Mayr v. Bäckerei und Konditorei Gerhard Flöckner OHG, Austria, European Court of Justice, 2008.
Ms. Mayr was employed as a waitress with Konditorei Gerhard Flöckner, and was terminated while undergoing in vitro fertilization. Ms. Mayr then filed suit to recover payment of her salary and pro rata annual remuneration, arguing that from the date on which in vitro fertilization of her ova took place, she was entitled to the protection against dismissal provided by Austrian legislation. After proceedings in the lower courts, the Austrian Supreme Court referred to the European Court of Justice the question of whether a female worker is entitled to protection from dismissal where her ova have been fertilized but not yet transferred to her uterus. The European Court of Justice answered the question in the negative. But the Court also held that EU Directives on the implementation of equal treatment for men and women as regards access to employment, vocational training and working conditions preclude the dismissal of a female worker who is undergoing in vitro fertilization treatment where it is established that the dismissal was based on such treatment.
Goekce v. Austria , Austria, CEDAW Committee, 2007.
Sahide Goekce’s husband shot and killed her in front of their two daughters in 2002. Before her death, Ms. Goekce had obtained three expulsion and prohibition-to-return orders against her husband in response to repeated episodes of domestic violence. The Vienna Public Prosecutor denied police requests to detain Mr. Goekce, and stopped the prosecution against him on the basis of insufficient grounds of prosecution two days before Ms. Goekce’s death. Police reports show that the law enforcement failed to respond in a timely fashion to the dispute that resulted in Ms. Goekce’s death. The complaint to the Committee on behalf of the decedent stated that Austria’s Federal Act for the Protection against Violence within the Family provides ineffective protection for victims of repeated, severe spousal abuse and that women are disproportionately affected by the State’s failure to prosecute and take seriously reports of domestic violence. The Committee found that although Austria has established a comprehensive model to address domestic violence, it is necessary for State actors to investigate reports of this crime with due diligence to effectively provide redress and protection. The Committee concluded that the police knew or should have know that Ms. Goekce was in serious danger, and were therefore accountable for failing to exercise due diligence in protecting her. By allowing the perpetrator’s rights to supersede Ms. Goekce’s human rights to life and to physical and mental integrity, Austrian law enforcement violated it obligations under article 2 to end gender discrimination through the modification or enactment of appropriate legislation, and its article 3 obligation to guarantee women’s exercise and enjoyment of human rights and fundamental freedom on a basis of equality with men. The Committee recommended that Austria strengthen its implementation and monitoring of the Federal Act for the Protection against Violence within the Family, respond to complaints of domestic violence with due diligence, and provide adequate sanctions for failure to do so.
Yildirim v. Austria , Austria, CEDAW Committee, 2007.
Fatma Yildirim sought to divorce her husband who threatened to kill her and her children if she ever initiated divorce proceedings. In response to Yildirim’s numerous reports of assault and dangerous criminal threats, the Austrian police issued an expulsion and prohibition-to-return order against her husband. The police also recommended that her husband be detained, but the Vienna Public Prosecutor twice denied the request. Yildirim appealed to the Vienna Intervention Center after her husband repeatedly came to her workplace to harass and threaten her; the Center asked the police to pay more attention to Yildirim’s case. When Yildirim finally filed a petition for divorce at the Vienna District Court of Hernals, her husband followed her home from work and fatally stabbed her. The complaint stated that the State’s action violated article 1 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) because the Austrian criminal justice system negatively impacts women through the public prosecutors’ failure to treat cases of domestic violence seriously. The complaint also cited the failure of judicial officials and law enforcement to collect data and maintain statistics on domestic violence instances denied Yildirim the enjoyment of her human rights in violation of article 2 and 3 of CEDAW on eliminating laws, regulations, and customs that adversely effect women . Finally, the complaint stated a violation of article 5 of the Convention on eliminating social and cultural attitudes towards women in the State’s continual treatment of domestic violence as a social or domestic problem rather than a serious crime. The Committee held that the Austrian police force’s failure to detain Yildirim’s husband was in breach of the State’s due diligence obligation to protect Yildirim, noting that a perpetrator’s rights cannot superseded women’s human rights to life and to physical and mental integrity. The Committee also took note of the correlation between lenient attitudes towards women’s cultural subordination and domestic violence. Although Austria prosecuted Yildirim’s husband to the fullest extent for her death, the Committee found violations of articles 2, 3, and 5 and recommended that Austria strengthen its implementation and monitoring of the Federal Act for the Prevention against Violence within the Family, and ensure enhanced coordination between police and judicial officers to protect women victims of gender-based violence.