González Carreño v. Spain, Communication No. 47/2012
Spain, Committee on the Elimination of All Forms of Discrimination Against Women

González Carreño v. Spain, Communication No. 47/2012

DATE 16-07-2014DOWNLOAD LEGAL DECISION

Judges:

Nicole Ameline

Nicole Ameline

Theodora Oby Nwankwo

Theodora Oby Nwankwo

Dalia Leinarte

Dalia Leinarte

Nahla Haidar

Nahla Haidar

Hilary Gbedemah

Hilary Gbedemah

Maria Helena Lopes de Jesus Pires

Maria Helena Lopes de Jesus Pires

Pramila Patten

Pramila Patten

Ismat Jahan

Ismat Jahan

Yoko Hayashi

Yoko Hayashi

Naéla Mohamed Gabr

Naéla Mohamed Gabr

Zou Xiaoqiao

Zou Xiaoqiao

Dubravka Simonovic

Dubravka Simonovic

Patricia Schulz

Patricia Schulz

Silvia Pimentel

Silvia Pimentel

Ruth Halperin-Kaddari

Ruth Halperin-Kaddari

Niklas Bruun

Niklas Bruun

Olinda Bareiro Bobadilla

Olinda Bareiro Bobadilla

Barbara Evelyn Bailey

Barbara Evelyn Bailey

Biancamaria Pomeranzi

Biancamaria Pomeranzi

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Topics:

Adolescents and girl child Sexist Violence

Related standards:

Convention on th Elimination of all forms of Discrimination Against Women (CEDAW) Article 2

RELATED STANDARDS

Convention on th Elimination of all forms of Discrimination Against Women (CEDAW) Article 2

States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake: (a) To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realization of this principle; (b) To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women; (c) To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination; (d) To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation; (e) To take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise; (f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women; (g) To repeal all national penal provisions which constitute discrimination against women.
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Article 16

RELATED STANDARDS

Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Article 16

1. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women: (a) The same right to enter into marriage; (b) The same right freely to choose a spouse and to enter into marriage only with their free and full consent; (c) The same rights and responsibilities during marriage and at its dissolution; (d) The same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases the interests of the children shall be paramount; (e) The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights; (f) The same rights and responsibilities with regard to guardianship, wardship, trusteeship and adoption of children, or similar institutions where these concepts exist in national legislation; in all cases the interests of the children shall be paramount; (g) The same personal rights as husband and wife, including the right to choose a family name, a profession and an occupation; (h) The same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration. 2. The betrothal and the marriage of a child shall have no legal effect, and all necessary action, including legislation, shall be taken to specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory.
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Article 5

RELATED STANDARDS

Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Article 5

States Parties shall take all appropriate measures: (a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women; (b) To ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children, it being understood that the interest of the children is the primordial consideration in all cases.

WHY IT MATTERS:

Decisions issued under the individual complaint proceeding of the CEDAW Committee are in the form of recommendations, but States are required to report on their compliance. Moreover, though each decision refers to the specific circumstances of the case, it should be noted that the Committee’s decisions establish authentic interpretations of the CEDAW, which then become part of the Convention itself and, therefore, determine the manner in which all States Parties should interpret and apply the Convention within their respective jurisdictions. 

The case of González Carreño v. Spain set an extremely important precedent as the first case regarding domestic violence to be brought against Spain, a country that has been recognized for its laws on gender-based violence. In this decision, the CEDAW Committee held that the positive obligations of States Parties to the Convention go well beyond establishing a sufficient normative framework; they require effective enforcement of this framework by the administrative and judicial authorities. Building on its own jurisprudence established in cases such as V.K. v. Bulgaria, it further held that this enforcement must be free of stereotypes and preconceived notions of what constitutes domestic violence.

This case also represents an opportunity to make advances in protection for the children of women domestic violence victims by establishing that matters related to custody and the appropriateness of child visitation should be evaluated cautiously by the authorities, taking into account the child’s best interests and the existence of a context of domestic violence, whether or not the children themselves are direct victims of physical or psychological violence. 

