OPUZ V.

TURKEY

INTRODUCTION

Domestic violence now frequently commands the attention of international human rights bodies.
The obligations imposed on States include positive obligations of due diligence to prevent,
investigate and to punish domestic violence, whenever and wherever it occurs. Judicial dialogue
across the borders of human rights and refugee law has also expanded access to asylum for
women fleeing domestic violence, bringing with it a gradual recognition of the positive
obligations that international law now imposes on States. However, as recent cases such as
Jessica Gonzalez v the United States and Opuz v Turkey reveal, significant gaps remain
between the rhetoric of human rights law and the reality of everyday enforcement and
implementation on the ground.

OPUZ v. TURKEY CASE

Applicant brought this case against Turkey, alleging failure to protect her and her mother from
domestic violence, violence which resulted in her mother's death and her own mistreatment. The
victim and her mother were repeatedly abused and threatened by the victim's husband, abuse
which was medically documented. The victim's husband and his father were at one point indicted
for attempted murder against the two women, but both were acquitted. The abuse continued after
the acquittal and eventually resulted in the husband's father killing the victim's mother. The
husband's father was tried and convicted for intentional murder, but because he argued
provocation and exhibited good behaviour during the trial, his sentence was mitigated and he
was released pending an appeal. This case observed State failure to protect victims from
domestic violence.

The Court found a violation of Article 2 (right to life) of the Convention concerning the murder
of the husband’s mother-in-law and a violation of Article 3 (prohibition of inhuman or degrading
treatment) of the Convention concerning the State’s failure to protect his wife. Turkey had failed
to set up and implement a system for punishing domestic violence and protecting victims. The
authorities had not even used the protective measures available and had discontinued
proceedings as a “family matter” ignoring why the complaints had been withdrawn. There should
have been a legal framework allowing criminal proceedings to be brought irrespective of
whether the complaints had been withdrawn. The Court also found – for the first time in a
domestic violence case violations of Article 14 (prohibition of discrimination), in conjunction
with Articles 2 and 3 of the Convention, as the violence suffered by the two women was gender-
based; domestic violence mainly affected women and it was encouraged by discriminatory
judicial passivity.

DOMESTIC VIOLENCE

For the first time in a case concerning domestic violence, the ECHR also held that, in
conjunction with ECHR Articles 2 and 3; there was a violation of the ECHR Article 14
prohibition on discrimination. This was the first time that Article 14 had been invoked in the
context of domestic violence. ECHR Article 14 states that “the enjoyment of the rights and
freedoms set forth in this Convention shall be secured without discrimination on any ground such
as sex, race, colour, language, religion, political or other opinion, national or social origin,
association with a national minority, property, birth or other status.”

While acknowledging the existence of laws in Turkey criminalizing 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.

In D.H & Others v. the Czech Republic, the ECHR stated that under the ECHR, discrimination
means, treating differently, without an objective and reasonable justification, persons in
relevantly similar situations. It also added that there need not be any discriminatory intent on the
part of the state, and that legislation or practice will constitute a violation if it has
“disproportionately prejudicial effects” on a particular group.

FREEDOM FROM TORTURE

INABILITY OF THE STATE TO PROVIDE PROTECTION

For a long time, due diligence was significant only when state actors caused injury to
individuals. Eventually, it came to encompass private individuals, when there is apparent damage
caused by a state’s failure to prevent it. Opuz v. Turkey constitutes the foundation of the study
because it is a groundbreaking judgment in applying the ECHR to a VAW case. In the case, the
applicant and her mother were subjected to systemic violence by the former’s husband. The
perpetrator beat and stabbed the applicant, among other violent behaviours, and attempted to run
the two of them over with a car. Both the mother and applicant had frequently suffered injuries
ranging from minor to life-threatening. After reporting the incidents many times to the
authorities, on each occasion, they withdrew their complaints under pressure from the husband.

In 2002, the husband killed the applicant’s mother, while she was helping the applicant to flee.
The ECHR established that Turkey had violated the applicant’s mother’s right to life (article 2),
the applicant’s right to be free from torture or ill-treatment (article 3) and that the failure to
exercise due diligence in securing these rights stemmed from gender discrimination in violation
of article 14. Furthermore, the ECHR highlighted the general and discriminatory judicial
passivity and the impunity enjoyed by aggressors. Moreover, it underlined that, intentional or
unintentional, the failure of the Turkish state to protect women from VAW breached the
women’s right to equal protection under the law. Consequently, in Opuz v. Turkey the ECHR
confirmed that domestic violence was derived from the power imbalance between women and
men. The Court recognised states have positive obligations to protect women’s rights under
articles 2, 3 and 8 ECHR against private individuals’ actions and threats, declaring, for the first
time, that domestic violence constituted discrimination under article 14 ECHR.

States have the positive obligation to protect the right to life (article 2 ECHR) by putting 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

In a review of the relevant legal principles, the ECHR referred to the case of Osman v. UK. This
case established that states have a positive obligation to protect against the actions of third
parties if the authorities “knew or ought to have known at the time of the existence of a real and
immediate risk to the life of an identified individual or individuals 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.

CONCLUSION

The Court’s decision in Opuz is a landmark in the application of the Convention to domestic
violence. The decision recognizes that domestic violence against women is a systemic problem
reflecting a fundamental imbalance of power. Although individual acts of violence within the
private sphere can be attributed to specific persons, violence against women is generally
perpetuated through male domination of judicial and law enforcement institutions. The Court’s
judgment places a strong burden on states to protect women from domestic violence.