By Silvia Martins
This essay analyses the jurisprudence (particularly the case of Opuz v Turkey[1]) of the European Court of Human Rights (ECtHR) and its evolution in consideration of the injuries or death of women in cases of domestic violence as a breach of the rights protected under Articles 2 (right to life), 3 (prohibition of inhuman and degrading treatment and torture) and 8 (right to respect for private and family life) of the European Convention on Human Rights (ECHR).
It is important to point out that this essay does not aspire to raise the level of empirical knowledge over the jurisprudence of the ECtHR, nor to carry out a well-grounded analysis on the Articles already mentioned. The purpose of this paper is to briefly critique the position of the ECtHR regarding cases of domestic violence and determine the scope of general compliance of the states in reforming their legal systems.
Since its inception, the Council of Europe has played a significant role in guaranteeing and promoting respect for human rights in Europe; highlighting the role of the ECHR and ECtHR. These represent two main sources. One is of a conventional nature and another of a jurisprudential nature, which have been complementary in the consolidation of European human rights law, amongst others in the field of non-discrimination[2].
In the June 9, 2009 Opuz v. Turkey case, the ECtHR condemned (for the first time in its history) a Member State for the discriminatory character of domestic violence, based on Article 14, along with Articles 2 and 3 of the Convention, with respect to the murder of the applicant's mother and the failure of the State to comply with the obligation to protect the applicant.
Opuz v. Turkey represented a turning point in the way the Court deals with general situations based on gender-violence. It was marked as a critical piece of legislation, not only due to the fact that it became subject of the doctrine of precedent (in cases relating to gender-based violence) but also because it is seen as an example of the evolutive interpretation of the Convention, proving to be a 'living instrument', that can be interpreted in a wide and dynamic way.[3]
Under the Article 2 of the ECHR, the Court laid down the test for positive obligations in relation to domestic violence investigations and prosecutions. Although domestic violence occurs between private individuals, the State might be liable for infringing on a victim’s rights if it failed to take reasonable steps to protect her.
Opuz built, inter alia, upon the decision of Kontrova v. Slovakia, where the Court demonstrated its proficiencies about the interpretation of the Convention and extend the positive obligations intrinsic in Article 2. Although the breach was found in relation to the rights of children, its findings were used as an instrument for further cases of domestic violence and development of case law of the ECtHR[4].
The Court also observed that the general and discriminatory judicial passivity in Turkey generated a climate that favoured domestic violence, disregarding the persuasive effect that the applicable criminal law should have produced[5]. To consider the approach of passivity and indifference of the Turkish authorities, it is noticeable that violence occurs much more in cases against women than in cases of violence in general, or violence against men[6]. To make matters worse, the calculation of disability-adjusted life expectancy loss data collection demonstrates highly alarming statistics. These include reduced life expectancy, disability and illness from gender violence. The study shows that more than 9 million women experience a reduced life expectancy than women from all types of cancer and less than half than women involved in motor accidents[7]. Because of these drastic circumstances, reforms had to be made by the Turkish Government.
In accordance with Article 3, States have a general obligation to take all appropriate measures to guarantee to women the exercise and enjoyment of human rights and fundamental freedoms on an equal basis with men. It should be understood that this duty includes the provision of effective remedies for violations as a necessary measure to ensure the exercise and enjoyment of human rights[8].
“The expulsion of any person afflicted with any serious, naturally occurring physical or mental illness which may cause suffering, pain and reduced life expectancy and require specialised medical treatment […]” (N v UK [2008])
In the case of Ireland v. United Kingdom, the Commission stated:
“ It follows that the prohibition under Article 3 of the Convention is an absolute one and that there can never be under the Convention, or under international law, a justification for acts in breach of that provision”.
Despite the reforms undertaken in recent years, this passivity and indifference of the judicial system and its impunity is something exploited by aggressors. For this reason, it is worth emphasizing the Court’s extensive interpretation of the Article 14, in relation to the discriminatory nature in cases of domestic violence, and the Turkish authority’s inherent sexist attitudes in exercising jurisdiction over women’s human rights, as it often fails to have a rapid response to women’s complaints of gender-based violence.
Furthermore, the judiciary is not proportionally represented in the Western world as it is mainly represented by white, old, middle class men. Let us imagine Middle Eastern or Islamic based countries, where the idea of men’s supremacy over women is still rooted in their culture, something that can prejudice women’s opportunities for accessing justice. As Shareed notes:
“[…] ‘Culture’ is evident in the text of the law through specific legal formulations […]. Culture is also evident in legal silences, in the very differentiation between which acts a society considers to be crimes and which condones by silence”[9].
Opuz’s case is a pure demonstration of how cultural backgrounds can be a barrier to women in accessing justice. The claimant tried to exhaust the local remedies and the authorities discriminatively failed to take appropriate measures to protect her, because in Turkey, women are often perceived as second-class citizens[10]. For this purpose, the Arab Women's Organization has been working to implement the ‘Arab Strategy for Combatting Violence against Women, 2011-2020’, to organise qualitative indicators to assist States in applying their obligations under the CEDAW Convention[11].
