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Published by: Ministerio de Igualdad C/ Alcalá, 37. 28071 - Madrid E-mail:[email protected] Internet: www.migualdad.es

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Specific rights offemale victims of gender violence

Rights of the victims of crimewhich also apply to women whohave suffered a situation of gender violence

CONTENTS

What is gender violence? 8What rights do victims of genderviolence have? 8What are the significance and contents of the rights acknowledged infundamental law 1/2004? 9– The right to information. 9– The right to comprehensive social

assistance. 9– The right to immediate legal

assistance. The right to free legal aid. 10– Employment and Social Security

Rights. 12

– Rights of female employees. 13– Rights of self-employed women. 15– Rights of public servants. 15– Economic rights. 17– The active insertion income (RAI). 20– Help for victims of gender

violence to move house. 22– Specific employment program 23– Priority access to protected housing

and public residences for the elderly. 23

– Right to report the situation to the authorities. 26

– Right to request a Court Order providing for legal protection. 27

– Right to be a party to the criminal proceedings. 29

– Right to restitution of objects, reparation for harm caused and compensation for damages suffered. 30

– Right to receive information on the actions of the Court. 31

– Right to protection of the victim’s dignity and privacy within the framework of proceedings related to gender violence. 31

– Right to access the financial aid

foreseen for victims of violent crime and sexual assault. 32

– Right to authorization of temporary residence on humanitarian grounds. 33

– Right to independent residence permits for members of re-grouped families. 33

– Registration of foreign women as jobseekers. 33

– Recognition of refugee status 34– Right to immediate access to

schooling for children where a change of residence is required because of gender violence. 34

– Urgent processing of the procedure for recognition of advances from the Alimony Payment Guarantee Fund 34


The effectiveness and fullexercise of legal rights is notpossible if the holders of therights in question areunaware of their existence orof how to exercise them.

This becomes all the moreevident in the case of femalevictims of gender violence,where it is essential for themto be made aware of themeasures that can beadopted in connection withtheir protection and safety,the rights and assistanceafforded them by Spanishlegislation and the resourcesthey can access to obtaincare, emergency aid, support

and comprehensive recovery.This is the purpose of thepresent publication.

The guarantee of the right toinformation, acknowledgedfor all women who arevictims of this social scourgein the Gender Violence(Comprehensive ProtectionMeasures) Act, is not only anecessity for their completeprotection, it is also thebasic prerequisite forenforcing their constitutionalrights to physical and moralintegrity, liberty and safetyand to equality and freedomfrom discrimination by reasonof their gender.

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GUIDE TO THERIGHTS OF

WOMEN VICTIMSOF GENDER

VIOLENCE


SPECIFICRIGHTS

OF FEMALE VICTIMS OF

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The Gender Violence(Comprehensive ProtectionMeasures) Act (Fundamental Law1 dated December 28th, 2004,published in the BOE nº 313 onDecember 29th, 2004)establishes and guarantees aseries of rights for women whoare or have been the victims ofgender violence, so that theyare able to bring their violentrelationship to an end andrecover their life project.

What is genderviolence?(Art. 1 of the Gender Violence(Comprehensive ProtectionMeasures) Act (FundamentalLaw 1 dated December 28th,2004))

For the purposes ofFundamental Law 1/2004(hereinafter the ComprehensiveAct), the concept of genderviolence comprises all acts ofphysical and psychologicalviolence (including attacksagainst sexual freedom, threats,coercion or the arbitraryprivation of freedom) exertedagainst women by someone whois or has been a spouse or with

whom they have been linked bysimilar emotional relationships,with or without cohabitation.This kind of violence is the mostserious expression ofdiscrimination, a situation ofinequality and the power-basedrelations of men over women.

What rights dovictims of genderviolence have?The Comprehensive Actrecognizes an entire catalogueof rights for women who are thevictims of gender violence.

These rights are universal, in thesense that all women who havesuffered any act of genderviolence are guaranteed theserights, regardless of their origin,religion or any other personal orsocial condition or circumstance.

The Act itself groups thedifferent rights into foursections:

– Right to information,comprehensive social assistanceand free legal aid.– Employment rights and Social

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Security benefits.– Rights for public servants.– Economic rights.

What are thesignificance andcontents of therights acknowledgedin fundamental law1/2004?The right to information.(Art. 18 of the Gender Violence(Comprehensive ProtectionMeasures) Act (FundamentalLaw 1 dated December 28th,2004))

This comprises the right toreceive information and adviceon the following matters:

a) the measures that the Actitself foresees in order to giveprotection to the victims ofgender violenceb) the rights and aid that theAct acknowledges in their favourc) the resources for attention,emergencies, support andcomprehensive recovery andhow to access these

In order to ensure that allwomen have effective access tothis information, it must beprovided in a way that takesinto account the personal andsocial circumstances of itsintended recipients.

Thus, the necessary means mustbe used to ensure that theinformation is accessible andcomprehensible for women withdisabilities, immigrants andthose who, for whatever reason,may have greater difficulty inaccessing the information.

