While jurisdiction on issues affecting spouses and their children has traditionally been attributed to the Courts of First Instance, the entry into force of the Organic Law 1/2004, passed on 28thDecember on Comprehensive Protection Measures against Gender Violence, has established special rules to determine the cases in which the Court of Violence against Women has jurisdiction over civil matters affecting the family.
Article 44 of the aforementioned Act on Comprehensive Protection Measures against Gender Violence adds article 87 ter to the Organic Law of the Judiciary and specifically establishes those cases in which the Courts of Violence against Women have exclusive jurisdiction on certain civil matters. Thus, these tribunals have been endowed with powers to deal with the following issues on civil matters:
– Filiation, maternity and paternity
– Nullity, separation and divorce
– Parent-child relations
– Adoption or modification of family measures
– Child custody
– Assenting to an adoption
– Opposition to administrative decisions regarding the protection of minors .
According to the provisions laid down in Article 87 ter.3 LOPJ, the Courts of Violence Against Women shall have jurisdiction over the aforementioned matters provided they meet all of the following requirements:
– That any party to these civil proceedings is or was a spouse, or a woman who is or has been linked to the perpetrator of the crime by a sentimental relationship, with or without cohabitation, an offspring, a minor or disabled who lives with the couple, or who is subject to the authority, guardianship, foster care or custody of the wife or partner.
– That an action described as domestic violence has taken place.
– That a party to this procedure is charged as a perpetrator, inductor or necessary accomplice.
– That criminal prosecution for felony or misdemeanor related to a result of an act of violence against women has been initiated before the Court of Violence against Women.
In many cases, for instance, it is possible that civil proceedings for divorce or parent-child measures are being transacted before the Court of First Instance and criminal proceedings due to violence within the family are followed before a Court of Violence against Women. In these cases, as we mentioned, the Court of First Instance should restrain from transacting this file and stand down on this case, acknowledging the jurisdiction of the Court of Violence against Women. In addition to this, when the Court of Violence against Women which is dealing with a matter of violence has knowledge of the existence of a civil procedure referred to in Article 87 ter of the Judiciary, followed between the same parties, it shall request the Court of First Instance to step down and acknowledge its jurisdiction.
So far, the issue seems to be relatively clear. However, doubts begin to emerge with regards towhen can a Court of First Instance acting as a Family Court stand down in favour of the Court of Violence against Women? Up to which point in the proceedings is it possible or technically feasible for the Court of First Instance to restrain from transacting a file in favour of the Court of Violence against Women in Family Law- related matters?
If we abide the provisions of Article 49a of the Civil Procedure Act, we may conclude that jurisdiction may be passed to the Court of Violence Against Women in the event that the trial sessions have not commenced. But the question is not that simple and the dilemma is whether the legislator refers to the trial session within a criminal proceeding or if the article refers to “trial” meaning the main hearing in a civil proceeding.
In criminal cases it is important to note that once the instruction or investigation phase finalises, the proceedings are continued at the Provincial Court, so a literal interpretation of the provision indicates that the Courts of Violence Against Women lack jurisdiction to hear the civil case from that moment onwards.
However, until when is it possible for the Court of First Instance to stand down in favour of the Court of Violence Against Women?
There is currently a theoretical discussion among authors with regards to this matter; part of the doctrine considers that when applying article 49.bis 3 of the Law of Civil Procedure, the civil Judge has jurisdiction once the trial session has commenced, unless the Court of Violence Against Women requests the Court of First Instance to stand down from the procedure, and the other part of the doctrine establishes that once the trial sessions have commenced there is no possibility whatsoever for the civil Judge to stand down. In this case and in order to solve this matter, we must apply the general principle of immediacy that governs both civil and criminal procedures and in virtue of which we must make a holistic interpretation of article 49.bis.1 and conclude that it must be understood both in the sense that the Court of First Instance cannot stand down once the trial session has commenced and in the sense that the Court of First Instance cannot stand down once the Court of Violence Against Women has concluded the investigation phase and the legal file has been sent to the Provincial Court.
The reason for this double interpretation of “trial session” is clear: if the Court of First Instance stands down once the trial session has commenced, the general principle of immediacy is breached, the consequence of this being that the procedure would be declared void and it would have to be taken back to the moment prior to the initiation of the trial session. In addition to this, article 49.bis.1 must be interpreted under the scope of the true intention of the Law, which is to grant the victims of domestic violence with effective measures against mistreatment, without using the ambiguity of procedural laws in detriment of the victims.
As a conclusion, when the Court of First Instance is transacting a civil procedure while a criminal procedure is being transacted between the same parties by the Court of Violence Against Women, and when the trial session has not begun, the Court of First Instance must stand down from the proceeding and send the file to the Court of Violence Against Women, since this Court has exclusive jurisdiction to hear these cases when the requirements laid down in article 87.ter of the Organic Law for the Judiciary are met.