The González Carreño case was a strategic litigation carried out by Women’s Link Worldwide, intended to support Ángela in her quest for justice and improve enforcement of the Spanish domestic violence law (Organic Law 1/2004, of December 28, on Measures of Comprehensive Protection against Gender Violence). Amicus briefs in support of the communication were presented by international organizations and experts on women’s rights and international law, including Simone Cusak, human rights attorney and expert on stereotypes and the CEDAW Committee; Victor Abramovich and Susana Villarán, former Special Rapporteurs on the Rights of Women for the Inter-American Commission on Human Rights; Save the Children; Christine Chinkin and Keina Yoshida of the London School of Economics; and the International Commission of Jurists.

Ángela González Carreño (“the author”) was in an abusive relationship with her partner for many years. They had one daughter together named Andrea. Even when she initiated separation and divorce proceedings, the violent episodes did not let up. Ángela reported each assault to the police and the courts, but the abuser was never convicted, and no measures were taken to protect her and her daughter. Finally, the abuser took advantage of an unsupervised visit to kill Andrea and take his own life. When the case reached the CEDAW Committee, it found that the domestic judicial and administrative authorities had violated the author’s rights by failing to act with due diligence and basing their decisions on stereotyped ideas of what constitutes domestic violence.
Ángela González Carreño was subjected to physical and psychological violence by F.R.C. over the course of their 20-year relationship, during which they had a daughter named Andrea. After a particularly violent episode during which F.R.C. threatened her life with a knife in front of their child, Ángela left the home, taking Andrea with her, and filed for dissolution. After the separation, F.R.C. continued to harass and bully Ángela, insulting her and threatening her life on the street. Ángela maintained custody of Andrea, but during the father’s visitations with her, he would question her about the mother’s relationships and speak ill of her, referring to her as a “whore,” until the girl was so afraid that she began to refuse to spend time with her father. Incidents of this kind and other acts of violence were so frequent that Ángela made over 30 complaints to the police and courts between December 1999 and November 2001. She requested a protective order prohibiting contact between F.R.C. and her and her daughter and a regime of monitored visits. 

Notwithstanding these multiple complaints, F.R.C. was only imposed a fine of 45 euros for stalking Ángela. F.R.C. violated all the protective orders, except one which protected only the mother and not the daughter, without facing any legal consequences. Visitation was monitored for a while, and visits took place in a social services center in the town where the mother and daughter lived. Then one of the social workers presented a report suggesting that visitation be unsupervised so that the father and daughter could relate to each other more naturally. However, in the same report, the social worker acknowledged that F.R.C. was taking advantage of the visits with his daughter to transmit messages to the mother, to which Andrea did not know how to react. Soon thereafter, the order of marital separation was issued, which disregarded the numerous complaints of abuse made by the author and did not refer to the constant ill-treatment and harassment she was subjected to. 

Although the court and social services noted “some shortcomings in the father’s behavior,” unsupervised visitation in the father’s home was authorized. Three months later, during an unsupervised visit, F.R.C. murdered Andrea and committed suicide. After her daughter’s murder, Ángela filed a claim with the Ministry of Justice for compensation for miscarriage of justice, alleging negligence by the administrative and judicial authorities. She pursued her claims until she had exhausted all internal remedies, starting with the Spanish National Court, then appealing the case to the Supreme Court, and finally the Constitutional Court, without success. Finally, she lodged a complaint with the CEDAW Committee with the assistance of international organization Women’s Link Worldwide.
1. Admissibility and merits 

Allegations by the author 
The author alleged violations of Articles 2, 5, and 16 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). She argued that the authorities had not acted with due diligence to protect her and her daughter from the violence they were subjected to. Further, after the child’s murder, no effective investigation of the facts was carried out, and no reparation was provided.

She maintained that the facts took place in a social context marked by a high incidence of domestic violence in which prejudices and stereotypes against women victims of domestic violence persist, such as the notion that it is always better for a child to be raised by both parents, even if the father is an abuser.

