Şahide Goekce v Austria (2007)

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.

What happened? | What was the decision? | Committee Recommendations |
Significance

What happened?

Şahide Goekce was an Austrian citizen of Turkish origin. From 1999-2002, she was subjected periodically to physical violence and death threats by her husband Mustafa Goekce. The police were informed of these on-going threats. On two occasions, they imposed protection orders requiring Mustafa Goekce to leave the shared home first for a period of 10 days, then for a period of three months. On one occasion Mustafa Goekce was charged with assault but acquitted, because Şahide Goekce’s injuries were judged to be insufficiently serious. The police asked twice that Mustafa Goekce be detained because of the death threats and violence that he was inflicting, however, the prosecutors denied these requests because of insufficient evidence.  Şahide Goekce’s father and brother provided further information to the police confirming that Mustafa Goekce had made many threats to kill Şahide Goekce, and that he had access to a gun. These statements were not taken seriously or recorded. Two days after a prosecution for causing bodily harm and making a criminal dangerous threat was stopped, Mustafa Goekce shot Şahide Goekce with a handgun in front of two of their daughters.

The Vienna Intervention Centre and the Association of Women’s Access to Justice, acting on behalf of Şahide Goekce’s three children, submitted that:

“women are far more affected than men by the failure of public prosecutors to take domestic violence seriously as a real threat to life and their failure to request detention of alleged offenders.Women are also disproportionately affected by the practice of not 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 application to the CEDAW Committee emphasised that the remedy the family sought was not compensation, but to hold the State to account for its omissions and negligence.

The Austrian government’s response indicated that on several occasions, Şahide Goekce refused to testify against her husband or to permit a prosecution, that the couple put up a front of being united in the course of child protection proceedings and partner therapy: that although the police were frequently called to the house, that she had expressly declared that she wanted to live with her husband. On this basis, the prosecutors’ assessment was that threats were a frequent part of the interaction between Şahide Goekce and Mustafa Goekce, but that these threats would not be acted on. The government response admitted that Mustafa Goekce had bought a handgun three weeks before killing Şahide Goekce, even though there was a valid weapons prohibition against him.

In response, the applicants said that “the State party has wrongfully placed the burden and responsibility of taking steps against a violent husband on the victim and has failed to understand the danger the victim faces and the power of the perpetrator over the victim.[..] [The burden should] be placed on the State – where it belongs – [this] would reinforce the fact that making a criminal threat is a crime against the community as well as a crime against an individual victim.”(paragraph 5.3]

The Austrian government gave detailed information about the law and practice relating to domestic violence, and how officials are trained. They also noted that – particularly because Mustafa Goekce committed the offence under the influence of a jealousy psychosis that absolved him of criminal responsibility, that “it is difficult to make a reliable prognosis as to how dangerous an offender is and that it is necessary to determine whether detention would amount to a disproportionate interference in a person’s basic rights and fundamental freedoms.” (paragraph 8.10)

In response, the applicants noted that Şahide Goekce would have been afraid of losing her children, and the social and cultural contempt for a woman of Turkish descent whose children had been taken away, and this would explain why she might have played down the threats against her. (paragraph 9.6). They also noted that Şahide Goekce made many attempts to get help in the last year of her life – and others indicated the level of risk she was facing – but that these relevant details were not adequately documented.

What was the decision?

The CEDAW Committee made a statement of principle on the issue of due diligence which has been taken up in many subsequent cases:

“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.” (paragraph 12.1.2)

The CEDAW Committee took into account a number of factors: the frequency of calls for assistance from Şahide Goekce to the police had increased; the police had made several requests for Mustafa Goekce’s detention; the protection order in force had been breached; Mustafa Goekce had purchased a handgun despite the valid weapons prohibition against him, and a witness had reported to the police that he had a weapon. Given the combination of factors, the CEDAW Committee said that the police knew or should have known that Şahide Goekce was in serious danger, and treated her last call as an emergency.

The CEDAW Committee was clear that

“the basic rights and fundamental freedoms of a perpetrator or domestic violence, such as the right to freedom of movement and to a fair trial […] cannot supersede women’s human rights to life and to physical and mental integrity.” (paragraph 12.1.5)

Significance

The CEDAW Committee made a significant statement about the nature of the legal obligation of due diligence for the first time in two cases against Austria, which were decided at the same time, Goecke v Austria and Yilidirim 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.” (paragraph 12.1.2)

This paragraph emphasises that, in order to discharge its obligations under the CEDAW Convention, States must establish a legal and policy framework on violence against women that ensures effective protection for each woman at risk, and that the effectiveness of these frameworks is first and foremost an act of political will to ensure equality between men and women.

Want more? Read the full text of the case on the UN website