Yes, civil protection orders are available under Spanish legislation. According to Organic Law 1/2004 and Article 544-ter of the Criminal Procedural Law, the civil protection orders that can be adopted are as follows:
- the use and enjoyment of the house, the furniture and the family trousseau
- the attribution of the child custody
- the suspension of the exercise of parental authority
- the suspension of the regime of communications, visits and stays of the father with the children
- fixing a food allowance
- any other measure that is necessary to remove minors from danger or avoid harm
Article 544-ter of the Criminal Procedural Law states that a civil protection order request can be made by the victim herself, her closest relatives, her lawyer or the Public Prosecutor's Office.
Without prejudice to the duty to report, the social services that know the situation must inform the judicial body or the Public Prosecutor's Office so that the procedure for the adoption of the protection order can be initiated or urged.
In this regard, it is advisable to request the protection order at the same time the complaint is filed, although it can also be requested later.
Yes. Under Article 64 of Organic Law 1/2004, the judge may order the mandatory departure of the accused for gender-based violence from the domicile in which the family unit or residence has been established, as well as the prohibition to return to it.
The same article establishes that the judge may prohibit the accused from approaching the victim in her home, workplace or any other place that is frequented by her.
In addition to the civil protection orders mentioned, the Comprehensive Protection Against Gender-Based Violence Law provides for specific measures to protect the dignity and privacy of the victim. Under this law, it is established that the personal data of the victim, of her descendants and the people who are under her custody are reserved. The confidentiality of the new address, workplace or schools of the children not only preserves the privacy of the victim, but it is also an important instrument for their safety by preventing this data from becoming known to the accused.
For this same purpose, the protection order application form provides that the victim may indicate a third person's address or telephone number to which the security forces or the judicial bodies may send communications or notifications.
Likewise, the court may decide, ex officio or at the request of the victim or the public prosecutor, that the judicial proceedings are not public and that the hearings are held behind closed doors.
Additionally, gender-based violence victims will have the right to be informed, to free social and legal assistance, employment rights, economic aid rights and the right to immediate schooling for victims' children.
Finally, in addition to civil orders, the precautionary criminal measures may include one or more of the following: (i) the aggressor's eviction from the family home; (ii) the aggressor's prohibition from living in a certain town/city; (iii) the aggressor's prohibition from coming within a certain distance of the victim and/or her family members or other persons; (iv) the aggressor's prohibition from contacting the victim and/or her family members or other persons by any means, including letter, telephone, etc.; (v) the aggressor's prohibition from going to certain places, including the victim's place of work, children's schools, etc.; (vi) the omission of data relating to the victim's address; (vii) the court protection of the victim in court liaison offices; and (viii) the confiscation of weapons and the prohibition of holding them.
(Articles 5, 18, 19, 20, 21, 27 and 63 of Organic Law 1/2204, on Comprehensive Protection Against Gender-Based Violence; Article 232.2 of the Organic Law of the Judicial Power; Article 15.5 of Law 35/1995, on Aid and Assistance to Victims of Violent Crimes and Against Sexual Freedom; Articles 2.a) and 3.1 of Organic Law 19/1994, on the Protection of Witnesses and Experts in Criminal Cases.)
Civil protection orders may be requested by the victim or their legal representative, or by the public prosecutor, when there are minor children (Article 544-ter 7 of the Code of Criminal Procedure).
Yes, Article 544-bis and -ter of the Code of Criminal Procedure grants protection to family members or other affected persons.
Under Article 544-ter 7 of the Code of Criminal Procedure, the civil measures contained in the protection order will have a temporary validity of 30 days.
The Observatory Against Domestic and Gender-Based Violence provides diverse information on gender-based violence in Spain.
The Spanish government has published a guide gathering the specific rights of gender violence victims recognized through the various applicable legal texts: https://www.mscbs.gob.es/va/ssi/violenciaGenero/Recursos/GuiaDerechos/DOC/GUIADERECHOSMUJERESVICTIMASVIOLENCIAGENERO.pdf
Yes (Article 109 of the Code of Criminal Procedure); please see the answers in Section 4.4. below.
The hearing must be held within a maximum period of 72 hours from the submission of the request (Article 544-ter 4 of the Code of Criminal Procedure).
In case of emergencies, the judge may adopt interim measures based on criminal law proceedings. The investigating judge will adopt these and they will be adjusted to the need of the victim (Article 544-ter 5 of the Code of Criminal Procedure).
Judges hold the discretion to grant civil protection orders and other protective measures within the framework of the applicable laws and respecting principles, such as proportionality.
The law does not foresee any age limitations regarding the order request.
Women victims of gender-based violence have the right to free legal assistance, regardless of their resources to litigate. This assistance will be provided immediately in those administrative procedures that are related, that derive from or that are a consequence of their condition as victims.
For the purposes of granting the benefit of free justice, the status of victim will be acquired when a complaint is filed or the criminal procedure is initiated and it will be maintained as long as the criminal procedure remains in force or when, after its completion, it has been issued a guilty verdict.
(Article 20 of Organic Law 1/2004, on Comprehensive Protection Against Gender-Based Violence; Law 1/1996, of dated 10 January, on Free Legal Assistance; Royal Decree 996/2003, which approves the Free Legal Assistance Regulation).
Additionally, according to Article 100 of the Code of Criminal Procedure, the commission of a crime or misconduct obliges the damages caused to be repaired. This civil responsibility includes the restitution of the thing, the repair of the damage and the compensation of material and moral damages. In the event that the victim has exercised civil action to demand this civil liability in the criminal process, in the judgment issued and provided that it is condemnatory, in addition to the penalty that is imposed on the perpetrator, the civil liability for the physical, psychological or moral damages caused to the victim by the crime will be established.
However, the victim can reserve her right to exercise civil action in a different process before thecourts of civil order, so that in criminal proceedings civil action will not be exercised.As explained above, victims will have the right to claim damages caused. In addition, regarding employment, the following rights are recognized:
- The worker victim of gender violence will have the right, in the terms provided in the Workers' Statute, to the reduction or reordering of their working time, to geographic mobility, change of workplace, suspension of the employment relationship with a job reservation and the termination of the employment contract.
- In the terms provided in the General Law of Social Security, the suspension and termination of the employment contract provided in the previous section will give rise to a legal situation of unemployment. The suspension time will be considered the effective contribution period for the purposes of social security and unemployment benefits.
- Absences or lack of punctuality at work motivated by the physical or psychological situation derived from gender violence will be considered justified when so determined by the social care services or health services.
- Regarding self-employed women victims of gender violence who cease their activity to make their protection effective, their contribution obligation will be suspended for a period of six months, which will be considered effective contribution for the purposes of social security benefits.