CEDAW/C/58/D/47/2012
the Convention. In accordance with article 72 (4) of its rules of procedure, it
must do so before considering the merits of the communication.
8.2 In accordance with article 4 (2) (a) of the Optional Protocol, the
Committee is satisfied that the same matter has not been and is not being
examined under another procedure of international investigation or settlement.
8.3 The author complains before the Committee that she and her daughter were
the object of violence by her ex-spouse and the father of her daughter during
several years and that this violence culminated on 24 April 2003 with the murder
of the child during one of the unsupervised visits authorized by judicial decision
some months previously. She asserts that prior to the murder she had made
known to the administrative and judicial authorities the abuses she was enduring
from her ex-husband and asked for protection.
8.4 The Committee notes that some of the abuses and complaints before the
authorities occurred before 6 October 2001, the date of entry into force of the
Optional Protocol for Spain. The Committee lacks jurisdiction ratione temporis
to examine these facts individually, in accordance with article 4, paragraph 2 (e)
of the Optional Protocol. Accordingly, the Committee will take them into
account only to the extent that they explain the context of events that occurred
after the entry into force of the Protocol for Spain.
8.5 The Committee also observes that after the entry into force of the Protocol
there were two especially important judicial decisions regarding the events
leading up to the child’s death, namely, the order of 5 May 2002 of the Juzgado
núm. 1 de Navalcarnero (Court No. 1 of Navalcarnero) authorizing the regime of
unsupervised visits; and the decision of 17 June 2002, denying the appeal by
which the author had objected to said regime. The latter decision was not subject
to appeal. Since these two decisions were taken after the entry into force of the
Protocol, the Committee is not barred under article 4, paragraph 2 (e) of the
Protocol from examining facts deriving from those decisions.
8.6 With respect to the exhaustion of internal remedies, the Committee notes
the observations of the State party that the author did not exhaust those
remedies, since she should have alleged before the courts the apparent existence
of a judicial error instead of a miscarriage of justice. With regard to this
objection, the Committee considers that it must determine whether, in light of
the Convention, the author exerted reasonable efforts to bring before national
authorities her complaints regarding the violation of rights arising from the
Convention. In that regard the Committee notes that, after the death of her
daughter, the author interposed several administrative and judicial appeals
alleging miscarriage of justice on the part of the State. In particular, two appeals
were addressed to the Ministry of Justice, one to the High Court (Audiencia
Nacional) and one appeal in cassation to the Supreme Court. In those appeals,
the author alleged improper functioning of the administration of justice because
the courts, the social services and the Fiscalía (attorney general) had failed in
their obligation of due diligence and had erred in allowing an unsupervised
visiting scheme between father and daughter. All of those appeals were rejected.
In addition, the author filed an appeal in amparo before the Constitutional Court
in which she alleged the violation of her fundamental rights with regard to the
circumstances that led to the death of her daughter and the lack of redress by the
State. This appeal was also rejected, as the Court found that it lacked
constitutional relevance. In light of the author’s explanations about the purpose
of her appeals, not limited to identifying judicial error, and considering that the
State party has not pointed to other possible legal avenues that could have been
effective to respond to the specific and complete demands of the author, the
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