European Court of Human Rights
You are here:
BAILII >>
Databases >>
European Court of Human Rights >>
OPUZ v. TURKEY - 33401/02 [2009] ECHR 870 (9 June 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/870.html
Cite as:
(2010) 50 EHRR 28,
[2009] ECHR 870,
27 BHRC 159,
50 EHRR 28
[
New search]
[
Contents list]
[
Printable RTF version]
[
Help]
THIRD
SECTION
CASE OF OPUZ v. TURKEY
(Application
no. 33401/02)
JUDGMENT
STRASBOURG
9 June
2009
This
judgment will become final in the circumstances set out in
Article 44 § 2 of the Convention. It may be
subject to editorial revision.
In the case of Opuz v. Turkey,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Elisabet Fura-Sandström,
Corneliu
Bîrsan,
Alvina Gyulumyan,
Egbert
Myjer,
Ineta Ziemele,
Işıl Karakaş,
judges,
and Santiago Quesada,
Section Registrar,
Having
deliberated in private on 7 October 2008 and 19 May 2009,
Delivers
the following judgment, which was adopted on the latter date:
PROCEDURE
The
case originated in an application (no. 33401/02) against the Republic
of Turkey lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Turkish national, Mrs Nahide Opuz
(“the applicant”), on 15 July 2002.
The
applicant was represented by Mr M. Beştaş, a lawyer
practising in Diyarbakır. The Turkish Government (“the
Government”) were represented by their Agent.
The
applicant alleged, in particular, that the State authorities had
failed to protect her and her mother from domestic violence, which
had resulted in the death of her mother and her own ill-treatment.
On
28 November 2006 the Court decided to give notice of the application
to the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
Third-party comments were received from
Interights, which had been given leave by the President to intervene
in the procedure (Article 36 § 2 of the Convention and
Rule 44 § 2 of the Rules of Court). The Government replied to
those comments (Rule 44 § 5).
A
hearing on the admissibility and merits of the case took place in
public in the Human Rights Building, Strasbourg, on 7 October 2008
(Rule 59 § 3 of the Rules of Court).
There
appeared before the Court:
(a) for
the respondent Government
Ms Ms
Deniz Akçay, Co-Agent,
Ms Ms
Esra Demir,
Ms Zeynep
Gökşen Acar,
Mr Gürçay Şeker,
Ms Gülsün Büker,
Ms Elif Ercan,
Mr Murat
Yardımcı, Advisers;
(b) for
the applicant
Mr Mesut
Beştaş,
Ms Arzu
Başer, Lawyers;
(c) for
the intervening third party Interights
Ms Andrea
Coomber, Senior Lawyer,
Ms Doina
Iona Straisteanu, Lawyer.
The
Court was addressed by Ms Akçay, Mr Beştaş and Ms
Coomber.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1972 and lives in Diyarbakır.
The
applicant's mother married A.O. in a religious ceremony. In 1990 the
applicant and H.O., A.O.'s son, started a relationship and began
living together. They officially married on 12 November 1995. They
had three children, in 1993, 1994 and 1996. The applicant and H.O.
had heated arguments from the outset of their relationship. The facts
set out below were not disputed by the Government.
1. The first assault by H.O. and A.O. against the
applicant and her mother
On
10 April 1995 the applicant and her mother filed a complaint with the
Diyarbakır Public Prosecutor's Office, alleging that H.O. and
A.O had been asking them for money, and had beaten them and
threatened to kill them. They also alleged that H.O. and his father
wanted to bring other men home.
On
the same day, the applicant and her mother were examined by a doctor.
The applicant's medical report noted bruises on her body, an
ecchymosis and swelling on her left eyebrow and fingernail scratches
on the neck area. The medical report on the applicant's mother also
noted bruises and swellings on her body. On 20 April 1995 definitive
reports were issued, which confirmed the findings of the first report
and stated that the injuries in question were sufficient to render
both the applicant and her mother unfit to work for five days.
On
25 April 1995 the public prosecutor filed indictments against H.O.
and A.O. for death threats and actual bodily harm. On 15 June
1995 the Diyarbakır 1st
Magistrate's Court discontinued the assault case, as the
applicant and her mother had withdrawn their complaints and had
thereby removed the basis for the proceedings under Article 456 §
4 of the Criminal Code.
On
11 September 1995 the Diyarbakir 2nd
Magistrate's Court also acquitted the defendants of making
death threats on account of the lack of evidence, and again
discontinued the assault case, noting that it had been previously
heard by the Diyarbakır 1st
Magistrate's Court.
2. The second assault by H.O. against the applicant
On
11 April 1996, during an argument, H.O. beat the applicant very
badly. The medical report drawn up on that occasion recorded surface
bleeding on her right eye, bleeding on her right ear, an ecchymosis
on the applicant's left shoulder and back pain. The report concluded
that the applicant's injuries were sufficient to endanger her life.
On the same day, at the request of the public prosecutor and by a
decision of a single judge, H.O. was remanded in custody.
On
12 April 1996 the public prosecutor filed a bill of indictment with
the Diyarbakır Criminal Court, accusing H.O. of aggravated
bodily harm under Articles 456 § 2 and 457 § 1 of the
Criminal Code.
On
15 April 1996 H.O. filed a petition with the Presidency of the
1st Magistrate's
Court, requesting his release pending trial. He explained that during
an argument with his wife he had become angry and had slapped his
wife two or three times. Then his mother-in-law, who worked at a
hospital, had obtained a medical report for his wife and that report
had led to his detention for no reason. He stated that he did not
want to lose his family and business and that he regretted beating
his wife.
On
16 April 1996 the 2nd
Magistrate's Court dismissed H.O.'s request for release pending trial
and decided that his pre-trial detention should be continued.
At
the hearing on 14 May 1996, the applicant repeated her complaint. The
public prosecutor requested that H.O. be released pending trial,
considering the nature of the offence and the fact that the applicant
had regained full health. Consequently, the court released H.O.
At
a hearing of 13 June 1996, the applicant withdrew her complaint,
stating that she and her husband had made their peace.
On
18 July 1996 the court found that the offence fell under Article 456
§ 4 of the Criminal Code, for which the applicant's
complaint was required in order to pursue the proceedings. It
accordingly discontinued the case on the ground that the applicant
had withdrawn her complaint.
3. The third assault by H.O. against the applicant and
her mother
On
5 February 1998 the applicant, her mother, her sister and H.O. had a
fight, in the course of which H.O. pulled a knife on the applicant.
H.O., the applicant and her mother received injuries. The medical
reports certified injuries which rendered them unfit to work for
seven, three and five days respectively.
On
6 March 1998 the public prosecutor decided not to prosecute anyone in
respect of this incident. He concluded that there was insufficient
evidence to prosecute H.O. in connection with the knife assault, and
that the other offences such as battery and damage to property could
be the subject of private-law suits. There was thus no public
interest in pursuing the case.
The
applicant went to stay with her mother.
4. The fourth assault by H.O. against the applicant and
her mother: threats and assault (using a car) leading to initiation
of divorce proceedings
On
4 March 1998 H.O. ran a car into the applicant and her mother. The
applicant's mother was found to be suffering from life threatening
injuries. At the police station, H.O. maintained that the incident
had been an accident. He had only wished to give the applicant and
her mother a lift, which they had refused before they continued
walking. They had then thrown themselves in front of the car. The
applicant's mother alleged that H.O. had told them to get into his
car and that he would kill them if they refused. Since they did not
want to get into the car and had started running away, H.O. had
driven his car into the applicant, who had fallen. While the
applicant's mother tried to help her daughter, H.O. reversed and then
drove forward, this time into the mother. The applicant's mother
regained consciousness in hospital. In her statements to the police
the applicant confirmed her mother's statements and alleged that her
husband had tried to kill them with his car.
On
5 March 1998 a single judge at the Diyarbakır Magistrate's Court
remanded H.O. in custody.
On
19 March 1998 the public prosecutor initiated criminal proceedings
against H.O. in the Diyarbakır 3rd
Criminal Court for making death threats and inflicting grievous
bodily harm. On the same day the Forensic Medicine Institute
submitted a medical report which noted grazes on the applicant's
knees. The report concluded that the applicant's injuries rendered
her unfit to work for five days.
On
20 March 1998 the applicant brought divorce proceedings against H.O.
on the ground that they had intense disagreements. She alleged that
her husband was evading his responsibilities as a husband and a
father. He was mistreating her, as proved by medical reports. She
also alleged that her husband was bringing other women to their home.
The applicant submits that she later dropped the divorce case due to
threats and pressure from her husband.
On
2 April 1998 the applicant and her mother filed a petition with the
Diyarbakır Chief Public Prosecutor's Office, asking for
protective measures from the authorities subsequent to the death
threats issued by H.O. and his father.
On
2 and 3 April 1998 police officers took statements from the
applicant, her mother, her brother and the latter's wife as well as
H.O. and his father. The applicant and her mother stated that H.O.
had attempted to kill them with his car and that he had threatened
them with death if the applicant did not return to H.O. They noted
that the applicant had already commenced divorce proceedings and that
she did not want to return to live with H.O. The applicant's brother
and his wife alleged that the applicant was discouraged by her mother
from going back to her husband and that they knew nothing about the
threats issued by H.O. and his father. H.O. contended that his only
intention was to bring his family together, but that his
mother-in-law was preventing this. He also alleged that he had gone
to the applicant's brother and family elders for help, but to no
avail. He maintained that he had never threatened the applicant or
her mother and that their allegations were slanderous. H.O.'s father
maintained that the applicant's mother wanted her daughter to divorce
H.O. and to marry somebody else.
In
a report dated 3 April 1998 the Director of the Law and Order
Department of the Diyarbakır Security Directorate informed the
Chief Public Prosecutor's Office of the outcome of the investigation
into the allegations made by the applicant and her mother. He
concluded that the applicant had left her husband and gone to live
with her mother. H.O.'s repeated requests for the return of his wife
had been turned down by the applicant's mother and the latter had
insulted H.O. and made allegations that H.O. had issued death threats
against her. H.O. had spent 25 days in prison for running a car into
his mother in-law and, following his release, had asked a number
of mediators to convince his wife to return home. However, the mother
did not allow the applicant go back to H.O. Both parties had issued
threats against each other. Furthermore, the mother had wished to
separate her daughter from H.O. in order to take revenge on her
ex-husband, had constantly made slanderous allegations and had also
“wasted” the security forces' time.
On
14 April 1998 the Diyarbakır Chief Public Prosecutor's indicted
H.O. and his father A.O. and charged them with issuing death threats
against the applicant and her mother, contrary to Article 188 §
1 of the Criminal Code.
On
30 April 1998 the Diyarbakır Criminal Court released H.O.
pending trial. It further declared that it had no jurisdiction over
the case and sent the file to the Diyarbakır Assize Court.
On
11 May 1998 the Assize Court classified the offence as attempted
murder. During the hearing of 9 July 1998, H.O. repeated that the
incident had been an accident; the car door was open, and had
accidentally hit the complainants when he moved the car. The
applicant and her mother confirmed H.O.'s statement and maintained
that they no longer wished to continue the proceedings.
On
23 June 1998 the Diyarbakır Assize Court acquitted H.O. and his
father of the charges of issuing death threats, for lack of
sufficient evidence. The court noted that the accused had denied the
allegations and the complainants had withdrawn their complaints. The
applicant again resumed living with H.O.
On
9 July 1998 the applicant's mother was given another medical
examination, which found that her injuries were not life-threatening
but were sufficient to render her unfit for work for 25 days.
At
the hearing of 8 October 1998 the applicant and her mother withdrew
their complaints. They stated that the car door had been open and
that H.O. had accidentally hit them. When questioned about their
complaints against H.O., the applicant and her mother stated that
they had had a fight with H.O. and that they had made those
allegations in anger.
On
17 November 1998 the Diyarbakır Assize Court concluded that the
case should be discontinued in respect of the offence against the
applicant, as she had withdrawn her complaint. However, it decided
that, although the applicant's mother had also withdrawn her
complaint, H.O. should still be convicted of that offence, since the
injuries were more serious. Subsequently, the court sentenced H.O. to
three months' imprisonment and a fine; the sentence of imprisonment
was later commuted to a fine.
5. The fifth assault of the applicant by H.O. causing
grievous bodily harm
On
29 October 2001 the applicant went to visit her mother. Later that
day H.O. telephoned and asked the applicant to return home. The
applicant, worried that her husband would again be violent towards
her, said to her mother “this man is going to tear me to
pieces!”. The applicant's mother encouraged the applicant to
return home with the children. Three-quarters of an hour later one of
the children came back, saying that his father had stabbed and killed
his mother. The applicant's mother rushed to the applicant's house.
She saw that the applicant was lying on the floor bleeding. With the
help of neighbours, she put the applicant into a taxi and took her to
the Diyarbakır State Hospital. The hospital authorities told her
that the applicant's condition was serious and transferred her to the
Dicle University Hospital, which was better equipped. The medical
report on the applicant noted seven knife injuries on different parts
of her body. However, the injuries were not classified as
life-threatening.