The right to comprehensivesocial assistance.(Art. 19 of the Gender Violence(Comprehensive ProtectionMeasures) Act (FundamentalLaw 1 dated December 28th,2004))

In order to ensure the reality oftheir right to physical and moralintegrity, women who are victimsof gender violence, and theirminor children, are entitled tosocial services for:

– attention– emergencies– support and succour– comprehensive recovery.

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The purpose of these services isto attend to the needs arisingout of the situation of violence,restore the situation the victimwas in prior to suffering it or, atleast, alleviate its effects.

Through these services, it ispossible for women:

– to receive advice on theactions that they can undertakeand their rights,– to find out about the servicesthey can contact to obtainmaterial, medical, psychologicaland social assistance,– to access the variousaccommodation resources(emergency housing, temporaryshelters, supervised centres,etc.) at which their safety isassured and their basic needsattended to,– to recover their physicaland/or psychological well-being,– to obtain training, achievetheir insertion or re-insertion inthe employment market, andreceive psycho-social supportthroughout their recoveryitinerary in order to preventthem become a double victim.

The right to comprehensivesocial assistance is also

acknowledged for any minorsliving in family contexts wherethere is gender violence. Thesocial services must have asufficient number of placesplanned for children andpersonnel with specific trainingin looking after them in order toprevent and avoid efficientlythose situations that mightcause them mental or physicalharm.

The right to immediate legalassistance. The right to freelegal aid.(Art. 20 of the Gender Violence(Comprehensive ProtectionMeasures) Act (Fundamental Law1 dated December 28th, 2004);the Free Legal Aid Act (Law 1dated January 10th, 1996))

The Comprehensive Act grantsall women who are victims ofgender violence immediate legalassistance in all judicial andadministrative proceedingsrelated with their situation ofviolence, including advice onreporting the matter.

A solicitor is appointedimmediately and it is notnecessary to request in advance

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the benefit of free justice, but ifthe right to free legal aid is notrequested or is eventuallyturned down, the victim inquestion must pay the feescharged for the actionsperformed by the solicitor andbarrister.

For the right to free legal aid tobe recognized, applicants mustshow that their financial income,calculated for the whole yearand family unit, does not exceedtwice the Multi-Purpose Public

Income Indicator (IPREM in itsSpanish acronym). Exceptionally,this right may be granted topersons whose income does notexceed four times the value ofIPREM in the light of their familycircumstances, economicobligations and the cost of theproceedings.

Applications for free legal aidmust be made by filling in aform and attaching thedocumentation indicated on thesame; these papers must be

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presented to the Court or at theBar Association.

Once the right to free legal aidhas been recognized, thedefence of the victim’s interestswill be looked after, in all theproceedings it may be necessaryto undertake, by the samesolicitor belonging to the SpecialDuty Corps for Gender Violence.

In addition to the free defenceand representation by a solicitorand a barrister in all judicial andadministrative proceedings, theright to free legal aid includesthe following benefits:

• Free advice and guidance priorto the proceedings.

• Free insertion of notices or court proclamations in official publications.

• Exemption from the payment of the necessary deposits for the lodging of appeals.

• Free assistance from expert witnesses.

• Documents prepared by notaries public are free of charge or have a reduction of 80% on the tariff of fees.

Employment and Social SecurityRights.(Art. 21 of the Gender Violence(Comprehensive ProtectionMeasures) Act (FundamentalLaw 1 dated December 28th,2004))

Acknowledging that genderviolence has repercussions onthe employment situation of thewomen who suffer it, theComprehensive Act grants themcertain rights in this terrain inorder to ensure the effectivenessof their protection and to makeit possible for them to receivethe comprehensive socialassistance they are entitled to.

In order to exercise these rights,female workers must show thatthere is a situation of genderviolence, either by means of theCourt Judgement finding againsttheir assailant, a court orderproviding for protection or,exceptionally and until such timeas such a protection order ishanded down, through a reportby the Office of the PublicProsecutor stating the existenceof indications that the woman inquestion is a victim of genderviolence.

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Rights of female employees1:(Articles 37.7, 40.3.bis, 45.1.n,48.6, 49.1, 52.d and 55.5.b ofthe Workers’ Statute andarticles 124, 210 and 231 of theGeneral Social Security Act.)

– Right to a reduction inworking hours, entailing acorresponding reduction of theirwages in the same proportion. Aspecial agreement may besigned with the Social Securityto maintain the same levels ofcontribution and reference salaryso that future pension,permanent disability or deathand survival benefits arising outof ordinary illnesses or anaccident unrelated withemployment are not adverselyaffected

– Right to the re-arrangement ofworking hours, that is to say, toorganize their working hours inaccordance with the worker’sneeds through an adaptation inthe timetable, the application offlexi-time arrangements or otherways of arranging working timesused in the company.

– Preferential right to changeworkplace, with the option toreturn to the previous job duringthe first 6 months.

If a worker who is a victim ofgender violence is forced to giveup her job, the company mustnotify her of the vacanciesavailable, for the sameprofessional group, at its otherwork centres, so that they canexercise this right.

