Gender-based violence: a remedy case triggered by the CEDAW Committee
Author | MSc. Manuel Fanega |
Pages | 90-102 |
90
Gender-based violence: a remedy case
triggered by the CEDAW Committee
MFLLM
Summary
1. Introducing the case
2. State negligence in the death of a child
TheodysseyyearlongghtagainsttheState
4. Discussion: softness becomes hardness, universal becomes local
5. Concluding remarks
1. Introducing the case
ÁngelaGonzálezCarreñodidwhatgovernmentsnormally advise
she reported a crime. Furthermore, she did so repeatedly, informing the
police multiple times that she was afraid of her husband. However, for-
ty-seven reports were not enough to prevent the murder of her 7-year-
olddaughterÁngelabelievedthatthegovernmentwasresponsiblefor
thefailuretoprotectherdaughterslifesosheledacomplaintagainst
the administration. When her case was dismissed, she sought justice in
the Spanish courts, but again without success. It was not until the Com-
mieeontheEliminationofallFormsofDiscriminationagainstWomen
actedthattheSpanishcourtsnallyadmiedÁngelawasright
This essay wrien in honour of Professor María Acale an Ibero
Americanicon intheelds ofCriminalLaw and thedefence of wom-
en’s rights, explores how international instruments can be leveraged to
uphold human rights. First, as regards the available options, the com-
plainant appealed to a quasi-judicial agency rather than to the European
* Honorary Research Assistant, Department of Public International, Procedural
and Criminal Law, University of Cadiz, Spain. Member of the European Society
of Criminology. manuel.fanega@uca.es
91
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Court of Human Rights (ECtHR).1Secondregarding the eective-
ness of the instrument, the Convention on the Elimination of all Forms of
Discrimination against Women (CEDAW or the Convention)2 is a fully
binding treaty that must be enshrined in the domestic legal system and
implemented in the day-to-day work of the State. Although the deci-
sionsofitsCommiee constitute non-coercive recommendations, they
mayexertaconsiderableinuenceonStates
In fact, this case prompted a national court to acknowledge a State
violationofwomensrightssupportingtheideathattheCommieeis
ahelpfulmechanismABRIL STOFFELS3 discussed this topic in 2015,
questioningthe eectiveness of CEDAWdecisionsand noting Spains
failure to implement the Commiees recommendations regarding
Ángelascase4 which at that time wastrueHoweverÁngelasstrug-
gle did not end there. In 2018, after a 15-year-long odyssey, the Spanish
SupremeCourtaccepted theCommiees decisionEventuallyÁngela
was vindicated, her case resolved and she obtained a remedy.5
1 Although Spain has international human rights courts, some other rights
and human rights protection systems do not cfr BOYLE Katie HUGES
Edel, “Identifying routes to remedy for violations of economic, social and cul-
tural rights”, The International Journal of Human Rights p DOI
10.1080/13642987.2017.1390304.
2 UN General Assembly, Convention on the Elimination of All Forms of Discrimination
against Women, 18 December 1979, United Nations, Treaty Series, vol. 1249, p. 13,
availableat hpswwwrefworldorgdocidaebhtmlaccessed April
Articleestablishes theCommieeon theEliminationof allFormsof
Discrimination against Women. The acronym CEDAW may refer to both the Con-
ventionandtheCommiee
3 ABRILSTOFFELSRuthTheeectivenessofCEDAWCommieeDecisions
Ángela González Carreño v Spain in Spanish Yearbook of International Law,
NoppDOIsybilavailableathpwwwsybil
es/documents/ARCHIVE/Vol19/27_Abril.pdf [accessed 19 April 2019].
4 The individual complaints procedure is an optional protocol, see: UN General As-
sembly, OptionalProtocoltotheConventionontheEliminationofAllFormsofDiscrim-
ination Against Women October UnitedNations TreatySeries vol
p availableat hpswwwrefworldorgdocidaebachtmlaccessed
April 2019].