At
about 11.30 p.m. on the same day H.O. handed himself in at a police
station. The police confiscated the knife which he had used during
the incident. H.O. maintained that his wife and children were still
not at home when he came back at 6.00 p.m. He had telephoned them and
asked them to come back. On their return, he asked the applicant,
“Why are you wandering outside? Why haven't you cooked anything
for me?” The applicant replied, “We ate at my mother's”,
and brought him a plate of fruit. They continued arguing. He told
her, “Why are you going to your mother so often? Don't go there
so much, stay at home and look after the children!” The
argument escalated. At some point, the applicant attacked him with a
fork. They started fighting, during which he lost control, grabbed
the fruit knife and stabbed her; he did not remember how often. He
claimed that his wife was bigger than him, so that he had to respond
when she attacked him. He added that his wife was not a bad person
and that they had lived together peacefully until two years'
previously. However, they started fighting when the applicant's
mother began interfering in their marriage. He stated that he
regretted what he had done. H.O. was released after his statement had
been taken.
On
31 October 2001 the applicant's mother's lawyer petitioned the
Diyarbakır Public Prosecutor's Office. In her petition, she
stated that the applicant's mother had told her that H.O. had beaten
her daughter very badly about five years' earlier, after which he was
arrested and detained. However, he was released at the first hearing.
She maintained that her client and the applicant had been obliged to
withdraw their complaints due to continuing death threats and
pressure from H.O. She further stated that there was hearsay about
H.O. being involved in trafficking women. Finally, she referred to
the incident of 4 March 1998 (see above), arguing that, following
such a serious incident, H.O.'s release was morally damaging and
requested that he be detained on remand.
On
2 November 2001 the applicant's lawyer filed an objection with the
Chief Public Prosecutor's Office against the medical report of the
Dicle Medical Faculty Hospital, which had concluded that the
applicant's injuries were not life-threatening. The lawyer requested
a new medical examination.
On
9 November 2001 the applicant filed a petition with the Diyarbakır
Chief Public Prosecutor's Office, complaining that she had been
stabbed many times by H.O. subsequent to an argument with him. She
asked the public prosecutor to send her to the Forensic Institute for
a new medical examination.
On
8 November 2001 the applicant underwent a new medical examination at
the Forensic Institute in Diyarbakır on the instructions of the
public prosecutor. The forensic medical doctor noted the presence of
wounds caused by a knife on the left hand wrist (3 cm long), on the
left hip (5 cm deep), another 2 cm-deep wound on the left hip
and a wound just above the left knee. He opined that these injuries
were not life-threatening but would render the applicant unfit for
work for seven days.
On
12 December 2001 the public prosecutor filed a bill of indictment
with the Diyarbakır Magistrate's Court, charging H.O. with knife
assault under Article 456 § 4 and 457 § 1 of the Criminal
Code.
By
a criminal decree of 23 May 2002, the Diyarbakır 2nd
Magistrate's Court imposed a fine of 839,957,040 Turkish liras
on H.O for the knife assault on the applicant. It decided that he
could pay this fine in eight instalments.
6. The sixth incident whereby H.O. threatened the
applicant
On
14 November 2001 the applicant lodged a criminal complaint with the
Diyarbakır Public Prosecutor's Office, alleging that H.O. had
been threatening her.
On
11 March 2002 the public prosecutor decided that there was no
concrete evidence to prosecute H.O. apart from the allegations made
by the applicant.
7. The applicant's mother filed a complaint with the
public prosecutor's office alleging death threats issued by H.O. and
A.O.
On
19 November 2001 the applicant's mother filed a complaint with the
public prosecutor. In her petition, she stated that H.O., A.O. and
their relatives had been consistently threatening her and her
daughter. In particular, H.O. told her, “I am going to kill
you, your children and all of your family!” He was also
harassing her and invading her privacy by wandering around her
property carrying knives and guns. She maintained that H.O. was to be
held liable should an incident occur involving her and her family.
She also referred to the events of 29 October 2001, when the
applicant was stabbed by him (see above). In response to this
petition, on 22 November 2002, the public prosecutor wrote a
letter to the Security Directorate in Diyarbakır and asked them
to take statements from the complainant and H.O. and to submit an
investigation report to his office.
In
the meantime, on 14 December 2001 the applicant again initiated
divorce proceedings in the Diyarbakır Civil Court.
On
23 December 2001 the police took statements from H.O. in relation to
the applicant's mother's allegations. He denied the allegations
against him and claimed that his mother-in-law, who had been
interfering with his marriage and influencing his wife to lead an
immoral life, had issued threats against him. The police took further
statements from the applicant's mother on 5 January 2002. She claimed
that H.O. had been coming to her doorstep everyday, showing a knife
or shotgun and threatening her, her daughter and grandchildren with
death.
On
10 January 2002 H.O. was charged under Article 191 § 1 of the
Criminal Code with making death threats.
On
27 February 2002 the applicant's mother submitted a further petition
to the Diyarbakır Public Prosecutor's Office. She maintained
that H.O.'s threats had intensified. H.O., together with his friends,
had been harassing her, threatening her and swearing at her on the
telephone. She stated that her life was in immediate danger and
requested that the police tap her telephone and take action against
H.O. On the same day, the Public Prosecutor's Office instructed the
Directorate of Turkish Telecom in Diyarbakır to submit to his
office a list of all the numbers which would call the mother's
telephone line over the following month. In the absence of any
response, the public prosecutor repeated his request on 3 April
2002.
On
16 April 2002 the Diyarbakır Magistrate's Court questioned H.O.
in relation to his knife assault on his mother-in-law. He repeated
the statement he had made to the police, adding that he did not wish
his wife to visit her mother, as the mother had been pursuing an
immoral life.
8. The killing of the applicant's mother by H.O.
The
applicant had been living with her mother since the incident of
29 October 2001.
On
an unspecified date the applicant's mother made arrangements with a
transport company to move her furniture to Izmir. H.O. learned of
this and allegedly said, “Wherever you go, I will find and kill
you!” Despite the threats, on 11 March 2002 the furniture
was loaded onto the transport company's pick-up truck. The pick-up
truck made two trips between the company's transfer centre and the
house. On its third trip, the applicant's mother asked the driver
whether she could drive with him to the transfer centre. She sat on
the front seat, next to the driver. On their way, a taxi pulled up in
front of the pick-up and started signalling. The pick-up driver,
thinking that the taxi driver was going to ask for an address,
stopped. H.O. came out of the taxi. He opened the front door where
the applicant's mother was sitting, shouted something like, “Where
are you taking the furniture?” and shot her. The applicant's
mother died instantly.
9. The criminal proceedings against H.O.
On
13 March 2002 the Diyarbakır Public Prosecutor filed an
indictment with the Diyarbakır Assize Court, accusing H.O. of
intentional murder under Article 449 § 1 of the Criminal Code.
In
his statements to the police, the public prosecutor and the court,
H.O. claimed that he had killed the applicant's mother because she
had induced his wife to lead an immoral life, like her own, and had
been taking his wife and children away from him. He further alleged
that on the day of the incident, when he asked the deceased where she
was taking the furniture and where his wife was, the deceased had
replied “F... off, I will take away your wife, and sell [her]”.
He stated that he had lost his temper and had shot her for the sake
of his honour and children.
In
a final judgment dated 26 March 2008, the Diyarbakır Assize
Court convicted H.O. of murder and illegal possession of a firearm.
It sentenced him to life imprisonment. However, taking into account
the fact that the accused had committed the offence as a result of
provocation by the deceased and his good conduct during the trial,
the court mitigated the original sentence, changing it to 15 years
and 10 months' imprisonment and a fine of 180 new Turkish liras.
In view of the time spent by the convict in pre-trial detention and
the fact that the judgment would be examined on appeal, the court
ordered the release of H.O.
The
appeal proceedings are still pending before the Court of Cassation.
10. Recent developments following the release of H.O.
In
a petition dated 15 April 2008, the applicant filed a criminal
complaint with the Kemalpaşa Chief Public Prosecutor's Office in
Izmir, for submission to the Diyarbakır Chief Public
Prosecutor's Office, and asked the authorities to take measures to
protect her life. She noted that her ex husband,
H.O., had been released from prison and that in early April he had
gone to see her boyfriend M.M., who worked at a construction site in
Diyarbakır, and had asked him about her whereabouts. Since M.M.
refused to tell him her address, H.O. threatened him and told him
that he would kill him and the applicant. The applicant claimed that
H.O. had already killed her mother and that he would not hesitate to
kill her. She had been changing her address constantly so that H.O.
could not find her. Finally, she asked the prosecuting authorities to
keep her address, indicated on the petition, and her boyfriend's name
confidential and to hold H.O. responsible if anything untoward
happened to her or her relatives.
On
14 May 2008 the applicant's representative informed the Court
that the applicant's husband had been released from prison and that
he had again started issuing threats against the applicant. She
complained that no measures had been taken despite the applicant's
request. She therefore asked the Court to request the Government to
provide sufficient protection.
In
a letter dated 16 May 2008, the Registry transmitted the applicant's
request to the Government for comments and invited them to inform the
Court of the measures to be taken by their authorities.
On
26 May 2008 the Director of the International Law and Relations
Department attached to the Ministry of Justice faxed a letter to the
Diyarbakır Chief Public Prosecutor's Office in relation to the
applicant's complaints to the European Court of Human Rights. He
informed the Chief Public Prosecutor's Office of the applicant's
pending application before the Court and asked them to provide
information on the current state of execution of H.O.'s sentence, the
state of proceedings with regard to the applicant's criminal
complaint filed with the Kemalpaşa Chief Public Prosecutor's
Office in Izmir and the measures taken to protect the applicant's
life.
On
the same day, a Public Prosecutor from the Diyarbakır Chief
Public Prosecutor's Office wrote to the Diyarbakır Governor's
Office and asked him to take measures for the protection of the
applicant.
By
a letter of 28 May 2008 from the Diyarbakır Chief Public
Prosecutor's Office to the Şehitler Central Police Directorate
in Diyarbakır, the Public Prosecutor (A.E.) asked the police to
summon H.O. to his office in relation to an investigation.
On
29 May 2008 A.E. questioned H.O. in relation to the criminal
complaint filed by the applicant. H.O. denied the allegation that he
had issued threats against the applicant and claimed that she had
made such allegations in order to disturb him following his release
from prison. He maintained that he did not feel any enmity towards
the applicant and that he had devoted himself to his family and
children.
On
3 June 2008 A.E. took statements from the applicant's boyfriend, M.M.
The latter stated that H.O. had called him and asked him for the
applicant's address, and had told him that he would kill her. M.M.
did not meet H.O. Nor did he file a criminal complaint against H.O.
He had however called the applicant and informed her about the
threats issued by H.O.
In
a letter dated 20 June 2008, the Government informed the Court that
the applicant's husband had not yet served his sentence but that he
had been released pending the appeal proceedings in order to avoid
exceeding the permissible limit of pre-trial detention. They also
stated that the local Governor's Office and the Chief Public
Prosecutor's Office had been informed about the applicant's complaint
and that they had been instructed to take precautions for the
protection of the applicant.
Finally,
on 14 November 2008 the applicant's legal representative informed the
Court that his client's life was in immediate danger since the
authorities had still not taken any measures to protect her from her
former husband. The Registry of the Court transmitted this letter on
the same day to the Government, inviting them to provide information
about the measures they had taken to protect the applicant.
On
21 November 2008 the Government informed the Court that the police
authorities had taken specific measures to protect the applicant from
her former husband. In particular, the photograph and fingerprints of
the applicant's husband had been distributed to police stations in
the region so that they could arrest him if he appeared near the
applicant's place of residence. The police questioned the applicant
in relation to the allegations. She stated that she had not been
threatened by her husband over the past month and a half.
II. RELEVANT LAW AND PRACTICE
A. Domestic law and practice
The
relevant domestic law provisions relied on by the judicial
authorities in the instant case are set out below.
1. The Criminal Code
Article 188
“Whoever by use of force or threats compels
another person to do or not to do something or to obtain the latter's
permission to do something ... will be sentenced to between six
months' and one year's imprisonment, and a major fine of between one
thousand and three thousand liras...”
Article
191 § 1
“Whoever, apart from the situations set out in
law, threatens another person with severe and unjust damage will be
sentenced to six months' imprisonment.”
Article 449
“If the act of homicide is:
a. Committed against a wife, husband, sister
or brother, adoptive mother, adopted child, step-mother, step-father,
step-child, father-in-law, mother-in-law, son-in-law, or
daughter-in-law...
the offender will be sentenced to life imprisonment...”
Article 456 § 1, 2 and 4
“Whoever torments another person physically or
damages his or her welfare or causes cerebral damage, without
intending murder, will be sentenced to between six months' and one
year's imprisonment.
Where the act constitutes a danger to the victim's life
or causes constant weakness in one of the organs or senses, or
permanent difficulty in speech or permanent injuries to the face, or
physical or mental illness for twenty or more days, or prevents [the
victim] from continuing his regular work for the same number of days,
the offender will be sentenced to between two and five years'
imprisonment.
...
If the act did not cause any illness or did not prevent
[the victim] from continuing his regular work or these situations did
not last for more than ten days, the offender will be sentenced to
between two and six months' imprisonment or to a heavy fine of twelve
thousand to one hundred and fifty thousand liras, provided that the
injured person complains...”
Article 457
“If the acts mentioned in Article 456 are
committed against the persons cited in Article 449 or if the act is
committed by a hidden or visible weapon or harmful chemical, the
punishment shall be increased by one third to a half of the main
sentence.”
Article 460
“In situations mentioned under Articles 456 and
459, where commencement of the prosecution depends on the
lodging of a complaint [by the victim], if the complainant waives
his/her claims before the pronouncement of the final judgment the
public prosecution shall be terminated.”
