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VIOLENCE AGAINST WOMEN - GOVERNMENT ACCOUNTABILITY

GROUNDBREAKING EUROPEAN COURT DECISION - OPUZ VS. TURKEY

 

Please Read 2 Parts of This WUNRN Release.

 

FULL 3-PAGE LEGAL ANALYSIS DOCUMENT IS ATTACHED.

 

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European Court of Human Rights attention to

Gender Discrimination as well as Domestic Violence

 

HUMAN RIGHTS BRIEF 1 – DOMESTIC VIOLENCE

 

OPUZ v. TURKEY (9 June 2009) - THE EUROPEAN COURT OF HUMAN RIGHTS

 

Opuz v. Turkey provides a disturbing illustration of the widespread phenomenon of domestic violence and how human rights bodies are increasingly viewing it not simply as an issue of violence but also gender discrimination.  In this sense, discrimination relates not only to the fact that women suffer disproportionately to men from domestic violence.  The case also highlights the discrimination within the justice authorities which are slow to act, too ready to treat domestic violence as a family matter rather than an abuse of individual rights and which are prepared at times to accept a degree of domestic violence in the name of male honour.  The case underlines the important responsibility on Government’s to exercise ‘due diligence’ to protect rights – in other words, Governments must not only avoid breaching human rights but also take reasonable steps to prevent others from abusing rights so long as those steps are not too burdensome – such as steps to protect people from domestic violence or to prevent perpetrators from being violent.  We can conclude that it is not sufficient simply to have laws – implementation is equally important.

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The facts of the case were as follows: Mrs. Nahide Opuz lodged the complaint against the Government of Turkey alleging that the Government had failed to protect her and her mother from domestic violence, leading to the death of her mother and her own ill-treatment.  Both the applicant and her mother had suffered severe injuries as a result of violence committed by her husband between 1995 and 2008.  Mrs. Opuz and her mother had lodged complaints on many occasions with the police and commenced court proceedings as well as divorce proceedings after the attacks.  However, upon receiving threats from her husband, they consistently withdrew the complaints.  The husband was charged and sentenced after some of the attacks, although sentences were commuted to a small fine.  In 2008, the husband shot Mrs. Opuz’s mother dead in the street.

 

Mrs. Opuz made three claims.  First, in relation to the right to life, Mrs. Opuz claimed that the Government had failed to safeguard her mothers’ right to life by remaining passive in the face of death threats by Mrs. Opuz’s husband and in trying to persuade Mrs. Opuz and her mother to drop complaints they had made.  The Court held that the Government failed to take sufficient steps to protect right to life of Mrs. Onuz’s mother given the husband’s continued threats to her life.  While the Government does not have to prevent all murders (as this would be an impossible burden), the Government is responsible when it knows of a real and immediate risk to life of a person from the criminal acts of another and where the Government fails to take reasonable measures to avoid the risk.  It was clear from the facts that the husband had a history of violence and that this problem was escalating, a fact known to the authorities.  When Mrs. Onuz’s mother requested protection several days before her death, the police simply took more statements.  These were not the sort of reasonable steps to prevent or mitigate any harm to Mrs Onuz’s mother. For example, the authorities could have attempted to assess the nature of the threat to the mother, issue an injunction against the husband to prevent him approaching the mother, or place the husband in preventive detention.  The fact that the mother had previously withdrawn complaints against the husband was not sufficient to excuse the authorities from exercising due diligence by taking adequate steps to protect her.

 

            Second, in relation to freedom from torture, the applicant complained that she had suffered violence, injury and death threats but the negligence of the Government in failing to respond or in responding inadequately had caused her pain and fear, in violation of her right not to be subject to torture or to inhuman or degrading treatment or punishment.  The Government argued that the Mrs. Onuz’s continued withdrawal of her complaints prevented the authorities from taking appropriate protective action and that the applicant had failed to take advantage of shelters and other protection options that existed.  The physical and psychological violence suffered by Mrs. Onuz were sufficiently serious to meet the minimum level of severity required to support a finding of ill-treatment under the Convention. Moreover, the Government had not taken all reasonable measures to prevent a recurrence of the domestic violence suffered by Mrs. Onuz.  Even though the police had taken some steps to assist Mrs. Onuz in providing medical examinations, in taking statements and in indicting and fining the husband on several occasions, the local authorities did not demonstrate the required due diligence to prevent recurrence of the attacks.  The authority’s tendency to release the husband pending trial, failure to conduct meaningful investigations, inaction in the face of continued violence and the application of disproportionately small fines for offences were manifestly inadequate steps in light of the gravity of the violence.

 

            Third, in relation to gender discrimination the applicant alleged that the relevant laws in Turkey were discriminatory and insufficient to protect women as the laws treated a woman’s life and rights as inferior in importance to family unity and general morality.  The Government argued that Turkish law provided sufficient guarantees for the protection of women from domestic violence.  The Court held that the Government’s failure to protect women against domestic violence was discriminatory, breaching women’s right to equal protection of the law.  At a general level, the relevant Turkish laws did not make distinctions between men and women and there was no evidence that the Governments intended to discriminate.  However, the laws that the Government had adopted in recent years to protect women from domestic violence faced serious implementation problems.  First, the police often treated domestic violence as a ‘family matter with which they cannot interfere’ or they acted as mediators in disputes, encouraging women to go home and drop complaints.  Further, when women sought legal protection, the proceedings were not treated as urgent actions but more like divorce proceedings leading to significant delays.  Finally, perpetrators did not receive significant punishments. Consequently, not only was domestic violence a phenomenon that disproportionately affected women, the passivity of the authorities created a climate that was conducive to domestic violence.  As a result, in the specific case of Mrs. Onuz and her mother, the Court found there had been gender-based violence which had, in turn been inflamed by judicial unresponsiveness and the impunity enjoyed by the husband.

 

            Mrs. Onuz received 30,000 Euros in damages.         

             

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