Arguments of the State Party
Spain made a submission on admissibility, maintaining that internal remedies had not been properly exhausted and that the communication was unsubstantiated.

The State argued that because the author had not filed her claims in the proper venues, she had not properly exhausted internal remedies. It further argued that no violation of the CEDAW had taken place, because the facts could be attributed only to F.R.C., and there had been no negligence on the part of the authorities. Furthermore, the events occurred prior to the entry into force of the Optional Protocol to the CEDAW in Spain.

Considerations of the CEDAW Committee
Turning first to the State’s arguments, the Committee found that it was able to consider the merits of the communication, because two important events related to Andrea’s death occurred after the entry into force of the Protocol. It further found that the author had exhausted internal remedies. The Committee considered that it had been proven that the author made reasonable efforts to bring her complaints before national authorities regarding the violation of her rights under the Convention. Her allegations regarding the establishment of a regime of unsupervised visits and Andrea’s murder were adequately substantiated.

2. Consideration of the merits
The Committee was satisfied that the facts took place in a context of domestic violence which continued over an extended period. It therefore turned to the question of whether Spain applied principles of due diligence in light of the facts leading to the death of the author’s daughter and whether the State Party took reasonable measures to protect both of them.

The Committee did not agree with the State’s argument that the behavior of F.R.C. was unforeseeable, for the following reasons: 1. Since the couple’s separation, many violent incidents took place, which the child often witnessed; 2. F.R.C. consistently disregarded the protective orders prohibiting contact with the author, without facing legal consequences. These orders protected only the author, not her daughter, “in order not to jeopardize relations between father and daughter”; 3. Social services reports indicated that F.R.C. was using his daughter to transmit messages of animosity to the author; 4. A psychological report indicated that F.R.C. had obsessive-compulsive disorder, pathological jealousy, and possible paranoid disorder; and 5. During visits with his daughter, F.R.C. displayed inappropriate behavior toward her. The Committee added that he shirked his obligation to provide child support for Andrea.

Turning to the regime of visits, the Committee observed that they “had as their main purpose normalizing relations between father and daughter,” without evaluating the benefits or harms they might cause and without a prior hearing of the author and her daughter. The Committee considered that these decisions reflected a stereotyped conception of visiting rights based on formal equality, which gave clear advantages to the father, despite his abusive conduct, and minimized the situation of the mother and daughter as victims of violence.

The State Party failed to uphold its obligations by allowing unsupervised visitation without taking into account the situation of domestic violence within the family, both before and after the separation, although the State was aware of this situation. Spain could therefore be held responsible for failing to take appropriate steps to eliminate the situation of violence.

The Committee found Spain in violation of Article 2 (a-f) of the CEDAW, on obligations to embody the principle of equality through legislation or other means and adopt measures to abolish acts of discrimination against women in law, practice, or custom. It further found Spain in violation of Article 16.1, on the obligation to eliminate discrimination against women in family relations. The Committee referred to its observations in the communication in V.K. v. Bulgaria on stereotypes and preconceived notions on the part of judicial authorities regarding what constitutes domestic violence.

Furthermore, the absence of reparations constituted a violation by the State Party of its obligations under Article 2 (b) and (c) of the Convention. While the Committee noted that Spain had adopted a broad legal framework to combat domestic violence, this framework cannot be effective if public officials do not discharge their obligations with due diligence (see the communication in Goekce v. Austria). These include the obligation to investigate the existence of failures, negligence, or omissions that may have caused victims to be deprived of protection against domestic violence, as in Ángela’s case.


Having found violations of Articles 2 a), b), c), d), e), and f); 5 a), and 16, paragraph 1 d) of the CEDAW, the Committee issued recommendations to the State Party, including the following:

With regard to the author of the communication:

  • Grant the author appropriate reparation and comprehensive compensation and conduct an exhaustive and impartial investigation of the State’s negligent acts.

In general:

  • Take appropriate and effective measures so prior acts of domestic violence will be taken into consideration when determining custody and visitation rights regarding children.
  • Provide mandatory training for judges and administrative personnel on domestic violence, gender stereotypes, and the application of the CEDAW.

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