2. The Family Protection
Act (Law no. 4320, 14 January 1998)
Section 1
“If a
spouse or a child or another family member
living under the same roof is subjected to domestic violence and if
the magistrate's court dealing with civil matters is notified of the
fact by that person or by the chief public prosecutor's office, the
judge, taking account of the nature of the incident, may on his or
her own initiative order one or more of the following measures or
other similar measures as he or she deems appropriate. The offending
spouse may be ordered:
(a) not to engage in violent or threatening
behaviour against the other spouse or the children (or other family
members living under the same roof),
(b) to leave the shared home and relinquish it to
the other spouse and the children, if any, and not to approach the
home in which the other spouse and the children are living, or their
workplaces,
(c) not to damage the property of the other spouse
(or of the children or other family members living under the same
roof),
(d) not to disturb the other spouse or the children
(or other family members living under the same roof) through the use
of communication devices,
(e) to surrender any weapons or similar instruments
to law-enforcement officials,
(f) not to arrive at the shared home when under the
influence of alcohol or other intoxicating substances, or not to use
such substances in the shared home.
The above mentioned measures shall be applied for a
period not exceeding six months. In the order, the offending
spouse shall be warned that in the event of failure to comply with
the measures imposed, he or she will be arrested and sentenced to a
term of imprisonment. The judge may order interim maintenance
payments, taking account of the victim's standard of living.
Applications made under section 1 shall not be subject
to court fees.”
Section 2
“The court shall transmit a copy of the protection
order to the chief public prosecutor's office. The chief public
prosecutor's office shall monitor implementation of the order by
means of the law-enforcement agencies.
In the event of failure to comply with the protection
order, the law-enforcement agency shall conduct an investigation on
its own initiative, without the victim being required to lodge a
complaint, and shall transmit the documents to the chief public
prosecutor's office without delay.
The chief public prosecutor's office shall bring a
public prosecution in the magistrate's court against a spouse who
fails to comply with a protection order. The location and expeditious
holding of the hearing in the case shall be subject to the provisions
of Law no. 3005 on the Procedure governing in flagrante delicto
Cases.
Even if the act in question constitutes a separate
offence, a spouse who fails to comply with a protection order shall
also be sentenced to 3 to 6 months' imprisonment.”
3. Implementing Regulations for the Family Protection
Act, dated 1 March 2008
These
regulations, which were drawn up to govern the implementation of Law
no. 4320, set out the measures to be taken in respect of the family
members perpetrating violence and the procedures and principles
governing the application of those measures, in order to protect
family members subjected to domestic violence.
B. Relevant international and comparative law material
1. The United Nations' position with regard to domestic
violence and discrimination against women
The
Convention on the Elimination of All Forms of Discrimination against
Women (CEDAW), was adopted in 1979 by the UN General Assembly and
ratified by Turkey on 19 January 1986.
The
CEDAW defines discrimination against women as “... any
distinction, exclusion or restriction made on the basis of sex which
has the effect or purpose of impairing or nullifying the recognition,
enjoyment or exercise by women, irrespective of their marital status,
on a basis of equality of men and women, of human rights and
fundamental freedoms in the political, economic, social, cultural,
civil or any other field.” As regards the States' obligations,
Article 2 of the CEDAW provides, in so far as relevant, the
following:
“States Parties condemn discrimination against
women in all its forms, agree to pursue by all appropriate means and
without delay a policy of eliminating discrimination against women
and, to this end, undertake:
...
(e) To take all appropriate measures to eliminate
discrimination against women by any person, organization or
enterprise;
(f) To take all appropriate measures, including
legislation, to modify or abolish existing laws, regulations, customs
and practices which constitute discrimination against women;”
The
Committee on the Elimination of All Forms of Discrimination Against
Women (hereinafter “the CEDAW Committee”) has found that
“gender-based violence is a form of discrimination that
seriously inhibits women's ability to enjoy rights and freedoms on a
basis of equality with men” and is thus prohibited under
Article 1 of CEDAW. Within the general category of gender-based
violence, the Committee includes violence by “private act”
and “family violence”.
Consequently, gender-based violence triggers duties in States. The
General Recommendation no. 19 sets out a catalogue of such duties.
They include a duty on States to “take all legal and other
measures that are necessary to provide effective protection of women
against gender-based violence
including penal sanctions, civil remedies and compensatory provisions
to protect women against all kinds of violence.”
In its Concluding Comments on the combined fourth and fifth periodic
report of Turkey (hereinafter “Concluding Comments”), the
CEDAW Committee reiterated that violence against women, including
domestic violence, is a form of discrimination (see, CEDAW/C/TUR/4-5
and Corr.1, 15 February 2005, § 28).
Furthermore,
in its explanations of General Recommendation no. 19, the CEDAW
Committee considered the following:
“...6. The Convention in article 1 defines
discrimination against women. The definition of discrimination
includes gender-based violence, that is, violence that is directed
against a woman because she is a woman or that affects women
disproportionately. It includes acts that inflict physical, mental or
sexual harm or suffering, threats of such acts, coercion and other
deprivations of liberty. Gender-based violence may breach specific
provisions of the Convention, regardless of whether those provisions
expressly mention violence.
7. Gender-based violence, which impairs or nullifies the
enjoyment by women of human rights and fundamental freedoms under
general international law or under human rights conventions, is
discrimination within the meaning of article 1 of the Convention.
Comments on specific articles of the Convention
...
Articles 2(f), 5 and 10(c)
11. Traditional attitudes by which women are regarded as
subordinate to men or as having stereotyped roles perpetuate
widespread practices involving violence or coercion, such as family
violence and abuse, forced marriage, dowry deaths, acid attacks and
female circumcision. Such prejudices and practices may justify
gender-based violence as a form of protection or control of women.
The effect of such violence on the physical and mental integrity of
women is to deprive them the equal enjoyment, exercise and knowledge
of human rights and fundamental freedoms. While this comment
addresses mainly actual or threatened violence the underlying
consequences of these forms of gender-based violence help to maintain
women in subordinate roles and contribute to the low level of
political participation and to their lower level of education, skills
and work opportunities.”
In
the case of A.T. v. Hungary (decision of 26 January 2005),
where the applicant had alleged that her common-law
husband and father of her two children had been physically abusing
and threatening her from 1998 onwards, the
CEDAW Committee directed Hungary to take measures “to guarantee
the physical and mental integrity of the applicant and her family”,
as well as to ensure that she was provided with a safe place of
residence to live with her children, and that she received child
support, legal assistance and compensation in proportion to the harm
sustained and the violation of her rights. The Committee also made
several general recommendations to Hungary on improving the
protection of women against domestic violence, such as establishing
effective investigative, legal and judicial processes, and increasing
treatment and support resources.
77. In
the case of Fatma Yıldırım
v. Austria (decision of 1 October 2007),
which concerned the killing of Mrs Yıldırım by her
husband, the CEDAW Committee found that the State Party had breached
its due diligence obligation to protect Fatma Yıldırım.
It therefore concluded that the State Party had violated its
obligations under Article 2 (a) and (c) through (f), and Article 3 of
the CEDAW read in conjunction with Article 1 of the CEDAW and General
Recommendation 19 of the Committee and the corresponding rights of
the deceased Fatma Yıldırım to life and to physical
and mental integrity.
The
United Nations General Assembly Declaration on the Elimination of
Violence against Women (1993), in its Article 4(c), urges States to
“exercise due diligence to prevent, investigate and, in
accordance with national legislation, punish acts of violence against
women, whether those acts are perpetrated by the State or private
persons”.
In
his third report, of 20 January 2006, to the Commission on Human
Rights of the UN Economic and Social Council (E/CN.4/2006/61), the
Special Rapporteur on violence against women considered that there is
a rule of customary international law that “obliges States to
prevent and respond to acts of violence against women with due
diligence”.
2. The Council of Europe
In
its Recommendation Rec(2002)5 of 30 April 2002 on the protection of
women against violence, the Committee of Ministers of the Council of
Europe stated, inter alia, that member States should
introduce, develop and/or improve where necessary national policies
against violence based on maximum safety and protection of victims,
support and assistance, adjustment of the criminal and civil law,
raising of public awareness, training for professionals confronted
with violence against women and prevention.
The
Committee of Ministers recommended, in particular, that member States
should penalise serious violence against women such as sexual
violence and rape, abuse of the vulnerability of pregnant,
defenceless, ill, disabled or dependent victims, as well as
penalising abuse of position by the perpetrator. The Recommendation
also stated that member States should ensure that all victims of
violence are able to institute proceedings, make provisions to ensure
that criminal proceedings can be initiated by the public prosecutor,
encourage prosecutors to regard violence against women as an
aggravating or decisive factor in deciding whether or not to
prosecute in the public interest, ensure where necessary that
measures are taken to protect victims effectively against threats and
possible acts of revenge and take specific measures to ensure that
children's rights are protected during proceedings.
With
regard to violence within the family, the Committee of Ministers
recommended that Member states should classify all forms of violence
within the family as criminal offences and envisage the possibility
of taking measures in order, inter alia, to enable the
judiciary to adopt interim measures aimed at protecting victims, to
ban the perpetrator from contacting, communicating with or
approaching the victim, or residing in or entering defined areas, to
penalise all breaches of the measures imposed on the perpetrator and
to establish a compulsory protocol for operation by the police,
medical and social services.
3. The Inter-American System
In
Velazquez-Rodriguez, the Inter-American Court stated:
“An illegal act which violates human rights and
which is initially not directly imputable to a State (for example,
because it is the act of a private person or because the person
responsible has not been identified) can lead to international
responsibility of the State, not because of an act itself, but
because of the lack of due diligence to prevent the violation or to
respond to it as required by the Convention.”
The
legal basis for the ultimate attribution of responsibility to a State
for private acts relies on State failure to comply with the duty to
ensure human rights protection, as set out in Article 1(1) of the
American Convention on Human Rights.
The Inter-American Court's case-law reflects this principle by
repeatedly holding States internationally responsible on account of
their lack of due diligence to prevent human rights
violations, to investigate and sanction perpetrators or to provide
appropriate reparations to their families.
The
Inter-American Convention on the Prevention, Punishment and
Eradication of Violence Against Women 1994 (Belém do Pará
Convention)
sets out States' duties relating to the eradication of gender based
violence. It is the only multilateral human rights treaty to deal
solely with violence against women.
The
Inter-American Commission adopts the Inter-American Court's approach
to the attribution of State responsibility for the acts and omissions
of private individuals. In the case of Maria Da Penha v. Brazil,
the Commission found that the State's failure to exercise due
diligence to prevent and investigate a domestic violence complaint
warranted a finding of State responsibility under the American
Convention and the Belém do Pará Convention.
Furthermore, Brazil had violated the rights of the applicant and
failed to carry out its duty (inter alia, under Article 7
of the Convention of Belém do Pará, obliging States to
condemn all forms of violence against women), as a result of its
failure to act and its tolerance of the violence inflicted.
Specifically, the Commission held
that:
“... tolerance by the State organs is not limited
to this case; rather, it is a pattern. The condoning of this
situation by the entire system only serves to perpetuate the
psychological, social, and historical roots and factors that sustain
and encourage violence against women.
Given the fact that the violence suffered by Maria da
Penha is part of a general pattern of negligence and lack of
effective action by the State in prosecuting and convicting
aggressors, it is the view of the Commission that this case involves
not only failure to fulfil the obligation with respect to prosecute
and convict, but also the obligation to prevent these degrading
practices. That general and discriminatory judicial ineffectiveness
also creates a climate that is conducive to domestic violence, since
society sees no evidence of willingness by the State, as the
representative of the society, to take effective action to sanction
such acts.”
4. Comparative-Law material
In
11 member States of the Council of Europe, namely in Albania,
Austria, Bosnia and Herzegovina, Estonia, Greece, Italy, Poland,
Portugal, San Marino, Spain and Switzerland, the authorities are
required to continue criminal proceedings despite the victim's
withdrawal of complaint in cases of domestic violence.
In
27 member States, namely in Andorra, Armenia, Azerbaijan, Belgium,
Bulgaria, Cyprus, the Czech Republic, Denmark, England and Wales,
Finland, the Former Yugoslav Republic of Macedonia, France, Georgia,
Germany, Hungary, Ireland, Latvia, Luxembourg, Malta, Moldova, the
Netherlands, the Russian Federation, Serbia, Slovakia, Sweden,
Turkey and Ukraine, the authorities have a margin of discretion in
deciding whether to pursue criminal proceedings against perpetrators
of domestic violence. A significant number of legal systems make a
distinction between crimes which are privately prosecutable (and for
which the victim's complaint is a pre-requisite) and those which are
publicly prosecutable (usually more serious offences for which
prosecution is considered to be in the public interest).
It
appears from the legislation and practice of the above-mentioned 27
countries that the decision on whether to proceed where the victim
withdraws his/her complaint lies within the discretion of the
prosecuting authorities, which primarily take into account the public
interest in continuing criminal proceedings. In some jurisdictions,
such as England and Wales, in deciding whether to pursue criminal
proceedings against the perpetrators of domestic violence the
prosecuting authorities (Crown Prosecution Service) are required to
consider certain factors, including: the seriousness of the offence;
whether the victim's injuries are physical or
psychological; if the defendant used a weapon; if the defendant has
made any threats since the attack; if the defendant planned the
attack; the effect (including psychological) on any children living
in the household; the chances of the defendant offending again; the
continuing threat to the health and safety of the victim or anyone
else who was, or could become, involved; the current state of the
victim's relationship with the defendant; the effect on that
relationship of continuing with the prosecution against the victim's
wishes; the history of the relationship, particularly if there was
any other violence in the past; and the defendant's criminal history,
particularly any previous violence. Direct reference is made
to the need to strike a balance between the victim's and any
children's Article 2 and Article 8 rights in deciding on a
course of action.
