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A Counterpart of Osman: ECHR Opuz upholds a violation of the right to life for failure to enforce the law

On 9 June 2009, the European Court of Human Rights (ECHR) rendered its judgment in the case of Opuz v. Turkey (application no. 33401/02) concerning the Turkish authorities’ failure to protect the applicant and her mother from domestic violence. Interights, the international centre for the legal protection of human rights, was a third party intervener on the case, submitting the following brief.

The Court held unanimously that there had been a violation of Article 2 (right to life), Article 3 (prohibition of torture and of inhuman and degrading treatment) and Article 14 (prohibition of discrimination) read in conjunction with the former two of the European Convention on Human Rights in respect of the applicant’s mother who was killed by the applicant’s ex-husband despite the fact that the domestic authorities had been repeatedly alerted about his violent and abusive behavior.

The following note provides a survey of both the facts of the case and the substantive rationale of the Court in its decision to uphold the violation of the abovementioned rights, and most eminently the government’s facilitation, or otherwise put, the procedural violation of the right to life that arguably becomes the counterpart for the ECHR judgment in the Osman case, considered below, where the Court rejected the violation of the right to life on similar grounds.

Principal facts

The applicant, Nahide Opuz, is a Turkish national living with H.O. They got married in November 1995 and had three children. Between April 1995 and March 1998 there were four incidents of H.O.’s violent and threatening behavior which came to the notice of the authorities. Both women were medically certified as having sustained life-threatening injuries. Criminal proceedings were brought against H.O. on three of those occasions. H.O. was twice remanded in custody and released pending trial. Since the complaints were withdrawn by the women, following H.O. pressure and death threats, the proceedings were stopped. H.O. was eventually convicted only for one count, sentenced to three months’ imprisonment, later commuted to a fine.

On 29 October 2001 the applicant was stabbed seven times by H.O. and taken to hospital. H.O. was charged with knife assault and given another fine of almost 840,000 Turkish lira (the equivalent of approximately EUR 385), which he could pay in eight installments. In his statement to the police he claimed that he and his wife, who frequently argued about her mother interfering in their marriage, had had an argument which had got out of hand. In April 1998, October and November 2001 and February 2002 the applicant and her mother filed complaints with the prosecution authorities about H.O.’s threats and harassment, claiming that their lives were in immediate danger and requesting that the authorities take immediate action such as H.O.’s detention. In response to those requests for protection, H.O. was questioned and his statements taken down; he was then released.

Finally, on 11 March 2002 the applicant’s mother, having decided to move to Izmir with her daughter, was traveling in the removal van when H.O. forced the van to pull over, opened the passenger door and shot her. The applicant’s mother died instantly. In March 2008 H.O. was convicted for murder and illegal possession of a firearm and sentenced to life imprisonment. Released pending the appeal proceedings, he claims that he killed the applicant’s mother because his honor had been at stake as she had taken his wife and children away from him and had led his wife into an immoral way of life. In April 2008 the applicant filed another criminal complaint with the prosecution authorities in which she requested the authorities to take measures to protect her due to the fact that since his release her ex-husband had started threatening her again, via her new boyfriend.

Summary of the judgment

Firstly, the Court considered that, in the applicant’s case, further violence, indeed a lethal attack, had not only been possible but even foreseeable, given the history of H.O.’s violent behavior and criminal record in respect of his wife and her mother and his continuing threat to their health and safety. The applicant’s mother had become a target of the violence as a result of her perceived involvement in the couple’s relationship. However, instead of ordering protective measures in response to the applicant’s mother’s repeated requests for protection, the authorities referred exclusively to the need to refrain from interfering in what they perceived to be a “family matter”. The Court therefore concluded that the national authorities had not shown due diligence in preventing violence. Nor could the investigation into the killing, to which there had been a confession, be described as effective, it having lasted so far more than six years.

The Court had even considered the overall fundamental legislative framework available in Turkey in its assessment of the proper implementation of the procedural aspects of the right to life. It thereby upheld that despite the withdrawal of the victims’ complaints, the legislative framework should have enabled the prosecuting authorities to pursue the criminal investigations against H.O. on the basis that his violent behavior had been sufficiently serious to warrant prosecution and that there had been a constant threat to the applicant’s physical integrity. Turkey had therefore failed to establish and apply effectively a system by which all forms of domestic violence could be punished and sufficient safeguards for the victims be provided. Consequentially, the Turkish authorities had therefore failed to protect the right to life of the applicant’s mother, in violation of Article 2.

Secondly, the Court considered that the response to H.O.’s conduct had been manifestly inadequate in the face of the gravity of his offences. The judicial decisions, which had had no noticeable preventive or deterrent effect on H.O., had been ineffective and even disclosed a certain degree of tolerance towards his acts. The Court therefore concluded that there had been a violation of Article 3 as a result of the authorities’ failure to take protective measures in the form of effective deterrence against serious breaches of the applicant’s personal integrity by her ex-husband.

