rights, 10 December 1948, United Nations, 217 A (III), (UDHR)
  53. 53. excesses of many states in the application of affirmative action and define standards for non-discrimination in different sectors of European life. For this reason, for instance, European Union Council Directive 2000/78/EC, which regulates the scope of equal treatment in the workplace, also establishes state responsibility in the event that such discrimination exists.38 In view of the apparent conflict in regulating non-discrimination, there exists an acknowledgement of the excesses of affirmative action which could possibly lead to the creation of a new form of discrimination. The ECtHR, for instance, states that “not every difference in treatment amounts to discrimination”.39 In the Abdulaziz, Cabales and Balkandali v. the United Kingdom judgment, the ECtHR proceeded to outline assessment and interpretative mechanisms for discrimination and expressed the importance of “objective and reasonable justification [of an affirmative action], the legitimacy of aim in pursuit and proportionate measures that adapt the means employed with the set goals of the law or action”40 for states to satisfy the Court’s standard for justification regarding affirmative action. 38 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, Official Journal L 303, 02/12/2000 pp. 0016-0022: “when there is a prima facie case of discrimination the burden of proof shifts to the state”. 39 Explanatory Report on Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 177, paragraph 18; see also Abdulaziz, Cabales and Balkandali v. the United Kingdom, App No. 9214/80, 9473/81, 9474/81, (ECtHR, May 28, 1985). 40 Abdulaziz, Cabales and Balkandali v. the United Kingdom, App No. 9214/80, 9473/81, 9474/81, (ECtHR, May 28, 1985), paragraph 72 of the judgement.
  54. 54. 2.3. The State’s Positive and Negative Obligations under the European Convention on Human Rights The ECHR is a treaty between states that is protected under the sanctity of contract as enshrined in “Pacta sunt servanda”, Article 2641 of the Vienna Convention on the Law of Treaties (VCLT). Hence, Article 1 of the ECHR and Article 1 of Protocol No. 12 of the ECHR express states’ commitment to guaranteeing the rights of their citizens protected under the Convention. These commitments entail positive and negative duties to protect human rights and freedom. In order to understand the essence of the discussion on state obligation in this study, it is important to examine a theoretical approach to the measure for individual rights under a state’s positive and negative obligations. One theorist, John Finnis, states that: We may safely speak of rights wherever a basic principle or requirement of practical reasonableness, or a rule derived therefrom, gives to A, and to each and every other member of a class to which A belongs, the benefit of (i) a positive or negative requirement (obligation) imposed upon B (including, inter alia, any requirement not to interfere with A’s activity or with A’s enjoyment of some other form of good or of (ii) the ability to bring it about that B is subject to such a requirement, or of (iii) the immunity from being himself subjected by B to any such requirement.42 This analogical reasoning denotes the obligation of states to protect people’s rights by acting (including affirmative action) and by not overreaching (thus 41 Article 26 of the Vienna Convention on the Law of Treaties (VCLT), 23 May 1969, United Nations, Treaty Series, vol. 1155, p. 331. 42 John Finnis (ed) Natural Law and Natural Rights, 1980, Oxford, Clarendon Press, p. 205.
  55. 55. violating rights in the process). For instance, Article 1 of Protocol No. 12 does not fundamentally prohibit discrimination but does express a “prime objective […] to embody a negative obligation for the parties; the obligation not to discriminate against individuals”.43 In other words, it “protects [individuals] against discrimination by public authorities”.44 Against this complicated government duty to abstain from violating people’s rights rests the obligation to protect, in this case, female victims of domestic violence and abuse. Referring to the aforementioned theoretical analogy, this metaphorically suggests that B (Spain - the State) has obligations required under the ECHR to protect A (women) from other As (abusive men) and, significantly, assumes a duty also to protect all As (women and men) from B (Spain - the State). Regrettably, the Spanish laws on gender violence and equality protection are manifestly inclined to the exclusive protection of women and are, consequently, persecutory for men. This appears as institutional negligence, a breach of state pact sunt servanda and ECHR treaty obligations45 which, as related to this study, are measured within the context of “procedural [and] substantive obligations”.46 The issue with determining whether there has been a breach of 43 Explanatory Report, Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 177, Council of Europe, paragraph 24. 44 ibid, paragraph 25. 45 In Hokkanen v. Finland, App No. 19823/92, (ECtHR, September 23, 1994), the Court held that the “prime characteristics of positive obligation is that they in practice require national authorities to take necessary measure to safeguard a right”. 46
  56. 56. the state’s positive or negative obligation under the ECHR is that, according to scholarly opinion, the “scope [of positive or negative obligation] appears open- ended [with no] set general conceptual limitations for [ECtHR] interventions”.47 For this reason, each individual application for a claim of violation to the ECtHR is pigeonholed as probable cause from a breach of negative or positive obligation before proceeding to an assessment of the facts, deliberation, and subsequent pronunciation of violation or no violation. On this note, other ECtHR assessment and interpretative mechanisms such as the principle of proportionality and margin of appreciation apply. 2.4. ECtHR Interpretative Mechanisms: The Principle of Proportionality and the Margin of Appreciation Doctrine The legal basis for the principle of proportionality can be found in ECtHR jurisprudence, wherein the Court manifests the inherence of “fair balance”48 in the ECHR. Specifically, in Soering v. the United Kingdom, the Court stated that “inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights”.49 This refers us again to the meaning of Article 1 of Protocol No. 12, which is channelled to the protection See Oneryaldiz v. Turkey, App No. 48939/99, (ECtHR [GC], November 30, 2004), paragraph 97 of the judgment. 47 See Dimitris Xenos, The Positive Obligations of the State under the European Convention of Human Rights, 2011, Routledge, p. 03. 48 See Soering v. the United Kingdom, App no. 14038/88, (ECtHR, July 07, 1989), paragraph 439 of the judgment. 49 ibid.
