UK and European Human Rights Law
Domestic violence against women continues to be a major problem in Europe. The number of violence cases, reported and unreported, is significantly higher, with 40% of women having been victims of domestic violence.[1] In Opuz v. Turkey[2], a case was brought by Mrs. Nahide Opu,z who was a victim of domestic violence and had been assaulted severely by H.O., her then husband. The applicant was stabbed repeatedly by H.O. in 2001, and shot the applicant’s mother in 2002, killing her instantly. The case was filed against the Turkish government for its failure to put into place measures to protect her and her late mother from attacks committed by her husband. In favour of the applicant, the court held that, in its power, the Turkish government violated Article 2, Article 3, and Article 14 of the European Convention on Human Rights (ECHR).[3]
Why is this judgment considered to be a landmark case with respect to the issue of domestic violence?
The Opuz v. Turkey[4] case judgment is considered to be a landmark case with respect to the issue of domestic violence, not only in Turkey, but also in Europe. The decision of the European Court of Human Rights (ECtHR) is a landmark decision because the Court recognised that domestic violence attacks against women are a systemic problem that reflects a vital imbalance of power. Personal acts of violence under the private sphere are attributed to particular persons; violence against women is commonly perpetuated via male domination of the law and judicial enforcement institutions. The state has an obligation to protect women from domestic violence as stipulated under Article 2, Article 8, and Article 3 of the European Convention on Human Rights[5], especially when rights are threatened by actions of private individuals. Critically, the Opuz decision by the Court is a landmark because it holds governments accountable for failure to adequately protect their citizens, especially victims of repeated domestic violence. Furthermore, the decision is considered a landmark because it was the first time the Court acknowledged that any failure of sovereign states in addressing gender-based domestic violence could amount to a kind of discrimination under the Convention.[6] The Court’s decision is landmark because it sufficiently equips victims of domestic violence with a source of legal recourse via the Convention to pursue cases successfully against states for failure to protect them.
Legal Arguments (Article 2, Article 3, and Article 14 of the ECHR)
Under Article 2 of the ECHR (the right to life),[7] every person has the right to life, and the law shall provide protection. In addition, no individual shall be deprived of her/his life intentionally. The applicant claimed that the Turkish authorities, such as the Public Prosecutor, failed because they did nothing to protect her as well as her mother’s life, even when H.O. issued death threats and assaulted her severely. The Court held that authorities had violated Article 2[8] because they were aware of the threats and the imminent danger H.O. posed to the applicant. The Court also observed that the necessary authorities were aware of the violent record of H.O towards the applicant.[9] As required under the Family Protection Act 1998[10], the authorities failed to take protective measures against cases of domestic violence. Conversely, the authorities persuaded the applicant to drop her complaints, even when the case of domestic violence was evident. According to the Court, the legislative framework failed to enable the prosecuting authorities to pursue criminal investigations against H.O. based on the seriousness of his violent behaviour and continuous threat to the applicant. Thus, the State, on its account, failed to establish and effectively apply a system that punishes all forms of domestic violence and sufficiently safeguards the victims.
In accordance with Article 3 of the Convention, no person shall be subjected to torture or any form of inhuman treatment.[11] The applicant, in reference to Article 3, claimed that the anguish and injuries she had suffered under the violent acts perpetrated on her by H.O. amounted to the definition of torture.[12] In accordance with Article 3[13], the state is required under the law to protect its people from any form of violence. Thus, to the applicant, the state authorities failed to protect her and her mother from her H.O even when she had made several complaints. This is supported by the Court ruling in that Article 3[14] of the Convention was violated because of the State authorities' failure to provide protective measures that could have acted as an effective deterrence against any breaches committed by her husband.
What does the Court say in the judgment with respect to Article 14?