5 SeeSHELTONsdenitionof aremedy remedies are the processes by which argu-
able claims of human rights violations are heard and decided, whether by courts, admin-
istrative agencies, or other competent bodies. [A] second notion of remedies refers to the
outcomeofthe proceedingstherelief aordedthe successfulclaimantin SHELTON
Dinah, Remedies in International Human Rights Lawnd ed Oxford University
PressOxfordp
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In the discussion section, I shall analyse the implications of the case,
for instance highlighting strategies to advocate for human rights and
revisiting the provisions that link constitutional law to international
human rights law. I shall also examine how these international instru-
mentscaninuence criminalpolicies Thiscase isimportant becauseit
demonstrates that non-judicial or soft instruments, such as the UN hu-
manrightstreatymonitoringbodiesarebeginningtoexertmoreinu-
enceonState approachestohumanrightsHoweveritisnot sucient
for States to sign a treaty if the political will does not exist to comply
with the terms; not every mother is strong enough to demand justice for
fteenyears
2. State negligence in the death of a child
ÁngelamarriedFRCinBythenhehad alreadybeen violent
towards her. Andrea, their daughter, was born that year. In 1999, F.R.C
threatenedhiswifewithaknifeintheirchildspresenceÁngelaleftthe
marital residence and reported the incident to the authorities. F.R.C was
notconvicted but Ángela managed to escape she obtained a divorce
and custody of Andrea. F.R.C was granted use of the marital residence
and visiting rights.
Nevertheless, she continued to be the victim of his harassment, in-
timidation and death threats. Furthermore, the father used his visits
withhis daughter as a vehicle for his violence asking about Ángelas
privatelifeandinsulting herFRCwasonlypunishedwithane
“On one occasion, in 2000, he approached them at the entrance to the building
where they lived, insulting ÁngelaandaemptingtopullthegirlawayThe
[mother] managed to get into her car with Andrea and go to the police. F.R.C.
followedthemanduponreachingthe policestationinfront ofapoliceocer
continued to insult her, threatening to kidnap the girl. Seizing her by the hair
while Ángelahad Andrea in her arms, he tried to throw her to the ground.”6
ByÁngelahadled complaints requesting restraining or-
derstokeeptheoenderawayfromherandtheirdaughtersupervised
visits and the payment of child support. Eventually, a restraining order
oftenbreachedwasissuedonÁngelasbehalfHowevertheorderwas
notextendedto Ángelasdaughterbecausethe courtconsidered thatit
6 CEDAW, Comm. No. 47/2012, González Carreño v. SpainDecisionoftheCommiee
on the Elimination of Discrimination against Women, CEDAW/C/58/D/47/2012,
2014, para. 2.4.
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“hampered the visit regime and could seriously harm relations between father
and daughter”.7ThesedecisionsnegativelyaectedAndreaswellbeing
For example, she stated “that she did not like being with her father because he
did not treat her well and tore up her paintings”.8
Thenin a dierentcourtestablished thatthevisits shouldbe
supervised by social services. However, both social services and a psy-
chological evaluation subsequently recommended non-supervised vis-
its, despite the continuous violent incidents perpetrated by the paranoid
F.R.C.9 Hence, a year later, the court changed its mind and visits became
unsupervisedÁngelaappealedagainstthisdecisionwithoutsuccess
OnthemorningofAprilaftera courthearingontheuse of
the residence, “F.R.C. approached her and told her that he was going take away
what maered most to her.10 That afternoon, during an unsupervised
visitthefathershotÁngelasdaughterThenhecommiedsuicide
3. The odyssey: 15-year-long fight against the State
ExactlyoneyearlaterÁngelaledamiscarriageofjusticeclaimbe-
fore the Ministry of Justice, arguing that Andrea might otherwise still be
alive. However, the Ministry dismissed her claim on procedural grounds
in 2005.11 She appealed this administrative decision that year before the
same body, obtaining the same answer in 2007.
ÁngelastartedtoghtagainsttheSpanishMinistry ofJusticeFirst
sheledanappealbeforetheHighCourtagainsttheadministrativede-
cision, but her appeal was denied. Then, based on the same governmen-
tal decision, she went a step further and appealed to the Supreme Court,
but again without success.
Certain civil and political rights receive special protection in the
SpanishConstitutionviaspecicproceduresTherecurso de amparo is an
appealthatcanbeledbefore theConstitutional Courtin theeventof
violations of articles 14-30 of the Constitution.12 In this case, the right to
7 Ibid., para. 2.7.
8 Ibid., para. 2.8.
9 Ibid., para. 2.11.
10 Ibid., para. 2.16.
11 Ibid., para. 2.19.
12 Cfr. article 53 (2) of “The Spanish Constitution”, BOE, No. 311, 29 December 1978,
pp available at hpswwwboeeslegislaciondocumentosCon-
stitucionINGLES.pdf [accessed 16 April, 2019].