Romania
seems to be the only State which bases the continuance of criminal
proceedings entirely, and in all circumstances, on the
wishes/complaints of the victim.
B. Reports concerning domestic violence and the
situation of women in Turkey
1. The opinion of Purple Roof Women's Shelter
Foundation (Mor Çatı Kadın Sığınağı
Vakfı) on the implementation of Law no. 4320, dated 7
July 2007
According
to this report, Law no. 4320 (see paragraph 70 above) is not yet
being fully implemented. In recent years there has been an increase
in “protection orders” or injunctions issued by family
courts. However, some courts, in response to applications made to
them by women in mortal danger, are still setting hearings two or
even three months ahead. Under these circumstances, judges and
prosecutors treat an action under Law no. 4320 as if it were a form
of divorce action, whereas the point of the law is to take urgent
action on behalf of women who are seeking to protect their own lives.
Once the injunction has been issued, women are confronted with a
number of problems with its implementation.
In
the two years before the Report was released approximately 900 women
have applied to Mor Çatı and made great efforts to
use Law no. 4320, but of this number only 120 have succeeded.
Mor Çatı has identified serious problems with the
implementation of Law no. 4320. In particular, it was observed that
domestic violence is still treated with tolerance at police stations,
and that some police officers try to act as arbitrators, or take the
side of the male, or suggest that the woman drop her complaint. There
are also serious problems in serving the injunction issued by a court
under Law no. 4320 on the husband. In the case of a number of women
wishing to work with Mor Çatı, injunctions were not
implemented because their husbands were police officers or had
friendly relations with officers at the police station in question.
Furthermore,
there are unreasonable delays in issuing injunctions by the courts.
This results from the attitude of the courts in treating domestic
violence complaints as a form of divorce action. It is considered
that behind such delays lies a suspicion that women might be making
such applications when they have not suffered violence. The
allegations that women abuse Law no. 4320 are not correct. Since the
economic burden of the home lies almost 100% with men, it would be
impossible for women to request implementation of Law no. 4320
unless they were confronted with mortal danger. Finally, the
injunctions at issue are generally narrow in scope or are not
extended by the courts.
2. Research Report prepared by the Women's Rights
Information and Implementation Centre of the Diyarbakır Bar
Association (KA MER) on the Implementation of Law no. 4320,
dated 25 November 2005
According
to this report, a culture of violence has developed in Turkey and
violence is tolerated in many areas of life. A survey of legal
actions at a magistrate's court dealing with civil matters (sulh
hukuk mahkemesi) and three civil courts (asliye hukuk
mahkemesi) in Diyarbakır identified 183 actions brought
under Law no. 4320 from the date on which the law entered into force
in 1998 until September 2005. In 104 of these cases, the court
ordered various measures, while in the remaining 79 actions the
court held that there were no grounds for making an order, or
dismissed the action, or ruled that it lacked jurisdiction.
Despite
the importance of the problem of domestic violence, very few
applications have been made under the said law, because either the
public is not generally aware of it or the level of confidence in the
security forces is very low in the region. The most important
problems were caused by the delay in issuing injunctions and the
authorities' failure to monitor the implementation of injunctions.
Moreover,
the negative attitude of police officers at police stations towards
victims of domestic violence is one of the obstacles preventing women
from using this law. Women who go to police stations because they are
subjected to domestic violence are confronted with attitudes
which tend to regard the problem as a private family matter into
which the police are reluctant to interfere.
This
report makes recommendations to improve the implementation of Law no.
4320 and to enhance the protection of victims of domestic violence.
3. Diyarbakır KA-MER Emergency helpline statistics
regarding the period between 1 August 1997 and 30 June 2007
This
statistical information report was prepared following the interviews
conducted with 2,484 women. It appears that all of the complainants
were subjected to psychological violence and approximately 60% were
subjected to physical violence. The highest number of victims are
from the age group 20-30 (43%). 57% of these women are married. The
majority of victims are illiterate or have a low educational level.
78% of the women are of Kurdish origin. 91% of the victims who called
the emergency helpline are from Diyarbakır. 85% of the victims
have no independent source of income.
4. Amnesty International's 2004 Report entitled
“Turkey: Women Confronting Family Violence”
According
to this Report, statistical information about the extent of violence
against women in Turkey is limited and unreliable. Nonetheless, it
appears that a culture of domestic violence has placed women in
double jeopardy, both as victims of violence and because they are
denied effective access to justice. Women from vulnerable groups,
such as those from low-income families or who are fleeing conflict or
natural disasters, are particularly at risk. In this connection, it
was found that crimes against women in southeast Turkey have gone
largely unpunished.
It
was noted that women's rights defenders struggle to combat community
attitudes, which are tolerant of violence against women and are
frequently shared by judges, senior government officials and opinion
leaders in society. Even after legislative reforms have removed the
legal authorisation for discriminatory treatment, attitudes that
pressure women to conform to certain codes of behaviour restrict
women's life choices.
The
Report states that at every level of the criminal justice system the
authorities fail to respond promptly or rigorously to women's
complaints of rape, sexual assault or other violence within the
family. The police are reluctant to prevent and investigate family
violence, including the violent deaths of women. Prosecutors refuse
to open investigations into cases involving domestic violence or to
order protective measures for women at risk from their family or
community. The police and courts do not ensure that men, who are
served with court orders, including protection orders, comply with
them. They accord them undue leniency in sentencing, on the grounds
of “provocation” by their victim and on the flimsiest of
evidence.
There
are many barriers facing women who need access to justice and
protection from violence. Police officers often believe that their
duty is to encourage women to return home and “make peace”
and fail to investigate the women's complaints. Many women,
particularly in rural areas, are unable to make formal complaints,
because leaving their neighbourhoods subjects them to intense
scrutiny, criticism and, in some cases, violence.
Furthermore,
although some courts appear to have begun implementing the reforms,
the discretion accorded to the courts continues to accord the
perpetrators of domestic violence unwarranted leniency. Sentences in
such cases are still frequently reduced at the discretion of the
judges, who continue to take into account the “severe
provocation” of the offence to custom, tradition or honour.
Finally,
this Report makes a number of recommendations to the Turkish
Government and to community and religious authorities with a view to
addressing the problem of domestic violence.
5. Research Report on Honour Crimes, prepared by the
Diyarbakır Bar Association's Justice For All Project and the
Women's Rights Information and Implementation Centre
This
report was prepared in order to look into the judicial dimensions of
the phenomenon of so-called “honour crimes”. A survey was
carried out of judgments in cases before the Diyarbakır assize
courts and children's courts. The purpose of the survey was to
identify the proportion of such unlawful killings referred to the
courts, the judiciary's attitude to them, the defendants' lines of
defence in these cases, the role of social structure (i.e. family
councils and custom) and the reasons for the murders. To that end,
cases in the Diyarbakır assize courts and children's courts
between 1999 and 2005 were examined. In these seven years, 59 cases
were identified in which a judgment was given. In these cases, there
were 71 victims/persons killed, and 81 people were tried as
defendants.
According
to the researchers, in cases where the victim/person killed was male,
it was observed that defendants claimed, in their defence, that the
victim/person killed had raped, sexually assaulted, or abducted a
relative of the defendant, or had attempted to draw a relative of the
defendant into prostitution. In cases where the victim/person killed
was a woman, defendants alleged, in their defence, that the
victim/person killed had been talking to other men, had taken up
prostitution, or had committed adultery. In 46 of the judgments,
mitigating provisions concerning unjustified provocation were
applied. In cases of 61 convictions, the provisions of Article 59 of
the Turkish Criminal Code concerning discretionary mitigation were
applied.
THE LAW
I. ADMISSIBILITY
The
Government contested the admissibility of the application on two
grounds.
1. Failure to observe the six-month rule under Article
35 § 1 of the Convention
The
Government submitted that the applicant had failed to observe the
six-month time-limit in respect of the events which had taken place
before 2001. They argued that the events which had taken place
between 1995 and 2001 should be considered as out of time. If the
applicant was not satisfied with the decisions given by the domestic
authorities subsequent to the events which had taken place during the
aforementioned period, she should have submitted her application to
the Commission or, following the entry into force of Protocol No. 11,
to the Court within six months of each decision.
The
applicant claimed that she had lodged her application within six
months of the impugned events. In her opinion the events should be
taken as a whole and should not be examined separately.
The
Court reiterates that the purpose of the six-month rule under Article
35 § 1 of the Convention is to promote security of law and to
ensure that cases raising issues under the Convention are dealt with
within a reasonable time (see Kenar v. Turkey, no. 67215/01
(dec.), 1 December 2005). According to its well-established case-law,
where no domestic remedy is available the six-month period runs from
the date of the act complained of.
In
that regard the Court notes that from 10 April 1995 the applicant and
her mother had been victims of multiple assaults and threats by H.O.
against their physical integrity. These acts of violence had resulted
in the death of the applicant's mother and caused the applicant
intense suffering and anguish. While there were intervals between the
impugned events, the Court considers that the overall violence to
which the applicant and her mother were subjected over a long period
of time cannot be seen as individual and separate episodes and must
therefore be considered together as a chain of connected events.
This
being so, the Court notes that the applicant has submitted her
application within six months of the killing of her mother by H.O.,
which event may be considered as the time that she became aware of
the ineffectiveness of the remedies in domestic law, as a result of
the authorities' failure to stop H.O. committing further violence.
Given that these circumstances do not disclose any indication of a
delay on the part of the applicant in introducing her application
once it became apparent that no redress for her complaints was
forthcoming, the Court considers that the relevant date for the
purposes of the six-month time-limit should not be considered to be a
date earlier than at least 13 March 2002 (see paragraph 54 above). In
any event, the applicant's former husband had continued to issue
threats against her life and well-being and, therefore, it cannot be
said that the said pattern of violence has come to an end (see
paragraphs 59-69 above).
In
the specific context of this case, it follows that the applicant's
complaints have been introduced within the six-month time-limit
required by Article 35 § 1 of the Convention. The Court
therefore dismisses the Government's preliminary objection in this
regard.
2. Failure to exhaust domestic remedies
The Government further contended that the applicant
had failed to exhaust domestic remedies since she and her mother had
withdrawn their complaints many times and had caused the termination
of the criminal proceedings against the applicant. They maintained
that the applicant had also not availed herself of the protection
afforded by Law no. 4320 and that she had prevented the public
prosecutor from applying to the family court, in that she had
withdrawn her complaints. They submitted further that the applicant
could have availed herself of the administrative and civil law
remedies whose effectiveness had been recognised by the Court in
previous cases (citing Aytekin v. Turkey, 23 September
1998, Reports of Judgments and Decisions 1998-VII).
Finally, relying on the Court's judgments in the cases of Ahmet Sadık
v. Greece (15 November 1996, § 34, Reports
1996-V) and Cardot v. France (19 March 1991,
§ 30, Series A no. 200), the Government claimed
that the applicant had failed to raise, even in substance, her
complaints of discrimination before the national authorities and that
therefore these complaints should be declared inadmissible.
The
applicant claimed that she had exhausted all available remedies in
domestic law. She argued that the domestic remedies had proven to be
ineffective given the failure of the authorities to protect her
mother's life and to prevent her husband from inflicting
ill-treatment on her and her mother. As regards the Government's
reliance on Law no. 4320, to the effect that she had not availed
herself of the remedies therein, the applicant noted that the said
law had come into force on 14 January 1998, whereas a significant
part of the events at issue had taken place prior to that date. Prior
to the entry into force of Law no. 4320, there was no mechanism for
protection against domestic violence. In any event, despite her
numerous criminal complaints to the Chief Public Prosecutor's Office,
none of the protective measures provided for in Law no. 4320 had been
taken to protect the life and well-being of the applicant and her
mother.
The
Court observes that the main question with regard to the question of
exhaustion of domestic remedies is whether the applicants have failed
to make use of available remedies in domestic law, particularly those
provided by Law no. 4320, and whether the domestic authorities were
required to pursue the criminal proceedings against the applicant's
husband despite the withdrawal of complaints by the victims. These
questions are inextricably linked to the question of the
effectiveness of the domestic remedies in providing sufficient
safeguards for the applicant and her mother against domestic
violence. Accordingly, the Court joins these questions to the merits
and will examine them under Articles 2, 3 and 14 of the Convention
(see, among other authorities, Şemsi Önen v. Turkey,
no. 22876/93, § 77, 14 May 2002).
In view of the above, the Court notes that the
application is not manifestly ill-founded within the meaning of
Article 35 § 3 of the Convention. It further notes that it is
not inadmissible on any other grounds. It must therefore be declared
admissible.
II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
The
applicant complained that the authorities had failed to safeguard the
right to life of her mother, who had been killed by her husband, in
violation of Article 2 of the Convention, which provides as relevant:
“1. Everyone's right to life shall be
protected by law. No one shall be deprived of his life intentionally
save in the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided by law...”
