Summary
In 2003, seven-year-old Andrea was murdered by her father, who subsequently committed suicide, during a court-approved parental visitation. Andrea’s mother, Andrea González, had reported over forty-seven (47) instances of physical abuse to the police and sought restraining orders against him to protect herself and her daughter – but the father had refused to accept supervised visitations and a court of law eventually allowed for the unsupervised visits that led to the death of Andrea. After the murder, Ms. Gonzalez brought suit against the Spanish authorities in national court for their failure to take the history of domestic violence into consideration when determining visitation scheme. In April of 2011, the state court ruled in favor of the Spanish authorities. Ms. Gonzalez then filed a complaint to the CEDAW Committee. The Committee held in favor of Ms. Gonzalez and against the Spanish authorities for their failure to exercise the necessary diligence to prevent the violation of Convention on the Elimination of Discrimination against Women (CEDAW Convention). The Committee found that the State had specifically violated articles 2 (a), (d), (e), and (f), and well as 5 (a) and 16 (paragraph 1) of the CEDAW Convention.
In February of 2015, Ms. Gonzalez presented the CEDAW findings to the Spanish Ministry of Justice requesting that they comply with the orders within the opinion. Her petition was met with silence from the Administration. This silence ultimately led Ms. Gonzalez to the Supreme Tribunal (Tribunal Supremo).
The issues before the Supreme Tribunal were whether the proper remedy for the claim for liability of the State for abnormal functioning of the administration of justice was to obtain an administrative decision requiring compliance with the CEDAW Committee Views, and whether the administrative refusal -by silence- violated the fundamental rights invoked by Ms. Gonzalez.
The Court found that the Spanish authorities were required to act in accordance with the CEDAW Committee Views. Article 24 of the CEDAW Convention, the Court reiterated, emphasized the pledge all ratifying States made to adopt the necessary means for upholding and protecting the fundamental rights outlined in the Convention. Because there currently exists no specific and/or autonomous channel within the Spanish legal system to make effective the recommendations of CEDAW Views, autonomous compliance is prevented. However, the Committee Views themselves can serve as the premise for filing a liability claim against the State for negligence in its failure to diligently establish measures to protect the fundamental rights delineated in the CEDAW Convention.
The state was ordered to pay 600,000 euros for moral damages to Ms. Gonzalez. The Court found that the rights to equality and non-discrimination on the basis of sex had been violated due to the administration’s silence and inaction in establishing measures that would ensure that such rights were adequately protected. In the context of Ms. Gonzalez, the Government failed to consider domestic violence as a factor when determining the safety and best interest of her child in terms of parental visitation, thus failing to exercise diligent care in the protection of certain fundamental rights.