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lifetherighttoaneectiveremedyandtherightofnondiscrimination
had been violated. Nevertheless, the Constitutional Court declined to
hear her appeal “as it lacked constitutional relevance”.13
Thus, all her appeals had been rejected, and all domestic remedies
had been exhausted. It should be noted that the European Convention of
Human Rights (ECHR)14 includes the aforementioned rights. However,
instead of going to the ECtHR, whose sentences are binding for Member
States, she turned to a universal human rights protection body: the Com-
mieeontheEliminationofDiscriminationagainstWomen
The CEDAW found that Spain had not ensured equality, had not ad-
opted appropriate criminal policies, had failed to protect against dis-
criminationeectivelyhadnotensuredthat thepublicauthoritieshad
acted to protect against discrimination against woman, had not modi-
edrulesorprocedureswhichconstitutediscriminationagainstwomen
had not fully observed the CEDAW recommendation on gender-based
violence15 and had failed to take appropriate measures to change sexist
culturalpaernswithinitssocietyandeliminatediscriminationinmat-
ters relating to marriage and family.
13 Constitutional Court orders of 13 April 2011 and 17 June 2011. See: Spanish Su-
preme Court, Cassation appeal 1002/2007, Sentence 1263/2018, 17 June 2018,
p available at hpwwwpoderjudicialessearchcontenidosactionactio
ncontentpdfdatabasematchTSreferencestatsQueryId
calledfromsearchresultslinksFoptimize-
publicinterfacetrueaccessedApril
14 COUNCIL OF EUROPE European Convention for the Protection of Human
Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14”, 4
November 1950, ETSavailableathpswwwrefworldorgdocidaebb
html [accessed 19 April 2019].
15 OnCEDAWGeneralRecommendationNocfrUnitedNationsReport
oftheCommieeontheEliminationofDiscriminationagainstWomenEleventh
session”, General Assembly, Ocial Records, 47th Session, Supplement No. 38,
ANewYorkpp
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Fig. 1. The complainant’s odyssey.
The CEDAW published this decision together with recommendations
toawardÁngelacompensationandtoidentifyandchangewhateverwas
necessary to avoid future violations. However, Spain feigned innocence,
stating that the system was unbiased and that nothing could be done
to compensate the victim because no legal basis or structure existed for
thisÁngelawasobligedtocontinueghting
InsheledapetitionforreviewbeforetheMinistry ofJustice
arguing that the decision of 2005 should be reviewed since new actors
(CEDAW decision) had become involved. The government denied her
petition in 2015, despite the fact that international treaties form part of
the domestic legal system, as established by article 96 (1) of the Constitu-
tion. Furthermore, its article 10 (2) relies on international soft and hard
human rights standards to construct legal interpretations of fundamen-
talrightsAsbeforeÁngelaaskedthecourtstoreviewthisdecisionbut
both the High Court and the Supreme Court dismissed her appeal on
procedural grounds in 2016 and 2017, respectively.
HoweverbyÁngelahadleda newclaimbeforetheMinistry
ofJusticerequestingthattheCEDAWdecision be made eective and
seeking redress in the form of compensation for a miscarriage of justice.
This was her third appeal to the Ministry of Justice; however, the gov-
ernment’s response was silence. Literally. Although public administra-
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tions are obliged to answer citizens’ petitions,16 the Ministry of Justice
allowed time to pass, so the appeal was deemed rejected.
ÁngelaappealedthisdismissalbeforetheHighCourt which held
that the Spanish legal system did not have a procedure for rendering
CommieedecisionseectiveTheHighCourtalsoarguedthattheMin-
istry of Justice had not acted irregularly.17
Finally, the Supreme Court heard the appeal in cassation in 2018.18
Acknowledging the lack of an internal procedure to render CEDAW de-
cisionseectivethecourtaddedthatinthiscasetheCEDAWdecision
wassucienttoleaclaimforcompensationandthatfailingtodoso
implied a violation of the complainant’s fundamental rights.
