“There is one universal truth, applicable to all countries, cultures and communities: violence against women is never acceptable, never excusable, never tolerable” Ban Ki- Moon
The UN, governments around the world, networks and individuals are uniting efforts to end one of the most abhorrent human rights breaches of our time: violence against women. In 2008 the UN launched its campaign UNiTE to end violence against women and just a couple of weeks ago it launched a new Network of Men leaders to combat violence against women.
But the truth is still grim: women are half of the world’s population and seventy experience some sort of violence by men in their lifetime. Violence against women is not an isolated incident. It occurs everyday across every continent and knows no boundaries. The global conviction rate for rape is only five percent of alleged attacks. In reality, women are still stigmatised and stereotyped and in many cases, unable to gain access justice.
What has the judiciary done about this unacceptable truth? One of the main problems of international human rights law is the lack of appropriate enforcement mechanisms. The European Convention on Human Rights (ECHR) is one of the most effective international human rights treaties because of the binding authority of the European Court of Human Rights in Strasbourg. Even so, the ECHR is virtually gender blind and has been slow in rising to the challenge of tackling violence against women.
However, there are signs that Strasbourg has now started to respond to the challenge, and one case in particular stands out this year. In July 2009 the court ruled in a landmark case entitled Opuz v Turkey. In this pioneering case, the court recognized for the first time that domestic violence is a form of discrimination against women prohibited by the ECHR and that States are required to eliminate and remedy it. The case also recognized that domestic violence is not a “private family matter” but that it is in the public interest to ensure state protection from it.
Nahide Opuz is a woman from Southeastern Turkey. She and her mother were subjected to severe forms of violence at the hands of Nahide’s husband for more than twelve years. Violence included severe forms of physical violence, death threats, psychological violence, attempted murder, harassment and bodily harm. Violence was so extreme that in one occasion the man ran into the women with a car and in a separate incident he stabbed Nahide seven times, hospitalizing her for several days. Finally in 2002, in a brutal attack the perpetrator shot Nahide’s mother dead.
What makes the Turkish State’s responsibility very clear is the fact that both Nahide and her mother had approached different authorities at different times requesting the protection of the State and filing complaints against the perpetrator. However, several criminal prosecutions against him were discontinued because the two women withdrew their complaints. Finally, when Nahide’s mother was killed, the perpetrator was sentenced to life imprisonment. Nevertheless, his sentence was reduced and he was later released on the grounds that Nahide’s mother had provoked the assault.
The European Court of Human Rights found that Turkey had breached Nahide’s rights to life, freedom from torture, inhuman and degrading treatment and freedom from discrimination. In fact the argument used by the Turkish authorities that they were refraining from interfering in a private family matter, was dismissed by the court. Moreover, the court established that the fact that Nahide and her mother withdrew their complaints was not relevant considering the seriousness of the assaults that they were subjected to and their position of inferiority. It was still the responsibility of the state to protect them. The court stated that Turkey had failed to establish and apply a system to prevent and punish domestic violence.
In its judgment, the court took into account some of the provisions of international law including the Convention on the Elimination of Discrimination against Women (CEDAW) and the Inter American Convention on Violence against Women of Belem Do Para, to conclude that the state’s failure to protect women against domestic violence breached women’s right to equal protection under the law. The violence suffered by Nahide and her mother was regarded as gender based which constituted a form of discrimination against women.
The court clearly established that domestic violence in Turkey mainly affects women and that the state’s failure to protect Nahide and her mother against domestic violence constituted discrimination. The discrimination was mainly based on the tolerance and the passivity of the authorities - for example, it was said that when women reported domestic violence to the police, their complaints were often not investigated and instead the police tried to convince women to drop the case. Moreover, when considering acts of domestic violence, the court established that judges continue to view these acts as a personal and private matter, an affront to custom, tradition or honour, and ,as a provocative act – justifiable. The court concluded that the general and discriminatory judicial passivity and lack of commitment to take appropriate action in Turkey, created a climate that was conducive to domestic violence.
This judgment is a landmark decision in that it clearly establishes the state’s responsibility to protect women against violence. The case is clear and unequivocal in establishing that women's rights are human rights, that violence against women is an endemic and serious human rights breach and that when women are effectively prevented from accessing justice, it also constitutes discrimination
As active and responsible citizens we need to use cases like Opuz v Turkey to enhance our efforts to boldly and unequivocally combat violence against women. It is our responsibility to use these developments as a tool for effective advocacy to end this repugnant crime and for pursuing a world free from violence against women.
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