Spanish Law 5\/2008, of 24 April, on the right of women to eliminate violence against women [1]<\/a>1 \u2014 Official Gazette of the Government of Catalonia (DOGC, Diari Oficial de la Generalitat de Catalunya), no. 5123, May 8, 2008; Spanish Official Gazette (BOE, Bolet\u00edn Oficial del Estado), no. 131, May 30, 2008. Consolidated text [available online].\n<\/span><\/span> recognises economic violence in its Article 4.2. e<\/em>) as a form of economic violence, defining it as the intentional and unjustified deprivation of resources for the physical or psychological well-being of a woman and, where appropriate, of her children, in the repeated and unjustified non-payment of child support ordered in the event of separation or divorce, in hindering the disposal of own or shared domestic and\/or relationship resources, and in the illegitimate appropriation of the woman’s property. This form of violence perpetuates dependency on the aggressor and reduces women’s chances of escaping violence.<\/p>\n\n\n\n The Catalan law was ahead of the Council of Europe in the expanded definitions of violence against women, which \u2014compared to the narrow framework of the national law\u2014 were avant-garde and in line with the international legal framework for the protection of women that began in 1979 with the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW Convention) [2]<\/a>2 \u2014 Spanish Official Gazette (BOE, Bolet\u00edn Oficial del Estado), no. 69, May 21, 1984, pp. 7715 to 7720 (6 pp.) [available online].\n<\/span><\/span> through the Istanbul Convention.<\/p>\n\n\n\n The amendment to Spanish Law 5\/2008, of 24 April, on the right of women to eliminate violence against women, driven by Spanish Law 17\/2020, of 22 December, introduces concepts (such as vicarious violence and economic violence, due diligence and institutional violence) that keep it in this well-deserved position. Despite the limitation of competence imposed on the autonomous communities by the Spanish Constitution (SC) in matters of criminal and procedural legislation (Art. 149.1.6), which is reserved exclusively for Spain, Law 5\/2008 has an eminently preventive and welfarist purpose. It does not criminalise offences, but it has an important responsibility in Catalan society to prevent violence against women and to avoid secondary victimisation and, accordingly, so-called institutional violence in the context of the process.<\/p>\n\n\n\n Economic violence is a form of gender-based violence which perpetuates dependency on the aggressor and reduces women’s chances of escaping from it<\/p>\n<\/blockquote>\n<\/div>\n\n\n\n Globally, economic violence is covered by the Istanbul Convention. Defining violence against women as \u201ca violation of human rights and a form of discrimination against women\u201d, Article 3(a) specifies that it means \u201call acts of gender-based violence that involve or are likely to involve physical, sexual, psychological or economic harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life\u201d.<\/p>\n<\/div>\n<\/div>\n\n\n\n Despite the fact that the Istanbul Convention has been in force in Spain since 2014 and integrated into our legal system, in accordance with Article 96.1 of the Constitution and Article 28.1 of Spanish Law 25\/2014, of 27 November, on treaties and other international agreements, in the 17 years that the State Organic Law 1\/2004, of 27 December, on comprehensive protection measures against gender-based violence has been in force, (LOPIVG) [3]<\/a>3 \u2014 Spanish Official Gazette (BOE, Bolet\u00edn Oficial del Estado), no. 313, December 29, 2004 [available online].\n<\/span><\/span>, and after multiple opportunities for reform, economic violence has not been included, nor has the amendment of the Criminal Code been compelled to expressly regulate it in Spanish law, as one of the types of violence against women. As far as the LOPIVG is concerned, gender-based violence refers \u201conly\u201d to physical and psychological violence, including attacks on sexual freedom, threats, coercion or arbitrary deprivation of liberty.<\/p>\n\n\n\n The crime of non-payment of child support is regulated in Article 227 of the Spanish Criminal Code, but in a neutral way, decontextualised from possible violent scenarios and not classified as gender-based economic violence, despite the fact that the available statistical data demonstrate the high proportion of women who endure some form of economic violence by their partners or ex-partners. The existence, therefore, of an international obligation to regulate it and the data available to us, prompted the legislative initiative presented below, as a concrete expression of due diligence in the exercise of judicial activity.<\/p>\n\n\n\n According to the Macrosurvey on Violence against Women 2019 [4]<\/a>4 \u2014 Macroencuesta de violencia contra la mujer 2019 (Macrosurvey on violence against women 2019)\u00a0[available online]. Spanish Ministry of Equality; General Directorate of Awareness, Prevention and Studies of Gender Violence; Delegation of the Spanish Government against Gender-based Violence.