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Due diligence or undue nonchalance

This is an article written by Bertha Gaztelumendi and myself way back in November 2010. In it we remind the authorities that International Law demands not only ordinary law enforcement in cases of violence against women but also due diligence.

Gender violence, today, continues to be an unabated human rights concern. It is possibly the most widespread, occult and unpunished abuse committed, not only on a global scale, but also right in our own backyards. This type of violence is one of the most difficult to combat because of its unique multifaceted nature. The roots of gender violence can be found in the very fabric of our social, cultural, economic and political structures; where underlying norms have facilitated in perpetuating its growth; that combined with the denial of women’s civil, political, social and cultural rights and the consequential protection of those rights of men, all have played a part in breeding this type violence.

The most common crimes are those of human trafficking, sexual violence from partners or others, harassment and feminine genital mutilation, with its symbolic and especially scathing characteristics, to just name a few.

But for now, let us briefly centre our attention on intimate partner violence. According to World Health Organisation statistics, 70% of women killed in the world are murdered by their partners or former partners. This is the main cause of death and disability among women aged 16 to 44. In our current social environment the situation is quite worrying. Recently released data both in the Autonomous Community of the Basque Country and in Navarre have indicated that women are being subjected to ill treatment while perpetrators go unpunished in many cases, a situation that comes to light only in extremely serious cases or after many years have passed after the crime took place. Most of the violence against women remains unseen and up until very recently, its public knowledge was actively avoided.

Extreme cases of rape of women, while under custody of officers or security forces, have been researched and documented; the bulk of unresearched and undocumented cases of gender violence usually take place within the private sphere. The fact that they take place in private is the reason why we tend to centre our attention on this pattern of conduct, often forgetting that States also have their part of responsibility. International law is very clear in this sense.

The Global Declaration on the Elimination of Violence against Women, approved by the General Assembly of the United Nations in 1993, urges states “to exercise due diligence to prevent, investigate and, in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by the state or by private persons”. Thus, the central concept of due diligence is the criterion to determine if the state is effectively fulfilling its obligations to combat violence against women or not. It is not enough to have signed multiple treaties on the rights of women, like the Beijing Protocols, for instance, or to merely have approved laws. The state must also do everything possible to effectively avoid such violence, with special attention to preventive measures, which would go beyond the habitual standard of solely acting against the perpetrator once the crime has taken place.

The Spanish Organic Law on Integral Protection Measures against Gender Violence (Organic Law 1/2004) can be considered an important step towards improving institutional response to violence against women in Spain. However, almost 6 years after its enforcement, important rights guaranteed in this law have yet to become a reality. The lack of effective application of this law is due to, among other reasons, lack of finance and to the fact that the law does not focus on the perspective of fulfilment of human rights standards. Another important factor is the absence of an evaluation of the measures implemented with the participation of surviving women and their organisations.

Proof that the state does not act with due diligence, as demanded by international law, is the part of the integral law that has had the least follow-up in terms of government action and coincidentally enough happens to be the area that deals with prevention and education. These are all measures that are foreseen in general and abstract terms within the integral law but which then are not concreted or developed. Effective implementation of the right of survivors to adequate health services provided by professionals with the necessary training is also pending.

Obstacles impeding access to integral assistance resources still persist, especially for women with circumstances that constitute added risk (as in cases of drug addiction, alcoholism, mental illness etc.) The implantation of tribunals specialising on violence against women has not solved the existing obstacles in terms of access to justice. We are still judging violence on an individual instance basis, and habitual violence is still largely goes unpunished, in a context in which almost half of the reports of such violence are simply dismissed without diligent investigation. Victims are directly or indirectly urged to start penal proceedings with them having to provide proof, which is something that does not happen with other crimes.

Another especially important aspect has to do with the protection of victims. This is not always a reality because restraining orders are often denied to women at risk, and when such orders are issued, there are difficulties to guarantee their effective fulfilment by their aggressors, because of the insufficient police personnel devoted to this task. Especially worrisome is the inequality arising from the fact that the victim has to add a factor of mere luck in their passage through the courts, as there are judges or prosecutors with a higher or lower degree of sensitivity with respect to this kind of crime.

Also related to our specific social setting and also of concern is that according to data from the Spanish General Council of Judicial Power, 40% of the protective orders requested in the Courts of the Autonomous Community of the Basque Country are denied, while the Spanish average currently sits at 30%. It is imperative that these situations are studied in order to identify what factors produce these situations and then to apply, if necessary, appropriate corrective action.

In the Argituz Pro Human Rights Association we maintain that each contravention of human rights of equal characteristics should generate the same rights. And when we say the same rights we are referring to the same rights in terms of truth, justice and redress, in accordance with International Law. Big causes do not only need the symbolic push of legal projects; they also need a real push in terms of budgeting priority and rigorous evaluation, as solid proof of the fact that the content of such legislation is taken seriously. This is what “due diligence” is about when the lives of so many women are at risk.

By Bertha Gaztelumendi and Andrés Krakenberger, in representation of the Argituz Pro Human Rights Association

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