Analysis of the ECHR judgment in Opuz v Turkey

Write an analysis of the European Court of Human Rights judgment in Opuz v Turkey, Application No. 33401/02, Judgment, 9 June 2009.

Opuz v Turkey was brought by, Mrs Opuz -- a victim of domestic violence, against the Turkish government for failing to protect her and her mother from attacks by her husband (H.O).[1] The Court found that the Turkish government violated three articles of the European Convention on Human Rights:[2] Article 2, the right to life; Article 3, the prohibition of torture and inhuman/degrading treatment; and Article 14, the prohibition of discrimination. It held that the Government was liable for not taking action to protect victims of domestic violence. As a result, this was the first time a Court recognised that the failure of states to act against domestic violence was a violation under the Convention.[3]

The case concerned alleged incidences of violence including attempted murder, death threats, harassment and ongoing physical assault and occasioning grievous bodily harm towards the applicant and her mother (whom he later shot and killed). This was brought to the attention of the relevant state authorities on numerous occasions, however, prosecutions against H.O were discontinued because the two women withdrew their complaints. On release, after appealing his conviction, H.O again harassed the applicant leading her to the European Court of Human Rights claiming violations under the convention.

When considering the claims, the court went further than precedent that was established in cases such as Kontrová v Slovakia.[4] This was because it made the prevention of violence against women domestically a positive obligation and the failure to act on this obligation therefore resulted in a violation of the Convention. In examining this, the Court applied the test used in Kontrová,[5] that was established in the Osman judgment.[6] This stated that Article 2 can impose a positive obligation on states to protect life in the private sphere, but not in a way that would impose a burden on governments. That obligation exists when authorities know or should know that a real and immediate risk to life exists and that their intervention could prevent this from occurring. It was then examined whether Turkey fulfilled its obligation by reviewing the context on Opuz’s situation. The court then referenced reports such as The Amnesty International which observed that domestic violence is still treated with tolerance at police stations and some police officers act as arbitrators/take the side of the abuser/suggests the victim drops their case, [7] highlighting that domestic violence is a common problem in Turkey. However, it was argued that Turkey’s criminal code disallowed authorities from prosecuting cases of domestic violence without charges filed by a victim unless the assault led to ten days of illness and unfitness for work.[8]The court held that this was not appropriate as it would fail to allow victims to bring cases of domestic violence.[9] Given the history with H.O, and the fact that the applicant had notified local authorities about the ongoing violence, the Court claimed that authorities should have taken “special measures consonant with the gravity of the situation.”[10] Thus, because the authorities remained non-responsive even though they received information that should have caused them to act against H.O., the Court found the Turkish government violated Article 2 for the death of the applicant’s mother.

Regarding Article 3, the applicant claimed that H.O.’s abusive behaviour and the local authorities’ subsequent failure to act constituted to a violation. The Court then stated the principles to be applied in cases involving Article 3, “depend[ing] on the circumstances of the case”[11] and held that the treatment she suffered reached the minimum level of severity to ground a complaint under Article 3. This included identifying the history of abuse, as well as “the vulnerable situation of women in south-east Turkey,”[12]. As local authorities had not interfered much in the treatment of H.O. such as medical examinations and starting criminal proceedings,[13] the Court held that Turkey violated Article 3 by failing to adequately protect the applicant.[14]

The court then turned to the allegation that Turkey violated Article 14 by not adequately protecting the applicant’s and her mother’s Article 2 and 3 rights. According to Court precedent,[15] discrimination means “treating differently, without an objective and reasonable justification, persons in relevantly similar situations,”[16]. It critically assessedthe normality’s of human rights in differing jurisdictions to assess how they protect women against domestic violenceincluding referencing the Convention on the Elimination of All Forms of Discrimination against Women, the Convention of Belém do Pará, and statements by the United Nations Commission on Human Rights and Inter-American Commission on Human Rights.[17] Based on this and the European Convention, the Court recognised 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.”[18] With this in mind, the Court then examined whether or not victims of domestic violence in southeastern Turkey enjoyed equal protection of the law. The court found evidence of discrimination against women such as the Amnesty International report which included accounts from victims of domestic violence, statics which clarified its familiarity in Turkey, and evidence of failure by the police to properly investigate claims of abuse and having extensive delays in judicial proceedings.[19] Given the circumstances of the case, and the overall failure of local authorities to protect women from domestic violence, the Court held the Turkish government violated Article 14.[20]