  57. 57. of individuals against state discrimination.50 The essence of proportionality as an assessment mechanism of the Court is, therefore, relevant in understanding the excesses of the Spanish gender violence and equality laws; specifically, where and when they have strayed from the standard of protection guaranteed under ECHR provisions. For this reason, according to scholarly view, by applying a proportionality check, “the Court searches for ‘impermissible reasons’”51 in state action against an individual under the framework characteristics of the positive and negative duty of the state. Occasionally, the ECtHR can, through an exhaustive proportionality assessment, “follow a comparative approach [and] takes into account international trends”.52 On this note, the Court applies the consensus doctrine, which often works hand in hand with the margin of appreciation. Notably, this line of reasoning and interpretation by the ECtHR is criticised by experts for creating a shift from the Convention provisions to “majoritarian transgression”53 in the application of human rights protection under the Convention. This implies an adhesion to popular society demands, elevated to law under domestic jurisdiction and consequently assimilated into the ECHR. 50 Ibid, no. 43, paragraph 26. 51 George Letsas, A Theory of Interpretation of the European Convention on Human Rights, Oxford University Press, 2007, p. 14. 52 Egbert Myjer (ed), The Conscience of Europe: 50 Years of the European Court of Human Rights, Council of Europe, October 2010. Available at: http://www.echr.coe.int/Documents/Anni_Book_Chapter13_ENG.pdf, accessed on 29/03/2014, p. 169. 53 Helen Fenwick, Gavin Phillipson and Roger Masterman, Judicial Reasoning under the UK Human Rights Act, 2010, Cambridge University Press, p. 349.
  58. 58. Conversely, another important interpretative mechanism of the ECtHR – the margin of appreciation – protects the principle of subsidiarity which is enshrined in the provisions of the ECHR.54 Under this principle of subsidiarity, the Court plays a supervisory role. Thus the ECtHR grants a margin of appreciation to states for the purpose of creating laws that protect rights. In other words, and according to expert opinion, the margin of appreciation “allows human rights norms to take on local flavour”.55 It is, however, precisely the exceptional nature of the Spanish gender protection laws that gave rise to the eventual question of its conformity with the general standard of protection guaranteed in the ECHR. Furthermore, the divergent criteria applied in determining the scope of a state’s margin of discretion in any individual complaint vary56 and further stretches the uniqueness of a state’s action and the ECtHR interpretation of it. The Court’s application of European consensus appear to be self-contradictory because of the ambiguity on who decides what human rights are. As stated earlier with regard to “majoritarian transgression”, the epicentre of the debate is on whether it is the majority, the state parliament or the Court that establishes what human rights are. 54 Ibid, no. 04, Article 1 of the ECHR; see also Scordino v. Italy, App No. 36813/97, (ECtHR, March 26, 2006), paragraph 140 55 Kanstantsin Dzehtsiarou, Interaction between the European Court of Human Rights and Member States: European Consensus, Advisory Opinions and the Question of Legitimacy, 2013; published in: The European Court of Human Rights and its Discontents: Turning Criticism into Strength, Spyridon Flogaitis, Tom Zwart and Julie Fraser (eds), Edward Elgar Publishing, p. 120. 56 S.H. and Others v. Austria, App no. 57813/00, (ECtHR, November 03, 2011), paragraph 11 of the Dissenting Judgments of Judges Tulkens, Hirvela, Lazarova, Trajkovska and Tsotsoria.
