MonItorIng report on the IMpleMentatIon of the opuz v. turkey...

MonItorIng report on the IMpleMentatIon

of the opuz v. turkey JudgMent

(application no. and Judgment date: 33401/02, 9 June 2009)

MONITORING REPORT

prepared by:nisan kuyucu

delegation of the european union to

turkey

HYDİHADİHDİHGDUAÖ TÜRKİYE

violence inflicted on the applicant and her mother. The Court has noted that, when examining the present case, it would bear in mind that domestic violence is a grave problem which concerns all member states and which does not surface easily.

The ECrtHR first assessed whether the local authorities could have foreseen a lethal attack by H.O. In view of all the events of escalating violence against the applicant and her mother, the ECrtHR noted that there was a clear threat against the lives and safety of the applicant and her mother and that H.O’s lethal attack was foreseeable.

The Court then proceeded to examine whether the authorities had performed their duty of care prevent the killing of the applicant’s mother. Focusing on the fact that a criminal investigation could not be carried out against H.O due to the applicable criminal code at the time, which brought the rule that injuries that do not render one sick or unfit for work for ten or more days would require a complaint in order for an investigation to be launched and because the applicant and her mother constantly withdrew their complaints, the ECrtHR noted that authorities should have been able to pursue the proceedings as a matter of public interest, regardless of the victims’ withdrawal of complaints in view of the gravity of the assaults and the risk of them being repeated.

Furthermore the Court noted that when deciding on pursuing an investigation, the authorities should have taken into consideration other factors such as the gravity of the assault, the psychological or physical nature of the victim’s injuries, the use of a weapon by the perpetrator, the on-going threats by the perpetrator after the assault, the premeditated nature of the assault, the effects of the assault (including psychological effects) on the children living in the same home, the likelihood of the perpetrator making future attacks, the on-going threats against the life or safety of the victim or other people who are or may become involved, the existing relationship between the victim and the perpetrator, the effect a criminal investigation launched against the wishes of the victim would have on the relationship, the history of the relationship and whether other acts of violence have been experienced in the past, the history of the perpetrator and whether he has a history of violence.

The Court has noted that despite the presence of all of the above factors in the current case, and regardless of the victim’s demands for criminal proceedings and protection, the authorities have given exclusive weight to the need to refrain from interfering with what they perceived to be a “family matter”. The Court has concluded that the applicable criminal norms -especially with regard to the rule requiring a medical report certifying sickness or unfitness for work for ten or more days in order for public criminal proceedings to be launched- were not in conformity with the positive obligations arising out of Article 2. When assessing whether the authorities had met their duty of care based on other applicable laws, the ECrtHR noted that neither the prosecutor nor the domestic court had invoked Law No. 4320 on the Protection of the Family

2 to order a

protection measure despite the demands of the applicant’s mother and that they had altogether

2 Law 4320 on the Protection of the Family, Official Gazette No: 23233, Official Gazette Date: 17.01.1998.

2 to order a

IHOP – MONITORING REPORTS OF THE IMPLEMETATION OF THE ECtHR JUDGMENTS, 2015/1 The Execution of the Opuz Case – MONITORING REPORT

Prepared by:Resarch Asistants Nisan Kuyucu (University of Ankara Faculty of Political Sciences)

Translated by:Ayşegül Bahçıvan

Capacity Development AssociationTunus Caddesi 87/8, Kavaklıdere-AnkaraT. + 90 312 468 84 60F. + 90 312 468 92 53

1st Print: May 2015

The electronic copy of this report and more detailed information are accessible at http:/www.aihmiz.org.tr & http:/www.ihop.org.tr

Some rights are reserved. This work is licensed under the Creative Commons Attribution- Non Commerci-al-No Derivs 3.0 Unported license. It can be freely shared (copied and distributed) by accepting these condi-tions and informing the Capacity Development Association in advance.

This report is prepared in the context of the project “Enhancing human rights defenders’ capacity in monito-ring the implementation of judgments of the European Court of Human Rights in Turkey”, supported by the EIDHR program of Delegation of the European Union to Turkey and implemented by the Human Rights Joint Platform (IHOP).

