CEDAW/C/58/D/47/2012
7.5 The information included by the author in her initial communication
regarding the context of the events is important to show that the lack of
diligence in her case is typical of the lack of diligence that habitually
characterizes domestic violence cases. When there is evidence of systematic
patterns of violence against women, or when the incidence of violence against
women is inordinately high, as reflected in a high rate of domestic violence, it is
clear that the State knows or should know of the risks faced by women who have
complained of violence from their partners or former partners. Consequently it
is unacceptable for the State to argue that the risk faced by the author and her
daughter was unforeseeable. The State not only knew of the situation in Spain
with regard to domestic violence, but also knew specifically about the situation
of the author and her daughter.
7.6 In order to discharge its duty of diligence, it is not enough for the State to
adopt legislation on the subject; it is necessary for the legislation to be applied.
In Spain, State negligence in protecting women and minors from domestic
violence persists to the present time, despite the adoption of legislative
measures. In addition, legislation is still lacking to establish a system of redress
for victims when there has been negligence. The law is also deficient in regard
to protecting minors who live in violent settings and who are therefore also
victims of the violence.
7.7 The State party makes no comment on the lack of a satisfactory assessment
of the best interests of the child or the violation of her right to be heard in
judicial proceedings. On many occasions Andrea showed fear of her father,
owing to the climate of violence to which she had been exposed and she
consistently rejected physical and emotional contact with him. This meant that
the authorities and courts had to evaluate whether the visits with her father
respected her right to life and to live free of violence, in addition to the principle
of giving priority to the interests of the child.
7.8 The author requests the Committee to make the following recommendations
to the State party: (a) complete redress and/or appropriate compensation,
including, inter alia, payment with interest of unpaid child support;
reimbursement with interest for the rent the author had to pay during the three
years she was denied use of the family dwelling; pecuniary and non-pecuniary
costs; symbolic redress, including, inter alia, the creation of a fund in memory
of Andrea for child victims of domestic violence, tailored to organizations active
in that field; (b) compensation to the author for physical and mental damages;
(c) impartial and exhaustive investigation into the failures that occurred in
implementing orders of protection, including ascertaining the responsibility of
public officials; (d) public apology to the author for the failures in protecting her
and her daughter; (e) impartial and exhaustive investigation into the failures that
occurred regarding Andrea’s right to be heard; (f) impartial and exhaustive
investigation into the failures that occurred regarding the authorization of
unsupervised visits. The author also asks that a recommendation be made to the
State party to review its legislation on domestic violence, including aspects
relating to the application of measures of protection, response to complaints of
domestic violence and visiting and custody rights of an abusive parent.
Deliberations of the Committee
Consideration of admissibility
8.1 In accordance with rule 64 of its rules of procedure, the Committee is to
decide whether the communication is admissible under the Optional Protocol to
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