  59. 59. Reverting to the precedence from international human rights doctrines, especially that in Article 1 of the UDHR which purports rights on the basis of “freedom, equality and the spirit of brotherhood”, there is no discretion for states to adopt affirmative action. In addition, the Preamble of the ICCPR stresses the “human dignity” of individuals’ civil rights and that political rights require states to respect everyone equally in accordance with its Article 2657 provision. Howbeit, the regional dimension under the ECHR adopts a mere objective duty approach, which obliges states to guarantee the protection of human rights and freedoms.58 Thus, in the absence of a clear and unified definition of human rights, the determination of what human rights are in Europe depends on the evolution of the society, state parliamentary actions and the European Court’s absorption of these preponderant views on human rights into the new European standard.59 This background knowledge of the ECtHR’s interpretative and assessment mechanisms lessens the prospect of finding a suggestion or 57 ibid, no. 33, Article 26 58 ibid, no. 04, Article 1 59 See Vallianatos and Others v. Greece, App nos. 29381/09 and 32684/09, (ECtHR, November 07, 2013), paragraphs 32 and 91 of the Judgment; see also Dean Spielmann, Allowing the Right Margin the European Court of Human Rights and the National Margin of Appreciation Doctrine: Waiver or Subsidiarity of European Review?, 2012, CELS Working Paper Series, Vol. 4, p. 22: "It is possible to look into the reasons for the existence or absence of a consensus in terms of finding a solution to the problem"; see also Andreas Vosskuhle, Pyramid or Mobile? – Human Rights Protection by the European Constitutional Courts, Opening of the Judicial Year 2014 at the European Court of Human Rights, Strasbourg, 31 January 2014, Available at: http://www.echr.coe.int/Documents/Speech_20140131_Vosskuhle_ENG.pdf, accessed on 14/04/2014, p. 05: “The more the implementation of the Convention is devolved to the national authorities and courts, the better the ECtHR – in view of its limited resources – can focus on its role as the guardian of a common core standard of human rights”.
  60. 60. evidence to determine that the Spanish laws and measures in question contradict the provisions of the ECHR. Besides, the mere state justification that these laws are “necessary in a democratic society”60 carries a weight of argument before the judges of the ECtHR. 2.5. Summary The objectives in the chapter were to establish evidence regarding equality, affirmative action, state obligations under the ECHR, and the ECtHR’s supervisory mechanisms for the enforcement of the rights of individuals to the protection and enjoyment of rights and freedom. Having established that state duty to protect individual rights and freedoms is enshrined, not just under general international law provisions but also in the ECHR; that the ECtHR assessment and interpretative mechanisms of proportionality and the margin of appreciation underpin the existence of an alternative legal remedy for disenchanted men in Spain; these assessment mechanisms and interpretative method of the ECtHR encompass, therefore, diverse legal components for the appraisal of Spain’s gender violence and equality laws and find alternative judicial conclusions for the nonconformity of those specific protections contained in Spanish law with the standard of protection mentioned in the ECHR. 60 ibid, no. 04, Article 8(2): “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”.
  61. 61. Conversely, the findings also suggest that as Europe’s democratic societies vote to establish a more liberal government in power, if this government in its democratic exercise generates laws or trends on human rights protection, it could, potentially, influence the outcome of the European Court’s decisions in line with the consensus doctrine. The outcome of a democratic exercise that enthrones ideology-based government in power is elucidated in the next chapter wherein the gender violence laws are examined. Chapter Three: Spain’s Gender Violence and Equality Laws 3.1 Introduction As stated in the introductory chapter of this study, Spain’s gender violence and equality laws represent a package of responses to a growing international demand for state-adopted measures to guarantee protection for female victims of domestic violence and tackle inequality in society.61 This legislation came with ample legislative guarantees, including educative and economic measures, and criminal penalties and civil and family law remedies for the protection of women who are victims of domestic violence.62 It accommodated virtually all the guiding principles expressed in Articles 2 and 3 of the Council of Europe Recommendations.63 Spain not only adhered strictly to the six guiding principles in the Council of Europe Recommendation Rec(2002)5, but extended it to the adoption of measures under national policies to ensure protection against 61 Ibid, no. 02, Preamble of Law 1/2004 and Organic Law 3/2007. 62 ibid, no. 02, Title(s) I to V of Law 1/2004. 63 ibid, no. 01, Articles 2 and 3 of the Rec[2002]5; see also Article 2 of Organic Law 1/2004 of 28 December on Integrated Protection Measures against Gender Violence.