Notwithstanding that the ECtHR has been developing a clear and uniform position in relation to the States duty of preventing violent acts against third parties, its role is to assure that the States are promoting those “obligations”, engaging in a coercive protective action, providing ‘practical and effective protection’ in their domestic law, ‘where fundamental values and essential aspects of private life are at stake’[12]. This begs the question, to what extent should the States interfere in the private life of individuals?
In this regard, the IACHR has indicated that the State cannot be held unlimitedly responsible for all acts committed by individuals within its jurisdiction. Likewise, and as a tool that contributes to legal security in the system, the IACHR has established a “tripartite test” for the determination of international responsibility for violation of the duty of prevention: ‘States must "adopt [...] such legislative or other measures as may be necessary to give effect to those rights or freedoms”[13].
The Court’s posture in rejecting the Government’s objection[14] outlined its efficiency as a decision-maker. It is noticeable that the applicant tried all remedies to protect her from the constant attacks of her husband, and the authorities continued to demonstrate an attitude of passivity. The claimant had no other option unless she brought an appeal against the Government. To determine if the State was a violator of Art.14, the applicant had to first exhaust all available domestic avenues for redress. Once all domestic remedies were exhausted, if the victim still exposed to subsequent attacks, the State becomes responsible for those crimes, even if committed by a third-party. These rulings are substantial in extending the “[…] ‘scope of States’ legal obligations beyond the strict public sphere into the field of private life”[15], thereby permitting adequate/effective protection against human rights violations.
Regarding Public and Private law matters, there is a conflicting framework in conceptualising fundamental rights. Article 8 para. 2 of the Convention affirms that ‘there shall be no interference by a public authority’ except in cases that involve ‘interests of national security, public safety or the economic well-being of the country, […] prevention of disorder or crime,’ and ‘protection of health or morals’. Although Article 8 seems to be clear, the detail behind those exceptions is a little contradictory. Per example, should cases like R v Brown[16] 1994 be qualified as private matters? Even though the appellants argued that they had engaged in the sadomasochistic sexual acts consensually?
The legal feminists take a different approach to Article 8, stating that it was something written by men, as it prevents authorities from investigating the suppression of women within their homes. Feminists also have been questioning if legal institutions can effectively protect women[17] .
It is true that the Turkish Government was negligent in providing effective protection, but it is also true that the Convention is not precise in defining private matters. The Convention institutions have tried to approach this definition by interpreting case-by-case, rather than providing a general or comprehensive definition of Article 8. Moreover, the conventional approach should support the jurisprudential nature. So, how could the ECtHR pressure the Turkish authorities in addressing these issues, with a built Convention of deficiencies and inconsistencies? The Convention is a ‘living instrument’, which provides it with a wide stance when interpreted, however, this perspective is a bit precarious, it can be easily manipulated and misinterpreted.
The dynamics of human rights violations among third parties do not lose their complexity and from the perspective of the State, the absolute requirements of prevention are illegitimate and impractical. In this way, it is convenient to delve into the solutions that the IACHR has offered to delimit the scope of the duty of prevention of the State in relation to private acts of violence against women. Take the Portuguese system as an example of legal reform, where domestic violence is considered a “public-crime” and the prosecution does not need the victim’s complaint or consent to move forward with legal proceedings.[18]
In summary, the ECtHR has in recent years taken a series of decisions which have condemned Member States for violations of the ECHR for their lack of protection against domestic violence. It is interesting to see how the Court interprets the successive articles of the Convention to develop its theory as a 'living instrument' and how the field of application of protective norms has expanded, allowing an effective reconstruction of rights, susceptible of violations by States. The duty of State protection has also been reaffirmed in this area. However, these developments alone do not translate into a strong preventive effect. A conventional reform would address this issue, as the jurisprudential approach does not bind countries. Without such reform, European jurisprudence will be merely a pious statement of intent. The tenacious persistence of violence in human relations (in the domestic sphere and in gender relations), will be continued until a conventional revolution surges, which clearly address domestic violence as a public-crime.
Bibliography
Arnardóttir Oddný Mjöll, Equality and Non-Discrimination under the European Convention on Human Rights (Martinus Nijhoff Publishers 2003) p. 107-116.
Benninger-Budel, C (ed.) 2009, Due Diligence and Its Application to Protect Women from Violence, BRILL, Leiden, p. 12. Available from: ProQuest Ebook Central. [14 November 2018].
Eur. Court HR, Case of X. and Y. v. the Netherlands, Judgment of 26 September 1985, Series A, No. 91, p. 11, para. 23.
Haifa Ghazaleh, ‘Arab Strategy For Combating Violence Against Women 2011-2020: Women's Right To A Life Free From Violence’ (Arab Women Organisation 2011).
Inter-American Commission on Human Rights. Indigenous peoples, Afro-descendent communities, and natural resources: Human rights protection in the context of extraction, exploitation, and development activities. p.; cm. (OAS. Official records; OEA/Ser.L).