The company is obliged to holdthe job occupied by the workerin question prior to the changeavailable for six months, duringwhich time the person mayreturn to her previous job orchoose to continue in the newone and lose her right to thejob held in reserve for her.

– Right to the temporarysuspension of the employmentrelationship with the option toreturn to the previous job.

Whenever the worker has togive up her job temporarily inorder to ensure her effectiveprotection and safety, the

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1 Collective bargaining agreements and in-company arrangements may include additionalimprovements to these rights.


company must hold her jobavailable for six months, whichthe Judge may extend foradditional periods of threemonths up to a maximum ofeighteen.

The period of the suspension ofthe employment relationship isconsidered as a period ofeffective payment of dues forSocial Security benefits forretirement, permanent disability,death and survival, maternityand unemployment. The workerwill be considered to be in asituation equivalent toregistration as employed inorder to access the benefitsindicated in the following cases:

• The fact that the period of suspension is considered as a period of occupation with duespaid means that it must be taken into account for the recognition of a benefit or subsidy, regardless of whetheror not the benefit or subsidy has been received during the period of suspension.

• The contributions consideredfor the recognition of a benefitor subsidy might also be considered for the recognition of a subsequent benefit or

subsidy (for example when thecontract expires, or if she decides to terminate the employment relationship in order to make her protection more effective), which will be acknowledged as if she had not received the benefit or subsidy.

• For the calculation of the amount of the benefit, if the reference amounts have been affected in due course by a reduction in working hours derived from the gender violence situation, they will beincreased to 100% of their amount.

With respect to protectionagainst unemployment, thesuspension of the employmentrelationship is considered to bea situation of involuntaryunemployment, therefore, if shemeets the general requirements,the worker is entitled to collectthe correspondingunemployment benefit or thegeneral subsidy.

– Right to have the employmentcontract rescinded withentitlement to receiveunemployment benefit.

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Where the worker, in order toensure her protection, is forcedto give up her job definitively,she will be considered to be ina legal situation of involuntaryunemployment, therefore, if thegeneral requirements are met,she will be entitled to collectthe correspondingunemployment benefit or thereplacement subsidy if hercontributions are insufficient.

– Absence from work is notconsidered as a breach ofcontract providing such absencesare caused by the worker’sphysical or psychologicalsituation as a result of genderviolence. This must beaccredited by the social servicesproviding care or the healthservices.

– Any dismissal or terminationof the employment contract bythe employer will be null andvoid if it comes about as aresult of the exercise by a victimof gender violence of the rightto reduce or re-arrange herworking hours, requestgeographical mobility, changeher workplace or temporarilysuspend the employmentrelationship.

Rights of self-employed women:(Art. 21.5 of the Gender Violence(Comprehensive ProtectionMeasures) Act (FundamentalLaw 1 dated December 28th,2004))

Self-employed workers who arethe victims of gender violenceand who have to cease beingengaged in this activity in orderto make their protection or theright to comprehensive socialassistance effective shall not beobliged to pay any dues duringa term of six months, which willbe considered as a period ofeffective payment of dues forthe purposes of Social Securitybenefits. In addition, theworker’s situation will beconsidered to be equivalent toregistered as employed foraccess to Social Securitybenefits and her right to thebenefit of health-care assistanceunder the Social Security will bemaintained during this period.

Rights of public servants.(Arts. 24-26 of the GenderViolence (ComprehensiveProtection Measures) Act(Fundamental Law 1 datedDecember 28th, 2004); Basic

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Statute of Public Servants (Law7 dated April 12th, 2007))

Public servants who are thevictims of gender violence havethe following rights:

– Right to the re-arrangement ororganization of working hours,through an adaptation in thetimetable, application of flexi-time working arrangements orother ways of organizingworking hours on such terms asthe Administration may provide.

– Right to change workplace.If the public servant, in order toensure effective protection orher right to comprehensivesocial assistance, is obliged toleave her job in the town whereshe is currently working, she isentitled to a transfer to anotherjob of similar characteristics inthe same corps, category orprofessional group without theneed for the vacancy to beincluded as one necessarilycovered. Even so, in suchcircumstances the competentAuthority shall be obliged toinform her of the vacancies inthe same town or in such townsas the person concerned mayexpressly request. Such a

transfer shall be treated as acompulsory transfer.

– Right to leave of absence.In order to ensure protection orthe exercise of their rights tocomprehensive social assistance,public servants are entitled torequest leave of absencewithout having had to render aprior minimum of services andwithout any requirement of aminimum period of permanence.During the first six months, thepublic servant shall be entitledto return to her original positionand the period of leave ofabsence shall be calculated forthe purposes of promotions,length of service and rights inthe applicable Social Securityregime.When judicial actions so require,this period may be extended bythree months up to a maximumof eighteen, with the sameeffects as indicated above, inorder to ensure the effectivenessof the victim’s protection. Duringthe first two months of thisleave of absence, the publicservant shall be entitled toreceive her full compensationand, where appropriate, thefamily benefits for dependentchildren.

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– Absence from work by publicservants who are victims of totalor partial gender violence shallbe excused for such time and onsuch conditions as determinedby the social or health-careservices as appropriate.