  62. 62. gender violence. There is nothing wrong with Recommendation Rec(2002)5, which aims to protect against gender-based violence. However, the vague expressions in the guiding principles of the implementation of the aforementioned Recommendation, especially the content in Article 3(f)64 , have allowed for a more radicalised political action which deprives men of the same rights protection it expressly aims to achieve for women. Article 1(1) of the Spanish Law on Gender Violence establishes the subject and object of the law. It clearly defines and identifies who the victims and aggressors are throughout.65 Reaffirming the aim and scope of this study, this law creates a two-fold problem: one is evidence of the impediment for men’s protection under this law; secondly, there is a stereotypical notion of men as domestic criminals, as abusers, as violent and abusive before the law, which, it is suggested, creates a presumption of guilt rather than of innocence for the accused. These problems will be examined in subsequent chapters. However, it is important to note that if this law is applicable to women as well as to men, if abused men are able to access protection parallel to that offered to abused women, then equality would have been achieved. Apparently, this is not the case, because, it has been argued, a primary cause of these discriminatory and protective measures against men is the continued 64 ibid, no. 01, Article 3(f) of Rec(2002)5. 65 ibid, no. 02, Article 1 of Law 1/2004: “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.
  63. 63. insistence on patriarchal traditions as the source of gender inequality.66 This notion has been disproved by the disproportionate effect of these laws, which have reversed the so-called male dominance and enthroned female dominion in society. This is evident in the number of false reports recorded and concealed under the legal terminology of a stay of proceedings,67 together with the severity of the punishments endured by alleged and convicted offenders in Spain. If men could survive outside the protection of the law, then the decision to isolate them from the protection of this law in Spain is justified. However, it has become evident that men also require state protection under the law, hence the desperation that impels men towards the murder of a great number of women each year in Spain.68 These murders denote desperation from men who could 66 Carol Hegemann-White and Sabine Bohn, Protecting Women against Violence; analytical study of the result of the second round of monitoring the implementation of Recommendation Rec(2002)5 on the protection of women against violence in Council of Europe member states, 2007, Council of Europe; CDEG (2007)3 rev, p. 07. Available at: http://www.coe.int/t/dghl/standardsetting/equality/03themes/violence-against- women/CDEG(2007)3_en.pdf, states that: “Gender-based violence is rooted in patriarchal traditions that have found expression in laws, institutions, attitudes and perceptions”; see also Paragraph I of the Preamble, Spanish Organic Law 1/2004: “Gender violence is […] directed against women for the mere fact of being women; considered, by their aggressor, as lacking the most basic rights of freedom, respect and power of decision”. 67 See General Council of the Judiciary (Spain), Section of Justice Statistics, Violence against women in judicial statistics: Annual Data 2013, 7 April 2014, Available at: http://www.poderjudicial.es/cgpj/es/Temas/Violencia_domestica_y_de_genero/Activida d_del_Observatorio/Datos_estadisticos/La_violencia_sobre_la_mujer_en_la_estadistic a_judicial__Datos_anuales_de_2013, accessed on 12/08/2014 68 See Spanish Government Statistics of Mortal Victims of Gender Violence, 2014, available at https://www.msssi.gob.es/ssi/violenciaGenero/portalEstadistico/docs/VMortales_2014_ 18_08.pdf, accessed on 19/08/2014; see also National Institute of Statistics, Statistics on Mortal Victims from Gender Violence by their Actual or Ex Partners, 2014, Available at: http://www.ine.es/ss/Satellite?
  64. 64. not avail themselves of state protection under this law against gender abuse from women. Another example of gender-based legislation – the Gender Equality Law69 – provides polemic affirmative measures which provide a framework for the professional development of women. This law was produced, in principle, against the background of John Stuart Mill’s (1806-1873) philosophical precept on “perfect equality”70 and as a response to the implementation of European Directives71 on gender-related discrimination in the workplace and society. However, the Gender Equality Law, which is ostensibly meant to guarantee equal rights between men and women, has collapsed through the absorptive effect of the Law on Gender Violence by civil and family law. Evidence of this is L=es_ES&c=TFichaIOE_C&cid=1259931150856&p=1254735038414&pagename=IOE hist%2FIOEhistLayout, accessed on 19/08/2014; and also Judicial Council, Report on fatal victims of domestic violence and domestic violence in the area of partner or former partner in 2011, (June, 2011), Available at: http://www.poderjudicial.es/cgpj/es/Poder_Judicial/Sala_de_Prensa/Archivo_de_notas_ de_prensa/Informe_sobre_victimas_mortales_de_la_violencia_de_genero_y_de_la_vi olencia_domestica_en_el_ambito_de_la_pareja_o_ex_pareja_en_2011, accessed on 19/08/2014. 69 Organic Law 3/2007 of 22 March for effective equality between women and men, published in BOE [State Official Gazette] No. 71 of 23 March, 2007. 70 John Stuart Mill, The Subjection of Women, 1869, Longmans, Green, Reader and Dyer, p. 01. 71 See Council Directive 1997/80/EC of December 1997 on the burden of proof in cases of discrimination based on sex, Official Journal, L 14, 20/1/1998, p. 6-8; See also Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards to access to employment, vocational training and promotion, and working conditions, OJ L269, 5/10/2002; and, Council Directive 2004/113/EC of 13 December 2004, implementing the principle of equal treatment between men and women in the access to and supply of goods and services, Official Journal of the European Union, L373/37, 21/12/2004.
