International instruments and law considered
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
European Convention on Human Rights (ECHR)
Criminal Code of Turkey
Family Protection Act (Law no. 4320, 14 January 1998)
The applicant (A) lived in Diyarbakar, Turkey. She started a relationship with HO in 1990. They were officially married in November, 1995. They had three children born in 1993, 1994 and 1996. Their relationship was a torrid one. The applicant and her mother were subjected to numerous assaults and threats to life by HO. The judgment lists eight incidents of assaults. The earliest incident was in April 1995 when HO had asked them for money and had beaten them and threatened to kill them. A’s medical report confirmed bruises on her body. Several others involved HO seriously wounding A and her mother with a knife. On another occasion, HO drove his car into A and her mother. HO also made a series of threats to kill A and her mother. Finally in March 2002, the mother decided to move away. While she was removing her furniture in a truck, HO shot her dead.
Prior to the final incident, a similar pattern of conduct followed most of the assaults. A and her mother would lodge a complaint with the authorities; HO would be arrested but released pending trial; A and her mother would then withdraw their complaints (under pressure from HO or the authorities or both) and the charges would be dismissed, even though there was medical evidence to show the extent of the severe injuries suffered by A and her mother. On one occasion, a court fined HO for a knife attack on A.
HO was convicted of the murder of his mother in law and sentenced to life imprisonment, which was then reduced to 15years and 10 months for his good behaviour during the trial and because the offence was regarded as an ‘honour crime.’ HO appealed and pending appeal the lower court released him from custody.
After the death of her mother, A sought relief from the European Court of Human Rights. She alleged that Turkey had violated Article 2 (the right to life), Article 3 (the right to freedom from torture and inhumane treatment) and Article 14 (freedom from discrimination). She alleged that despite a history of abuse and threats to kill, the Turkish authorities had failed to provide her protection. She argued that this failure to provide protection was the result of gender based discrimination amongst Turkish legal institutions and society.
• Was A’s complaint admissible?
• Was the State responsible for the violation of A’s rights, when the offending conduct was committed by HO?
The court declared A’s complaint admissible. It rejected the Turkish submission that A had failed to exhaust her domestic remedies; as it found that the available remedies were ineffective.
Article 2 of the ECHR requires State parties not only to refrain from intentional and unlawful taking of life but also to safeguard lives of those within its jurisdiction. It requires a State to take preventive operational measures to protect an individual whose life is at risk, where the State knows of the risk. In A’s case, given the history of HO’s violent conduct and threats to the safety of A and her mother, further violence against the two was not only possible but also foreseeable. A and her mother had sought protection but the authorities refrained from intervention, because the complaints had been withdrawn, and because the violence was seen as a family matter.
The court noted that there was an escalating violence against A and her mother by HO. The crimes committed by HO against the two were grave and warranted preventive measures to safeguard against future threat to health and safety. Action should not have been dependent on the women maintaining their complaints. The court concluded that there was a positive obligation on the state to take preventive measures to protect A and her mother whose life was at risk. It found that the Turkish authorities had failed to display due diligence. They had the power to make protection orders against HO but had failed to do so. Further, they had taken over six years to deal with the murder prosecution, and it was still not finalised. Hence there was a breach of Article 2.
Secondly, the court considered Article 3. It forbids torture or cruel and degrading treatment. The violence suffered by A, both physical and psychological, fell within those terms. The court ruled that there was a duty under the Convention on state parties to ensure that individuals within its jurisdiction were not subjected to such treatment, including treatment by private individuals. That is, the obligation was not only confined to treatment by state agents. The court concluded that the response by the authorities to the conduct of HO was manifestly inadequate. It was not enough for them to say that A could have applied for entry into a ‘safe house.’ The state needed to be more proactive and effective in protecting A. Therefore there was a violation of Article 3 of ECHR.
Thirdly, the court found that there was violation of Article 14 of the Convention when read in conjunction with Articles 2 and 3. Article 14 ensures enjoyment of rights and freedoms laid in the Convention without discrimination. The applicant argued that the domestic law of Turkey was discriminatory and insufficient to protect women, as a women’s life was treated as inferior in the name of family unity. The court ruled that even though Turkish law on paper made no distinction between male and female, it discriminated against women in its practical operation. The discrimination resulted from the general attitude of local authorities, the manner in which women were treated at police stations when they reported domestic violence and judicial passivity in providing effective protection to the victims. It found police try to convince the victims to return home and drop complaints. Moreover, the perpetrators of such crime did not receive dissuasive sentences because courts mitigated sentences on grounds of tradition, custom and family honour. It ruled that it had been internationally held through interpretation of CEDAW and the Inter American Convention on the Prevention, Punishment and Eradication of Violence against Women that the State’s inaction, even if unintentional, to protect women from domestic violence breached women’s right to equal protection of the law.
The Court awarded EUR 30,000 in damages for mental anguish caused to A as a result of her mother’s death
The principle significance of the case lies in the fact that the Court found the State violated A’s rights by failing to take adequate steps to protect her from violence at the hands of her husband. The Court emphasised that the State’s duty did not cease at just passing progressive legislation but extended to taking steps to protect women from all acts of violence about which it was made aware. In this case, the Government had made some valuable reforms, such as legislating for protection orders and setting up safe houses for women suffering from domestic violence. However, the overall unresponsiveness of the judicial system and impunity enjoyed by the aggressors indicated a lack of commitment to address domestic violence. This ruling advocates a proactive approach by States in implementing and applying rights based legislation.
The Court relied on a wide spectrum of comparative legal instruments, reports and Conventions including CEDAW and the Belém do Pará Convention which sets out States duties to eradicate gender based violence.