TherulingwasfollowsrstÁngelahadsueredgenderbasedvio-
lence, meaning that her right to equal treatment and non-discrimination
on the basis of sex had been breached, as the CEDAW had also conclud-
ed; second, public administrations are bound by the Convention and the
OptionalProtocolandthereforehadadutytoprotectÁngelasphysical
and moral integrity.
Consequently, the Supreme Court overturned the High Court ruling
since it disregarded a fundamental rights violation; furthermore, it over-
turned the tacit rejection of the Ministry of Justice and sentenced this
administration to pay her €600,000 in compensation for moral harm.
4. Discussion: softness becomes hardness, universal
becomes local
The individual complaints procedure is an optional mechanism that
StatesmayrecogniseSpainratiedboththeConventionanditsOption-
alProtocol allowing nationalindividualsto le complaintsbeforethe
CommieeThe Commieeisa nonjudicialbodysimilar tootherUN
16 See article 21 (1) (“La Administración está obligada a dictar resolución expresa y a noti-
carlaentodoslosprocedimientos cualquieraqueseasuforma deiniciación[…]”), Law
NoofOctoberontheCommonAdministrativeProcedureofPub-
lic Administrations, BOENoOctoberpavailableathps
eurlexeuropaeulegalcontentESTXTPDFuriCELEXLESP
fromENaccessedApril
17 Spanish Supreme Court, Cassation appeal 1002/2007, Sentence 1263/2018, 17
Junepavailableathpwwwpoderjudicialessearchcontenidosac
tionactioncontentpdfdatabasematchTSreferencestatsQueryI
dcalledfromsearchresultslinksFoptimi
zepublicinterfacetrueaccessedApril
18 Ibid.
97
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human rights protection mechanisms such as the inquiry mechanism or
inter-state communications. These structures do not constitute courts;
therefore “their decisions or reports are not binding and they cannot sanction
anyoendingState”.19 In other words, “[w]hatever the nature of the decision
that may be adopted, it will not constitute a judgement nor be obligatory for the
States concerned”,20 therefore they are “non-binding decisions”.21 Neverthe-
less, the obligation to adhere to the decisions of treaty-based bodies is
nowamaerofdebate
Additionallyoneof Spainsreasons fornot grantingÁngela arem-
edy was that there were no legal channels for enforcing CEDAW resolu-
tionsOn thelackof enforceability ofsoftresolutions it hasbeensaid
that “manywriters includethe elementof enforceability intheir denitionof
legal rights, because the notion of rights entails a correlative duty on the part of
otherstoactorrefrainfromactingforthe benetoftherightsholderUnlessa
duty is somehow enforced, it risks being seen as a voluntary obligation that can
befullledorignoredatwill”22
However, it can be argued that Spain’s excuse was invalid because
the Vienna Convention on the Law of Treaties states that domestic law
maynotbeinvokedasajusticationforfailuretocomplywithinterna-
tionallaw as BOERNEFIJN23 has recalled Furthermore FERRAJOLI24
has indicated that a constitutional State should not be constricted by nar-
row-minded and short-sighted legal procedures: the law must always
uphold the underlining principles of justice, such as equality or the pro-
tection of rights, principles which are in fact recognised in constitutions.
19 SAURA, Jaume, “El sistema de las Naciones Unidas de protección de los derechos
humanosinGUTIÉRREZCASTILLO VíctorLuiset al., Sistema universal de pro-
tección de los derechos humanosFUOC Fundación paralaUniversitat Oberta de
Catalunya Barcelona p available at hpopenaccessuoceduwe-
bapps/o2/handle/10609/68305 [accessed 19 April 2019].
20 Ibid., p. 15.
21 OCHOARUIZNataliaGUTIERREZCASTILLOVíctorProteccióninternacio-
naldeladignidadhumanainGUTIÉRREZCASTILLOVíctorLuis et al., Sistema
universal de protección de los derechos humanosFUOCFundación para laUniver-
sitatObertade CatalunyaBarcelona p availableathpopenaccess
uoc.edu/webapps/o2/handle/10609/68305 [accessed 19 April 2019].