A. Parties' submissions
1. The applicant
The
applicant asserted at the outset that domestic violence was tolerated
by the authorities and society and that the perpetrators of domestic
violence enjoyed impunity. In this connection, she pointed out that,
despite their numerous criminal complaints to the Diyarbakır
Chief Public Prosecutor's Office, none of the protective measures
provided for in Law no. 4320 had been taken to protect the
life and well-being of herself and her mother. Conversely, on a
number of occasions, the authorities had tried to persuade the
applicant and her mother to abandon their complaints against H.O. The
domestic authorities had remained totally passive in the face of
death threats issued by H.O. and had left her and her mother to the
mercy of their aggressor.
The
applicant pointed out that by a petition dated 27 February 2002 her
mother had applied to the Chief Public Prosecutor's Office and had
informed the authorities of the death threats issued by H.O. However,
the Public Prosecutor had done nothing to protect the life of the
deceased. In the applicant's opinion, the fact that the authorities
had not taken her mother's complaint seriously was a clear indication
that domestic violence was tolerated by society and the national
authorities.
The
applicant also claimed that, although H.O. had been convicted of
murder, the punishment imposed on him was not a deterrent and was
considerably less than the normal sentence imposed for murder. The
imposition of a lenient sentence had resulted from the fact that, in
his defence submissions before the Assize Court, the accused had
claimed to have killed her mother in order to protect his honour. It
was the general practice of the criminal courts in Turkey to mitigate
sentences in cases of “honour crimes”. In cases
concerning “honour crimes”, the criminal courts imposed a
very lenient punishment or no punishment at all on the perpetrators
of such crimes.
2. The Government
The
Government stressed that the local authorities had provided immediate
and tangible follow-up to the complaints lodged by the applicant and
her mother. In this connection, subsequent to the filing of their
complaints, the authorities had registered the complaints, conducted
medical examinations, heard witnesses, conducted a survey of the
scenes of the incidents and transmitted the complaints to the
competent legal authorities. When necessary and depending on the
gravity of the incident, the aggressor had been remanded in custody
and had been convicted by the criminal courts. These proceedings had
been carried out within the shortest time possible. The authorities
had displayed diligence and were sensitive to the complaints, and no
negligence had been shown.
However,
by withdrawing their complaints, the applicant and her mother had
prevented the authorities from pursuing criminal proceedings against
H.O. and had thus contributed to the impunity enjoyed by the
aggressor. In this regard, it did not appear from the case file that
the applicant and her mother had withdrawn their complaints as a
result of any pressure exerted on them either by H.O. or the public
prosecutor in charge of the investigation. The pursuit of criminal
proceedings against the aggressor was dependent on the complaints
lodged or pursued by the applicant, since the criminal acts in
question had not resulted in sickness or unfitness for work for ten
days or more, within the meaning of Articles 456 § 4, 457
and 460 of the Criminal Code. Furthermore, in most cases the criminal
courts had not convicted H.O. because the evidence against him was
insufficient. Accordingly, the authorities could not be expected to
separate the applicant and her husband and convict the latter while
they were living together as a family, as this would amount to a
breach of their rights under Article 8 of the Convention.
As
regards the petition filed by the applicant's mother on 27 February
2002, the Government claimed that the content of this petition was no
different to the previous ones and was of a general nature. There was
no tangible fact or specific indication that her life was indeed in
danger. In the petition the mother had failed to request any
protection at all but she had merely requested a speedy examination
of her complaint and the punishment of the applicant's husband.
Nonetheless, subsequent to the receipt of the petition dated
27 February 2002, the authorities had registered the complaint
and had held a hearing on 27 May 2002, which had been followed by
other hearings. Finally, following the killing of the applicant's
mother by H.O., the latter had been convicted and had received a
heavy punishment.
3. Interights
Referring
to international practice, Interights submitted that where the
national authorities failed to act with due diligence to prevent
violence against women, including violence by private actors, or to
investigate, prosecute and punish such violence, the State might be
responsible for such acts. The jus cogens nature of the right
to freedom from torture and the right to life required exemplary
diligence on the part of the State with respect to investigation and
prosecution of these acts.
In
the context of domestic violence, victims were often intimidated or
threatened into either not reporting the crime or withdrawing
complaints. However, the responsibility to ensure accountability and
guard against impunity lay with the State, not with the victim.
International practice recognised that a broad range of interested
persons, not just the victim, should be able to report and initiate
an investigation into domestic violence. Further, international
practice increasingly suggested that where there was sufficient
evidence and it was considered in the public interest, prosecution of
perpetrators of domestic violence should continue even when a victim
withdrew her complaint. These developments indicated a trend away
from requiring victim participation towards placing the
responsibility for effective prosecution squarely on the State.
While
a decision not to prosecute in a particular case would not
necessarily be in breach of due diligence obligations, a law or
practice which automatically paralysed a domestic violence
investigation or prosecution where a victim withdrew her complaint
would be. In respect of these obligations and with reference to the
Fatma Yıldırım v. Austria decision of the CEDAW
Committee (cited in the relevant international material section), it
was submitted that the State had not only to ensure an appropriate
legislative framework, but ensure effective implementation and
enforcement practice.
B. The Court's assessment
1. Alleged failure to protect the applicant's mother's
life
a) Relevant principles
The
Court reiterates that the first sentence of Article 2 § 1
enjoins the State not only to refrain from the intentional and
unlawful taking of life, but also to take appropriate steps to
safeguard the lives of those within its jurisdiction (see L.C.B.
v. the United Kingdom, 9 June 1998, § 36, Reports
1998-III). This involves a primary duty on the State to secure
the right to life by putting in place effective criminal-law
provisions to deter the commission of offences against the person
backed up by law-enforcement machinery for the prevention,
suppression and punishment of breaches of such provisions. It also
extends in appropriate circumstances to a positive obligation on the
authorities to take preventive operational measures to protect an
individual whose life is at risk from the criminal acts of another
individual (see Osman v. the United Kingdom, 28 October 1998,
§ 115, Reports 1998-VIII, cited in Kontrová
v. Slovakia, no. 7510/04, §49, ECHR 2007 ...
(extracts)).
Bearing
in mind the difficulties in policing modern societies, the
unpredictability of human conduct and the operational choices which
must be made in terms of priorities and resources, the scope of the
positive obligation must be interpreted in a way which does not
impose an impossible or disproportionate burden on the authorities.
Not every claimed risk to life, therefore, can entail for the
authorities a Convention requirement to take operational measures to
prevent that risk from materialising. For a positive obligation
to arise, it must be established that the authorities knew or ought
to have known at the time of the existence of a real and immediate
risk to the life of an identified individual from the criminal acts
of a third party and that they failed to take measures within the
scope of their powers which, judged reasonably, might have been
expected to avoid that risk. Another relevant consideration is the
need to ensure that the police exercise their powers to control and
prevent crime in a manner which fully respects the due process and
other guarantees which legitimately place restraints on the scope of
their action to investigate crime and bring offenders to justice,
including the guarantees contained in Articles 5 and 8 of the
Convention (see Osman, cited above § 116).
In
the opinion of the Court, where there is an allegation that the
authorities have violated their positive obligation to protect the
right to life in the context of their above-mentioned duty to prevent
and suppress offences against the person, it must be established to
its satisfaction that the authorities knew or ought to have known at
the time of the existence of a real and immediate risk to the life of
an identified individual or individuals from the criminal acts of a
third party and that they failed to take measures within the scope of
their powers which, judged reasonably, might have been expected to
avoid that risk. Furthermore, having regard to the nature of the
right protected by Article 2, a right fundamental in the scheme
of the Convention, it is sufficient for an applicant to show that the
authorities did not do all that could be reasonably expected of them
to avoid a real and immediate risk to life of which they have or
ought to have knowledge. This is a question which can only be
answered in the light of all the circumstances of any particular case
(Ibid.).
b) Application of the above principles to
the present case
i) Scope of the case
On
the above understanding, the Court will ascertain whether the
national authorities have fulfilled their positive obligation to take
preventive operational measures to protect the applicant's mother's
right to life. In this connection, it must establish whether the
authorities knew or ought to have known at the time of the existence
of a real and immediate risk to the life of the applicant's mother
from criminal acts by H.O. As it appears from the parties'
submissions, a crucial question in the instant case is whether the
local authorities displayed due diligence to prevent violence against
the applicant and her mother, in particular by pursuing criminal or
other appropriate preventive measures against H.O. despite the
withdrawal of complaints by the victims.
However,
before embarking upon these issues, the Court must stress that the
issue of domestic violence, which can take various forms ranging from
physical to psychological violence or verbal abuse, cannot be
confined to the circumstances of the present case. It is a general
problem which concerns all member States and which does not always
surface since it often takes place within personal relationships or
closed circuits and it is not only women who are affected. The Court
acknowledges that men may also be the victims of domestic violence
and, indeed, that children, too, are often casualties of the
phenomenon, whether directly or indirectly. Accordingly, the Court
will bear in mind the gravity of the problem at issue when examining
the present case
ii) Whether the local authorities could have
foreseen a lethal attack from H.O.
Turning
to the circumstances of the case, the Court observes that the
applicant and her husband, H.O., had a problematic relationship from
the very beginning. As a result of disagreements, H.O. resorted to
violence against the applicant and the applicant's mother therefore
intervened in their relationship in order to protect her daughter.
She thus became a target for H.O., who blamed her for being the cause
of their problems (see paragraph 28 above). In this connection, the
Court considers it important to highlight some events and the
authorities' reaction:
(i) On
10 April 1995 H.O. and A.O. beat up the applicant and her mother,
causing severe physical injuries, and threatened to kill them.
Although the applicant and her mother initially filed a criminal
complaint about this event, the criminal proceedings against H.O. and
A.O. were terminated because the victims withdrew their complaints
(see paragraphs 9-11 above);
(ii) On
11 April 1996 H.O. again beat the applicant, causing life-threatening
injuries. H.O. was remanded in custody and a criminal prosecution was
commenced against him for aggravated bodily harm. However, following
the release of H.O., the applicant withdrew her complaint and the
charges against H.O. were dropped (see paragraphs 13-19 above);
(iii) On
5 February 1998 H.O. assaulted the applicant and her mother using a
knife. All three were severely injured and the public prosecutor
decided not to prosecute anyone on the ground that there was
insufficient evidence (see paragraphs 20 and 21 above);
(iv) On
4 March 1998 H.O. ran his car into the applicant and her mother. Both
victims suffered severe injuries, and the medical reports indicated
that the applicant was unfit for work for seven days and that her
mother's injuries were life-threatening. Subsequent to this incident,
the victims asked the public prosecutor's office to take protective
measures in view of the death threats issued by H.O., and the
applicant initiated divorce proceedings. The police investigation
into the victims' allegations of death threats concluded that both
parties had threatened each other and that the applicant's mother had
made such allegations in order to separate her daughter from H.O. for
the purpose of revenge, and had also “wasted” the
security forces' time. Criminal proceedings were instituted against
H.O. for issuing death threats and attempted murder, but following
H.O.'s release from custody (see paragraph 31 above) the applicant
and her mother again withdrew their complaints. This time, although
the prosecuting authorities dropped the charges against H.O. for
issuing death threats and hitting the applicant, the Diyarbakır
Assize Court convicted him for causing injuries to the mother and
sentenced him to three months' imprisonment, which sentence was later
commuted to a fine (see paragraphs 23-36 above);
(v) On
29 October 2001 H.O. stabbed the applicant seven times following her
visit to her mother. H.O. surrendered to the police claiming that he
had attacked his wife in the course of a fight caused by his
mother-in-law's interference with their marriage. After taking H.O.'s
statements the police officers released him. However, the applicant's
mother applied to the Chief Public Prosecutor's Office seeking the
detention of H.O., and also claimed that she and her daughter had had
to withdraw their complaints in the past because of death threats and
pressure by H.O. As a result H.O. was convicted of knife assault and
sentenced to a fine (see paragraphs 37-44 above);
(vi) On
14 November 2001 H.O. threatened the applicant but the prosecuting
authorities did not press charges for lack of concrete evidence (see
paragraphs 45 and 46 above);
(vii) On
19 November 2001 the applicant's mother filed a petition with the
local public prosecutor's office, complaining about the ongoing death
threats and harassment by H.O., who had been carrying weapons. Again
the police took statements from H.O. and released him, but the Public
Prosecutor pressed charges against him for making death threats (see
paragraphs 47 49).
(viii) Later,
on 27 February 2002, the applicant's mother applied to the public
prosecutor's office, informing him that H.O.'s threats had
intensified and that their lives were in immediate danger. She
therefore asked the police to take action against H.O. The police
took statements from H.O. and the Magistrate's Court questioned him
about the allegations only after the killing of the applicant's
mother. H.O. denied the allegations and claimed that he did not wish
his wife to visit her mother, who was living an immoral life (see
paragraphs 51-52 above).
In
view of the above events, it appears that there was an escalating
violence against the applicant and her mother by H.O. The crimes
committed by H.O. were sufficiently serious to warrant preventive
measures and there was a continuing threat to the health and safety
of the victims. When examining the history of the relationship, it
was obvious that the perpetrator had a record of domestic violence
and there was therefore a significant risk of further violence.
Furthermore,
the victims' situations were also known to the authorities and the
mother had submitted a petition to the Diyarbakır Chief Public
Prosecutor's Office, stating that her life was in immediate danger
and requesting the police to take action against H.O. However, the
authorities' reaction to the applicant's mother's request was limited
to taking statements from H.O. about the mother's allegations.
Approximately two weeks after this request, on 11 March 2002, he
killed the applicant's mother (see paragraph 54).