The content of this report is under the responsibility of the Human Rights Joint Platform and the opinions expressed herein are solely those of the authors and do not necessarily represent the views of the Delegation of the European Union to Turkey.

Table of Contents

Table of Contents ..................................................................................................................................................... 3

Introduction ............................................................................................................................................................... 5

1. Circumstances of the Case ................................................................................................................................ 5

2. The judgment of the ECrtHR .......................................................................................................................... 6

A. Alleged violation of Article 2........................................................................................................................... 6

B. Alleged violation of Article 3 .......................................................................................................................... 8

C. Alleged Violation of Article 14 of the convention read in conjunction with Articles 2-3 ......... 9

3. Application of Article 46: Individual and General Measures ............................................................... 10

4. Case law after the Opuz Judgement ........................................................................................................... 11

5. The process before the Committee of Ministers ..................................................................................... 12

6. General Measures taken at the National Level .......................................................................................... 14

A. Legislative Activities .......................................................................................................................................... 14

B. Activities of the Executive ............................................................................................................................... 29

C. Judicial Activities ................................................................................................................................................. 42

7. Conclusion and Recommendations ............................................................................................................. 57

A. To the Legislature ........................................................................................................................................ 57

B. To the Government ............................................................................................................................................. 58

C. To the Courts .........................................................................................................................................................59

D. To the Committee of Ministers of the Council of Europe ..................................................................... 59

Acknowledgements… ........................................................................................................................................... 60

Introduction

With its judgment in the case of Opuz v. Turkey, the ECrtHR has determined, for the first time, that a case of domestic violence against a woman has exceeded the minimum level required by Article 3 to qualify as ill treatment. Furthermore, with the Opuz decision, the link between prohibition of discrimination and violence against women, which has been long established by international law, has been recognized by the ECrtHR for the first time leading to the determination that Article 14 of the ECHR has been violated in a case involving violence against women. It is for these reasons that the Opuz case differs from the case law of the ECrtHR regarding violence against women and therefore deserves special attention. Both in this judgment and subsequent judgments involving domestic violence, the Court has explicitly listed the general measures governments must take in such cases. Hence, in the following examination, the general measures needed to combat domestic violence against women will be identified in consideration of the Court’s case law following the Opuz judgment and an evaluation will be made, in line with the recommendations for general measures in all of these cases to determine whether the amendments made in domestic law and implementation in Turkey after the Opuz judgment fulfil its requirements.

1. Circumstances of the Case

The applicant, Nahide Opuz, lived in Diyarbakır, had three children and was married to H.O., the son of her mother’s husband, to whom the mother was married under a religious marriage contract. The case concerns a series of events of domestic violence against Nahide Opuz and her mother, the first of which was referred to the authorities on 10 April 1995 and which culminated with the death of the applicant’s mother on 11 March 2002. H.O.’s threats against the applicant continued after the death of her mother.

Throughout the process, Nahide Opuz and her mother applied to the prosecutor’s office and the police station about six separate incidents in which death threats were issued against them and they were subject to violence. The severity of the acts of violence ranges from minor injuries such as bruises and scratches on their bodies to vital wounds from stabbing, being run over by a car, and severely beaten. The entirety of the medical reports issued for the applicant and her mother indicated their being incapacitated for work for less than ten days. The Turkish Penal Code that was in effect at the time set forth that in cases where medical reports were issued indicating incapacity to work for less than ten days, the launching of a criminal case was dependent on complaint. This provision resulted in failure to prosecute H.O. Because every time H.O. was tried at court in the absence of remand custody or released from custody, the applicant and her mother withdrew their complaints. In two cases filed against H.O., the defendant was sentenced to a fine. Nahide Opuz also withdrew her petition for a divorce suit because of the pressure of H.O. Their requests for a protection measure were disregarded.

