|
MINISTERS’ DEPUTIES |
Notes on the Agenda |
CM/Notes/1280/H46-32 |
10 March 2017 |
|
1280th meeting, 7-10 March 2017 (DH) Human rights
H46-32 Opuz group v. Turkey (Application No. 33401/02) Supervision of the execution of the European Court’s judgments Reference documents: |
|
Application |
Case |
Judgment of |
Final on |
Indicator for the classification |
|
33401/02 |
OPUZ |
09/06/2009 |
09/09/2009 |
Complex problem |
|
3621/07 |
DURMAZ |
13/11/2014 |
13/02/2015 |
|
|
646/10 |
M.G. |
22/03/2016 |
22/06/2016 |
|
|
55354/11 |
CİVEK |
23/02/2016 |
04/07/2016 |
|
|
63034/11 |
HALİME KILIÇ |
28/06/2016 |
28/09/2016 |
Case description
This group of cases concerns the failure of the authorities to protect the applicants or their deceased relatives from domestic violence. The Court found violations of Articles 2 and 3 mainly on the following grounds:
- the legislative framework fell short of the requirements inherent in the State’s positive obligations to establish and apply effectively a system punishing all forms of domestic violence and providing sufficient safeguards for the victims;
- the authorities had not taken the necessary preventive/protective measures to protect the applicants or their deceased relatives from domestic violence, despite the real and imminent risk of assault they knew or ought to have known;
-the authorities had failed to apply the available sanctions for non-compliance with protective measures, rendering these measures totally ineffective and giving impunity to the perpetrators (Halime Kılıç, § 99);
- the criminal investigations and subsequent proceedings against the perpetrators lacked promptness and diligence.
Last, in the cases of Opuz, M.G. and Halime Kılıç, the Court found that discrimination on the basis of gender against the applicants and/or their deceased relatives on account of the failure of the State to protect them against domestic violence (violation of Article 14 in conjunction with Articles 2 and 3). In this respect, the Court referred to certain NGO reports which suggested that domestic violence against women was tolerated by the authorities and that the available remedies mentioned by the Government did not function effectively, affording impunity to the aggressors. The Court therefore concluded that there existed a prima facie indication that domestic violence affected mainly women and that the general and discriminatory judicial passivity in Turkey created a climate that was conducive to domestic violence. In the case of M.G. the Court also noted that the former legislative framework did not afford the same level of protection to divorced women as it did to married women.
Status of execution
At its 1222nd meeting (March 2015) the Committee noted the measures taken between 2005 and 2010 to prevent domestic violence, including the special national action plan and legislative, capacity building and awareness-raising measures, and welcomed the ratification of the Convention on Preventing and Combatting Violence against Women and Domestic Violence (the Istanbul Convention). The Committee noted, however, that these measures had been reported inadequate to ensure an appropriate response by the domestic authorities in cases of domestic violence and that there had been a serious delay in their implementation. The Committee, consequently, invited the Turkish authorities to carry out a detailed assessment of the impact of these measures and to provide updated information, including the results of this assessment, on the further measures envisaged and/or taken. The relevant information provided in response to the Committee’s decision is summarised below:
Individual measures:
The measures set out below mainly concern protective and preventive measures taken for the applicants’ or their next-of-kin. The measures taken to redress the shortcomings inherent in the initial investigations are also indicated where appropriate.
Opuz: The applicant’s former husband was convicted of murder and sentenced to imprisonment but was subsequently released on probation before the delivery of the Court’s judgment. The protective measures taken for the applicant since then continue to be applied. The applicant has not requested counselling services.
Durmaz: Following the Court’s judgment, the public prosecutor opened a fresh investigation against the applicant’s former son-in-law who was subsequently charged with murder. Proceedings are pending before domestic courts.
Civek: The applicants’ father was convicted of murdering his wife and sentenced to life imprisonment before the delivery of the Court’s judgment.
M.G.: The Court noted in this case that it had taken five years and six months for the prosecutor to start the investigation into the applicant’s former husband. The criminal proceedings are pending before domestic courts. The applicant did not request further protective measures after 2014. She received social aid seven times.
Halime Kılıç: The victim was murdered by her husband who committed suicide afterwards. The application before the Court was introduced by the victim’s mother who died shortly before the delivery of the judgment. The authorities indicated that no further measures are possible in this case.