Johannes Morsink, “Women’s rights in the Universal Declaration”, Human Rights Quarterly, vol. 13, No. 2 (May 1991).
Letsas G, ‘The ECHR as a Living Instrument: Its Meaning and Legitimacy’ in Andreas Follesdal, Birgit Peters and Geir Ulfstein (eds), Constituting Europe (Cambridge University Press 2013).
Magalhães, Maria José; Lima Cruz, Angélica & De Oliveira Braga Lopez, Rita: Working Paper on Intervention Against Domestic Violence in Portugal, from the research project “Cultural Encounters in Intervention Against Violence” (CEINAV), January 2015.
McQuigg, R. ‘The Istanbul Convention, Domestic Violence and Human Rights’ (2017) London: Routledge, 65.
Nicola Lacey, ‘Feminist Legal Theory and the Rights of Women’ in Karen Knopp (ed) Gender and Human Rights (Oxford University Press 2004) 13, 14.
Opuz v Turkey, Application No 33401/02, judgment of 9 June 2009, final 9 September 2009 [114-115, 123].
R v Brown [1993] UKHL 19, [1994] 1 AC 212.
S. KAPOOR, R. COOMARASWAMY et al., “Domestic violence against women and girls”, Innocenti Digest 2000, No. 6, 4.
UNESCO, ‘Women, Law, And Judicial Decision-Making In The Middle East And North Africa: Toward Gender Justice (2006) < http://www.unesco.org/new/fileadmin/MULTIMEDIA/HQ/SHS/pdf/gender_justice.pdf> Accessed 14 November 2018.
United Union, ‘Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers’ (2003) 17.
[1] Opuz v Turkey, Application No 33401/02, judgment of 9 June 2009, final 9 September 2009. [2] Arnardóttir Oddný Mjöll, Equality and Non-Discrimination under the European Convention on Human Rights (Martinus Nijhoff Publishers 2003) p. 107-116. [3] Letsas G, ‘The ECHR as a Living Instrument: Its Meaning and Legitimacy’ in Andreas Follesdal, Birgit Peters and Geir Ulfstein (eds), Constituting Europe (Cambridge University Press 2013). [5] Ronagh McQuigg ‘The Istanbul Convention, Domestic Violence and Human Rights’ (2017) London: Routledge, 65. [6] Johannes Morsink, “Women’s rights in the Universal Declaration”, Human Rights Quarterly, vol. 13, No. 2 (May 1991). [7] S. KAPOOR, R. COOMARASWAMY et al., “Domestic violence against women and girls”, Innocenti Digest 2000, No. 6, 4. [8] See Elefteriadis v Romania [2011] 38427/05 [9] Benninger-Budel, C (ed.) 2009, Due Diligence and Its Application to Protect Women from Violence, BRILL, Leiden, p. 12. Available from: ProQuest Ebook Central. [14 November 2018]. [10] UNESCO, ‘Women, Law, And Judicial Decision-Making In The Middle East And North Africa: Toward Gender Justice (2006) < http://www.unesco.org/new/fileadmin/MULTIMEDIA/HQ/SHS/pdf/gender_justice.pdf> Accessed 14 November 2018. [11]Haifa Ghazaleh, ‘Arab Strategy For Combating Violence Against Women 2011-2020: Women's Right To A Life Free From Violence’ (Arab Women Organisation 2011). [12] Eur. Court HR, Case of X. and Y. v. the Netherlands, Judgment of 26 September 1985, Series A, No. 91, p. 11, para. 23. [13] Inter-American Commission on Human Rights. Indigenous peoples, Afro-descendent communities, and natural resources: Human rights protection in the context of extraction, exploitation, and development activities. p.; cm. (OAS. Official records; OEA/Ser.L). [14] […]’the applicant had failed to exhaust domestic remedies since she and her mother had withdrawn their complaints many times and had caused the termination of the criminal proceedings […]’ and ‘the authorities could not be expected to separate the applicant and her husband and convict the latter while they were living together as a family[…]’ that would ‘amount to a breach of their rights under Article 8 of the Convention’. Opuz v Turkey, Application No 33401/02, judgment of 9 June 2009, final 9 September 2009 [114-115, 123]. [15] United Union, ‘Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers’ (2003) 17. [16] [1993] UKHL 19, [1994] 1 AC 212. [17] Nicola Lacey, ‘Feminist Legal Theory and the Rights of Women’ in Karen Knopp (ed) Gender and Human Rights (Oxford University Press 2004) 13, 14. [18] See p.7 Magalhães, Maria José; Lima Cruz, Angélica & De Oliveira Braga Lopez, Rita: Working Paper on Intervention Against Domestic Violence in Portugal, from the research project “Cultural Encounters in Intervention Against Violence” (CEINAV), January 2015 < https://www.londonmet.ac.uk/media/london-metropolitan-university/london-met-documents/faculties/faculty-of-social-sciences-and-humanities/research/child-and-woman-abuse-studies-unit/ceinav/DV-working-paper_PT-final_BG.pdf> Accessed 13 November 2018 . .