Opuz v Turkey  ECHR 33401/02 (9 June 2009) In June 2009, the European Court of Human Rights found Turkey in violation of its obligations, under arts 2, 3 and 14 of the European Convention on Human Rights, to protect the applicant and her mother from domestic violence. In the landmark decision, the Court held that domestic violence is a form of discrimination that states are required to eliminate and remedy. The case brings the Court’s jurisprudence in line with international human rights law, which has long recognised such violence as a form of discrimination.
The applicant, Nahide Opuz, claimed that Turkey had failed to protect her mother and her from domestic violence perpetrated by the applicant’s husband, HO. The alleged incidences of violence included attempted murder, death threats, harassment and ongoing physical assault occasioning grievous bodily harm. The violence suffered by the applicant and her mother was brought to the attention of the relevant state authorities on numerous occasions, however, several criminal prosecutions against HO were discontinued because the two women withdrew their complaints. HO was fined on one occasion for running into the women with a car. In March 2002, HO shot the applicant’s mother, killing her. He is currently appealing his conviction for the murder, during which time he has been released from prison. On release, HO again harassed the applicant and made death threats against her.
In her complaint to the European Court, the applicant alleged that the Turkish authorities had failed to protect her mother and her against domestic violence, in violation of the European Convention on Human Rights. More specifically, she alleged that Turkey had violated the right to life (art 2) in respect of the death of the applicant’s mother, and the freedom from degrading treatment (art 3) in respect of the failure to protect the applicant against domestic violence. She further alleged that Turkey had violated the rights to non-discrimination and equality (art 14), read in conjunction with the preceding rights.
The European Court held that Turkey had violated the right to life, the freedom from torture and the rights to non-discrimination and equality.
Right to life
In relation to art 2, the Court reiterated that states must not only refrain from interfering with the right to life, they must also take positive steps to ensure the right is protected. The Court explained that this positive obligation requires states to put in place ‘effective criminal-law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions’. It also requires states to ‘take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual’. The Court further explained that the obligation arises when it is established that the state ‘knew or ought to have known’ of the existence of a ‘real and immediate risk to the life of an identified individual from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk’. On the facts, the Court concluded that, given HO’s violent history, the state could have foreseen a lethal attack and should have exercised due diligence to prevent the murder of the applicant’s mother. The Court further concluded that, despite the withdrawal of the victims’ complaints, the legislative framework should have empowered the authorities to pursue criminal investigations against HO, based on the gravity of his conduct.
Freedom from torture
With respect to art 3, the Court held that the applicant’s physical and mental injuries amounted to ill-treatment and that Turkey’s response to those injuries was manifestly inadequate. Emphasising the gravity of the violence, the Court again criticised the legislative framework for requiring the authorities to discontinue criminal proceedings when a complaint is withdrawn, and stated that the authorities should have been empowered to pursue criminal investigations against HO despite the withdrawal of the complaints.
Rights to non-discrimination and equality
In relation to art 14 of the European Convention, the Court held that domestic violence in Turkey affected mainly women and that Turkey’s failure to protect the applicant and her mother against domestic violence constituted discrimination. The Court welcomed the enactment of legislation to protect against domestic violence, but held that the discrimination in this particular case was based not on the legislation per se, but on the attitudes of state authorities. In particular, it highlighted the treatment of women at police stations when they reported domestic violence and judicial passivity in providing effective protection against domestic violence. It also highlighted the inadequate deterrent effect of the legislation and problems with its implementation. The Court concluded that domestic violence in Turkey ‘affected mainly women and that the general and discriminatory judicial passivity … created a climate that was conducive to domestic violence’. It further concluded that the violence suffered by the applicant and her mother could ‘be regarded as gender-based violence which is a form of discrimination against women. … [T]he overall unresponsiveness of the judicial system and impunity enjoyed by the aggressors, as found in the instant case, indicated that there was insufficient commitment to take appropriate action to address domestic violence’.
Relevance to the Victorian Charter
In Australia, 1 in 3 women experience gender-based violence in their lifetime. Whilst gender-based violence, including domestic violence, cannot be eliminated through law alone, it is an essential component of any response to this socially pervasive and persistent wrong.
The Victorian Charter provides a key tool in the struggle against gender-based violence. Section 8 of the Charter guarantees the rights to non-discrimination and equality. Of particular relevance to the present discussion are sections 8(2) and 8(3), which provide that every person has a right to enjoy his or her rights without discrimination and is entitled to equal and effective protection against discrimination. Echoing a well-established body of international jurisprudence, Opuz v Turkey confirms the importance of characterising gender-based violence against women as a form of discrimination that public authorities are required, under arts 8(2) and 8(3), to eliminate and remedy.
In addition, ss 9 and 10 of the Charter afford protection to the right to life and the freedom from torture, respectively. It is important that these rights are interpreted in a way that provides women with meaningful protection against gender-based violence.
The decision is available at http://www.echr.coe.int/ECHR/EN/Header/Case-Law/HUDOC/HUDOC+database/.
Simone Cusack is Public Interest Lawyer at the Public Interest Law Clearing House (Vic) Inc