General measures:
Legislative measures: The Turkish authorities reiterated their previous submissions and further added that Law No. 6284 on “the Protection of Family and Prevention of Violence against Women” entered into force in March 2012, replacing Law No 4320 on the Protection of the Family. The Law was drafted in line with the principles of the Istanbul Convention and vests administrative and judicial authorities, as well as law enforcement officials in urgent cases, with the power to take preventive/protective measures (without seeking evidence for protective measures). In case of non-compliance with these measures the Law allows for coercive imprisonment of between three and ten days initially, which can be renewed for a period of between fifteen days to one month each time the perpetrator repeats the offence. The total length of coercive imprisonment cannot exceed six months. In addition, “Violence Prevention and Monitoring Centres” were established in fourteen pilot provinces in 2013, and expanded to 49 centres by December 2016. These centres aim to provide support and monitor the implementation of preventive services. The Regulation concerning these centres came into effect in March 2016, and also established “the Provincial Committee on Coordination, Monitoring and Assessment of Combating Violence against Women”.
Article 100 of the Code on Criminal Procedure was amended in November 2016 to allow for taking into custody of persons who inflict intentional bodily harm for crimes punishable by a judicial fine or imprisonment of up to two years.
Other measures: A Parliamentary Inquiry Commission was established in 2014 with a view to investigating the reasons for violence against women and identifying the necessary measures. This Commission issued an extensive report in May 2015.
The national action plan on combating domestic violence against women in force between 2012 and 2015 expired and a new (third) national action plan for 2016-2020 has taken effect. This action plan spelled out five major objectives to eliminate domestic violence against women.
The Combating Domestic Violence Project was carried out between 2014 and 2016 in 26 cities. It aimed to increase the level of protection against violence and support victims of domestic violence.
Following the use of electronic support technologies, such as electronic cuff devices, during a pilot project between 2012 and 2015, the electronic monitoring system was strengthened and expanded.
Emerging domestic case-law: In 17 judgments delivered by domestic courts and the Court of Cassation between 2012 and 2014, husbands who killed their wives were sentenced to imprisonment. In one case the Court of Cassation quashed the judgment of the first instance court for having applied the minimum punishment available instead of a harsher punishment and in another, for having unduly reduced the initial sentence provided for the crime.
Impact of these measures: The number of protective/preventive measures applied between 2012 and 2016 increased from 5 303 to 14 332 for protective measures and from 175 290 to 302 831 for preventive measures. Likewise the number of women supported by the Violence Protection and Monitoring Centres increased from 14 853 to 31 298 between 2013 and 2016. There are 137 guesthouses for 3 443 persons.
“Research on Domestic Violence against Women in Turkey” was published in December 2014. The report compares the percentage of women in Turkey subjected to domestic violence in 2008 and 2014 and indicates that physical violence inflicted by partners fell from 39% to 36%; sexual violence from 15% to 12%; both physical and sexual violence from 41.9% to 38%; physical violence in cities from 38% to 35% and in rural areas from 43% to 37.5%; physical violence inflicted by people other than spouses from 17.8% to 14%. The rate of women who remained silent about the violence to which they were subjected decreased from 48.5% to 44% whereas the rate of women who sought official help increased from 8% to 11%.
Analysis by the Secretariat
Individual measures:
In the cases of Opuz and M.G. the victims (applicants) are alive. It is therefore imperative that the preventive/protective measures continue to be taken against any risk of assault from their former husbands and that the Turkish authorities provide updated information on the applicants’ safety. The victims in the remaining three cases in this group were murdered by their husbands, so no protective/preventive measures can be taken.
In addition, it is essential that all the necessary measures be taken to ensure that the criminal proceedings against the victims’ husbands in the Durmaz and M.G. cases are concluded in a swift and diligent manner and in line with Convention requirements.
General measures:
The measures taken can be considered a positive step in the fight against domestic violence. Concerning the Court’s findings on the legislative framework, the introduction of the Law No. 6284 and the subsequent establishment of Violence Protection and Monitoring Centres are noted with interest. The Law appears to have a broader scope than the previous legislation, by affording both protective and preventive measures, which may be applied by a wider range of public authorities. The amendment made to the Code on Criminal Procedure is also noted. Previously, perpetrators of crimes punishable by a judicial fine or imprisonment up to two years could not be placed in custody and were released after the police had taken a statement. This amendment allows for the placing in custody of perpetrators who inflict intentional bodily harm, irrespective of the punishment foreseen in the Criminal Code.
It is recalled that the Court also found a generalised and discriminatory pattern of judicial passivity in response to allegations of domestic violence in Turkey (Opuz § 198, Durmaz § 65, M.G. § 92) and that, despite the reforms carried out by the government in recent years, the overall unresponsiveness of the judicial system and impunity enjoyed by aggressors indicated that there had been insufficient commitment to taking appropriate action to address domestic violence (Opuz § 200, Halime Kılıç § 119). The positive trend observed in the emerging domestic case law in this respect is noted with interest. However, full implementation of the existing legislation in compliance with Convention standards is of crucial importance to ensure its effectiveness.