  65. 65. that, in the Spanish courts, a large number of the child custodies in family cases are given to the mothers.72 What the family courts do in almost all cases is to grant custody to women, which this study finds absurd because it may not be helpful in the furtherance of women’s professional life and independence from men. Child custody ought not to be considered a reward, but rather a sentence, since if a woman alone is responsible for the care and education of children, i.e., full responsibility for a child, she will have no time or opportunity for developing her own personal and professional space, which is so essential for being a human being. Consequent to that, the children are deprived of a major part of their family, not only of their father, because, as stated earlier, custody is given to the mother in most cases. In addition, article 92(7) of the Spanish Civil Code rescinds every chance for joint custody in the event of a gender violence report.73 The Spanish criminal justice system, therefore, affords women the freedom to persecute or prosecute men and weakens the independence of women in the workplace. 72 See Institute of National Statistics (INE), Press Notes, 26 September, 2013, Available at: http://www.ine.es/prensa/np800.pdf, accessed on 13/08/2014. 73 Article 92(7) of the Spanish Civil Code, Royal Decree of July 24, 1889, edition of the text of the Civil Code sent post in compliance with the Law of 26 May last (Effective till July 15, 2015), Available at: http://www.elra.eu/wp- ontent/uploads/file/Spanish_Civil_Code_(C%C3%B3digo_Civil)%5B1%5D.pdf, accessed on 27/08/2014: “No joint custody shall be granted when either parent should be subject to criminal proceedings as a result of an attempt against the life, physical integrity, freedom, moral integrity or sexual liberty and integrity of the other spouse or the children who live with both of them. Neither shall it apply where the Judge should observe, from the parties’ allegations and the evidenced practiced, that there is well- founded circumstantial evidence of domestic violence”.
  66. 66. In consequence to these legislations74 – wherein lie the gaps for the breach of the ECHR – and a state’s sovereign right to regulate the function of society, the ECtHR has maintained a doctrinal approach which does not exclude the possibility of the breach of the EHCR by state legislation.75 On this premise, this study now embarks on an exhaustive examination of the procedural nature of the Law on Gender Violence (Law 1/2004) concerning criminal procedures, its conflict with the ECHR, and the effect on men in Spain. 3.2. Criminal Measures to Protect Women from Domestic Abuse/Violence (Special Court, Procedural Matters) A couple of procedural elements of the Law on Gender Violence – as mentioned earlier – contain caveats for understanding its nonconformity with the ECHR. One area is the right to a fair trial under Article 6 of the ECHR. The unification of measures to protect women from gender violence with family law regarding separation, divorce, child custody and the concentration of judicial responsibility under the jurisdiction of one court, often a special court, gives room for the misapplication of the law in obtaining advantageous gain in the justice system, as follows. Firstly, the actions of the authorities (the police) from the first instance of an alleged victim’s report, which usually proceeds with an arrest, detention and 74 ibid, no. 02 75 Thlimmenos v. Greece, App no. 34369/97, (ECtHR, April 6, 2000), paragraph 48 of the judgement; see also Chassagnou and Others v. France, App. nos. 25088/94, 28331/95 and 28443/95, (ECtHR, April 29, 1999), paragraph 113 of the judgement. “The Court has never excluded that legislation may be found to be in direct breach of the Convention.”
