European and international conventions
Spain has ratified the following conventions relevant to the eradication of FGM:
– Universal Declaration of Human Rights, 1948
– Convention for the Protection of Human Rights and Fundamental Freedoms (UDHR), 1950
– Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), 1979
– Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984
– Convention on the Rights of the Child (CRC), 1989
– Charter of Fundamental Rights of the European Union (2010/C 83/02), 2007
Spain has also ratified the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention), which classifies all forms of violence against women as a crime, including FGM.
The Spanish Criminal Code includes specific regulation on FGM.
- Organic Act 11/2003 on Concrete Measures in Matters of Public Safety, Domestic Violence and Social Integration of Foreigners, modified article 149.2 states:
«Whoever causes to another person a genital mutilation in any form shall be punished with a sentence of imprisonment from six to twelve years. Should the victim be a minor or incapacitated, the punishment of special barring from exercise of parental rights, guardianship, care, safekeeping or fostering shall be applicable for a term from four to ten years, should the Judge deem it appropriate in the interest of the minor or incapacitated person.»
- Organic Act 6/1985 of the Judiciary Branch, Article 23.4 (modified by Organic Act 1/2014), establishes the principle of extraterritoriality, such that FGM is punishable regardless of where it is carried out, if carried out by a resident of Spain of Spanish or foreign nationality, or on an individual of Spanish nationality or residence. The statute of limitations for prosecution is 15 years.
- Article 158 of the Civil Code, modified by Organic Act 9/2000, allows judges to adopt preventive measures in the case of an imminent risk of genital mutilation.
Legislation protecting children
- Organic Act 1/1996 on the Legal Protection of Minors (partial modification of the Civil Code and the Civil Procedure Act) establishes the ‘superior interest of minors’ in situations of risk to or lack of protection of children, requiring relevant public bodies responsible for the protection of minors (Autonomous Communities) to intercede.
- Autonomous Community regulations for the protection of minors varies, with some regions’ making explicit reference to FGM. In other communities, FGM is covered by law on gender equality and gender-based violence.
Right of asylum
Organic Act 12/2009 regulating the Right of Asylum and Subsidiary Protection—the most recent legislation on grounds for asylum—does not specifically refer to FGM. Moreover, in cases where this Act has been applied, controversy has arisen when the reasons for granting asylum are argued.
Supreme Court Ruling 4013/2011 15 June is especially important, stating that according to Case Law of the Supreme Tribunal, the rulings of 15 February 2007 (RC 9036/2003) and 11 May 2009 (RC 3155/2006), “in those assumptions in which the existence of ‘insufficient evidence’ is confirmed, according to the circumstances of each case, when it comes to the persecution of a woman for belonging to the female gender, which has implied the imposition of practices contrary to human dignity, such as forced marriage or the mutilation of a genital organ, and that the legal regimen of the country of origin does not offer efficient legal protection, asylum shall be granted according to articles 3 and 8 of the Act 5/1984 26th March, which regulate the right of asylum and the refugee status”.
FGM is a crime and professionals aware of an actual or impending incident are therefore subject to mandatory notification. Article 450 of the Criminal Code states, “Whoever, being able to do so, does not resort to the authority or its agents in order for them to prevent a felony that affects the life, integrity or health, freedom or sexual freedom of persons when informed that it is about to be, or is being committed” will be subject to penalties.
Furthermore, the Civil Procedure Act includes two articles applicable to the case FGM.
- Article 262: “Whoever, due to their position or profession had notification of any public crime, shall be obliged to immediately report it to the Public Prosecutor, the competent tribunal, the examining judge or, alternatively, the municipal police officer nearer to the place, if it was an in flagrante delicto.”
- Article 355: “If the criminal fact motivated the formation of any cause resulting in injuries, doctors who assisted the victim shall be obliged to report their state.”
Lastly, Organic Act 1/1996 on Legal Protection of Minors also establishes that “whoever, and especially those who, due to their profession or function, detect a situation of risk or possible lack of protection of a minor, must report to public authorities as well as provide assistance to the minor.”
The notification must be exclusively to competent authorities and professionals; the maintenance of professional secrecy is otherwise mandatory. The conflict between legal obligations and ethical principles must be resolved according to general legislation and codes of conduct. The professional is required at all times to be respectful and supportive, protecting the life and health of girls and women (principle of beneficence), minimising negative consequences (do-no-harm principle) and to observe all ethical principles governing professional practice.