22 SHELTONDinah Remedies in International Human Rights Law, nded Oxford
UniversityPressOxfordp
23 BOEREFIJN Ineke Establishing State Responsibility for Breaching Human
RightsTreatyObligationsAvenuesUnder UNHumanRights TreatiesNether-
lands International Law ReviewpDOISX
24 FERRAJOLILuigiRazonesjurídicasdelPacismoTroaMadridp
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As mentioned earlier, according to articles 96 (1) and 10 (2) of the
Spanish Constitution, the law must be interpreted and applied in line
with international human rights legislation. A State party must therefore
adhere to international rulings, even at administrative level, as if these
weredomestic lawsThisis nottherst time thatinternational bodies
have acted as sources of domestic law.25 Since these treaties are legally
binding and hierarchically located at the top of the Spanish legal sys-
tem, local, regional and national governments must all adhere to them
in their policies: judicial recognition is not necessary to protect rights.
Anothermaer toaddress iswhetherthe resolutionsoftreaty bod-
ies constitute soft or hard law. First, it is important to remember that
the aim of soft law is to create communication channels between the
powerfulcommunity and the State in ordertoobligethelaer to act
in a given way, but without the feeling of doing so under coercion.26
OtherwiseStatesmightthinktwicebeforebindingthemselvestosome
treaties’ provisions. Although the Convention on the Elimination of all
Forms of Discrimination against Women or adhesion to the individual
complaints procedure are considered hard law, there is however some
roomformanoeuvrein applicationofCEDAWCommieerecommen-
dations. Consequently, since CEDAW recommendations or resolutions
are not enforceable, they may be seen as soft law, or at least softer than a
treatyNonethelessitisalsotruethatastheCommieeisabranchofthe
ConventionandtheConventionishardlawCommiee rulingsmight
comprise hard law too. Whether soft or not, the truth is that CEDAW
decisionsexertasubstantialinuenceonStatedecisionsashasbeenthe
caseinSpainOnEuropeanUnionLawJIMÉNEZGARCÍAhasclaried
several aspects of soft law that are very similar to those analysed here:
“Even if soft law does not impose obligations or grant rights, it does bind the
national courts in terms of an instrument to be taken into account; there is not
a direct duty to comply, but it is an obligation to take into consideration in the
course of proceedings”.27
25 SeeegontheIACHRJIMÉNEZGARCÍAFranciscoInternationalLawin
mutation. The “civilizing” test of the international rule of law (soft-law of high
or low intensity?) and the regime of the peace stabilization forces”, Revista
electrónica de estudios internacionalesNopDOIreei
availableathpwwwreeiorgindexphprevistanumarticulosderecho
internacional-mutacion-test-civilizatorio-estado-derecho-internacional-soft-law-
baja-alta-intensidad-regimen-fuerzas-estabilizacion-paz [accessed 19 April 2019].
26 Ibid. p. 19.
27 JIMÉNEZGARCÍAibidp citesSARMIENTODanielEl derecho de la unión
europea, Marcial Pons, Madrid, 2016. Translation of: “[…] aunque el soft law no
99
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Things have changed since Spain showed a “lack of will […] to follow
therecommendationsofthisCommiee”.28 In short, there is no longer a “lack
ofenforceabilityofthesedecisionstoSpainand thelimitedeectivenessofthis
mechanism to guarantee that the victims of a breach of the convention get an
appropriate compensation when the State lacks the political will to do it”. 29 The
SpanishSupremeCourthasnallyestablishedthatCommieedecisions
are instruments that must necessarily be taken into account in domestic
proceedingsRatied UN treaty bodies decisions areasourceof law
Nonetheless, is it too naïve to think that the States would also be obliged
tocomplywithCommieerulingsonthirdcountries
Bethatasitmayas analternativeto thecourtsÁngelascasehigh-
lights the possibility of using the individual complaints procedure to
seek quasi-judicial justice through the UN’s human rights bodies, includ-
ing CEDAW, the International Covenant on Civil and Political Rights
CommieeCCPR the Commiee on EconomicSocial and Cultural
RightsCESCR theCommieeagainst TortureCATtheCommiee
ontheElimination ofRacialDiscriminationCERDthe Commieeon
theRightsofPersonswith Disabilities CRPD the Commiee on the
Rightsof the ChildCRCalsothe Optional Protocols onsaleof chil-
drenchild prostitution andchildpornography OPSC andonthe in-
volvementofchildreninarmedconictOPACandtheCommieeon
Enforced Disappearances (CED).