In light of the above considerations, such judgment can be considered ground-breaking in regards to international law on violence against women and the state’s responsibility.[21] It recognised that States must take a proactive approach in cases where the violence is serious and must bring criminal proceedings against perpetrators of such violence.[22] More significantly, the Court also acknowledged the extent to which violence against women is an issue of inequality, and how this impedes the enjoyment of other rights. This was done through non-European sources such as General Recommendation No. 19 of the CEDAW Committee[23] which highlighted gender-based violence.[24] Thus, it is hoped that the decision could “make a difference for hundreds of thousands of women victims of domestic violence in Europe.”[25]

Word Count: 1,000

Bibliography

Table of cases —

European Cases:

• Opuz v Turkey App. no. 33401/02 (ECHR, 9 June 2009)
• Kontrová v Slovakia, App. No. 7510/04 (ECHR, 31 May 2007)
• Osman v United Kingdom ECHR 1998 — VIII 3124
• Costello-Roberts v United Kingdom App. No. 13134/87 (ECHR, 25 March 1993)
• D.H. and Others v Czech Republic, App. No. 57325/00 (ECHR, 13 November 2007)

International Treaties —

• Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) art 2, 3 and 14

Books —

• Dorssemont F, K LörcherI Schömann, The European Convention On Human Rights And The Employment Relation (Bloomsbury Publishing 2014)
• Simona Tatu D, Violence Against Women: With An Overview Of The European Court Of Human Rights’ Case Law (Key Editore 2019)

Journals —

• Danisi C, 'How Far Can The European Court Of Human Rights Go In The Fight Against Discrimination? Defining New Standards In Its Nondiscrimination Jurisprudence' (2011) 9 International Journal of Constitutional Law
• Londono P, 'Developing Human Rights Principles In Cases Of Gender-Based Violence: Opuz V Turkey In The European Court Of Human Rights' (2009) 9 Human Rights Law Review

Web Resources —

• Celen N, 'New New Protocol Aims To Protect Targets Of Domestic Violence' (Todays Zaman, 2009) accessed 4 November 2019
• De Boer-Buquicchio M, 'Speech At Council Of Europe Conference Of Ministers Of Justice' (Council of Europe, 2019) accessed 4 November 2019
• 'Turkey: Women Confronting Family Violence' (Amnesty.org, 2004) accessed 4 November 2019

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[1] Opuz v Turkey, App. no. 33401/02 (ECHR, 9 June 2009)

[2] Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) art 2, 3 and 14

[3] Carmelo Danisi, 'How Far Can The European Court Of Human Rights Go In The Fight Against Discrimination? Defining New Standards In Its Nondiscrimination Jurisprudence' (2011) 9 International Journal of Constitutional Law.

[4] Kontrová v Slovakia, App. No. 7510/04 (ECHR, 31 May 2007)

[5] ibid.

[6] Osman v United Kingdom, ECHR 1998 — VIII 3124

[7] 'Turkey: Women Confronting Family Violence' (Amnesty.org, 2004) accessed 4 November 2019.

[8] Opuz (n 1) 145

[9] ibid

[10] ibid 148

[11] Costello-Roberts v United Kingdom, App. No. 13134/87 (ECHR, 25 March 1993), 30

[12] Opuz (n 1) 160

[13] ibid 167

[14] ibid 161

[15] D.H. and Others v Czech Republic, App. No. 57325/00 (ECHR, 13 November 2007)

[16] Opuz (n 1) 183

[17] ibid 193-96

[18] ibid 191

[19] ibid 192

[20] ibid 198-202

[21] Daniela Simona Tatu, Violence Against Women: With An Overview Of The European Court Of Human Rights’ Case Law (Key Editore 2019), 81.

[22] Patricia Londono, 'Developing Human Rights Principles In Cases Of Gender-Based Violence: Opuz V Turkey In The European Court Of Human Rights' (2009) 9 Human Rights Law Review.

[23] Nergihan Celen, 'New New Protocol Aims To Protect Targets Of Domestic Violence' (Todays Zaman, 2009) accessed 4 November 2019.

[24] Filip Dorssemont, Klaus Lörcher and Isabelle Schömann, The European Convention On Human Rights And The Employment Relation (Bloomsbury Publishing 2014), 373.

[25] Maud de Boer-Buquicchio, 'Speech At Council Of Europe Conference Of Ministers Of Justice' (Council of Europe, 2019) accessed 4 November 2019.