CEDH · CASELAW;CLIN;ENG — 22 mars 2016

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Turkey - 646/10 Judgment 22.3.2016 [Section II] Article 3 Positive obligations Lack of access to protection measures against domestic violence for divorced or unmarried women: violation Article 14 Discrimination Lack of access to protection measures against domestic violence for divorced or unmarried women: violation Facts – The applicant, a victim of persistent domestic violence which had caused her multiple injuries, filed a criminal complaint in 2006 against her husband, after having left the family home for a shelter run by a voluntary association. She instituted divorce proceedings. Her physical and mental state was quickly recorded, and as a result she applied for and was granted the protection measures made available by law to the victims of domestic violence; these were renewed on several occasions until the marriage was dissolved. The injunctions issued in respect of her husband concerned, for example, his removal from the matrimonial home, with a ban on approaching or disturbing the applicants or her children by communicating with them, on pain of a prison sentence. In 2007 the divorce was pronounced. Following the entry into force, in 2012, of new legislation removing any distinction between married and unmarried persons in this respect, she was again granted protection measures, at her request. In 2012 the prosecutor brought criminal proceedings against the applicant’s former husband; these were still pending. Law – Article 3: As the applicant’s allegations were both credible and serious, Article   3 of the Convention was applicable. The State had therefore been under an obligation to ensure an adequate legislative framework and to react promptly. (a)     Absence of a prompt criminal-law response – In judicial proceedings concerning cases which involved violence against women, the national authorities had a duty to take account of the victim’s particular psychological, physical and/or material fragility and vulnerability, and to assess the situation as rapidly as possible. Indeed, the requirement for an appropriate and prompt response was expressly set out in the Istanbul Convention *. While the Criminal Code did not contain specific provisions on domestic violence, there existed a general offence of physical assault. It was clear from the medical reports issued shortly after the complaint was lodged that the applicant was suffering from physical injuries, a major depressive disorder and chronic post-traumatic stress as a result of the violence. Despite this, the public prosecutor waited five months before issuing a warrant for the applicant’s ex-husband to be brought in for questioning. Similarly, when pronouncing the divorce in 2007 the family court found that the evidence established that the alleged violence had occurred. There was thus nothing to explain the public prosecutor’s passivity for such a long period – more than five years and six months after the complaint – before bringing the criminal proceedings, which proceedings were still pending. In the Court’s view, the manner in which the domestic authorities had conducted the criminal proceedings were also characterised by the generalised and discriminatory judicial passivity already noted in domestic-violence cases against Turkey and which created a climate conducive to such violence. (b)     Lack of access to protective measures after the divorce – A civil-law procedure existed for applying to the family-affairs judge for protection. The applicant had used this procedure while she was still married. However, between the date her divorce was pronounced and the entry into force of the new law, the legislative framework did not afford the applicant, as a divorced woman, protection from domestic violence and the matter was left to the interpretation and discretion of the family-affairs judge. Although the applicant was not subjected to renewed physical violence by her former husband during this period, the psychological impact, an important aspect of domestic violence, had to be taken into consideration. Neither the state of fear in which the applicant had lived – she had taken refuge in a women’s shelter for two and half years – nor the ongoing impact on her personal, social and family life of the violence to which she had been subjected could be ignored. The fact that the applicant had been granted protective measures against her ex-husband following the entry into force of the new law confirmed that her physical integrity continued to be threatened, a situation that could give rise to feelings of fear, vulnerability and uncertainty. (c)     Conclusion – Violence against women was, as the Preamble to the Istanbul Convention made clear, one of the crucial social mechanisms by which women were forced into a subordinate position compared with men. It was unacceptable that the applicant should have been required to live in fear of her ex-husband’s actions, many years after having complained to the national authorities about the violence to which she had been subjected. In the light of the above, the Court found that the respondent State had failed to comply with its positive obligations under Article   3. Conclusion : violation (unanimously). The Court also found, unanimously, that there had been a violation of Article   14 read in conjunction with Article   3 of the Convention. Article 41: EUR 19,500 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed. (See also Opuz v. Turkey , 33401/02, 9   June 2009, Information Note   120 ; and Durmaz v.   Turkey , 3621/07 , 13   November 2014; see also the Factsheet on Domestic violence ) * Council of Europe Convention on preventing and combating violence against women and domestic violence, which was ratified by Turkey in 2012 and entered into force in 2014.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes