(Application no. 33401/02)
9 June 2009
In the case of Opuz v. Turkey,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
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:
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.
I. THE CIRCUMSTANCES OF THE CASE
1. The first assault by H.O. and A.O. against the applicant and her mother
2. The second assault by H.O. against the applicant
3. The third assault by H.O. against the applicant and 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
5. The fifth assault of the applicant by H.O. causing grievous bodily harm
6. The sixth incident whereby H.O. threatened 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.
8. The killing of the applicant's mother by H.O.
9. The criminal proceedings against H.O.
10. Recent developments following the release of H.O.
II. RELEVANT LAW AND PRACTICE
A. Domestic law and practice
1. The Criminal Code
“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.”
“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...”
“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.”
“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.”
“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.”
“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
B. Relevant international and comparative law material
1. The United Nations' position with regard to domestic violence and discrimination against women
“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;”
“...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.”
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.
2. The Council of Europe
3. The Inter-American System
“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.”1
“... 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.”3
4. Comparative-Law material
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
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
3. Diyarbakır KA-MER Emergency helpline statistics regarding the period between 1 August 1997 and 30 June 2007
4. Amnesty International's 2004 Report entitled “Turkey: Women Confronting Family 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
1. Failure to observe the six-month rule under Article 35 § 1 of the Convention
2. Failure to exhaust domestic remedies
II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
“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
2. The Government
B. The Court's assessment
1. Alleged failure to protect the applicant's mother's life
a) Relevant principles
b) Application of the above principles to the present case
i) Scope of the case
ii) Whether the local authorities could have foreseen a lethal attack from H.O.
(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).
iii) Whether the authorities displayed due diligence to prevent the killing of the applicant's mother
- 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.
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).
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).
2) The effectiveness of the criminal investigation into the killing of the applicant's mother
III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. Parties' submissions
B. The Court's assessment
1. Applicable principles
2. Application of the above principles to the case
IV. ALLEGED VIOLATION OF ARTICLE 14 READ IN CONJUNCTION WITH ARTICLES 2 AND 3 OF THE CONVENTION
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
2. The Government
B. The Court's assessment
1. The relevant principles
“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
b. The approach to domestic violence in Turkey
c. Whether the applicant and her mother have been discriminated against on account of the authorities' failure to provide equal protection of law
V. ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE CONVENTION
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
4. Holds that there has been a violation of Article 2 of the Convention in respect of the death of the applicant's mother;
(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;
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
1 On an unspecified date subsequent to the killing of her mother, the applicant obtained her divorce from her husband.
1 See the Committee’s General Recommendation No. 19 on “Violence Against Women,” (1992) UN doc. CEDAW/C/1992/L.1/Add.15 at § 24 (a).
2 Ibid, at § 24 (b); see also § 24 (r).
3 Ibid, at § 24 (t).
4 Ibid, at § 24 (t) (i); see also paragraph 24 (r) on measures necessary to overcome family violence.
1 Velasquez-Rodriguez v. Honduras, judgment of July 29, 1988, Inter-Am. Ct. H.R. (ser. C) No. 4, para. 172.
2 Signed at the Inter-American Specialized Conference on Human Rights, San Jose, Costa Rica, 22 November 1969. Article (1) provides as follows: “1. The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition. 2. For the purposes of this Convention, ‘person’ means every human being”.
1 which was adopted by the Organisation of American States (OAS) and came into force on 5 March 1995.
2 Case 12.051, Report No. 54/01, Inter-Am. C>H.R., Annual Report 2000, OEA/Ser.L/V.II.111 Doc.20 rev. (2000)
3 Maria da Penha v. Brazil, §§ 55 and 56.