\n<\/span><\/span>, conducted by the Government Delegation against Gender-Based Violence, 11.5% of women over the age of 16 have suffered such violence at some point in their lives. The Spanish Ministry of the Interior included economic violence as one of the factors that shape violence against women in the Report on Violence against Women 2015-2019 [5]<\/a>5 \u2014 Informe sobre violencia contra la mujer 2015-2019 (Report on violence against women 2015-2019) [available online]. Spanish Ministry of Interior; State Secretary for Security; Coordination and Studies Office.\n<\/span><\/span>, in which the State’s security forces and bodies participated. This report includes reports from 2015 to 2019, in which 601,416 reports of women victims of violence against women aged between 31 and 40 years old were counted. Of these, 18,235 correspond to the non-payment of the court-ordered child support.<\/p>\n\n\n\n Economic violence can occur during the relationship or after the relationship has broken down, exclusively or together with other forms of violence. This includes violence through the control of the family economy, including bank accounts, through the so-called economic exploitation of women, who may find themselves deprived of access to their own wages or forced to work in family businesses without the right to wages or social benefits, and through the so-called labour sabotage, which curbs women’s job expectations by imposing care tasks and roles associated with the female gender and motherhood.<\/p>\n\n\n\n Seeing one’s wages garnished or losing one’s home due to non-payment by the other obliged party, forcing women to continually resort to legal proceedings to obtain full or timely payment of child support or any other expense from which the basic needs of their children depend, even those that affect their education, or simply forcing them to contact the aggressor to demand payment of expenses to which he is obliged, constitute \u2014together with other cases in which the economic relations of the couple do not end with the rupture of the relationship\u2014 various forms of economic gender-based violence. These assumptions are further aggravated by structural gender discrimination that sustains high wage gaps, occupational segregation, precariousness of female employment, a higher incidence of unemployment and informal work, and less participation in the decision-making bodies of companies and organisations in general. In judicial proceedings it can also often be seen that they may be linked to crimes of asset stripping to conceal income in the face of alimony payment obligations (Spanish Supreme Court Ruling STS no. 914\/2021, of 17 March) [6]<\/a>6 \u2014 Judgement of the Supreme Court, Second Chamber, no. 914\/2021, March 17 [available online].\n<\/span><\/span>.<\/p>\n\n\n\n Non-payment of pensions or any other child support expenses, the economic exploitation of women and the labour sabotage are forms of economic gender-based violence<\/p>\n<\/blockquote>\n<\/div>\n\n\n\n One of the most serious consequences is the creation or securing of a victim’s economic dependence on her aggressor, which ends up affecting her capacity to generate financial resources and acquire economic self-sufficiency, not only for herself but also for her children [7]<\/a>7 \u2014 This means that economic violence, through the instrumentalisation of children to generate psychological suffering in mothers, becomes vicarious violence, according to the concept introduced by the Spanish Law 5\/2008 in the reform carried out by Spanish Law 17\/2020, Article 4.2. h).\n<\/span><\/span> and which in many cases conditions her decision to report or to persist in the pursuit of criminal proceedings against the perpetrator. Economic violence affects both women and their children, making them dependent on the abusive father and giving them an instrument of power that leaves them at the mercy of his decisions.<\/p>\n<\/div>\n<\/div>\n\n\n\n The Judgement of 22 July 2021 of the Criminal Court No. 2 of Matar\u00f3 in Barcelona recognised economic violence as gender-based violence for the first time in Spain [8]<\/a>8 \u2014 For further information, read the article “Un juzgado Penal de Matar\u00f3 solicita tipificar la ‘violencia econ\u00f3mica’ como modalidad de violencia de g\u00e9nero” (“A Criminal Court in Matar\u00f3 requests to classify ‘economic violence’ as a modality of gender-based violence”), published on poderjudicial.es on October 8, 2021 [available online].\n<\/span><\/span>. By means of this Judgement, as the sentencing judge, I submitted to the Spanish Government a judicial legislative initiative (Reasoned Statement) through Article 4.2 of the Criminal Code [9]<\/a>9 \u2014 Article 4.2 of the Criminal Code: \u201cIn the event that a judge or court, in the exercise of its jurisdiction, mentions any action or omission that, without being punished by law, deems worthy of repression, it must refrain from any procedure on this action or omission and must explain to the Government the reasons why it believes that it should be subject to criminal sanctions\u201d.\n<\/span><\/span> for the criminalisation of economic violence (in its various forms and, specifically, non-payment of pensions) as a form of gender-based violence and for the regulation of comprehensive reparation clauses for the victims that include the economic harm effectively caused and also what is known as social harm.<\/p>\n\n\n\n\n
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Judicial legislative initiative as a legal response to state legislative omission<\/h5>\n\n\n\n