Opuz v Turkey
Forum: European Court of Human Rights
INTERIGHTS' role: Third party intervener
Keywords: Right to life, degrading treatment, effective remedy, discrimination
European Court finds Turkey in violation of obligations to protect women from domestic violence
On 9June 2009, in a landmark case, the European Court of Human Rights has found Turkey in violation of its obligations to protect women from domestic violence, and for the first time has held that gender-based violence is a form of discrimination under the European Convention. On 9 September 2009 the judgment became final, no request having been made under Article 43 of the Convention for the case to be referred to the Grand Chamber.
The case was brought by Nahide Opuz who with her mother suffered years of brutal domestic violence at the hands of her husband. Despite their complaints the police and prosecuting authorities did not adequately protect the women, and ultimately Ms. Opuz’s mother was killed by him.
INTERIGHTS – which submitted written comments and appeared at the hearing as a third party – focused its intervention on the considerable body of international and comparative law requiring States to exercise particular vigilance in protecting women from domestic violence, as well as arguing that the failure to respond to such gender-specific violence amounts to discrimination under the Convention.
Obligations with respect to domestic violence
For the first time the Court has elaborated the nature of State obligations with respect to violence in the family – recognising the gravity of domestic violence in Europe, acknowledging the problems created by the “invisibility” of the crime, and highlighting the seriousness with which States must respond. In a judgment relying heavily on international and comparative law, the Court emphasised that domestic violence is not a private or family matter, but is an issue of public interest which demands effective State action.
While acknowledging the existence of laws in Turkey criminalising domestic violence the Court emphasised the need for such laws to be implemented in practice. It found that the criminal law in place did not have an adequate deterrent effect capable of ensuring effective prevention of violence against the women, and that there was widespread passivity on the part of police and prosecutors in responding to such complaints. The Court observed that “the overall unresponsiveness of the judicial system and impunity enjoyed by the aggressors… indicated that there was insufficient commitment to take appropriate action to address domestic violence”.
Violence against women as discrimination
Critically, for the first time the Court recognised the failure to adequately respond to gender-based violence as a violation of Article 14 of the Convention, the non-discrimination clause. In a damning critique, the Court notes “that general and discriminatory judicial passivity in Turkey, albeit unintentional, mainly affected women… the violence suffered by the applicant and her mother may be regarded as gender-based violence which is a form of discrimination against women” (paragraph 200). In so finding, the European Court’s approach has been brought in to line with other international human rights bodies which recognise violence against women as a form of inequality.
The judgment is a call to European States to take domestic violence seriously. Andrea Coomber, an INTERIGHTS lawyer who worked on the case, said “Domestic violence is recognised by the Council of Europe as the leading cause of death and disability of women aged between 16 and 44. We welcome the Court’s finding that States failure to respond adequately to gender based violence amounts to discrimination under the Convention, which is a significant advance in the Court’s approach. This emphasises the seriousness with which the Court regards violence against women”.
The Court ordered the Turkish Government to pay Ms. Opuz 30,000 Euro in damages. Her husband was released from prison in early 2008, and she has subsequently received death threats. The Turkish authorities assure the European Court that they are now acting to protect her and her children.
INTERIGHTS' previous work in other cases was reflected in references in the judgment. In respect of positive obligations with respect to domestic violence, the Court referred repeatedly to its decision in Bevacqua and S. v. Bulgaria in which the Court held that domestic violence is a public, not private concern. Interights lawyers were Advisers of record to the applicant in this case. In respect of discrimination, the Court similarly relied on DH and others v. Czech Republic on the definition of discrimination, and evidence in indirect discrimination cases. Interights submitted a third party intervention in D.H. also, which was relied on heavily by the Court in coming to its finding.
Click to read coverage of the case in the The Wall Street Journal, The Irish Times, The Independent, the BBC news website, Bianet, CNN.com/Europe (with a second follow-up report), Deutsche Welle, ECHR blog, Eurasianet, Hurriyet Daily News, Jurist, The Journal of Turkish Weekly, The National and Today's Zaman (with a second follow-up report).
To read coverage of the case in a report by the Council of Europe Parliamentary Assembly Committee on Equal Opportunities for Women and Men, The State of Human Rights in Europe: the need to eradicate impunity, published 23 June 2009 please click here
In May 2011 the Council of Europe published a Convention on preventing and combating violence against women and domestic violence. Turkey was the first signatory to this new convention.
INTERIGHTS third party intervention
INTERIGHTS' third party intervention to the European Court of Human Rights (legal brief)
In June 2007, INTERIGHTS' intervened as a third party before the European Court of Human Rights (ECtHR) in Nahide Opuz v Turkey. Ms Opuz applied to the ECtHR following the killing of her mother at the hands of her husband after years of persistent domestic violence. The domestic violence was repeatedly reported to the authorities, though many of these complaints were subsequently withdrawn upon the threat of further violence. The case highlights the positive obligations of States to effectively protect women from domestic violence, recognised by the Council of Europe as the leading killer of women aged between 16 and 44. The applicants argue violations of Articles 2 (right to life), 3 (prohibition of torture or inhuman or degrading treatment), 13 (right to an effective remedy) and 14 (freedom from discrimination).
INTERIGHTS' comments emphasised the importance of domestic violence being treated as a matter of public interest, rather than as a private or family matter. The comments established the international human rights framework in which State obligations to protect, and to effectively investigate, prosecute and punish perpetrators should be considered in the particularly context of domestic violence. Interights emphasises that while the obligation to prosecute perpetrators requires that the criminal justice process must be responsive to victims’ needs, it cannot put the onus on victims to initiate and impel that process. Interights’ brief further highlighted the increasing recognition of violence against women as a form of discrimination prohibited by international human rights law, submitting that the failure to adequately respond to such gender-specific violence amounts to discrimination under Article 14 of the European Convention on Human Rights (ECHR).
On 7 October 2008, INTERIGHTS was invited to make an oral submission to the Court. This can be viewed by clicking here.
INTERIGHTS Contact: Andrea Coomber, Legal Director