Regarding the Judgment of the Social Chamber of the High Court of Justice of the Canary Islands (Las Palmas) dated March 7, 2017 (Appeal No. 1027/2016), which upholds the appeal of a victim of gender violence divorced from the deceased in a claim for a widow's pension.
Judging with a gender perspective is not an ideology or a feminist proposal, it is a binding legal mandate for the Spanish jurisdictional bodies, as contained in the Opinion of the Cedaw Committee of July 16, 2014 (Ángela Gonzalez Case), in relation to Spain.[1]
1-Object of the Appeal:
The plaintiff and the deceased married on July 18, 1981, from which two daughters were born. On June 29, 1995, a judgment of separation of the marriage was issued, without mentioning the compensatory pension, and on September 1, 1999, the divorce judgment was issued, declaring the dissolution of the marriage. The deceased died on June 16, 2014.
The judgment of the social court appealed dismissed the claim filed by the divorced widow in her capacity as a victim of gender violence, substantially for three reasons:
a)-Gender violence was not sufficiently proven, as only one of the multiple complaints filed by the plaintiff against the deceased was processed judicially and was also dismissed, "without major significance".
b)-In addition, the head of the Canary Islands Women's Institute did not ratify in court the two certificates issued in 1994 and 1997 where it was stated that the plaintiff had been attended to: "due to the incessant situation of violence suffered together with her two minor daughters in her marriage, caused by her husband".
c)-Nor did the claimant's daughters, who appear as eyewitnesses in several of the complaints filed by the plaintiff, attend the trial as witnesses to the situation of violence.
2- Integration of the Gender Dimension in the Administration of Justice. Definition and legal basis.
The Chamber revokes the judgment, highlighting that in cases such as the present one, it must be judged with a gender perspective, as stated in Article 4 of the LO 3/2007 of March 22 on Effective Equality of Women and Men, whose heading is "integration of the principle of equality in the interpretation and application of the rules" and implies the concretion of the principle and the fundamental right to effective equality:
"Equality of treatment and opportunities between women and men is an informing principle of the legal system and, as such, shall be integrated and observed in the interpretation and application of legal rules".
The interpretation of the Law with a gender perspective requires contextualization and action in accordance with the pro persona principle, which is configured in this area as a hermeneutical criterion that obliges jurisdictional bodies to adopt legal interpretations that guarantee the greatest protection of human rights, especially those of victims. Gender stereotypes are the basis of discrimination against women. Their presence in justice systems has detrimental consequences for women's rights, particularly for victims and survivors of different forms of violence, and may prevent access to effective judicial protection.
Gender characteristics are sociocultural constructions that vary across time, culture, and place; and refer to the psychological and cultural traits that society attributes to each of what it considers "masculine" or "feminine". Physical and/or psychological gender violence derives directly from the aforementioned endemic and structural asymmetries.
Gender stereotypes must be eradicated in judicial interpretation and application, and specialized gender training for all legal operators who prosecute the crime of gender violence, especially judges, is essential, as recommended by the Cedaw Committee in its Opinion of July 16, 2014 (Ángela Gonzalez Case), in relation to Spain.
The principle of integrating the gender dimension in legal activity binds all the Powers of the State: the Legislative, the Executive, and the Judicial. The binding of the jurisdictional activity of the Judiciary -given its independence- derives from its submission to the rule of law (Article 117 of the CE). This statement is linked to the existence of a broad anti-discrimination law, with constitutional protection in Article 14 of the CE, which must be deployed in three specific judicial phases:
a)- In the processing of the procedure through a large set of clauses of effective jurisdictional protection of gender equality that, in general, tend to flexibilize procedural rigor and guarantee the protection of victims.
b)-In the assessment of evidence -distribution of the burden of proof of discrimination, relevance of the victim's statement-.
c)-In the application of substantive rules specifically aimed at the greater effectiveness of equal treatment and opportunities - prohibition of direct and indirect discrimination, positive action measures, parity democracy and equal opportunities, maternity and conciliation rights, protection against gender violence.
3- Assessment of Evidence with a Gender Perspective.
In the case at hand, the plaintiff married the deceased on July 18, 1981, separating in 1995, that is, long before the entry into force of the LO 1/2004, and therefore long before the start of a comprehensive approach to fight against gender violence from all public authorities, and long before the start of social awareness that gender violence is not a private matter, and this must be kept very present in the analysis and administration of justice in the case at hand.
The deceased dies on July 16, 2014, and the plaintiff then requests the widow's pension as a victim of gender violence.
These were the evidence presented by the plaintiff:
-The head of the women's care and information service of the Canary Islands Women's Institute certified on 11/13/1994 and 09/19/1997 that the plaintiff was attended to in the center "due to the incessant situation of violence suffered, together with her two minor daughters, in her marriage with the deceased".
-The plaintiff had filed multiple complaints (7 complaints before the police station and 3 judicial actions), both for breach of the measures agreed in the divorce proceedings, as well as for threats, economic violence, injuries and insults uttered by the deceased, with different results but in no case was a conviction obtained from the aggressor, before and after the separation, at the Central Police Station of the National Police Corps and in court.