  67. 67. subsequent arraignment before the Court76 could be inconsistent with Spain’s constitutional provision on habeas corpus.77 It borders also on the preservation of the sanctity of the presumption of innocence,78 a right which is accommodated under Article 6(2)79 of the ECHR. Secondly, the judicial action from the moment of arraignment of suspects, in which the accused is usually remanded or protective orders are issued subsequent to a fast track or summary trial, provides another discursive element for this study.80 Thirdly, the system of proof, the weight of the alleged victim’s statement and the special court’s investigative powers, raise questions regarding the preservation of the accused’s right to effective defence under the ECHR, as well as Spain’s 76 See Article 520(1) of Criminal Proceeding Act, Royal Decree of 14 September 1882 on the Criminal Procedure Act was adopted, published in BOE [State Official Gazette) No. 260 of 17 September 1882, Effective until 25 of September 2014 (Hereinafter referred to as LeCrim): “The arrest and provision detention should be exercised in the manner least prejudicial to the detainee or prisoner in his person, reputation and heritage”. 77 See Article 17 of the Spanish Constitution of 1978, published in BOE [State Official Gazette] No. 311, 29 December 1978. 78 ibid, no. 02, Article 1 of Law 1/2004 79 ibid, no. 04, Article 6(2). 80 ibid, no. 76, Article 795(1): "Without prejudice to the special processes, the proceeding regulated under this Title shall to the investigation and prosecution of offenses punishable by imprisonment not exceeding five years, and with any other penalties, whether single, joint or alternatives, which duration does not exceed ten years, regardless of the amount, provided that the criminal proceeding is brought under a police report and that the judicial police has arrested a person and made available to the summary court or even without being detained, has been summoned to appear before the summary court as an accused in the police report and, also, meet any of the following circumstances”.
  68. 68. constitutional prerogatives.81 Finally, an examination of remedies for the prevention of the abusive use of these laws by women, whether victims or not of domestic violence, and the punishment for false accusation under Spanish criminal law, reveals incongruities in the procedural and substantive elements of the law against gender violence. 3.3.Police Arrest and Detention of Suspects (“Habeas Corpus”, Article 17(1) of the Spanish Constitution) and Unequal Treatment in the Commission of Similar Crimes (Articles 617(1) v. 153 of the Criminal Code) The examination of institutional response to a victim’s complaint is crucial in determining the standard of treatment and protection afforded to the accused – the man – in the circumstance under consideration. In practice, when a woman accuses a man of domestic violence, the man is arrested, detained, arraigned before a judge for 48 hours, released on bail with stringent protective measures, or remanded in prison custody.82 In effect, the man is immediately considered guilty until he proves his innocence, which is against article 24(2) of the Spanish Constitution. Interestingly, article 13 of Spain’s Criminal Procedure law (LECrim) also endorses this procedure in gender-violence-related cases.83 This provision, 81 ibid, no. 77, Article 24(2): “Everyone is entitled to […] not to testify against themselves, do not plead guilty and the presumption of innocence”. 82 ibid, no. 02, Article 64(1-6) of Law 1/2004 83 ibid, no. 76, Article 13: “it is considered as the preliminary investigation for recording the evidence of the crime which may disappear, the arrest and detention – with regards to verification and identification – of the offender, to detain, if applicable, the alleged perpetrators of the crime and to protect the offended or prejudiced by it, to
  69. 69. characterised by urgency and the necessity to guarantee effective legal protection for victims of domestic violence, has produced damaging procedural actions in violation of multiple rights of the accused. One of the areas of contention is the right to habeas corpus, enshrined in article 17(1)84 of the Spanish Constitution and Organic Law 6/1984 provisions.85 In light of this constitutional provision, which ostensibly guarantees the liberty of all against unlawful detention, this raises questions regarding the need to arrest and detain an individual without evidence of a crime, except for the verbal accusation of the alleged victim. Notably, under article 1 of Law 1/2004, a woman does not need to provide proof or evidence; only her word is sufficient to trigger a legal ordeal for the male accused. A case in point is Antonieta v. Cipriano in Provincial Court judgment no. 000025/2014-02, where the accused (Cipriano) was acquitted after being found guilty of a misdemeanour – and going through an ordeal – for allegedly saying to Antonieta, in the absence of any witness, that “she is a whore”.86 Cipriano was arrested, detained and arraigned before an investigative relatives or other persons may be issued to that effect the precautionary measures referred to in art. 544 bis of this Act”. 