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Gender criminal law

"Since the approval of LO 1/2004, on comprehensive protection measures against gender violence, the emergence in our legal system of a new specialty can be affirmed:« gender criminal law »"
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Editorial CUNIEP, Madrid, 2021

Authors: Enrique Agudo Fernández, Manuel Jaén Vallejo and Ángel Perrino Pérez

Foreword by Julián Sánchez Melgar, Magistrate of the Criminal Chamber of the Supreme Court

Presented at FIDE on 5-10-2021, with interventions by Cristina Jiménez Savurido (President of FIDE), Enrique Bacigalupo (Professor of Criminal Law, Lawyer and Member of the Academic Council of FIDE), Maria Luisa Silva Castaño (Magistrate, Lawyer of the Supreme Court), Julian Sanchez Melgar (Magistrate of the Supreme Court) and the authors of the work.

            Since the approval of the LO 1/2004, on comprehensive protection measures against gender violence, which contemplates aspects related to the punitive response that all manifestations of violence against women must receive, both referring to the general part and the special part of the penal code, as well as other aspects related to the process and judicial protection , such as the creation of the Courts of Violence against Women, the specialization of sections in the Provincial Courts and the Specialized Prosecutor's Office of the Violence Against Women Chamber, the emergence in our legal system of a new specialty can be affirmed: the «criminal law of genre ”, which is the title assigned to the work.

The book has an eminently practical approach, which brings together all those aspects related to the treatment of gender violence, of interest to all those people, mainly jurists, who must face professional tasks related to this matter at some point. It addresses, in different chapters, issues related to the general and special parts of the code, as well as those related to the criminal process, including a legislative annex that contains the most important norms of this gender criminal law.

This criminal phenomenon, which has been worrying Spanish society for decades, has received a forceful response at the international level, reflected in numerous international instruments, which are actually the ones that are at the base of the reforms produced at the national level in this matter .

For this reason, given its importance, the first chapter of the book is dedicated to the prohibition of discrimination against women, to mainstreaming and the gender perspective, which the different conventions have been recognizing.

At the UN level: the Convention on the Elimination of All Forms of Discrimination Against Women (1979), the first international instrument that prohibited discrimination based on sex, from which the Committee for the Elimination of Discrimination Against Women (CEDAW) emerged, with important recommendations on this matter, such as those made in the Beijing Declaration (1995), which meant the international recognition of the transversality of the gender dimension, that is, of the application of the gender perspective in all the policies and programs carried out, which was followed by the Resolution approved in 2015 by the General Assembly of the United Nations ("Transforming our world: the 2030 Agenda for Sustainable Development"), one of whose goals is to achieve gender equality and the empowerment of all women and girls.

Within the framework of the European Union, the Convention on preventing and combating violence against women and gender-based violence (Istanbul, 2011), whose main characteristic resides in its binding nature for all member states of the Council of Europe, including Spain, forcing the adoption of legislative measures to prevent and prosecute violence against women.

In particular, in the criminal order, it is worth highlighting the provision that the parties may adopt measures in relation to the perpetrators of the crimes, such as, for example, the monitoring or surveillance of the convicted person, the loss of their rights arising of parental authority, the provision as aggravating factors that the crime has been committed against a spouse or common-law partner, criminal repetition, that the crime has been committed in the presence of a minor, that the crime has been committed using a weapon. Regarding the investigation and procedures, emphasis is placed on the need for speed, the need to adopt protection measures in favor of the victims, and the right to free legal assistance.

And within the scope of the inter-American human rights system, reference is made to the Inter-American Convention to prevent, punish and eradicate violence against women (Convention of Belém do Pará, made in this city of Brazil in 1994), which is actually the first international agreement that aims to eliminate gender violence, establishing the obligation of the States parties to act diligently to prevent, investigate and punish violence against women.

            The work also contains certain references to the jurisprudence of the Court of Justice of the European Union on equality between men and women, the European Court of Human Rights and the Inter-American Court of Human Rights.

            Chapter II of the book is dedicated to the treatment of gender discrimination in the Spanish legal system.

            Although our EC proclaims, among the superior values ​​of the legal system, equality, prohibiting all discrimination based on sex, the truth is that it took a few years, since the EC was approved, for the gender perspective to take shape. at the legislative level and also acquire a transversal dimension of protection and promotion of gender equality.

            Specifically, the first law in this regard was the Law 30/2003, on measures to incorporate the assessment of the impact of gender in the regulatory provisions drawn up by the Government, undoubtedly under the influence of the 1995 Beijing Declaration.

            But there is no doubt that it was the LO 1/2004, on comprehensive protection measures against gender violence, also promoted by the aforementioned international instruments, which represented the greatest advance in this matter in our legal system, by comprehensively addressing the phenomenon of gender violence and discrimination against women, providing transversal measures and policies of positive discrimination to favor of the woman. A law that in its day deserved the unanimous support of the political parties represented in the Cortes, and a pioneer in many aspects worldwide.

            Positive discrimination whose constitutionality was recognized by the Sentence of the Plenary of the Constitutional Court 59/2008, which dismissed the question of unconstitutionality raised by a Criminal Court in relation to art. 153.1 drafted by the aforementioned LO 1/2004, although, certainly, with four dissenting opinions, in which the violation of the right to the presumption of innocence is appreciated, given the presumption that any occasional abuse committed by a man against his partner or ex-partner is always a manifestation of sexism that should give rise to the reinforced protection of art. 153.1 CP, holding that it would have been more satisfactory to include a ruling that contained the interpretation of that precept in accordance with the EC, that is, that it could only be applied when the action was effectively an expression of a situation of domination, discrimination or subordination of man over the woman. The truth is that the STC concluded by affirming the constitutional legitimacy of the purpose of the law, offering greater protection to potential victims, given the incidence in the Spanish reality of attacks on women, and the peculiar gravity of gender violence , directed at women for the sake of being one. That is, it is about preventing these aggressions in the sphere of the couple, as a manifestation of the dominance of men over women in such a context.

            However, the phenomenon of discrimination and gender violence has not ceased to occur, hence the approval of the Organic Law 3/2007, for the effective equality of women and men, with which it has been possible to make a reality, at the legislative level, the process of mainstreaming gender equality throughout the legal system, for which purpose the law contains a wide catalog of "public policies for equality".

The book does not lack a brief overview of jurisprudence of the Criminal Chamber of the Supreme Court on the gender perspective, including the non-jurisdictional plenary agreements of the Chamber related to gender violence, highlighting the Sentence of the Plenary of the Criminal Chamber of TS 389/2020, of which Judge Julián Sánchez Melgar was the rapporteur, in which the question regarding whether a person who has held the private accusation, after abandoning such position in the criminal process, may or may not regain his right to a dispensation is analyzed, leaning, with solid arguments, for the negative answer.

            Point of view also collected by the LO 8/2021, of June 4, that by modifying art. 416 LECrim. it has added that the dispensation will not apply "when the witness is or has been present in the proceedings as a private prosecution"; it even goes further by adding that it will not apply either "when the witness has agreed to testify during the proceedings after having been duly informed of their right not to do so."

            It is a work, dedicated to the victims of gender violence, of extraordinary interest and practical utility, presented in a careful edition, which will undoubtedly be a reference from now on for all those who must face tasks related to this new specialty of the criminal law.

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