Introduction

2 to order a

IHOP – MONITORING REPORTS OF THE IMPLEMETATION OF THE ECtHR JUDGMENTS, 2015/1 The Execution of the Opuz Case – MONITORING REPORT

Prepared by:Resarch Asistants Nisan Kuyucu (University of Ankara Faculty of Political Sciences)

Translated by:Ayşegül Bahçıvan

Capacity Development AssociationTunus Caddesi 87/8, Kavaklıdere-AnkaraT. + 90 312 468 84 60F. + 90 312 468 92 53

1st Print: May 2015

The electronic copy of this report and more detailed information are accessible at http:/www.aihmiz.org.tr & http:/www.ihop.org.tr

Some rights are reserved. This work is licensed under the Creative Commons Attribution- Non Commerci-al-No Derivs 3.0 Unported license. It can be freely shared (copied and distributed) by accepting these condi-tions and informing the Capacity Development Association in advance.

This report is prepared in the context of the project “Enhancing human rights defenders’ capacity in monito-ring the implementation of judgments of the European Court of Human Rights in Turkey”, supported by the EIDHR program of Delegation of the European Union to Turkey and implemented by the Human Rights Joint Platform (IHOP).

The content of this report is under the responsibility of the Human Rights Joint Platform and the opinions expressed herein are solely those of the authors and do not necessarily represent the views of the Delegation of the European Union to Turkey.

Table of Contents

Table of Contents ..................................................................................................................................................... 3

Introduction ............................................................................................................................................................... 5

1. Circumstances of the Case ................................................................................................................................5

2. The judgment of the ECrtHR ..........................................................................................................................6

A. Alleged violation of Article 2...........................................................................................................................6

B. Alleged violation of Article 3 ..........................................................................................................................8

C. Alleged Violation of Article 14 of the convention read in conjunction with Articles 2-3 ......... 9

3. Application of Article 46: Individual and General Measures ............................................................... 10

4. Case law after the Opuz Judgement ...........................................................................................................11

5. The process before the Committee of Ministers .....................................................................................12

6. General Measures taken at the National Level ..........................................................................................14

A. Legislative Activities .......................................................................................................................................... 14

B. Activities of the Executive ............................................................................................................................... 29

C. Judicial Activities .................................................................................................................................................42

7. Conclusion and Recommendations ............................................................................................................. 57

A. To the Legislature ........................................................................................................................................ 57

B. To the Government ............................................................................................................................................. 58

C. To the Courts .........................................................................................................................................................59

D. To the Committee of Ministers of the Council of Europe .....................................................................59

Acknowledgements… ...........................................................................................................................................60

2 to order a

2 Law 4320 on the Protection of the Family, Official Gazette No: 23233, Official Gazette Date: 17.01.1998. 5

Introduction

2 to order a

2 Law 4320 on the Protection of the Family, Official Gazette No: 23233, Official Gazette Date: 17.01.1998. 5

Introduction

On 27 February 2002, the applicant’s mother filed a complaint with the Diyarbakır Public Prosecutor’s Office stating that H.O.’s death threats had intensified. Before this complaint was concluded, on March 11 2002, H.O. shot and killed the applicant’s mother just as she and the applicant had loaded their furniture on a pick-up truck to move to Izmir. In his statement during the criminal proceedings in response to the charges of ‘murder’ and ‘possession of an illegal firearm’, H.O. claimed that he had lost his temper and killed the applicant’s mother for the sake of his honour and children because she had induced his wife to lead an immoral life, and that on the day of the incident, she had told him that she would sell the applicant. On March 2008, H.O. was sentenced to life imprisonment. However, his sentence was reduced to fifteen years and ten months imprisonment and a fine of 180 Turkish Liras on account of ‘unjust provocation’ and ‘good conduct’ during the trial. In addition, 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 were pending at the time of application to the ECrtHR. After the release of H.O. in April 2008, the applicant petitioned for a protection order stating that he had started to threaten her again. Following the information communicated to the ECrtHR on May and November 2008 by the applicant’s lawyer stating that no protection measures had been ordered and subsequent to the ECrtHR’s request for an explanation from the Turkish government, H.O.’s photographs and fingerprints were distributed to police stations along with an order of arrest if he were to be seen near the home of the applicant.