84 ibid, no. 77, Article 17(1) provides that: "[e]veryone has the right to liberty and security. No one can be deprived of his liberty, but compliance with the provisions of this article and in the cases and in the manner provided by law”. 85 Spanish Organic Law 6/1984 of 24 May, regulating the Procedure of habeas corpus, published in BOE [State Official Gazette] No. 126, 26 of May 1984; also, Article 17.4 of the Spanish Constitution provides that "[t]he law shall regulate habeas corpus proceedings for the immediate handing over to judicial authorities of any person illegally arrested". 86 See SAP v. 1307/2014, Provincial Court of Valencia, Appeal Judgment No. 25/2014, Resolution No. 144/2014, Available at: CENDOJ Id: 46250370012014100082:
  70. 70. judge before being granted bail with the habitual protective measures in place. The question is whether, in the absence of evidence of a crime, a person ought to be arrested by the police. Article 167 of the Spanish Criminal Code penalises the arbitrary arrest or illegal detention of an individual by the state or its agents.87 The imminent arrest and detention of a man based on a woman’s complaint, without credible or even no evidence, amounts to an infringement of this provision and the constitutional regime; and even, also, Article 13 of the ECHR. In light of this, the substantive and procedural nature of the application of the Law on Gender Violence violates these legal principles because it grants excessive weight to the word of the victim. The intrinsic nature of article 167 of the Spanish Criminal Code provision is that it is an offence of false imprisonment or kidnapping as committed by a public official or authority. Thus, the perpetrator can only be a person in authority, a public official in the exercise of his/her duty in detaining a person in conformity with the legal requisites or illegal practices as typified in articles 163, 164, 165 and 166 of the Criminal Code.88 Parenthetically, the Law 1/2004 procedure which enables the quasi-arbitrary arrest of the accused under the Spanish Law on Gender Violence permits p. 01 of the judgment. 87 Article 167 of the the Organic Law 10/1995 of 23 November 1995, Spanish Criminal Code, published in BOE [State Official Gazette] No. 281, 24 November 1995 (Hereinafter referred to as Criminal Code) states: “The authority or public official, except in cases permitted by law, and without cause offense, commits any of the acts described in the preceding articles shall be punished with respectively punishments provided by them, in the upper half and also with the time of disqualification for eight to twelve years”. 88 ibid, Articles 163, 164, 165 and 166.
  71. 71. additional flagrant abuses of the right of men to protection and treatment equivalent to that of women in a similar incident or crime. The arrest and detention of suspects in domestic violence cases – without evidence of an offence – violates the individual’s right to freedom. The right to habeas corpus under article 17(1) of the Spanish Constitution as regulated and preserved in articles 163 to 167 of the criminal provision has been systematically violated in the practical exercise of Law 1/2004. Apparently, it is enough evidence – of crime under gender violence law – for the testimony of a victim (a woman) to trigger the arrest, detention and arraignment of the suspect (a man).89 In the event that a complaint is made by a man, it would be treated as a misdemeanour under article 617 of the Spanish Criminal Code, which does not require the arrest of the accused. It is common knowledge that the arrest and detention of a suspect is not an isolated incident with minor consequences, but generates substantial far-reaching effects on the daily social and professional life of the individual concerned. A Council of Spanish Lawyers report weighs the implication of this form of deprivation of liberty and states that the consequences may include “the loss of his/her job, accommodation [also] making it difficult for the accused to prepare his/her defence and undermining the courts impartiality when the accused is brought before it from prison”.90 This punitive measure is commonly endured by men under Law 1/2004. 89 ibid, no. 02, Article 1 of Law 1/2004 90 See the General Council of Spanish Lawyers, Response from the General Council of Spanish Lawyers to the Green Paper on Detention, 2011, European Commission: Available at: http://ec.europa.eu/justice/newsroom/criminal/opinion/files/110510/es_general_council_ of_spanish_bar_en.pdf, accessed on 11/08/2014.