As for employees or self-employed individuals, for thesaid rights to be recognized,public servants workers mustshow that there is a situation ofgender violence, either bymeans of the definitive CourtJudgement finding against theirassailant, a court orderproviding for protection or,exceptionally and until such timeas such a protection order ishanded down, through a reportby the Office of the PublicProsecutor indicating theexistence of indications that thewoman in question is a victim ofgender violence.

Economic rights.Specific economic assistance forwomen who are victims ofgender violence with particulardifficulty in obtainingemployment.(Art. 27 of the Gender Violence(Comprehensive Protection

Measures) Act (FundamentalLaw 1 dated December 28th,2004) and Royal Decree 1,452dated December 2nd, 2005. Theregulations regarding theprocedure for dealing with thematter shall be as published inthis respect by the Region orAutonomous City in which theaid is requested.)

This financial aid is intended forfemale victims of genderviolence who meet the followingrequirements:

a) Absence of incomeamounting, on a monthly basis,to more than 75 per cent of theminimum inter-professional wagecurrently in force, excluding theproportional part of two bonuspayments per annum.

For the purposes of determiningthe requirement of absence ofincome, only the incomeavailable or potentially availableto the person applying for theaid will be taken into account,without including in thecalculation for this purpose theincome from other members ofthe family unit living with thevictim.

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If the applicant for this aid hasfamily responsibilities thisrequirement of an absence ofincome will be deemed to bemet when the monthly incomeof the family unit as a whole,divided by the number of itsmembers, does not exceed 75per cent of the minimum inter-professional wage.

For these purposes, familyresponsibilities will exist whenthe beneficiary has at least onedependent relative, whether ablood relation or otherwise, tothe second degree, inclusive,living in the same household.Relatives will not be consideredas dependent if they haveincome in excess of the

minimum interprofessional wage,excluding the proportional partof two bonus payments.

b) Special difficulties to obtainemployment in view of theirage, lack of general orspecialized preparation or socialcircumstances, as accredited bya report issued by the PublicEmployment Service.

c) Accreditation of their statusas victims of gender violencewith the definitive judgementfinding against their assailant,the court order in their favourproviding for protection or,exceptionally, a report by theOffice of the Public Prosecutorshowing the existence of

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indications that the womanmaking the report is a victim ofgender violence until such timeas a protection order is handeddown.

The financial aid, funded by thegeneral state budget, is grantedand paid by the RegionalGovernment or Autonomous City.The request for, processing andpayment of this aid will becarried out in accordance withthe regional regulationsgoverning it. Depending on theRegional Government orAutonomous City, its processingand payment will correspondeither to the social services orto the equality institution.

The economic aid will be paidas a lump sum, and its amountwill, in general, be equivalentto:

1. Six months’ unemployment subsidy, if there are no family responsibilities.

2. Twelve months’ unemployment subsidy, when the victim has a relative or minor living at her expense.

3. Eighteen months’ unemployment subsidy, when

the victim has two or more relatives or minors living at herexpense, or one relative and one minor.

The amount of the aid forwomen with an acknowledgeddegree of disability equal to orgreater than 33 per cent will be:

1. Twelve months’ unemployment subsidy, if the victim has no family responsibilities.

2. Eighteen months’ unemployment subsidy, when the victim has a relative or minor living at her expense.

3. Twenty-four months’ unemployment subsidy, when the victim has two or more relatives or minors living at herexpense, or one relative and one minor.

If the victim of gender violencehas a relative or minor living ather expense with anacknowledged degree ofdisability equal to or greaterthan 33 per cent, the amount ofthe aid will be equivalent to:

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1. Eighteen months’ unemployment subsidy, when the victim has a relative or minor living at her expense.2. Twenty-four months’ unemployment subsidy, when the victim has two or more relatives or minors living at herexpense, or one relative and one minor.

The amount of the aid will beequivalent to twenty-fourmonths’ unemployment subsidyin the following cases:

1. When the victim of gender violence with family responsibilities or the relative or minor living at her expense has an acknowledged degree of disability equal to or greaterthan 65%.

2. When the victim of gender violence and the relative or minor living at her expense have an acknowledged degree of disability equal to or greaterthan 33%.

This aid is compatible with thoseforeseen in the Law on Aid andAssistance for Victims of ViolentCrime and Sexual Assault (Law 35dated December 11th, 1995).

On the other hand, it isincompatible with other aidintended for the same purposeas well as with participation inthe Active Insertion Incomeprogramme (RAI in its Spanishacronym). This is withoutprejudice to the possibility ofparticipating in the RAI oncethese circumstances disappearor are altered.

The active insertion income(RAI).(Royal Decree 1,369 datedNovember 24th, 2006,regulating the Active InsertionIncome programme for theunemployed with specialeconomic needs and difficultiesfor finding employment)

This economic aid is awarded tounemployed individuals includedin the so-called “ACTIVEINSERTION INCOMEPROGRAMME” (hereinafter, RAIProgramme), which carries outactions aimed at increasing theiropportunities of entering thelabour market.