2. The judgment of the ECrtHR

The applicant alleged that Article 2 of the Convention had been violated on grounds that the authorities had failed to protect her mother’s right to life; that Article 3 of the Convention had been violated on account of the pain and fear she experienced due to the indifference of the authorities towards the violence and injuries she had endured and the death threats issued against her; and that Article 14 of the Convention had been violated in conjunction with Articles 2 and 3 because she and her mother had been subject to gender-based discrimination.

A. Alleged violation of Article 2

When the ECrtHR was determining whether public officials had failed to meet their positive obligations under Article 2, it tried to determine whether they knew or should have known the presence of a real and immediate threat against the applicant’s mother arising from H.O.’s criminal acts; in other words, whether they had acted in line with their duty of care to prevent the

1 The applicant also alleged that Articles 6 and 13 had been violated on grounds that the criminal inves-tigation launched against H.O. was ineffective and that the authorities had failed to provide sufficient protection for her mother and herself. However, because the ECrtHR determined that there had been a violation of the other articles mentioned, and since it did not carried out an additional examination of the case in view of these articles, they have not been included in this report.

2 to order a

2 Law 4320 on the Protection of the Family, Official Gazette No: 23233, Official Gazette Date: 17.01.1998.6

2 to order a

Introduction

2 to order a

Introduction

2 to order a

failed to act in the face of such demands. The ECrtHR has thus concluded that the authorities had failed to meet their duty of care and the positive obligations brought by Article 2. The ECrtHR stated that once the events had been brought to the attention of the authorities, the victim’s conduct could not be put forward as justification for the authorities to refrain from taking the necessary measures. Furthermore, the ECrtHR has found a violation of Article 2 noting that effective criminal proceedings are lacking since the case regarding the death of the applicant’s mother is still pending before the Court of Cassation.

B. Alleged violation of Article 3

Observing 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, the ECrtHR proceeded to determine whether the national authorities had taken all reasonable measures to prevent the recurrence of violent attacks.

The Court noted that the local authorities did not remain totally passive in the face of the attacks by H.O. and the petitions filed by the applicant and her mother. However, it also found that it could not 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. The Court considered that the judicial decisions in response to the conduct of H.O. “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; and that even after that date, the Court noted that the domestic authorities failed to effectively apply the measures and sanctions provided by that Law. Even assuming that the applicant had been admitted to one of the guest houses, the Court noted that this would only be a temporary solution and that it had not been suggested that there were any official arrangements to provide for the security of the victims staying in those houses. Taking into account the overall amount of violence perpetrated, the Court noted that the public 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.

The Court pointed out that, immediately after his release from prison, H.O. again issued threats against the physical integrity of the applicant and 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. The Court concluded 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.

C. Alleged Violation of Article 14 of the convention read in conjunction with Articles 2 and 3

Before applying the case law on Article 14 to the present case, the ECrtHR has made an elaboration on the meaning of discrimination within the context of domestic violence. In doing so, the Court has referred to the provisions of more specialised legal instruments and the decisions of international legal bodies on the question of violence against women. In this regard, the Court has made reference to provisions and comments stating that violence against women is a form of discrimination against women, that women have the right to live free from all kinds of discrimination and that the state’s failure to prevent and investigate cases of domestic violence in line with its duty of care can result in discrimination as informed by CEDAW, the CEDAW Committee, the UN Human Rights Commission, the Belém do Pará Convention and the Inter-American Commission on Human Rights.

In the light of this understanding, the Court has proceeded to examine Turkey’s approach to domestic violence, also taking into consideration the 4th and 5th periodic reports of the CEDAW Committee on Turkey and has found that following the adoption of Law No 4320, problems of domestic violence in Turkey arise not out of the legislation but from implementation. In its examination, the Court has made use of the submissions made by the applicant from the Diyarbakır Bar Association’s and Amnesty International’s reports on discrimination against women and the statistics used in these reports.

The Court has stated that the research conducted by the above-mentioned 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”. The ECrtHR has noted that it also transpires from these reports that there are unreasonable delays in issuing protection orders 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 protection orders on the aggressors, given the negative attitude of the police officers. 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. According to the ECrtHR, as a result of these problems, the above-mentioned reports suggest that domestic violence is tolerated by the authorities and that the remedies indicated by the Government do not function effectively.