In this respect, it does not appear that the authorities have provided sufficient information with regard to the measures they have taken or envisage concerning the Court’s findings on the failure of the authorities to take the necessary preventive/protective measures despite the real and imminent risk of assault or failure to apply the existing sanctions to persons who do not comply with the protective measure orders.
As regards the lack of promptness and diligence in criminal investigations and subsequent proceedings against the perpetrators of domestic violence, the Turkish authorities referred to the measures taken with respect to the Ormancı group of cases. This group concerned violations of the right to trial within a reasonable time (Article 6) and was closed by the Committee (see the decision adopted at the 1215th meeting (December 2014) (DH)). It must be kept in mind, however, that the Court’s findings of violation regarding the lack of promptness in this group concern the procedural limb of Article 2 and therefore require specific measures targeted at cases of domestic violence; moreover, “due diligence” is a broad concept including, but not limited to, promptness in proceedings.
Concerning the Court’s finding of discrimination on the basis of gender, based on the State’s failure to protect women against domestic violence, the statistical data indicates that domestic violence continues to affect mainly women and the rates remain quite high. Law No. 6284 does not differentiate in the level of protection provided for married or divorced women, unlike the previous legislation which left it to the discretion of the domestic courts as regards the protection of divorced women. Nevertheless, it is striking that a number of statistical surveys conducted by the domestic authorities in 2014 took into account only “women married at least once” and left out single women or women living with partners outside marriage.
Communication from an NGO: In September 2015 a national NGO (IHOP) submitted its “monitoring report on the implementation of the Opuz v. Turkey Judgment” (see DH-DD(2015)1060). In this report IHOP noted that a number of legislative and procedural shortcomings rendered ineffective the new Law No. 6284. IHOP mainly criticised the lack of sanctions against public officials who fail to meet their obligations under the law; lack of a risk analyses/assessment mechanism; failure to prohibit mediation or reconciliation in cases of violence against women; lack of awareness of the current legislation at all levels, including amongst public officials; lack of an effective monitoring mechanism for the implementation of Law No 6284. IHOP further suggested that the Criminal Code be amended to prohibit the reduction of sentences for offences of violence against women on unjust provocation grounds.
The Group of Experts on Action against Violence against Women and Domestic Violence (GREVIO): In the context of the monitoring of commitments under the Istanbul Convention, GREVIO sent its questionnaire to the Turkish authorities in January 2017. It will make its evaluation visit to Turkey in November 2017 and publish its report in June 2018.
According to a local NGO (Kadın Cinayetlerini Durduracağız Platformu), 328 women were killed in 2016.
The following findings both at national and international level indicate that the deficiencies identified by the Court with respect to domestic violence in Turkey continue, despite the recent reforms:
Parliamentary Inquiry Commission’s report (May 2015): The Commission observed a number of shortcomings in Law no. 6284 and its application, mainly with respect to the taking of preventive and protective measures without the need for evidence and the ordering of coercive imprisonment where the perpetrator fails to comply with these measures. The Commission also suggested a number of amendments in the Criminal Code which could increase the deterrent effect, and hence the protection afforded by the judicial system in domestic violence cases (such as classifying “honour crimes” as first degree murder; criminalising enforced marriage; ensuring that “unjust provocation” is not used as a justification and that “judicial discretion” is not applied to reduce sentences in domestic violence and/or sexual assault cases).
Report (2015) concerning Research on Domestic Violence and Violence against Women in Turkey conducted by the Ministry of Family and Social Policies in 2014: The report concluded that violence against women continued extensively in Turkey and that the results of the 2014 research were more or less similar to those obtained in 2008. The report also included a number of proposals on the application of Law No. 6284.
Parliamentary Inquiry request (2016/831): An official request for inquiry was introduced on 28 January 2016 with a view to investigating the reasons for violence against women in Turkey and identifying the necessary measures. In the inquiry request, it was noted that 295 and 303 women died in 2014 and 2015 respectively.
Committee on the Elimination of Discrimination against Women: CEDAW adopted its concluding observations in July 2016 on the seventh periodic report concerning Turkey. Among other issues, it noted with concern that a large number of women were murdered as a result of domestic violence, that protection orders were rarely implemented and insufficiently monitored, and that lenient sentences were given to perpetrators of sexual violence. CEDAW also expressed concern that Law No. 6284 did not criminalise domestic violence as such, and included no provision relating to the prosecution or punishment of perpetrators.
Against this background, the Committee might wish to note with interest the recent reforms and the emerging case law on the fight against domestic violence. Recalling the systemic nature of the problem, however, the Committee might express concern that it appears that a large number of women are still subjected to domestic violence and that the existing preventive/protective measures are not fully implemented. It therefore seems important to draw inspiration from the recommendations of national and international bodies as to appropriate measures to be taken against domestic violence in Turkey. .
|
Financing assured: YES |