Judge Ayşe Işıl Karakaş Discusses State Responsibility to Eliminate Violence Against Women
Judge Ayşe Işıl Karakaş
Judge Ayşe Işıl Karakaş is the first female judge from Turkey to sit on the European Court of Human Rights, where she has been a member since 2008. Judge Karakaş was part of a landmark decision,
Opuz v. Turkey, that held the Turkish government accountable for eliminating violence against women. The Avon Global Center interviewed her about the
Q. You are the first female judge from Turkey to serve on the European Court of Human Rights. What prompted your interest in and concern for international human rights?
A. Prior to my election as a Judge, I was professor of international law at Galatasaray University, Istanbul, Turkey. The international dimension of my work required me to attend many seminars, lectures and trainings on various domains and kept me updated on the relevant international law developments, notably, on human rights. In my view my professional background, coupled with the fact that I am a woman, born, raised, living and working in a complex society that Turkey is, made me particularly, aware of and sensitive to the many serious human rights challenges which existed and still exist in Turkey and in the World today.
Q. You were part of a landmark decision concerning cumulative incidents of abuse in the case of Opuz v. Turkey. In this case, the state was found to have failed in its duty to protect women from domestic violence. Could you explain what the state's responsibility to ensure protection from domestic violence entails? Also, what are the consequences in the European justice system for those found to have failed in this duty?
A. The Court has found that the duty of the State in cases such as domestic violence is to take appropriate steps to safeguard the lives of those within its jurisdiction and to make sure that they are not subjected to torture or inhuman or degrading treatment or punishment in the hands of private individuals. This means that States are required to put in place effective criminal-law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions. But it also requires that States in certain circumstances, notably, when it comes to the duty to protect women from domestic violence, to take preventive operational measures to protect an individual from the criminal acts of another individual. In such circumstances, the Court examines whether the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life and personal integrity of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. This is particularly relevant for victims of domestic abuse where the authorities should apply preventive measures irrespective of whether the victim has requested them or not. Finally, States must also put in place an efficient and independent judicial system by which the cause of a murder and/or violence perpetrated on an individual can be established and the guilty parties punished. In this connection, it is important to underline that, in the context of domestic violence, the Court clearly stated that the legislative framework must allow for criminal prosecution to continue even if victims withdraw their complaints provided the violence committed is sufficiently serious to warrant prosecution and there exists a threat to the victim's physical integrity.
States, in accordance with Article 46 of the Convention, undertake to abide by the final judgment of the Court in any case to which they are parties. The execution of a judgment by a member State is supervised by the Committee of Ministers of the Council of Europe. Depending on the circumstances of the case and the decision of the Court, member States may be required to abide by individual measures and/or general measures. In principle, in a case where the State has failed in its duty to protect women from domestic violence, it would be required to pay the compensation awarded to the applicant by the Court and to undertake various measures - whether through changes of legislation, case law or through other kinds of measures- with a view to prevent the occurrence of similar violations. The judgment may contain such measures in order to facilitate the execution and leading the way to take.
Q. The decision for Opuz v. Turkey noted that "Turkey created a climate that was conducive to domestic abuse." Could you explain which actions or policies undertaken by the state created this climate? What changes have been or can be implemented to the Turkish legal system to alter this climate, and to ensure that victims are protected and perpetrators punished?
A. In the Opuz case, the Court, having regard to the evidence in the case-file, considered that the general attitude of the local authorities, such as the manner in which the women were treated at police stations when they reported domestic violence and the discriminatory judicial passivity in providing effective protection to victims created a climate was conducive to domestic violence. The reports submitted to the Court demonstrated that the police officers generally treated domestic violence as a family matter with which they cannot interfere and that there were unreasonable delays in issuing injunctions by the courts and in serving these injunctions on the aggressors. Moreover, these reports indicated that the perpetrators of domestic violence did not seem to receive dissuasive punishments, because the courts mitigated sentences on the grounds of custom, tradition or honor. The Court thus found that domestic violence was tolerated by the authorities and that any remedies which may exist under domestic law failed to function effectively.
The Opuz case not only exposed the significant gaps in the legislative framework regarding domestic violence in Turkey but also the lack of proper implementation of the existing laws by police, prosecutors, judges and other officials. Since the adoption of that judgment, Turkey has undertaken a number of steps with a view to tackle domestic violence of women. For example, it was the first country to ratify the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence ( "Istanbul Convention"). This very important Convention creates a comprehensive legal framework to combat violence against women through prevention, protection, prosecution and victim support.
It has also adopted on 8 March 2012 a new law entitled "Law on the Protection of the Family and the Prevention of the Violence against Women" which made major improvements to the protection system in place for victims of domestic violence. For example, according to this law those who violate a protection order will immediately be subject to three days' imprisonment, police officers are authorized to take protective measures as soon as victim needs protection and offenders face a prison term of up to six months for breaching restraining orders etc. In addition, the Ministry for Family and Social Policies adopted a National Action Plan to Combat Violence against Women (2012-15). In this respect, numerous public-awareness campaigns were organized.
Q. The decision for Opuz v. Turkey also marked the first time that the European Court of Human Rights acknowledged that states' violation of their obligations to address gender-based domestic violence is a form of discrimination under the European Convention of Human Rights. How has the decision been implemented in Turkey and to what extent has this implementation been successful in increasing protection from domestic violence? What have been the long-term impacts of this decision, both in terms of precedence for the European Court of Human Rights and in other states that have also been found to have failed in their duty to protect women and girls from violence?
A. Domestic violence, notably, against women is a complex phenomenon which occurs across the world and affects people of all economic, social, religious and cultural backgrounds. It is however, prevalent, it societies where women's rights and gender equality is not seriously addressed.
While there were earlier cases before the Court concerning domestic abuse (see Kontrova v. Slovakia, Branko Tomasic and others v. Croatia), the Opuz judgment was a landmark because it underlined loud and clear that domestic violence is a human rights violation and that, given that it affects disproportionately women, it is also a form of gender-based discrimination. In this respect, it has made a significant contribution to the fight against domestic violence. The principles established therein have subsequently been applied in a number of other cases such as Valiulienė v. Lithuania, 26 March 2013, Eremia v. Moldova, 28 May 2013.
Although Turkey has undertaken a number of measures to address domestic violence, the lack of proper implementation of laws on violence against women due to discriminatory traditions and culture remains a serious concern. There are also certain areas such as victims' access to legal assistance and availability of shelters on which the State has not yet sufficiently tackled. While public-awareness campaigns have lead the press to give more importance to domestic violence related news, this has also not yet shown to have significantly decreased the vast numbers of women in Turkey being victim of domestic abuse.