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Fatma Yildirim married Irfan Yildirim in 2001, she already had three children from her previous marriage: two were adults, and the youngest, Melissa, was three years old. The marriage broke down during in July 2003, Fatma Yildirim wanted to divorce but Irfan Yildirim would not agree, and threatened to kill her and her children, should she divorce him. On 4th August, Irfan Yildirim attacked Fatma Yildirim, and threatened to kill her in person and subsequently by phone. He also came to her workplace and threatened her on a number of occasions. Fatma Yildirim reported these threats and the attack, applied for an injunction, and asked that Irfan Yildirim be detained. This request was refused. On 26th August, Fatma Yildirim applied for a divorce, and was granted a protection order for herself and Melissa. On 11th September, Irfan Yildirim followed Fatma Yildirim home from work and fatally stabbed her in the street near the family’s apartment.
As in the case Şahide Goekce, Fatma Yildirim’s children were represented by the Vienna Intervention Centre against Domestic Violence and the Association for Women’s Access to Justice. As in Şahide Goekce’s case, the applicants argued that:
“With regard to article 1 of the Convention, the authors contend that in practice the criminal justice system predominantly and disproportionately negatively affects women. They mention in particular that women are far more affected than men by the failure of public prosecutors to request that alleged offenders be detained. They are also disproportionately affected by the practice of not appropriately prosecuting and punishing offenders in domestic violence cases. Furthermore, women are disproportionately affected by the lack of coordination of law enforcement and judicial personnel, the failure to educate law enforcement and judicial personnel about domestic violence and the failure to collect data and maintain statistics on domestic violence.” (paragraph 3.3)
The Austrian authorities argued that Irfan Yildirim did not seem violent when they interviewed him, and had no previous convictions. The applicants argued against this and that a risk assessment should be more thorough and look at the experience of the victim of the threats.
The children of Fatma Yildirim had failed in an application for compensation for the death of their mother, as the Austrian authorities held that they had discharged all their obligations relating to her protection, including issuing a protection order, and had not committed any unlawful action.
What was the decision?
The CEDAW Committee drew the same conclusions as in the case of Goekce v Austria:
“The Committee notes that the State party has established a comprehensive model to address domestic violence that includes legislation, criminal and civil-law remedies, awareness raising, education and training, shelters, counselling for victims of violence and work with perpetrators. However, in order for the individual woman victim of domestic violence to enjoy the practical realization of the principle of equality of men and women and of her human rights and fundamental freedoms, the political will that is expressed in the aforementioned comprehensive system of Austria must be supported by State actors, who adhere to the State party’s due diligence obligations.” (12.1.2)
The Committee found that the facts indicated that Fatma Yildirim’s situation was extremely dangerous, given that Irfan Yildirim continued to make continuous attempts to contact her in person and by phone and to make threats, despite the protection order. Given these facts, the authorities should have detained him. Such detention would not have been disproportionate, as “a perpetrator’s rights cannot supersede women’s human rights to life and to physical and mental integrity.”(paragraph 12.1.5
The Committee made recommendations to the Austrian authorities to strengthen the implementation and monitoring of the criminal law relating to domestic violence, to prosecute perpetrators speedily, and enhance coordination among law enforcement and judicial officers, including training.
As in the case of Goecke v Austria, the applicants argued that the State should have intervened to protect a woman whose life was threatened by detaining the perpetrator. In Yildirim, the CEDAW Committee gave more details about the factors that should be considered when making an assessment whether it is appropriate to use detention as a method of protecting women:
“12.1.4 The Committee considers that the facts disclose a situation that was extremely dangerous to Fatma Yildirim of which the Austrian authorities knew or should have known, and as such the Public Prosecutor should not have denied the requests of the Police to arrest Irfan Yildirim and place him in detention. The Committee notes in this connection that Irfan Yildirim had a lot to lose should his marriage end in divorce (i.e. his residence permit in Austria was dependent on his staying married) and that this fact had the potential to influence how dangerous he would become.
12.1.5 The Committee considers the failure to have detained Irfan Yildirim as having been in breach of the State party’s due diligence obligation to protect Fatma Yildirim. Although, the State party maintains that, at that time — an arrest warrant seemed disproportionately invasive, the Committee is of the view, as expressed in its views on another communication on domestic violence that the perpetrator’s rights cannot supersede women’s human rights to life and to physical and mental integrity.”