In order to be included in theRAI Programme and be arecipient of this economic aid,female victims of gender

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violence must comply with thefollowing requirements:

a) Accreditation of their statusas victims of gender violencethrough any of the followingdocuments:

• Court order providing for protection or a resolution by a court granting interim penal protection measures intheir favour.

• Report by the Office of the Public Prosecutor showing the existence of indications that they are victims of gender violence until such time as the protection order is handed down.

• Judgement finding against their assailants.

• Certificate indicating this situation by the social services of the Regional Government Administration, the Town Council, or the Refuge Centre.

b) Be a jobseeker.

c) No entitlement tounemployment benefits orsubsidies, or to minimumfarmers’ income.

d) Absence of income of anytype amounting, on a monthlybasis, to more than 75 per centof the minimum inter-professional wage currently inforce, excluding the proportionalpart of two bonus payments perannum.

In addition to the foregoing, thesum of the monthly income forthe family unit (comprising thevictim and any children under26 years of age or older ifdisabled, or fostered minors),divided by the number ofmembers making up the unit donot exceed 75 per cent of theminimum inter-professionalwage, excluding the proportionalpart of two bonus payments perannum.

Inclusion on the RAI programmeand the application for economicaid will be effected through theEmployment Office.

The amount of the RAI is 80% ofthe Multi-Purpose Public IncomeIndicator (IPREM in its Spanishacronym) per month in forcefrom time to time.

The maximum duration of thiseconomic aid in each

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Programme is eleven months.It is not possible to receivemore than three RAIProgrammes.

This Programme includes specialfeatures for victims of genderviolence:

• It is not required to be registered as a jobseeker for 12 months, nor to be 45 or more years of age.

• In order to determine the total income of the family unit, any income received by the assailant shall not be taken into account.

• It is possible for applicants to be the beneficiary of a subsequent RAI programme even where they have been included as a beneficiary of another RAI programme within the 365 days prior to the date of the application.

• Supplementary lump-sum payment if the applicant has been forced to change her place of residence due to circumstances of gender violence in the 12 months prior to the application for admission to the programme or while she is included on the same.

• In order to preserve confidentiality regarding the

applicant’s domicile, an alternative mailing address orPO box number may be provided.

Receipt of the RAI isincompatible with the economicaid regulated in article 27 of theComprehensive Act.

Help for victims of genderviolence to move house.(First transitional provision ofRoyal Decree 1,369 datedNovember 24th, 2006,regulating the Active InsertionIncome programme)

Women who are victims ofgender violence andbeneficiaries of the ActiveInsertion Income and who havebeen forced to change theirplace of residence in the 12months prior to the applicationfor admission to the saidprogramme or while they areincluded on the same mayreceive, as a lump-sumpayment, a supplementaryassistance equivalent to threemonths of the Active InsertionIncome, without this reducingthe duration of the said income.This aid may be received onceonly for each right to be

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included on the Active InsertionIncome programme.

Specific employment program(Spanish Royal Decree 1917dated 21 November 2008, whichapproves the program toenhance social integration andemployment for victims ofgender-based violence)

This program is aimed at victimsof violence against womenenrolled on public employmentregisters as seekers ofemployment and includes thefollowing lines of action:

• Individualised itineraries forsocial and labour integration. • Specific training to enhance

integration into paidemployment. • Incentives aimed at

enhancing the starting-up ofself-employment businesses. • Incentives for companies that

hire victims of gender-basedviolence. • Incentives to facilitate

geographical mobility.• Incentives to compensate

differences in wages andsalaries.

• Covenant agreements withcompanies to facilitate the hiringof victims of violence againstwomen and their geographicalrelocation.

Management of these measuresis the responsibility of thePublic Employment Agency.

Priority access to subsidisedhousing and public residences forthe elderly.(Art. 28 of the Gender-basedViolence (ComprehensiveProtection Measures) Act(Fundamental Law 1 dated

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December 28th, 2004); RoyalDecree 2066 dated December12th, 2008, which regulates the2009-2012 National Housing andRefurbishment Scheme

Spain’s 2009-2012 NationalHousing and RefurbishmentScheme includes female victimsof gender-based violence aspreferential beneficiaries of theaid measures prescribed withinthe Scheme.

Furthermore, acknowledgedvictims of gender-based violenceshall also be given priority by therelevant government agencygranting places in publicresidences for the elderly.


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VIC

TIM

SCR

IME

of

which also apply to

women who have suffered a

situation ofgender

violence

RIGHTSOF THE


In addition to therights acknowledged in theComprehensive Act for womensuffering or who have sufferedgender violence, they are alsoentitled to the rights granted inlegislation to the victims of crime,including the following:

Right to report the situation tothe authorities.(Art. 101 of the CriminalProcedure Act)

Women are entitled to reportsituations of gender violence theysuffer to the appropriateauthorities.By doing so, the judicialauthorities are informed of a

situation that may constitute abreach of criminal legislation,i.e. behaviour that the SpanishCriminal Code classifies as acrime or an offence, stipulating apunishment or a prison sentencefor the perpetrator.