Nevertheless, the CEDAW recommendation to Spain is still not fully
eectiveIthadtwo equallybindingpartsThersttocompensatethe
victim, has been implemented, but the second, on policy changes, has
notGemaFernándezRodríguezdeLiévanaÁngelaslawyerhasindi-
cated that the State must also comply with the rest of the recommenda-
tion. Currently, most of these measures have yet to be implemented.30
imponga obligaciones ni otorgue derechos, sí vincula a los tribunales naciona-
les en cuanto instrumento “a tener en cuenta”, no se trata de una obligación de
“aplicación”, sino de una obligación de toma en consideración en el curso de una
aplicación”.
28 ABRILSTOFFELSRuthTheeectivenessofCEDAWCommieeDecisions
ÁngelaGonzálezCarreñovSpaininSpanish Yearbook of International Law,
NoppDOISybilavailableathpwww
sybil.es/documents/ARCHIVE/Vol19/27_Abril.pdf [accessed 19 April 2019].
29 Ibid.
30 KOHANMarisa TribunalSupremo las clavesde unasentencia históricaque
saca los colores a España”, in Público availableat hpswwwpu-
blico.es/sociedad/angela-gonzalez-tribunal-supremo-claves-sentencia-historica-
saca-colores-espana.html [accessed 19 April 2019].
100
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Likewise, McQUIGG found similar results to those discussed here, for
example that in order “[to foster women’s rights] the judiciary must also
have a strong desire to protect the rights of the victims”31 and that beyond
remedies, “a litigation strategy will not result in change unless such transfor-
mation is supported by the legislative and the public”.32
The case was heard by the CEDAW. This reinforces the universal fact
that the breach of rights due to discrimination against a woman, such
astheviolation ofÁngelasdaughtersrightto lifeisnotdomesticbut
genderbasedviolence Additionally as Ángelasdaughterwaskilled
and since the right to life is protected under the ECHR, one might still
wonderwhyÁngeladidnotelecttolodgeanappealbeforetheECtHR
whose decisions are more enforceable than those of a non-judicial body.
Further study will be required to elucidate this point. In addition, future
researchshouldexplorehowdecisiveoreectiveothertreatymonitor-
ing bodies’ resolutions could be in practice, beyond the individual com-
plaints procedure analysed here. For example, a ruling in South Africa
cited CEDAW General Recommendation 1933 as an argument to demon-
strate liability for failing in the duty to protect a woman.34
5. Concluding remarks
ThisremedytriggeredbytheCEDAWCommieeisdiscussedhere
within the international community, to demonstrate how the Spanish ju-
diciary has created domestic case law strengthening the decisions of UN
treatybodiesTheCommieesdecisionscompriseeectivemechanisms
whenthecomplainantispersistentÁngelawasnallygrantedaremedy
because she fought tirelessly for justice, despite Spain’s combative resis-
tance. Nevertheless, States are still reluctant to comply with all CEDAW
recommendationson criminal orsocioculturalpolicies Ángelasodys-
sey shows how one State seemed unwilling to follow international law,
as if States were not bound by their own international commitments.
Eventually, Spain acknowledged its failure to protect women’s rights,
31 McQUIGG, Ronagh J.A., “How could human rights law be used by the courts to
assist victims of domestic violence? A comparative study”, in The International
Journal of Human RightspDOI
32 Ibid., p. 360.
33 UN Report of the Commiee on the Elimination of Discrimination against
Women: Eleventh session”, General Assembly, 47th Session, OcialRecordsSup-
plement No. 38, A/47/38NewYork
34 McQUIGG, Ronagh J.A., “How could human rights law be used by the courts to
assist victims of domestic violence? A comparative study”, in The International
Journal of Human RightsppDOI
101
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transformingsoftlawintohardlawinaninternationallyveriedbreach
of human rights.
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Discriminationagainst Women under the Optional Protocol tothe
Convention on the Elimination of All Forms of Discrimination against
Women, 58th Session, Comm. No. 47/2012, González Carreño v. Spain”,
CEDAW/C/58/D/47/2012, 20 June -18 July 2014.