Domestic violence have often been classified by the State as a ‘private’ issue, i.e. outside the realms of criminal law. As such, law enforcement authorities have traditionally been unwilling to interfere.
Domestic violence is complex as it does not happen linearly. Evidence of violence is often voided through episodes of apology and the survivor and abuser returning to norm. When survivors decide to forgive and return home to their abusers, society blame them for their "choices", questioning "why did you return to him?". The failure to recognise the survivor's financial and emotional dependence and potentially trauma and confusion, causes us to alter the focus of blame from the abuser to the survivor. As such, it is often in cases of domestic violence that we confuse liability, partly due to our expectation that a survivor of violence will act rationally and coherently, and, partly due to our own gender-blindness that some level of violence (or discipline) against women is acceptable.
The European Court's Judgment in Opuz v Turkey (below) is an important precedent as it held that the State has a positive legal obligation to prevent violence against women, and, that the systematic failure to act on this obligation is a violation of the prohibition on the right to non-discrimination. The Judgement is also one of the first under international law to recognize that domestic violence against women is a systemic problem reflecting a fundamental imbalance of power, not just between perpetrator and victim, but between victim and the State - and that the State can be held accountable for their systemic failure to do something about it.
Opuz v Turkey
App. No. 33401/02 (Eur. Ct. H.R. June 9, 2009)
1. In Opuz v Turkey, the applicant in the case, Nahide Opuz and her mother, were subjected to prolonged violence by the applicant's husband, which led to their hospitalisation on numerous occasions. They reported the violence to the police but withdrew their complaints due to threats of further violence. On occasions, despite their complaints, the police did not take sufficient action.
2. Unfortunately, due to the lack of protection by the State, the applicant's husband eventually shot the applicant's mother in the head, resulting in her immediate death. His claim was that he did it to protect his family honour and that her mother had provoked him by interfering in his family affairs.
3. At trial, the Turkish criminal court sentenced him to life imprisonment. However, on the account of the deceased's ‘provocation’ and the perpetrator’s good behaviour at trial, his sentence was reduced to 15 years and 10 months. By the time of his sentence, given the period of his detention pre-trial, he was released.
4. After his release, Ms Opuz sought protective measures, which the police did not act on.
B. The Petition
1. As such, Ms Opuz filed a claim at the European Court of Human Rights for a breach of:
Article 2 (the right to life) as a result of her mother's death and the past and ongoing threats to her own life;
Article 3 (on torture and ill-treatment); and
Article 14 (non-discrimination) as a result of the failure by the State to prosecute her husband on the basis of non-interference with family life amongst others which amounted to a discrimination against her on the basis of gender.
2. The Turkish State's submitted that Mr and Ms Opuz were both violent towards each other (therefore there is no discernible "victim" here); and that the State had no obligation to protect as Ms Opuz and her mother withdrew several of their complaints.
C. On the issue of whether the applicant's husband committed torture and/or ill-treatment against the applicant
1. The European Court opined that for violence to constitute torture and/or ill-treatment, the violence must reach a minimum level of severity. Sex is a consideration as sex determines the power balance between perpetrator and victim. The circumstances of the case, the particular vulnerabilities of the victim, the history of violence are all compounding factors in determining whether torture and/or ill-treatment was constituted. In Ms Opuz's case, the European Court also considered that the applicant was from the South of Turkey, which made her more vulnerable to violence compared to women from other areas of Turkey. In view of the circumstances and the violence suffered by the applicant in the form of physical injuries and psychological pressure, the European Court decided that Opuz had suffered from ill-treatment pursuant to Article 3.
D. On the issue of whether the State took sufficient action to protect the applicant
1. What is also interesting about Opuz's case is that the Turkish police authorities were not totally inactive. They did take some steps to protect Opuz and her mother. They did attend to Opuz at her home to warn Opuz's husband against committing further violence. Nonetheless, the European Court held that the governing question was not if the police took action but whether they took sufficient action to protect the applicant.
The Court was of the view that the laws should have enabled prosecutors to pursue investigations against the husband regardless of whether the complaints were withdrawn - on the basis that the violence "was sufficiently serious to warrant prosecution and that there was a constant threat to the applicant’s physical integrity".
2. The Turkish State responded that their intervention would result in an intrusion of the applicant's privacy and family life, as the applicant had withdrawn several of her complaints. A prosecution would have resulted in the separation of the applicant and her husband.
3. To this, the European Court held that a balance would need to be struck between the applicant's right to life and right to privacy. In Opuz's case, her life was under serious threat and that threat should have determined the right course of action between, her right to privacy and family life on the one hand, and, the right to life and the right to be free from ill-treatment and discrimination on the other hand. The Court noted that the applicant's husband had a serious history of violence against the applicant and her mother, occasioning in physical injuries, psychological pressure and fear. The husband had attacked Opuz with weapons such as knives and guns, and had constantly issued death threats. The attack on Opuz's mother which eventually led to her death, was also premeditated.
4. The Court listed the factors that should have been accounted for when deciding the right course of action namely:
the seriousness of the offence;
the nature of victim’s injuries are physical or psychological;
if the defendant used a weapon;
if the defendant has made any threats since the attack;
if the defendant planned the attack;
the effect (including psychological) on any children living in the household;
the chances of the defendant offending again;
the continuing threat to the health and safety of the victim or anyone else who was, or could become, involved;
the current state of the victim’s relationship with the defendant; the effect on that relationship of continuing with the prosecution against the victim’s wishes;
the history of the relationship, particularly if there had been any other violence in the past; and
the defendant’s criminal history, particularly any previous violence.
5. The Court held that even if victims withdraw their complaints, prosecution should continue in the public interest, where serious offences are concerned as they are likely to be repeated without State prosecution and intervention.
6. The Court held that by discontinuing criminal prosecution, the Turkish State had not sufficiently considered these factors. Instead, the Turkish State gave “exclusive weight to the need to refrain from interfering in what they perceived to be a ‘family matter’”. Moreover, the State was informed that the applicant and her mother were under pressure and threatened to death. By disregarding their reasons for withdrawal, the State breached their duty to protect. Indeed, the Court held that in some instances, protection of family life would necessitate State intervention in order to prevent crimes within the family. Further, as an overwhelming majority of women suffer violence within the family, judicial passivity not to intervene on the pretext of "right to family" amounted to gender discrimination.
7. The Court noted that the State did not intend for the applicant and her mother to suffer violence, but 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”.
We are working closely with Medica Afghanistan's lawyers in their pioneering work to hold the State accountable in cases of violence against women. If you have judgments and articles to share or if you are happy to join us in our seminars, do connect with us here, and visit Medica Afghanistan's crowd-funding platform here to help survivors receive prompt medical attention.