Having
regard to the foregoing, the Court finds that the local authorities
could have foreseen a lethal attack by H.O. While the Court cannot
conclude with certainty that matters would have turned out
differently and that the killing would not have occurred if the
authorities had acted otherwise, it recalls that a failure to take
reasonable measures which could have had a real prospect of altering
the outcome or mitigating the harm is sufficient to engage the
responsibility of the State (see E. and Others v. the United
Kingdom, no. 33218/96, § 99). Therefore the Court will next
examine to what extent the authorities took measures to prevent the
killing of the applicant's mother.
iii) Whether the authorities displayed
due diligence to prevent the killing of the applicant's mother
The
Government claimed that each time the prosecuting authorities
commenced criminal proceedings against H.O., they had to terminate
those proceedings, in accordance with the domestic law, because the
applicant and her mother withdrew their complaints. In their opinion,
any further interference by the authorities would have amounted to a
breach of the victims' Article 8 rights. The applicant explained that
she and her mother had had to withdraw their complaints because of
death threats and pressure exerted by H.O.
The
Court notes at the outset that there seems to be no general consensus
among States Parties regarding the pursuance of the criminal
prosecution against perpetrators of domestic violence when the victim
withdraws her complaints (see paragraphs 87 and 88 above).
Nevertheless, there appears to be an acknowledgement of the duty on
the part of the authorities to strike a balance between a victim's
Article 2, Article 3 or Article 8 rights in deciding on a course of
action. In this connection, having examined the practices in the
member States (see paragraph 89 above), the Court observes that there
are certain factors that can be taken into account in deciding to
pursue the prosecution:
- the
seriousness of the offence;
- whether
the victim's injuries are physical or psychological;
- if
the defendant used a weapon;
- if
the defendant has made any threats since the attack;
- if
the defendant planned the attack;
- the
effect (including psychological) on any children living in the
household; the chances of the defendant offending again;
- the
continuing threat to the health and safety of the victim or anyone
else who was, or could become, involved;
- the
current state of the victim's relationship with the defendant; the
effect on that relationship of continuing with the prosecution
against the victim's wishes;
- the
history of the relationship, particularly if there had been any other
violence in the past;
- and
the defendant's criminal history, particularly any previous violence.
It
can be inferred from this practice that the more
serious the offence or the greater the risk of further offences, the
more likely that the prosecution should continue in the public
interest, even if victims withdraw their complaints.
140. As
regards the Government's argument that any attempt by the authorities
to separate the applicant and her husband would have amounted to a
breach of their right to family life, and bearing in mind that under
Turkish law there is no requirement to pursue the prosecution in
cases where the victim withdraws her complaint and did not suffer
injuries which renders her unfit for work for ten or more days, the
Court will now examine whether the local authorities struck a proper
balance between the victim's Article 2 and Article 8 rights.
141. In
this connection, the Court notes that H.O. resorted to violence from
the very beginning of his relationship with the applicant. On many
instances both the applicant and her mother suffered physical
injuries and were subjected to psychological pressure, given the
anguish and fear. For some assaults H.O. used lethal weapons, such as
a knife or a shotgun, and he constantly issued death threats against
the applicant and her mother. Having regard to the circumstances of
the killing of the applicant's mother, it may also be stated that
H.O. had planned the attack, since he had been carrying a knife and a
gun and had been wandering around the victim's house on occasions
prior to the attack (see paragraphs 47 and 54 above).
The
applicant's mother became a target as a result of her perceived
involvement in the couple's relationship, and the couple's children
can also be considered as victims on account of the psychological
effects of the ongoing violence in the family home. As noted above,
in the instant case, further violence was not only possible but even
foreseeable, given the violent behaviour and criminal record of H.O.,
his continuing threat to the health and safety of the victims and the
history of violence in the relationship (see paragraphs 10, 13, 23,
37, 45, 47 and 51 above).
In
the Court's opinion, it does not appear that the local authorities
sufficiently considered the above factors when repeatedly deciding to
discontinue the criminal proceedings against H.O. Instead, they seem
to have given exclusive weight to the need to refrain from
interfering in what they perceived to be a “family matter”
(see paragraph 123 above). Moreover, there is no indication that the
authorities considered the motives behind the withdrawal of the
complaints. This is despite the applicant's mother's indication to
the Diyarbakır Public Prosecutor that she and her daughter had
withdrawn their complaints because of the death threats issued and
pressure exerted on them by H.O. (see paragraph 39 above). It is also
striking that the victims withdrew their complaints when H.O. was at
liberty or following his release from custody (see paragraphs 9-12,
17-19, 31 and 35 above).
As
regards the Government's argument that any further interference by
the national authorities would have amounted to a breach of the
victims' rights under Article 8 of the Convention, the Court recalls
its ruling in a similar case of domestic violence (see Bevacqua
and S. v. Bulgaria, no. 71127/01, § 83,
12 June 2008), where it held that the authorities' view that no
assistance was required as the dispute concerned a “private
matter” was incompatible with their positive obligations to
secure the enjoyment of the applicants' rights. Moreover, the Court
reiterates that, in some instances, the national authorities'
interference with the private or family life of the individuals might
be necessary in order to protect the health and rights of others or
to prevent commission of criminal acts (see, K.A. and A.D. v.
Belgium, no. 42758/98 and 45558/99, § 81, 17
February 2005). The seriousness of the risk to the applicant's mother
rendered such intervention by the authorities necessary in the
present case.
145. However,
the Court regrets to note that the criminal investigations in the
instant case were strictly dependent on the pursuance of complaints
by the applicant and her mother on account of the domestic law
provisions in force at the relevant time; i.e. Articles 456 §
4, 457 and 460 of the now defunct Criminal
Code, which prevented the prosecuting authorities to pursue the
criminal investigations because the criminal acts in question
had not resulted in sickness or unfitness for work for ten days or
more (see
paragraph 70 above). It observes that
the application of the aforementioned provisions and the cumulative
failure of the domestic authorities to pursue criminal proceedings
against H.O. deprived the applicant's mother of the protection of her
life and safety. In other words, the legislative framework then in
force, particularly the minimum ten days' sickness unfitness
requirement, fell short of the
requirements inherent in the State's positive obligations to
establish and apply effectively a system punishing all forms of
domestic violence and providing sufficient safeguards for the
victims. The Court thus considers that, bearing in mind the
seriousness of the crimes committed by
H.O. in the past, the prosecuting authorities should have been able
to pursue the proceedings as a matter of public interest, regardless
of the victims' withdrawal of complaints (see
in this respect Recommendation Rec(2002)5 of the Committee of the
Ministers, §§ 80-82 above).
The
legislative framework preventing effective protection for victims of
domestic violence aside, the Court must also consider
whether the local authorities displayed due diligence to protect the
right to life of the applicant's mother in other respects.
In
this connection, the Court notes that despite the deceased's
complaint that H.O. had been harassing her, invading her privacy by
wandering around her property and carrying knives and guns (see
paragraph 47 above), the police and prosecuting authorities
failed either to place H.O. in detention or to take other appropriate
action in respect of the allegation that he had a shotgun and had
made violent threats with it (see Kontrová, cited
above, § 53). While the Government argued that there was no
tangible evidence that the applicant's mother's life was in imminent
danger, the Court observes that it is not in fact apparent that the
authorities assessed the threat posed by H.O. and concluded that his
detention was a disproportionate step in the circumstances; rather
the authorities failed to address the issues at all. In any event,
the Court would underline that in domestic violence cases
perpetrators' rights cannot supersede victims' human rights to life
and to physical and mental integrity (see the Fatma Yıldırım
v. Austria and A.T. v. Hungary decisions of the CEDAW
Committee, both cited above, §§ 12.1.5 and 9.3,
respectively).
Furthermore,
in the light of the State's positive obligation to take preventive
operational measures to protect an individual whose life is at risk,
it might have been expected that the authorities, faced with a
suspect known to have a criminal record of perpetrating violent
attacks, would take special measures consonant with the gravity of
the situation with a view to protecting the applicant's mother. To
that end, the local public prosecutor or the judge at the
Magistrate's Court could have ordered on his/her initiative one or
more of the protective measures enumerated under sections 1 and 2 of
Law no. 4320 (see paragraph 70 above). They could also have
issued an injunction with the effect of banning H.O. from contacting,
communicating with or approaching the applicant's mother or entering
defined areas (see in this respect Recommendation Rec(2002)5 of the
Committee of the Ministers, § 82 above). On the contrary, in
response to the applicant's mother's repeated requests for
protection, the police and the Magistrate's Court merely took
statements from H.O. and released him (see paragraphs 47-52 above).
While the authorities remained passive for almost two weeks apart
from taking statements, H.O. shot dead the applicant's mother.
In
these circumstances, the Court concludes that the national
authorities cannot be considered to have displayed due diligence.
They therefore failed in their positive obligation to protect the
right to life of the applicant's mother within the meaning of Article
2 of the Convention.
2) The effectiveness of the criminal investigation into the
killing of the applicant's mother
The
Court reiterates that the positive obligations laid down in the first
sentence of Article 2 of the Convention also require by implication
that an efficient and independent judicial system should be set in
place by which the cause of a murder can be established and the
guilty parties punished (see, mutatis mutandis, Calvelli
and Ciglio v. Italy, [GC], no. 32967/96, ECHR 2002, § 51).
The essential purpose of such investigation is to secure the
effective implementation of the domestic laws which protect the right
to life and, in those cases involving State agents or bodies, to
ensure their accountability for deaths occurring under their
responsibility (see Paul and Audrey Edwards, cited
above, §§ 69 and 71). A requirement of promptness and
reasonable expedition is implicit in the context of an effective
investigation within the meaning of Article 2 of the Convention (see
Yaşa v. Turkey, 2 September 1998, §§ 102 104,
Reports 1998-VI; Çakıcı v. Turkey
[GC], no. 23657/94, §§ 80-87 and 106, ECHR 1999-IV).
It must be accepted that there may be obstacles or difficulties which
prevent progress in an investigation in a particular situation.
However, a prompt response by the authorities in investigating a use
of lethal force may generally be regarded as essential in maintaining
public confidence in their adherence to the rule of law and in
preventing any appearance of tolerance of unlawful acts (see Avşar
v. Turkey, no. 25657/94, § 395, ECHR 2001-VII
(extracts)).
The
Court notes that a comprehensive investigation has indeed been
carried out by the authorities into the circumstances surrounding the
killing of the applicant's mother. However, although H.O. was tried
and convicted of murder and illegal possession of a firearm by the
Diyarbakır Assize Court, the proceedings are still pending
before the Court of Cassation (see paragraphs 57 and 58 above).
Accordingly, the criminal proceedings in question, which have already
lasted more than six years, cannot be described as a prompt response
by the authorities in investigating an intentional killing where the
perpetrator had already confessed to the crime.
3) Conclusion
In
the light of the foregoing, the Court considers that the
above-mentioned failures rendered recourse to criminal and civil
remedies equally ineffective in the circumstances. It accordingly
dismisses the Government's preliminary objection (see paragraph 114
above) based on non-exhaustion of these remedies.
Moreover,
the Court concludes that the criminal law system, as applied in
the instant case, did not have an adequate deterrent effect capable
of ensuring the effective prevention of the unlawful acts committed
by H.O. The obstacles resulting from the legislation and failure to
use the means available undermined the deterrent effect of the
judicial system in place and the role it was required to play in
preventing a violation of the applicant's mother's right to life as
enshrined in Article 2 of the Convention. The Court reiterates in
this connection that, once the situation has been brought to their
attention, the national authorities cannot rely on the victim's
attitude for their failure to take adequate measures which could
prevent the likelihood of an aggressor carrying out his threats
against the physical integrity of the victim (see Osman v. the
United Kingdom, cited above, § 116). There has
therefore been a violation of Article 2 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The applicant complained that she had been subjected to violence,
injury and death threats several times but that the authorities were
negligent towards her situation, which caused her pain and fear in
violation of Article 3 of the Convention, which provides:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Parties' submissions
The
applicant alleged that the injuries and anguish she had suffered as a
result of the violence inflicted upon her by her husband had amounted
to torture within the meaning of Article 3 of the Convention. Despite
the ongoing violence and her repeated requests for help, however, the
authorities had failed to protect her from her husband. It was as
though the violence had been inflicted under state supervision. The
insensitivity and tolerance shown by the authorities in the face of
domestic violence had made her feel debased, hopeless and vulnerable.
The
Government argued that the applicant's withdrawal of complaints and
her failure to cooperate with the authorities had prevented the
prosecuting authorities from pursuing the criminal proceedings
against her husband. They further claimed that, in addition to the
available remedies under Law no. 4320, the applicant could have
sought shelter in one of the guest houses set up to protect women
with the co-operation of public institutions and non-governmental
organisations. In this respect, the applicant could have petitioned
the Directorate of Social Services and Child protection Agency for
admission to one of the guest houses. The addresses of these
guesthouses were secret and they were protected by the authorities.
Interights
maintained that States were required to take reasonable steps to act
immediately to stop ill-treatment, whether by public or private
actors, of which they have known or ought to have known. Given the
opaque nature of domestic violence and the particular vulnerability
of women who are too often frightened to report such violence, it is
submitted that a heightened degree of vigilance is required of the
State.
B. The Court's assessment
1. Applicable principles
The
Court reiterates that ill-treatment must attain a minimum level of
severity if it is to fall within the scope of Article 3. The
assessment of this minimum is relative: it depends on all the
circumstances of the case, such as the nature and context of the
treatment, its duration, its physical and mental effects and, in some
instances, the sex, age and state of health of the victim (see
Costello Roberts v. the United Kingdom, 25 March 1993,
§ 30, Series A no. 247 C).