These situations may be reportedto a Police Station (whether ofthe national, regional or localpolice forces), any Civil GuardBarracks, at the Court of FirstInstance or the Office of PublicProsecutions.

Such a report gives rise to theinitiation of legal proceedingsbefore the Court for Violenceagainst Women in order toinvestigate the facts and, where

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appropriate, impose criminalpenalties on the personsresponsible.

Right to request a Court Orderproviding for legal protection.(Art. 60 of the Gender Violence(Comprehensive ProtectionMeasures) Act (Fundamental Law1 dated December 28th, 2004)and art. 544 ter of the CriminalProcedure Act)

A Court Order for legal protectionis a ruling by a Judgeacknowledging the existence ofan objective situation of risk forthe victim and orderingprotection for the same duringthe processing of the lawsuitbefore the criminal courts. TheOrder for legal protection alsoaccredits the woman’s status as avictim of gender violence thusentitling her to receive theeconomic and social rightsacknowledged in theComprehensive Act.

The protection measures that theCourt Authority may order infavour of female victims ofgender violence and theirchildren, where appropriate, maybe criminal or civil in nature.Criminal protection measuresinclude:

1. Eviction of the assailant from the family home.2. Ban on living in a particular town.3. Ban on assailants to prevent them from coming within a distance determined by the Judge in the vicinity of victims and/or their relatives or other individuals.4. Ban on assailants to prevent them from communicating with the victims and/or their relatives or other individuals by any means: letter, telephone, etc.5. Ban on assailants to prevent them from approaching certain locations: the victims’

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workplace, their children’s schools, etc.6. Omission of information regarding the address of the victim.7. Legal protection for victims at court offices.8. Confiscation of weapons and bans on holding the same.

The measures of a civil naturethat may be contained in theCourt Order providing protectionare as follows:

1. The use and enjoyment of the family home, furnishings and fitments.2. The award of custody over minor children.3. The suspension of the exercise of parental rights.4. The suspension of the regime for fathers to communicate, visit and stay with their children or the way in which these activities are to be carried out, for example through an official Meeting Point.5. The establishment of alimony for food.6. Any other measure that may be necessary to protect minors from danger or to avoid harm to them.

Civil measures may be orderedboth in the case of married

couples and for de facto lifepartners. The duration of thesemeasures is 30 days, therefore itis necessary to initiate thecorresponding proceedings underfamily law before this periodelapses, i.e. separation, divorce,nullity, or actions in connectionwith any children born out ofwedlock. If this is done, theinterim measures will remain inforce for the 30 days followingthe presentation of the lawsuitand the civil judge must decidewithin this time frame whether ornot to maintain them.

With regard to foreign women,the Court Order providing fortheir protection allows them torequest and obtain anindependent resident’s permit ifthe one they had previously wasfor “family re-grouping” linked tothe assailant’s resident permit. Inthe case of foreign women whoare in irregularly in Spain, theCourt Order providing for theirprotection allows them to requesta temporary residence permit onhumanitarian grounds and anyproceedings under way to imposea penalty in connection with thesaid irregular status will besuspended, as detailed in thecorresponding section of thisGuide.

A Court Order providing for legalprotection can be requested not

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only by victim but also by closerelatives, their lawyers or socialservices who are aware of thesituation. To do so, it isnecessary to complete a simpleform and present it at the PoliceStation, Civil Guard Barracks,Court, Office of the PublicProsecutor, Centres for VictimCare, social and care centres andat the Legal Advice Services ofthe Bar Associations.It is important for the applicationto reflect clearly the acts ofphysical and psychologicalviolence, threats or other acts ofintimidation suffered, and toindicate the reasons why thewomen is afraid of sufferingfurther aggressions or harm.

It is advisable to request theCourt Order providing legalprotection at the same time asthe facts are reported to thecompetent authorities, although itmay also be requested later.

When no formal report of a crimeis presented, the simple requestfor the Court Order providinglegal protection is considered tobe sufficient, with regard to thefacts and situations of violencecontained in the same.The Court must issue theprotection order within themaximum term of 72 hoursfollowing submission of the

request, after hearing the victimand the assailant. The Actestablishes that this hearing musttake place separately, thusavoiding any confrontationbetween the parties.

Right to be a party to thecriminal proceedings: the offer oflegal action.(Art. 109 of the CriminalProcedure Act)

At the moment when the reportof the facts is presented andduring the first hearing before theCourt, victims must be informedof their right to be a party in thecriminal proceedings.

The exercise of this right, whichimplies the active participation ofthe victim of gender violenceduring the judicial proceedingsheld following the report and theexercise of criminal actions aswell as in the civil lawsuit, if any;this is done through formalparticipation in the criminalproceedings as a “privateprosecutor” and to this end, it isnecessary to appoint a solicitorto defend the victims’ interestsand a barrister to represent thembefore the Court.The designation of appropriateprofessionals may be at the freechoice of the victim or through

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the Special Corps of GenderViolence Duty Lawyers. In thislatter case, legal assistance andrepresentation shall be providedfree of charge if the victim isgranted the benefit of freejustice.