Finally, having surveyed and referenced a myriad of international and regional legal sources on the question of discrimination against women and violence, the Court concluded that the State’s failure – even if unintentional – to protect women against domestic violence breached women’s right to equal protection of the law. Report submitted by a number of local NGO in Turkey, as well as research on the effectiveness of the national legal enforcement mechanisms afford virtually no remedies and also no practical protection for victims. Adding to a relatively limited collection of precedent in the field, the Court held that the applicant had been able to show 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.  Despite the reforms carried out by the Government in recent years, the overall unresponsiveness of the system and impunity enjoyed by the aggressors, as found in the applicant’s case, indicated that there was insufficient commitment to take appropriate action to address domestic violence. The Court therefore concluded that there had been a violation of Article 14, in conjunction with Articles 2 and 3.

Brief Analysis

The ECHR case of Osman v. United Kingdom, discussed some of the same legal issues that were brought up in this case. In  Osman, an obsessive and violent former school teacher had ended up wounding his pupil and killing the boy’s father. This was following numerous threats were delivered to the boy’s life and recurring incidents of harassment. The judgment of the Court held that Article 2 ECHR obligates the state to take some positive measures, but the extent of these measures remains unclear. It does remark, however, that to substantiate a violation of Article 2, it must be shown that “the authorities did not do all that was expected of them to prevent a certain and immediate risk” (para. 66 of the judgment).

In the particular circumstances of the case, the signs of vandalism and menace did not clearly indicate that there had been a true threat to the father’s life. Even the incidents involving the allusion to a theatrical massacre scene as part of the verbal threats or the trashing of the father’s car, were not seen as a sufficient indication of a threat to the life of Osman’s father (para. 70 of the judgment). Thereby, although certain signs did exist, they were said to be insufficient to substantiate a claim against the authorities’ omissions. For these reasons, it was concluded that the UK government did not violate its obligation to protect the life of the father.

Seen in light of Osman, and other cases discussing the relevant criteria for the determination of the scope and extent of the state’s positive obligations under the Convention, the Opuz case is a remarkable development for the extension of rights emanating out of Articles 2 and 3 ECHR and individuals’ abilities to substantiate a violation by proving the state’s misconduct. Whilst, on a theoretical level there is indisputable value in this judicial instance, on the practical, some could argue that it goes too far in imposing sometimes unfeasible obligations on the law enforcement authorities – the police and the social services, inter alia. Nevertheless, the ultimate importance of the effectiveness of such institutions, also means that this newly-opened doorway for litigation, should not be missed by the relevant actors.

The importance of this judgment is also found in its forceful acknowledgment of the cruelty and inhumanity that characterizes domestic violence. As Buyse mentions, most innovatively, the Court concluded that Article 3 ECHR had been violated for “failure to take protective measures in the form of effective deterrence against serious breaches of the applicant’s personal integrity by her husband” (para. 176). In its conclusion on this issue, the Court references an impressively wide range of comparative legal instruments from a range of jurisdictions, national, supranational and international. Inter alia, it bases its claims for the violation of Article 14 ECHR, on instruments such as CEDAW and the Inter-American Belem do Para Convention (on the eradication of violence against women).

Interestingly, this judgment also involves a particularly piercing critique of the current socio-cultural situation in Turkey. It was reported that lawyers and women’s rights activists note that the Court’s decision puts pressure on Turkey to implement laws to protect women, which were ratified more than a decade ago. Local polls indicate up to 40 percent of Turkish women believe they deserve to be beaten by their husbands. Day-time talk shows and newspapers in Turkey regularly report accounts of domestic violence and honor killings (see the full report on CNN international).

Upholding the violation of both Articles 2 and 3 ECHR comes to show the determination of the Court to emphasize the state’s critical role not only in making available certain mechanisms for those at risk of experiencing domestic violence, but also in proactively monitoring the instances that the authorities are made aware of, in order to protect potential victims. It can be pondered what are the effective, but not too intrusive (violating the right to home and privacy, Article 8 ECHR), measures that should be used by the state in such cases, and whether they should be proportionately dependent on the immanency of the circumstances.

More so, the unquestionable heightening of the due diligence standard of the state authorities contributes also to the effective policing of police investigations. Previous case law has proved that the state’s duty to protect the individual in such cases consists of a rather tamed obligation of means – see for example the judgment of the UK House of Lords in E v Chief Constable of the Royal Ulster Constabulary, where a positive obligation imposed on the state to prevent the infliction by third parties of inhuman or degrading treatment consisted of doing all that was reasonably to be expected to avoid a real or immediate risk to an individual once the existence of that risk was known or ought to have been known.

Most critically, however, in order to substantiate such a case it seems that a fairly high evidential threshold will be required to prove a “constant threat to the applicant’s physical integrity”, as evinced by Opuz. This brings up the question of whether the particular set of circumstances available in the case – i.e. numerous threats, complaints, omissions by police and other state authorities to prosecute the attacker and protect the victims, as well as an overarching cultural trend of domestic violence emphasized by various experts and NGO – was the actual reason for the Court’s enthusiastic judgment in the case, a judgment that very arguably would not have sounded the same had it been presented in a different cultural and socio-political context.

UPDATE: It appears that the Council of Europe has more recently been actively promoting a common policy for combating domestic violence. The draft interim report of the Ad Hoc Committee on Preventing and Combating Violence against Women and Domestic Violence, which has been tasked with preparing a legally binding framework on this matter, is available here. Further information on the developments in this field can be found here.

[I am indebted to Carmi Lecker for drawing my attention to these developments].

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