  72. 72. In the event of the occurrence of an identical situation of the violation of the right to non-aggression between a man and a woman, both cases are treated differently under Spanish law. First of all, a woman’s complaint is often assigned to specialised court on gender violence and every protective remedy is activated, including the automatic deprivation of the accused (the man) of his freedom, in accordance with article 153 of the Criminal Code. Conversely, if the complainant is a man, the case is treated under normal criminal procedures as provided in article 617 of the Criminal Code, which generally culminates in misdemeanour charges against the woman with no arrest and detention applicable. The distinction between these criminal law procedures and Law 1/2004 on domestic violence is the applicable system of proof and the presumption of innocence, which preserves and also guarantees no violation of the right to liberty under article 17(1) of the Spanish Constitution. In the event of a complaint of domestic violence against a woman, the accuser must produce enough evidence to prove the crime; otherwise, the case will be thrown out. If admitted for trial, a lesser penalty under article 617 of the Spanish Criminal Code applies to the offender. Thus, article 617 of the Spanish Criminal Code is the legal regime that applies when a man complains of domestic violence against a woman. In light of this, the applicable penalty for a similar offence of domestic violence when a man files a complaint is stipulated in article 617(1) and 617(2) of the Spanish Criminal Code. This provision – article 617(1) – stipulates a penalty of six to twelve days of confinement to a permanent location or an option of a fine not exceeding two months when bodily harm is caused to the victim. Subsequently, article 617(2) provides a penalty of confinement to a permanent location between two and six days or a fine not
  73. 73. exceeding thirty days. The options for fines are regulated in article 620(2) of the Criminal Code and relate to mild economic sanction. Conversely, when the criminal complaint is filed by a woman, under the gender violence laws, penalties under article 153(1) of the Criminal Code apply. These penalties include a minimum prison confinement of six months or a maximum of three years. They also include a sustained restraining order, ranging from one to five years, and automatic incapacitation from enjoying the paternal rights of child custody. There have been incongruities in the Spanish appellate courts’ jurisprudence on this question. In judgment no. 1025/08 of the Spanish Provincial Court of Barcelona where the “two spouses in equal condition indicate [the] existence of mutual aggression”,91 the court held that article 153(1) of the Criminal Code does not apply in the circumstance where the couples were, admittedly, mutually belligerent and the application of the aforementioned provision would suppose a higher sentence for the man. Subsequently, the Provincial Court of Madrid92 interpreted a similar case using a contrasting deliberation. It held that article 153 of the Criminal Code applies since the accused – the husband – “hit [his] wife”93 and that is all that matters. While the Barcelona court applied an 91 Judgment No. 1025/08 of the Provincial Court of Barcelona, Section XX, Appeal No. 96/2008 – APPRA, Resolution No. 1025/2008, Available at CENDOJ ID: 08019370202008100363, paragraph 03, p. 03 of the Judgment. 92 Judgment No. 982/10 of the Provincial Court of Madrid, Section XX, Appeal No. 102/2010, Resolution No. 982/2010, Available at CENDOJ ID: 05267392038008476212. 93 ibid, p. 05 of the Judgment
  74. 74. interpretative criterion that was in line with the objective pursued by the law, and by utilitarianism, the Madrid court simply applied a substantive interpretation of the law using a completely objective criterion. The stronger physique of the man is, therefore, the wording which inclines judicial balance in the Law on Gender Violence.94 Regrettably, article 1 of Law 1/2004 establishes a punitive difference between the protection of men and the protection of women from gender-related violence or abuse. In the first instance, it states that the purpose of the law “is to combat the violence exercised against women by men [...] as an expression of discrimination, the situation of inequality and the power relations prevailing between the sexes”.95 Here lies the fundamental justification for affirmative action under Spanish law 1/2004: the power of men over women. The power prevalence does not specify whether it is concerned with physical or economic privileges. It is, therefore, basically a discordant referral point in line with the feminist conceptual exertion that essentially influenced the promulgation of this legislation. ECHR provision96 provides a framework for the protection of individuals from a state breach of negative duty related to the rights of its citizens. The ECtHR, in its case laws,97 disallows such measures of inequality, as expressed in 94 ibid, no. 02, Article 1 of Law 1/2004 95 ibid, no. 02, Article 1(1) of Law 1/2004 96 ibid, no. 04, Article 1 of Protocol No. 12 97
  75. 75. numerous decisions. Nonetheless, the European Convention, as well as Spanish constitutional doctrine, disallows such measures that violate the principle of liberty and equality as defined in both Articles 5 and 14 of the ECHR and articles 17(1) and 14 of the Spanish Constitution, yet these violations persist. Most importantly, there is some respite for most Spanish men, as Spanish Constitutional Judgment No. 032/201498 has restored sanity to the habitual immediate police detention of men accused of domestic violence. This case concerns not just habeas corpus, but also procedural defects in the application of Law 1/2004, as well as false accusation by a woman. The narrative of the case is that the applicant was arrested based on a complaint in which “the police statement tagged the case as domestic abuse reasons without explaining facts about the arrest”.99 The applicant was arraigned before a specialised court the next day and the judge changed the classification to “illegal detention [and] forwarded the case file to the prosecutor’s office”.100 Upon his arraignment, the investigative judge, through the ruling, “registered the application as illegal detention proceeding [and] forwarded the case file to the prosecutor’s office to report on the origin to initiate the corresponding proceeding”.101 Upon consultation with the office of the State Prosecutor and the ibid, no. 32 98 See Spanish Constitutional Court Judgment No. 032/2014, of February 2014; published in BOE [State Official Gazette] No. 73, of 25 of March, 2014: Application for Constitutional Protection “Amparo” no. 3485-2013 by Abel de Cespedes Gamero. 99 ibid, paragraph 1: The Facts. 100 ibid, no. 98, paragraph 2(a): The Facts. 101

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