Putting in an appearance beforethe Court and subsequentlyparticipating as a “party” to thecriminal proceedings mean thatthe victim, through her lawyers, isable to propose evidence forconsideration, be present whenthis evidence is collected, and beinformed of all the orders issuedby the Court in the course of theproceedings, with the possibility,if she does not agree, to presentthe corresponding appeals.

Furthermore, as a privateprosecutor, victims may requestthat the Court declare theirassailants guilty and order themto pay compensation for anyinjuries, harm and damagessuffered.

The Office of the PublicProsecutor is charged with thedefence of the interests of victimsand of anyone negatively affectedby the events during the criminalproceedings. If the PublicProsecutor comes to the opinionthat a crime has been committed,

charges will be brought againstwhomever is considered legallyliable, regardless of whether ornot the victim has chosen to be aparty to the criminal proceedings.If the Public Prosecutor is notconvinced a crime can be proved,it is possible no charges will bebrought or there may be arequest for the proceedings to bestayed, for instance if it is feltthat there is not enough evidenceto prove the facts alleged.

Right to restitution of objects,reparation for harm caused andcompensation for damagessuffered.(Art. 100 of the CriminalProcedure Act)

In the Judgement handed downin the criminal proceedings andproviding that the same findsagainst the party accused, theJudge will specify, apart from thepenalty imposed on the guiltyparty, if any, the civilcompensation that must be paidto the victim for physical,psychological or moral damagescaused by the actions.

If the victim so wishes, it ispossible to reserve the right totake action for civil compensationin a different case before the civil

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courts, so the criminalproceedings will not deal withthe civil consequences. It is alsopossible to waive any claim thatmay lie in this sense.

Right to receive information onthe actions of the Court.Even where the victims are notexercising their rights to take partin the criminal proceedings, theymust be informed of their role inthe same and the scope andprogress of the proceedings,thus:

– They are entitled to be giveninformation on the status of theCourt’s actions, to examine these,and to request copies andcertificates. (Art. 234 of theFundamental Law on theJudiciary)

– They must be notified of anyresolution that may affect theirsafety, as well as the Court Orderproviding for their protection, theadoption or alteration of anyother interim measures, rulingsordering the imprisonment orprovisional release of the accusedand the assailant’s status inprison. (Arts. 109, 506.3, 544 bisand ter of the Criminal ProcedureAct)– They must be informed of theplace and date on which hearings

will be held. (Arts. 785.3, 962and 966 of the CriminalProcedure Act)

– They must be notified of theJudgement, both in the firstinstance and, where appropriate,the results of any Appeal. (Article270 of the Fundamental Law onthe Judiciary; Articles 789.4,792.2, 973.2 and 976.3 of theCriminal Procedure Act).

Right to protection of the victim’sdignity and privacy within theframework of proceedings relatedto gender violence.(Article 63 of the Gender Violence(Comprehensive ProtectionMeasures) Act, (Fundamental Law1 dated December 28th, 2004);article 232.2 of the FundamentalLaw on the Judiciary; article 15.5of the Law on Aid and Assistancefor Victims of Violent Crime andSexual Assault (Law 35 datedDecember 11th, 1995); articles2.a) and 3.1 of Fundamental Law19/1994 on the Protection ofWitnesses and Expert Appraisersin Criminal Cases)

The Comprehensive Act foreseesspecific measures for theprotection of victims’ dignity andprivacy.The victims’ personal details,those of their offspring and any

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persons for whom they areresponsible are consideredconfidential.

The confidentiality of informationon victims’ new addresses, workplaces or the schools of theirchildren will not only protect theprivacy of the victims, but is alsoan important tool for their safety,as it prevents this informationfrom becoming known to theaccused.With this same aim in mind, theform for requesting a Court Orderproviding legal protectionstipulates that the victim isallowed to indicate the addressor telephone number of a thirdparty to whom the police forcesor the Court may send anycommunication or notification.

Furthermore, the Court maydecide, either ex officio or at therequest of the victim or the Officeof the Public Prosecutor, that theactions taken by the Court shallnot be public and that thehearings will be held behindclosed doors.

Right to access the financial aidforeseen for victims of violentcrime and sexual assault.(Law on Aid and Assistance forVictims of Violent Crime andSexual Assault (Law 35 datedDecember 11th, 1995))

Whenever the requirementsstipulated in the legislation aremet, female victims of genderviolence who have sufferedinjuries entailing a situation ofdisability lasting for more than 6months or which have given riseto a declaration of permanentpartial or total disability, or thosewho have been victims of a crimeof sexual assault and havereceived psychologicalcounselling, may access thefinancial and economic aidforeseen in the Law on Aid andAssistance for Victims of ViolentCrime and Sexual Assault (Law 35dated December 11th, 1995).

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Right to authorization oftemporary residence onhumanitarian grounds.(Articles 45, 46 and 47 of RoyalDecree 2,393 dated December30th, 2004, approving theRegulations for Fundamental Law4 dated January 11th, 2000, onthe rights and freedoms offoreigners in Spain and theirsocial integration)Foreign women who are victimsof crimes related with genderviolence and in an irregularsituation in Spain with regard totheir visas may obtain atemporary resident’s permit onhumanitarian grounds providingthat there has been a judgementhanded down decreeing thecommission of a crime of genderviolence and accrediting theirstatus as victims.