As
regards the question whether the State could be held responsible,
under Article 3, for the ill-treatment inflicted on persons by
non-state actors, the Court recalls that the obligation on the High
Contracting Parties under Article 1 of the Convention to secure to
everyone within their jurisdiction the rights and freedoms defined in
the Convention, taken together with Article 3, requires States to
take measures designed to ensure that individuals within their
jurisdiction are not subjected to torture or inhuman or degrading
treatment or punishment, including such ill-treatment administered by
private individuals (see, mutatis mutandis, H.L.R. v.
France, 29 April 1997, § 40, Reports 1997 III).
Children and other vulnerable individuals, in particular, are
entitled to State protection, in the form of effective deterrence,
against such serious breaches of personal integrity (see A. v. the
United Kingdom, 23 September 1998, § 22, Reports
1998 VI).
2. Application of the above principles to the case
The
Court considers that the applicant may be considered to fall within
the group of “vulnerable individuals” entitled to State
protection (see, A. v. the United Kingdom, cited above, §
22). In this connection, it notes the violence suffered by the
applicant in the past, the threats issued by H.O. following his
release from prison and her fear of further violence as well as her
social background, namely the vulnerable situation of women in
south-east Turkey.
The
Court observes also that the violence suffered by the applicant, in
the form of physical injuries and psychological pressure, were
sufficiently serious to amount to ill-treatment within the meaning of
Article 3 of the Convention.
Therefore,
the Court must next determine whether the national authorities have
taken all reasonable measures to prevent the recurrence of violent
attacks against the applicant's physical integrity.
In
carrying out this scrutiny, and bearing in mind that the Court
provides final authoritative interpretation of the rights and
freedoms defined in Section I of the Convention, the Court will
consider whether the national authorities have sufficiently taken
into account the principles flowing from its judgments on similar
issues, even when they concern other States.
Furthermore,
in interpreting the provisions of the Convention and the scope of the
State's obligations in specific cases (see, mutatis mutandis,
Demir and Baykara v. Turkey
[GC], no. 34503/97, §§ 85 and 86, 12 November
2008) the Court will also look for any consensus and common values
emerging from the practices of European States and specialised
international instruments, such as the CEDAW, as well as giving heed
to the evolution of norms and principles in international law through
other developments such as the Belém do Pará
Convention, which specifically sets out States' duties relating to
the eradication of gender-based violence.
Nevertheless,
it is not the Court's role to replace the national authorities and to
choose in their stead from among the wide range of possible measures
that could be taken to secure compliance with their positive
obligations under Article 3 of the Convention (see, mutatis
mutandis, Bevacqua and S. v. Bulgaria, cited above, §
82). Moreover, under Article 19 of the Convention and under the
principle that the Convention is intended to guarantee not
theoretical or illusory, but practical and effective rights, the
Court has to ensure that a State's obligation to protect the rights
of those under its jurisdiction is adequately discharged (see
Nikolova and Velichkova v. Bulgaria,
no. 7888/03, § 61, 20 December 2007).
Turning
to its examination of the facts, the Court notes that the local
authorities, namely the police and public prosecutors, did not remain
totally passive. After each incident involving violence, the
applicant was taken for medical examination and criminal proceedings
were instituted against her husband. The police and prosecuting
authorities questioned H.O. in relation to his criminal acts, placed
him in detention on two occasions, indicted him for issuing death
threats and inflicting actual bodily harm and, subsequent to his
conviction for stabbing the applicant seven times, sentenced him to
pay a fine (see paragraphs 13, 24 and 44 above).
However,
none of these measures were sufficient to stop H.O. from perpetrating
further violence. In this respect, the Government blamed the
applicant for withdrawing her complaints and failing to cooperate
with the authorities, which prevented the latter from continuing the
criminal proceedings against H.O., pursuant to the domestic law
provisions requiring the active involvement of the victim (see
paragraph 70 above).
The
Court reiterates its opinion in respect of the complaint under
Article 2, namely that the legislative framework should have enabled
the prosecuting authorities to pursue the criminal investigations
against H.O. despite the withdrawal of complaints by the applicant on
the basis that the violence committed by H.O. was sufficiently
serious to warrant prosecution and that there was a constant threat
to the applicant's physical integrity (see paragraphs 137-148 above).
However,
it cannot be said that the local authorities displayed the required
diligence to prevent the recurrence of violent attacks against the
applicant, since the applicant's husband perpetrated them without
hindrance and with impunity to the detriment of the rights recognised
by the Convention (see, mutatis mutandis, Maria da Penha v.
Brazil, cited above, §§ 42-44). By way of example, the
Court notes that, following the first major incident (see paragraphs
9 and 10), H.O. again beat the applicant severely, causing her
injuries which were sufficient to endanger her life, but he was
released pending trial “considering the nature of the offence
and the fact that the applicant had regained full health”. The
proceedings were ultimately discontinued because the applicant
withdrew her complaints (see paragraphs 13 and 19 above). Again,
although H.O. assaulted the applicant and her mother using a knife
and caused them severe injuries, the prosecuting authorities
terminated the proceedings without conducting any meaningful
investigation (see paragraphs 20 and 21 above). Likewise, H.O. ran
his car into the applicant and her mother, this time causing injuries
to the former and life-threatening injuries to the latter. He spent
only 25 days in prison and received a fine for inflicting serious
injuries on the applicant's mother (see paragraphs 23-36 above).
Finally, the Court was particularly struck by the Diyarbakır
Magistrate's Court's decision to impose merely a small fine, which
could be paid by instalments, on H.O. as punishment for stabbing the
applicant seven times (see paragraphs 37 and 44).
In
the light of the foregoing, the Court considers that the response to
the conduct of the applicant's former husband was manifestly
inadequate to the gravity of the offences in question (see, mutatis
mutandis, Ali and Ayşe
Duran v. Turkey, no. 42942/02, § 54,
8 April 2008). It therefore observes that the judicial decisions in
this case reveal a lack of efficacy and a certain degree of
tolerance, and had no noticeable preventive or deterrent effect on
the conduct of H.O.
As
regards the Government's assertion that, in addition to the available
remedies under Law no. 4320, the applicant could have sought shelter
in one of the guest houses set up to protect women, the Court notes
that until 14 January 1998 – the date on which Law no. 4320
entered into force – Turkish law did not provide for specific
administrative and policing measures designed to protect vulnerable
persons against domestic violence. Even after that date, it does not
appear that the domestic authorities effectively applied the measures
and sanctions provided by that Law with a view to protecting the
applicant against her husband. Taking into account the overall amount
of violence perpetrated by H.O., the prosecutor's office ought to
have applied on its own motion the measures contained in Law
no. 4320, without expecting a specific request to be made by the
applicant for the implementation of that law.
This
being said, even assuming that the applicant had been admitted to one
of the guest houses, as suggested by the Government, the Court notes
that this would only be a temporary solution. Furthermore, it has not
been suggested that there was any official arrangement to provide for
the security of the victims staying in those houses.
Finally,
the Court notes with grave concern that the violence suffered by the
applicant had not come to an end and that the authorities had
continued to display inaction. In this connection, the Court points
out that, immediately after his release from prison, H.O. again
issued threats against the physical integrity of the applicant (see
paragraph 59 above). Despite the applicant's petition of 15 April
2008 requesting the prosecuting authorities to take measures for her
protection, nothing was done until after the Court requested the
Government to provide information about the measures that have been
taken by their authorities. Following this request, on the
instructions of the Ministry of Justice, the Diyarbakır Public
Prosecutor questioned H.O. about the death threats issued by him and
took statements from the applicant's current boyfriend (see
paragraphs 60-67 above).
The
applicant's legal representative again informed the Court that the
applicant's life was in immediate danger, given the authorities'
continuous failure to take sufficient measures to protect her client
(see paragraph 68 above). It appears that following the transmission
of this complaint and the Court's request for an explanation in this
respect, the local authorities have now put in place specific
measures to ensure the protection of the applicant (see paragraph 69
above).
Having
regard to the overall ineffectiveness of the remedies suggested by
the Government in respect of the complaints under Article 3, the
Court dismisses the Government's objection of non-exhaustion of
domestic remedies.
The
Court concludes that there has been a violation of Article 3 of the
Convention as a result of the State authorities' failure to take
protective measures in the form of effective deterrence against
serious breaches of the applicant's personal integrity by her
husband.
IV. ALLEGED VIOLATION OF ARTICLE 14 READ IN CONJUNCTION
WITH ARTICLES 2 AND 3 OF THE CONVENTION
The
applicant complained under Article 14, in conjunction with Articles 2
and 3 of the Convention, that she and her mother had been
discriminated against on the basis of their gender.
Article
14 of the Convention provides:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
A. The parties' submissions
1. The applicant
The
applicant alleged that the domestic law of the respondent State was
discriminatory and insufficient to protect women, since a woman's
life was treated as inferior in the name of family unity. The former
Civil Code, which was in force at the relevant time, contained
numerous provisions distinguishing between men and women, such as the
husband being the head of the family, his wishes taking precedence as
the representative of the family union, etc. The then Criminal Code
also treated women as second-class citizens. A woman was viewed
primarily as the property of society and of the male within the
family. The most important indicator of this was that sexual offences
were included in the section entitled “Crimes Relating to
General Morality and Family Order”, whereas in fact sexual
offences against women are direct attacks on a woman's personal
rights and freedoms. It was because of this perception that the
Criminal Code imposed lighter sentences on persons who had murdered
their wives for reasons of family honour. The fact that H.O. received
a sentence of 15 years is a consequence of that classification in the
Criminal Code.
Despite
the reforms carried out by the Government in the areas of the Civil
Code and Criminal Code in 2002 and 2004 respectively, domestic
violence inflicted by men is still tolerated and impunity is granted
to the aggressors by judicial and administrative bodies. The
applicant and her mother had been victims of violations of Articles
2, 3, 6 and 13 merely because of the fact that they were women. In
this connection, the applicant drew the Court's attention to the
improbability of any men being a victim of similar violations.
2. The Government
The
Government averred that there was no gender discrimination in the
instant case, since the violence in question was mutual. Furthermore,
it cannot be claimed that there was institutionalised discrimination
resulting from the criminal or family laws or from judicial and
administrative practice. Nor could it be argued that the domestic law
contained any formal and explicit distinction between men and women.
It had not been proven that the domestic authorities had not
protected the right to life of the applicant because she was a woman.
The
Government further noted that subsequent to the reforms carried out
in 2002 and 2004, namely revision of certain provisions of the Civil
Code and the adoption of a new Criminal Code, and the entry into
force of Law no. 4320, Turkish law provided for sufficient
guarantees, meeting international standards, for the protection of
women against domestic violence. The Government concluded that this
complaint should be declared inadmissible for failure to exhaust
domestic remedies or as being manifestly ill-founded since these
allegations had never been brought to the attention of the domestic
authorities and, in any event, were devoid of substance.
3. Interights
Interights
submitted that the failure of the State to protect against domestic
violence would be tantamount to failing in its obligation to provide
equal protection of the law based on sex. They further noted that
there was increasing recognition internationally – both within
the United Nations and Inter-American systems – that violence
against women was a form of unlawful discrimination.
B. The Court's assessment
1. The relevant principles
In
its recent ruling in the case D.H. and Others v. Czech Republic
([GC], no. 57325/00, 13 November 2007, §§ 175-180) the
Court laid down the following principles on the issue of
discrimination:
“175. The Court has established in its case-law
that discrimination means treating differently, without an objective
and reasonable justification, persons in relevantly similar
situations (Willis v. the United Kingdom, no. 36042/97, §
48, ECHR 2002-IV; and Okpisz v. Germany, no. 59140/00, § 33,
25 October 2005). ... It has also accepted that a general policy or
measure that has disproportionately prejudicial effects on a
particular group may be considered discriminatory notwithstanding
that it is not specifically aimed at that group (see Hugh Jordan
v. the United Kingdom, no. 24746/94, § 154, 4
May 2001; and Hoogendijk v. the Netherlands (dec.), no.
58461/00, 6 January 2005), and that discrimination potentially
contrary to the Convention may result from a de facto
situation (see Zarb Adami v. Malta, no. 17209/02, § 76,
ECHR 2006-...)....
177. As to the burden of proof in this
sphere, the Court has established that once the applicant has shown a
difference in treatment, it is for the Government to show that it was
justified (see, among other authorities, Chassagnou and Others v.
France [GC], nos. 25088/94, 28331/95 and 28443/95, §§
91-92, ECHR 1999-III; and Timishev, cited above, § 57).
178.. As regards the question of what
constitutes prima facie evidence capable of shifting the burden of
proof on to the respondent State, the Court stated in Nachova and
Others (cited above, § 147) that in proceedings before it
there are no procedural barriers to the admissibility of evidence or
pre-determined formulae for its assessment. The Court adopts the
conclusions that are, in its view, supported by the free evaluation
of all evidence, including such inferences as may flow from the facts
and the parties' submissions. According to its established case-law,
proof may follow from the coexistence of sufficiently strong, clear
and concordant inferences or of similar unrebutted presumptions of
fact. Moreover, the level of persuasion necessary for reaching a
particular conclusion and, in this connection, the distribution of
the burden of proof are intrinsically linked to the specificity of
the facts, the nature of the allegation made and the Convention right
at stake.
