Warning: This case deals with topics that are especially grave and may cause trauma invoked by memories of past abuse. If you have experienced violence and need assistance, please refer to this list of country help lines provided by UN Women.
Domestic violence, gender-based killing
European Court of Human Rights
If you are attacked or threatened by another person, it is the job of the police to protect you, investigate your claim and punish the assailant – no matter what your relationship is to the attacker. But what if you call to ask the police for help and are ignored? If you knew your life was in danger, where would you turn for help?
Nahide’s ex-husband, Huseyin Opuz (H.O.), repeatedly threatened and beat her for the entirety of their marriage. On one occasion, H.O. had brutally stabbed Nahide with a knife seven times which resulted in life-threatening wounds and her hospitalisation. On an other occasion, he ran down Nahide and her mother with a car. Following each of these assaults, Turkish authorities only temporarily detained H.O. and then released him with fines. Other times, Nahide and her mother contacted the Turkish police to report their lives were in danger; however, no significant action was taken to investigate what was happening or protect them. Rather, the police viewed the attacks as private, ‘family’ matters to be resolved at home. Finally, in 2002, H.O. shot and killed Nahide’s mother in the city of Diyarbakir. Only one month earlier, the women had contacted the Turkish police again for help.
Despite receiving a life sentence for the murder of Nahide’s mother, H.O. was released from custody pending an appeal. He argued that the murder was committed in order to protect his family’s “honour”. After only three days, the Turkish police had withdrawn the protection order Nahide had against H.O.
What was the decision?
The general and discriminatory judicial passivity in Turkey created a climate that was conducive to domestic violence…
After considering Nahide and her mother’s story, the Court concluded that the Turkish authorities ought to have known about the very real threat H.O. posed to the lives of the women. It also found that the punishments against H.O. had been disproportionately and extraordinarily mild compared to his brutal acts taken against Nahide and her mother. Here, Turkey had failed the women by implementing ‘protective’ measures that had no real prospect of deterring H.O. from continuing his abuse. Due to these failures (and others), the Court found Turkey had denied Nahide’s mother the right to life and Nahide’s right to be free from torture and cruel, inhuman and degrading treatment.
Additionally, with information provided by NGOs, the Court concluded domestic violence was disproportionately suffered by women in Turkey. Even though there was a Family Protection Act (Law no. 4320) meant to protect women, when women contacted Turkish authorities for help they were often encouraged to resolve the matter at home and/or complaints were never investigated. This appeared to be partly attributable to the belief of police officers that domestic violence is a “family matter with which they cannot interfere”. Furthermore, the Court noted that perpetrators of domestic violence do not receive appropriate punishment, as the courts lower sentences for crimes committed in the name of so-called ‘honour’. It did not matter if the discrimination was intentional; the widespread failure of police officials to act disproportionately impacted women. For these reasons (among others), the Court recognised that there was a “general and discriminatory judicial passivity in Turkey” that denied women equal protection under the law.
Learning from other institutions
Throughout the text of the case document, Nahide and her mother’s stories were supported by what other institutions and authorities had said about violence against women, gender-based discrimination and human rights, which reinforces the legal value of the rule about gender-based violence under international customary law. Some of the references to these institutions and authorities included (numbers correspond to paragraphs within the case document):
- Convention on the Elimination of All Forms of Discrimination against Women: 186
- UN Commission on Human Rights (predecessor to the Human Rights Council): 188
- Belém do Pará Convention: 189
- Inter-America Commission on Human Rights: 190
Ms. Nahide Opuz’s story redefined the way we understand state obligation in cases of domestic violence. In previous cases, the Court had delivered landmark decisions about the responsibility of the state for third-party actors, but Nahide’s case was the first time it had concluded that a state’s failure to address domestic violence constituted a form of gender-based discrimination. In this case, it was not the law (Family Protection Act, Law no. 4320) that was the problem; it was the general and widespread discriminatory attitude of the authorities that needed to be remedied.
Since the Court ruled in her favour, Nahide has been forced to leave her children behind with her father-in-law and move to an undisclosed location for her own personal safety. Although her story was a significant step for women’s rights, her continual struggle serves as an important reminder that international and regional courts can only rule on a state’s compliance with a convention – it cannot overturn domestic decisions nor can it force states to take action.