In addition, they may submit anapplication for such a residenceauthorization as soon as a CourtOrder providing for theirprotection has been issued intheir favour, in which case anyadministrative proceedings underway to impose a penalty inconnection with the said irregularstatus will be suspended.

This temporary residence permitshall be valid for one year anddoes not entail any authorization

for them to work. Work permitsmay be requested simultaneouslywith the application for aresident’s permit in exceptionalcircumstances or else during itsperiod of currency.

Right to independent residencepermits for members of re-grouped families.(Art. 41 of Royal Decree 2,393dated December 30th, 2004,approving the Regulations forFundamental Law 4 datedJanuary 11th, 2000, on the rightsand freedoms of foreigners inSpain and their socialintegration)

If the victim of gender violenceholds a temporary resident’spermit as a member of a re-grouped family associated withthe assailant spouse’s resident’spermit, then she may apply forand obtain an independenttemporary resident’s permit, oncea Court Order has been issued inher favour providing for legalprotection.

Registration of foreign women asjobseekers(Social Security order TAS/3698dated December 22nd, 2006,regulating the registration of

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foreign workers from outside theEU on the public employmentservices and at placementagencies)

Foreign women legally present inSpain who are victims of genderviolence and do not have a workpermit can obtain information atthe Employment Office of thePublic Employment Servicecorresponding to their locationon their rights to be registered asjobseekers and to have access

to the training and employmentmediation actions, as well as theActive Insertion Income.

Recognition of refugee status(Third Additional Provision of theRight of Asylum and RefugeeStatus Act (Law 5 dated March26th, 1984))Foreign women who have fledtheir country of origin due towell-founded fears of sufferingpersecution on gender groundsmay obtain the status of refugee.

Right to immediate access toschooling for children where achange of residence is requiredbecause of gender violence.(Article 5 of the Gender Violence(Comprehensive ProtectionMeasures) Act (Fundamental Law1 dated December 28th, 2004))

The children of victims of genderviolence affected by a change ofresidence resulting from acts ofgender violence are entitled toimmediate access to schooling attheir new place of residence.

Urgent processing of theprocedure for recognition ofadvances from the AlimonyPayment Guarantee Fund(Royal Decree 1,618 datedDecember 7th, 2007, on theOrganization and Operation ofthe Alimony Payment GuaranteeFund)The persons who arebeneficiaries of the advancesfrom the Alimony PaymentGuarantee Fund managed by theDirectorate-General for PersonnelCosts and Public Pensions at theMinistry of Economy and theExchequer are the minor childrenentitled to receive an alimonypayment acknowledged by acourt of law and unpaid, whenthey form part of a family unitwith economic resources andincome, calculated on an annualbasis and for all concepts, thatdoes not exceed the amountresulting from multiplying theannual amount of the Multi-Purpose Public Income Indicator(IPREM in its Spanish acronym) inforce at the time of the requestof the advance by the

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corresponding coefficientdepending on the number ofminor children included in thefamily unit.

The persons who arebeneficiaries are entitled to theadvance of the monthly sumdetermined by a court of law aspayment for alimony, with a limitof 100 euros per month, and thismay be received for a maximumof eighteen months.The procedure for recognition ofthe advance will be expedited asan urgent matter when theperson holding the custody ofthe minor(s) is a victim of genderviolence. For these purposes, thisstatus as a victim of genderviolence must be accredited byany of the following means:through the judgement finding

against their assailant; through acourt order making an interimproviding for the protection ofthe victim through the provisionalimprisonment of the assailant ora ban on his approaching thevictim; through the protectionorder in favour of the victim and,exceptionally, through the reportby the Office of the PublicProsecutor showing the existenceof indications that the womanmaking the report is a victim ofgender violence until such timeas a protection order is handeddown.

In the case of urgentproceedings, the maximum termfor resolving and notifying theperson making the request of theresolution of her application shallbe two months.

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Further information: at the Regional Government Equality Organizations, atRegional and Local Government Women’s Service Centres, at Offices forHelping the Victims of Crime in court buildings, at the Legal AdviceDepartments of the Bar Associations and at the various associations forwomen and foreigners.

Web site of Ministerio de Igualdad:www.migualdad.es

TELEPHONE NUMBERS FOR INFORMATION

• Andalusia 900.200.999

• Aragon 900.504.405

• Principality of Asturias985.962.010

• Balearic Islands 971.775.116

• Canary Islands 112

• Cantabria 942.214.141

• Castilla y León 900.333.888

• Castilla- La Mancha 900.100.114

• Catalonia 900.900.120

• Ceuta 900.700.099

• Extremadura 112

• Galicia 900.400.273

• La Rioja 900.101.555

• Madrid 012

• Melilla 952.699.214

• Region of Murcia 968.357.244/620

• Navarre 948.206.604112

• Basque Country 900.840.111

• Valencian Community 900.580.888

State-wide service016

People with hearing impairment:900 116 016


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