Article 14 is about the prohibition of discrimination, and the Court considered Opuz’s accusation that Turkey had violated Article 14[15] by not satisfactorily protecting her as well as her mother’s rights under Article 2 and Article 3 of the Convention.[16] Discrimination is described as the act of “treating differently, without an objective and reasonable justification, persons in relevantly similar situations,”[17] and it “may result from a de facto situation.”[18] The Court used the European Convention and other international law instruments (Convention for the Elimination of Discrimination Against Women, Punishment and Eradication of Violence against Women, and the Inter-American Convention on the Prevention) and established 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.”[19] Based on observation and Opuz’s specific situation, the Court noted that the Turkish government violated Article 14 of ECHR for not protecting the applicant properly in accordance with Article 2 and Article 3.[20]
Therefore, the Court took into consideration that domestic violence mainly affected women and that the overall and discriminatory judicial unresponsiveness of the State developed a platform that promoted, rather than prevented and controlled, domestic violence. Despite the Civil and Criminal Code in 2002 and 2004[21] reforms, domestic violence in Turkey is inflicted by men and continues to be tolerated, and impunity was allowed to the aggressors by judicial, administrative, v and other bodies. According to the applicant, she and her mother were victims of violations because they were women. In accordance with Article 14[22], the violence against the applicant as well as her mother could be viewed as gender-based, and this constitutes a form of discrimination against women.
Bibliography
Acts and Statutes
Article 2 of the European Convention on Human Rights
Article 3 of the European Convention on Human Rights
Article 14 of the European Convention on Human Rights
Family Protection Act (Law no. 4320, 14 January 1998)
Penal Code 2002
Penal Code 2004
Articles
Abdel-Monem, Tarik. "Opuz v. Turkey: Europe's Landmark Judgment on Violence Against Women." Human Rights Brief 17, no. 1 (2009): 29-33.
Books
Doswald-Beck, Louise. Human Rights in Times of Conflict and Terrorism. Oxford: OUP Oxford, 2011.
Edel, Frédéric. Prohibition of Discrimination Under the European Convention on Human Rights. Strasbourg: Council of Europe Pub, 2010.
Harris, D. J., M. O'Boyle, Ed Bates, and Carla Buckley. Harris, O'Boyle & Warbrick: Law of the European Convention on Human Rights. 2014.
Cases
Opuz v. Turkey, (Application no. 33401/02).
[1] Tarik Abdel-Monem. "Opuz v. Turkey: Europe's Landmark Judgment on Violence Against Women." Human Rights Brief 17, no. 1 (2009): 2. Edel, Frédéric. Prohibition of Discrimination Under the European Convention on Human Rights. Strasbourg: Council of Europe Pub, 2010.
[2] Opuz v. Turkey, (Application no. 33401/02)
[3] Article 2, Article 3, and Article 14 of the European Convention on Human Rights (ECHR)
[4] Opuz v. Turkey
[5] Article 8
[6] Tarik Abdel-Monem. "Opuz v. Turkey: Europe's Landmark Judgment on Violence Against Women." Human Rights Brief 17, no. 1 (2009): 29.
[7] Article 2
[8] Article 2
[9] Harris, D. J., M. O'Boyle, Ed Bates, and Carla Buckley. Harris, O'Boyle & Warbrick: Law of the European Convention on Human Rights. 2014.
[10] Family Protection Act (Law no. 4320, 14 January 1998)
[11] Article 3
[12] Tarik Abdel-Monem. "Opuz v. Turkey: Europe's Landmark Judgment on Violence Against Women." Human Rights Brief 17, no. 1 (2009): 29.
[13] Article 3
[14] Ibid
[15] Article 14
[16] Article 2 and Article 3
[17] Tarik Abdel-Monem. "Opuz v. Turkey: Europe's Landmark Judgment on Violence Against Women." Human Rights Brief 17, no. 1 (2009): 29.
[18] Abdel-Monem. "Opuz v. Turkey: Europe's Landmark Judgment on Violence Against Women." Human Rights Brief 17, no. 1 (2009): 29.
[19] Louise Doswald-Beck. Human Rights in Times of Conflict and Terrorism. Oxford: OUP Oxford, 2011.
[20] Article 2 and Article 3
[21] Penal Code 2002; Penal Code 2004
[22] Article 14