The Chamber reaches a different conclusion from that of the instance, recalling what is contained in the recent judgment of the Supreme Court of January 20, 2016 (Appeal 3106/2014) and especially when integrating the gender perspective in the assessment of the evidence provided.
a)-On the one hand, it understands that the certificates of 1994 and 1997 of the head of the women's care and information service of the ICM, which have not been challenged by the opposing party, are a substantial indication in the proof of the situation of continuous violence suffered by the victim, more than 22 years ago. It should also be noted that these are certificates issued by someone who had the competence to do so on behalf of an Administrative Entity competent in matters of gender violence, and therefore should deserve a different consideration than a document signed by a private individual would have. And to this must be added the evident difficulty of bringing to trial for ratification, who signed them more than 22 years ago. Therefore, the certificates must be valued as valid indications of the situation of gender violence of the plaintiff, without needing to condition it to its judicial ratification, within the special discriminatory context already alluded to and applying the gender perspective in the administration of justice (assessment of evidentiary elements). This unnecessary ratification of Reports is also not strange in the labor process, since Article 93 of the LRJS, in relation to expert evidence, exempts from judicial ratification the reports contained in the administrative documentation, whose contribution is mandatory, according to the modality in question. In the present case, it is not a social security procedure nor a medical report, but we are facing an administrative document, since who signs it does so on behalf of the former Canary Islands Women's Institute (ICM), dependent on the Government of the Canary Islands that ensures the physical and psychological protection (health) of victims of gender violence. The plaintiff did not go to the Canary Islands Health Service to ask for help but to the ICM, as an entity for the protection of the moral health of victims of gender violence. In addition, the ICM is an organ with competence in the assistance to victims of gender violence, so with greater reason, it must be taken into account as unequivocal indications of the situation of violence suffered by the plaintiff, this together with the absence of challenge of the cited document.
b)-To the above must be added the set of complaints to which the legal basis of the judgment referred, and that have already been specifically referred to (7 complaints before the police station and 3 judicial actions), which in the opinion of this Chamber are also reliable indications of the situation of violence suffered by the plaintiff before and after her separation.
In the social reality of 1995, when the first complaint for abuse was filed, the statements of the plaintiff constituted an important indication that she was being abused by her husband, which in this case is reinforced by other data such as the order dated November 13, 1995 that although agreed to the filing of the procedure initiated as Preliminary Proceedings, in its ruling declared "Fault" the fact that motivated the initiation of the preliminary proceedings. Such facts, in the social context of the year 1995, constituting a fault are compatible with the gender violence that is now claimed.
The panorama of staggered complaints filed by the plaintiff between 1995 and 1999 (before and after the separation), cannot be neutralized by the absence of a conviction sentence, since as the Supreme Court has declared in the aforementioned judgment, a non-restrictive or mechanical analysis must be made, but contextual and above all the special difficulties of the victims of violence when reporting and proving their situation must be taken into account, difficulties that multiplied long before the entry into force of the LO 1/2004. Therefore, we understand that according to what is stated in the present case has been proven, according to the referred indications the situation of gender violence suffered by the plaintiff.
c)-The absence of the daughters of the deceased in the act of the trial in the capacity of witnesses does not suppose an obstacle to arrive at the previous conclusion, since witnessing episodes of physical and psychological violence at early ages in the domestic environment, can have serious and very diverse effects in the people, depending on their strength so demanding their testimony can be, in many cases, revictimizing.
Therefore, the absence of the daughters' testimony cannot be the object of conviction (in negative), especially if, as everything indicates, they were also victims of the described violence, since the mother refers to them as eyewitnesses in several of the complaints filed before the Security Forces.
4- Conclusion.
The importance of this judgment lies not so much in the estimation of the merits of the appeal, which also, but in the novelty of being the first judicial resolution issued in our country in which the hermeneutical criterion that obliges the jurisdictional bodies to adopt legal interpretations that guarantee the greatest protection of human rights, especially those of the victims, through the technique of administering justice with a gender perspective, is theoretically defined, in addition to projecting and applying to the case (in the assessment of the evidence provided), the aforementioned technique through which the appeal filed by the victim of gender violence is finally upheld.
[1] CEDAW is one of the most operational United Nations human rights international treaties in the conquest of equal opportunities and treatment between women and men, also called "the international bill of human rights for women". It was approved by the General Assembly in 1979 and entered into force in 1981, being ratified by Spain in 1984. The Convention itself created "the Committee on the Elimination of Discrimination against Women" which examines the progress made by the different States Parties in the application of the Convention. It should be noted here the Opinion No. 47/2012 of the aforementioned Committee, addressed to the Spanish State. http://web.icam.es/bucket/Dict%C3%A1men%20CEDAW%20%C3%81ngela%20Gonz%C3%A1lez%20Carre%C3%B1o.pdf
Gloria Poyatos Matas. Specialist Magistrate of the TSJ of the Canary Islands
Published in the Blog of the Social Commission of Judges for Democracy