179.. The Court has also recognised that
Convention proceedings do not in all cases lend themselves to a
rigorous application of the principle affirmanti incumbit probatio
(he who alleges something must prove that allegation – Aktaş
v. Turkey (extracts), no. 24351/94, § 272,
ECHR 2003 V). In certain circumstances, where the events in
issue lie wholly, or in large part, within the exclusive knowledge of
the authorities, the burden of proof may be regarded as resting on
the authorities to provide a satisfactory and convincing explanation
(see Salman v. Turkey [GC], no. 21986/93, § 100,
ECHR 2000-VII; and Anguelova v. Bulgaria, no. 38361/97, §
111, ECHR 2002-IV). In the case of Nachova and Others,
cited above, § 157), the Court did not rule out requiring a
respondent Government to disprove an arguable allegation of
discrimination in certain cases, even though it considered that it
would be difficult to do so in that particular case, in which the
allegation was that an act of violence had been motivated by racial
prejudice. It noted in that connection that in the legal systems of
many countries proof of the discriminatory effect of a policy,
decision or practice would dispense with the need to prove intent in
respect of alleged discrimination in employment or in the provision
of services.
180. As to whether statistics can constitute
evidence, the Court has in the past stated that statistics could not
in themselves disclose a practice which could be classified as
discriminatory (Hugh Jordan, cited above, § 154).
However, in more recent cases on the question of discrimination in
which the applicants alleged a difference in the effect of a general
measure or de facto situation (Hoogendijk, cited above;
and Zarb Adami, cited above, §§ 77-78), the
Court relied extensively on statistics produced by the parties to
establish a difference in treatment between two groups (men and
women) in similar situations.
Thus, in the Hoogendijk decision the Court
stated: “[W]here an applicant is able to show, on the basis of
undisputed official statistics, the existence of a prima facie
indication that a specific rule – although formulated in a
neutral manner – in fact affects a clearly higher percentage of
women than men, it is for the respondent Government to show that this
is the result of objective factors unrelated to any discrimination on
grounds of sex. If the onus of demonstrating that a difference in
impact for men and women is not in practice discriminatory does not
shift to the respondent Government, it will be in practice extremely
difficult for applicants to prove indirect discrimination.”
2. Application of the above principles to the facts of
the present case
a. The meaning of discrimination in the
context of domestic violence
The
Court notes at the outset that when it considers the object and
purpose of the Convention provisions, it also takes into account the
international-law background to the legal question before it. Being
made up of a set of rules and principles that are accepted by the
vast majority of States, the common international or domestic law
standards of European States reflect a reality that the Court cannot
disregard when it is called upon to clarify the scope of a Convention
provision that more conventional means of interpretation have not
enabled it to establish with a sufficient degree of certainty (see
Saadi v. Italy [GC], no. 37201/06, § 63, ECHR 2008 ...,
cited in Demir and Baykara, cited above, § 76).
In
this connection, when considering the definition and scope of
discrimination against women, in addition to the more general meaning
of discrimination as determined in its case-law (see paragraph 183
above), the Court has to have regard to the provisions of more
specialised legal instruments and the decisions of international
legal bodies on the question of violence against women.
In
that context, the CEDAW defines discrimination against women under
Article 1 as “... any distinction, exclusion or restriction
made on the basis of sex which has the effect or purpose of impairing
or nullifying the recognition, enjoyment or exercise by women,
irrespective of their marital status, on a basis of equality of men
and women, of human rights and fundamental freedoms in the political,
economic, social, cultural, civil or any other field.”
The
CEDAW Committee has reiterated that violence against women, including
domestic violence is a form of discrimination against women (see
paragraph 74 above).
The
United Nations Commission on Human Rights expressly recognised the
nexus between gender-based violence and discrimination by stressing
in resolution 2003/45 that “all forms of violence against women
occur within the context of de jure and de facto
discrimination against women and the lower status accorded to women
in society and are exacerbated by the obstacles women often face in
seeking remedies from the State.”
Furthermore,
the Belém do Pará Convention, which is so far the only
regional multilateral human rights treaty to deal solely with
violence against women, describes the right of every woman to be free
from violence as encompassing, among others, the right to be free
from all forms of discrimination.
Finally,
the Inter-American Commission also characterised violence against
women as a form of discrimination owing to the State's failure to
exercise due diligence to prevent and investigate a domestic violence
complaint (see Maria da Penha v. Brazil, cited above, § 80).
It
transpires from the above-mentioned rules and decisions that the
State's failure to protect women against domestic violence breaches
their right to equal protection of the law and that this failure does
not need to be intentional.
b. The approach to domestic violence in Turkey
The
Court observes that although the Turkish law then in force did not
make explicit distinction between men and women in the enjoyment of
rights and freedoms, it needed to be brought into line with
international standards in respect of the status of women in a
democratic and pluralistic society. Like the CEDAW Committee (see the
Concluding Comments at §§ 12-21), the Court welcomes
the reforms carried out by the Government, particularly the adoption
of Law no. 4320 which provides for specific measures for protection
against domestic violence. It thus appears that the alleged
discrimination at issue was not based on the legislation per se
but rather resulted from the general attitude of the local
authorities, such as the manner in which the women were treated at
police stations when they reported domestic violence and judicial
passivity in providing effective protection to victims. The Court
notes that the Turkish Government have already recognised these
difficulties in practice when discussing the issue before the CEDAW
Committee (Ibid).
In
that regard, the Court notes that the applicant produced reports and
statistics prepared by two leading NGOs, the Diyarbakır Bar
Association and Amnesty International, with a view to demonstrating
discrimination against women (see paragraphs 91-104 above). Bearing
in mind that the findings and conclusions reached in these reports
have not been challenged by the Government at any stage of the
proceedings, the Court will consider them together with its own
findings in the instant case (see Hoogendijk, cited above; and
Zarb Adami, cited above, §§ 77-78).
Having
examined these reports, the Court finds that the highest number of
reported victims of domestic violence is in Diyarbakır, where
the applicant lived at the relevant time, and that the victims were
all women who suffered mostly physical violence. The great majority
of these women were of Kurdish origin, illiterate or of a low level
of education and generally without any independent source of income
(see paragraph 98 above).
Furthermore,
there appear to be serious problems in the implementation of Law no.
4320, which was relied on by the Government as one of the remedies
for women facing domestic violence. The research conducted by the
aforementioned organisations indicates that when victims report
domestic violence to police stations, police officers do not
investigate their complaints but seek to assume the role of mediator
by trying to convince the victims to return home and drop their
complaint. In this connection, police officers consider the problem
as a “family matter with which they cannot interfere”
(see paragraphs 92, 96 and 102 above).
It
also transpires from these reports that there are unreasonable delays
in issuing injunctions by the courts, under Law no. 4320, because the
courts treat them as a form of divorce action and not as an urgent
action. Delays are also frequent when it comes to serving injunctions
on the aggressors, given the negative attitude of the police officers
(see paragraphs 91-93, 95 and 101 above). Moreover, the
perpetrators of domestic violence do not seem to receive dissuasive
punishments, because the courts mitigate sentences on the grounds of
custom, tradition or honour (see paragraphs 103 and 106 above).
As
a result of these problems, the aforementioned reports suggest that
domestic violence is tolerated by the authorities and that the
remedies indicated by the Government do not function effectively.
Similar findings and concerns were expressed by the CEDAW Committee
when it noted “the persistence of violence against women,
including domestic violence, in Turkey” and called upon the
respondent State to intensify its efforts to prevent and combat
violence against women. It further underlined the need to fully
implement and carefully monitor the effectiveness of the Law on the
Protection of the Family, and of related policies in order to prevent
violence against women, to provide protection and support services to
the victims, and punish and rehabilitate offenders (see the
Concluding Comments, § 28).
In
the light of the foregoing, the Court considers that the applicant
has been able to show, supported by unchallenged statistical
information, the existence of a prima facie indication that the
domestic violence affected mainly women and that the general and
discriminatory judicial passivity in Turkey created a climate that
was conducive to domestic violence.
c. Whether the applicant and her mother have
been discriminated against on account of the authorities' failure to
provide equal protection of law
The
Court has established that the criminal law system, as operated
in the instant case, did not have an adequate deterrent effect
capable of ensuring the effective prevention of unlawful acts by H.O.
against the personal integrity of the applicant and her mother and
thus violated their rights under Articles 2 and 3 of the Convention.
Bearing
in mind its finding above that the general and discriminatory
judicial passivity in Turkey, albeit unintentional, mainly affected
women, the Court considers that the violence suffered by the
applicant and her mother may be regarded as gender-based violence
which is a form of discrimination against women. Despite the reforms
carried out by the Government in recent years, the overall
unresponsiveness of the judicial system and impunity enjoyed by the
aggressors, as found in the instant case, indicated that there was
insufficient commitment to take appropriate action to address
domestic violence (see, in particular section 9 of the CEDAW, cited
at paragraph 187 above).
Taking
into account the ineffectiveness of domestic remedies in providing
equal protection of law to the applicant and her mother in the
enjoyment of their rights guaranteed by Articles 2 and 3 of the
Convention, the Court holds that there existed special circumstances
which absolved the applicant from her obligation to exhaust domestic
remedies. It therefore dismisses the Government's objection on
non-exhaustion in respect of the complaint under Article 14 of the
Convention.
In
view of the above, the Court concludes that there has been a
violation of Article 14, in conjunction with Articles 2 and 3 of the
Convention, in the instant case.
V. ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE
CONVENTION
Relying
on Articles 6 and 13 of the Convention, the applicant complained that
the criminal proceedings brought against H.O. were ineffective and
had failed to provide sufficient protection for her and her mother.
The
Government contested that argument.
Having
regard to the violations found under Articles 2, 3 and 14 of the
Convention (see paragraphs 153, 176 and 202 above) the Court does not
find it necessary to examine the same facts also in the
context of Articles 6 and 13.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed 70,000 Turkish liras (TRL) (approximately 35,000
euros (EUR)) in respect of pecuniary damage resulting from the death
of her mother and TRL 250,000 (approximately EUR 125,000) for
non pecuniary damage. She explained that subsequent to the
killing of her mother she had been deprived of any economic support
from her. The killing of her mother and ongoing violence perpetrated
by her former husband had caused her stress and anguish, as well as
irreparable damage to her psychological well-being and self-esteem.
The
Government submitted that the amounts claimed were not justified in
the circumstances of the case. They claimed, in the alternative, that
the amounts were excessive and that any award to be made under this
heading should not lead to unjust enrichment.
As regards the applicant's claim for pecuniary
damage, the Court notes that while the applicant has demonstrated
that on a number of occasions she had sought shelter at her mother's
home, it has not been proven that she was in any way financially
dependent on her. However, this does not exclude an award in respect
of pecuniary damage being made to an applicant who has established
that a close member of the family has suffered a violation of the
Convention (see Aksoy v. Turkey, 18 December 1996, §
113, Reports 1996-VI, where the pecuniary claims made by the
applicant prior to his death in respect of loss of earnings and
medical expenses arising out of detention and torture were taken into
account by the Court in making an award to the applicant's father,
who had continued the application). In the present case, however, the
claims for pecuniary damage relate to alleged losses accruing
subsequent to the death of the applicant's mother. The Court is not
convinced that the applicant's mother incurred any losses before her
death. Thus, the Court does not find it appropriate in the
circumstances of this case to make any award to the applicant in
respect of pecuniary damage.
On
the other hand, as regards the non-pecuniary damage, the Court notes
that the applicant has undoubtedly suffered anguish and distress on
account of the killing of her mother and the authorities' failure to
undertake sufficient measures to prevent the domestic violence
perpetrated by her husband and to give him deterrent punishment.
Ruling on an equitable basis, the Court awards the applicant
EUR 30,000 in respect of the damage sustained by her as a result
of violations of Articles 2, 3 and 14 of the Convention.
B. Costs and expenses
The
applicant also claimed TRL 15,500 (approximately EUR 7,750) for
the costs and expenses incurred before the Court. This included fees
and costs incurred in respect of the preparation of the case
(38 hours' legal work) and attendance at the hearing before the
Court in Strasbourg as well as other expenses, such as telephone,
fax, translation or stationary.
The
Government submitted that in the absence of any supporting documents
the applicant's claim under this head should be rejected.
According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 6,500 for costs and
expenses for the proceedings before the Court, less EUR 1,494
received by way of legal aid from the Council of Europe.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Dismisses the Government's preliminary objection
concerning the alleged failure to observe the six-month rule;
Joins to the merits of the complaints under
Articles 2, 3 and 14 of the Convention the Government's preliminary
objections on non-exhaustion of domestic remedies and dismisses
them;
Declares the application admissible;
4. Holds that there has been a violation of Article 2 of the
Convention in respect of the death of the applicant's mother;
Holds that there has been a violation of Article
3 of the Convention in respect of the authorities' failure to protect
the applicant against domestic violence perpetrated by her former
husband;
Holds that there is no need to examine the
complaints under Articles 6 and 13 of the Convention;
Holds that there has been a violation of Article
14 read in conjunction with Articles 2 and 3 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts, to be converted into Turkish liras at the rate applicable at
the date of settlement:
(i) a
total sum of EUR 30,000 (thirty thousand euros), plus any tax that
may be chargeable, in respect of non pecuniary damage;
(ii) EUR
6,500 (six thousand five hundred euros), less EUR 1,494 received by
way of legal aid from the Council of Europe, plus any tax that may be
chargeable to the applicants, for costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 9 June 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall Registrar President
