Izci v. Turkey, ECtHR, 2013, Turkey, ECtHR, 2013.
A Turkish woman was allegedly attacked by the police following her participation in a peaceful demonstration to celebrate Women’s Day in Istanbul and that such police brutality in Turkey was tolerated and often went unpunished. The ECtHR considered that the police officers had failed to show a certain degree of tolerance and restraint before attempting todisperse a crowd which had neither been violent nor presented a danger to public order,and that the use of disproportionate force against the demonstrators had resulted in the injuring of Ms ?zci. Moreover, the failure of the Turkish authorities to find and punish the police officers responsible raised serious doubts as to the State’s compliance with its obligation under the ECHR to carry out effective investigations into allegations of ill-treatment. Finally, the use of excessive violence by the police officers had had a dissuasive effect on people’s willingness to demonstrate. The Court reiterated that a great number of applications against Turkey concerning the right to freedom of assembly and/or excessive use of force by law enforcement officials during demonstrations were currently pending. Considering the systemic aspect of the problem, it therefore requested the Turkish authorities to adopt general measures, in accordance with their obligations under Article 46 of the Convention, in order to prevent further similar violations in the future.
R.K.B. v Turkey, Turkey, Committee on the Elimination of Discrimination against Women , 2012.
R.K.B.’s employer dismissed her but not the male colleague whom she was accused of having an affair with, and threatened to “spread rumours about her relationships with other men” to pressure her to sign a document, attesting that she had been paid all her benefits upon termination. R.K.B. filed a claim to the Kocaeli 3rd Labour Court against her employer alleging unfair termination based on gender stereotypes. The Court decided that the termination of her contract was not justified but not dismissing the male colleague was not discriminatory. R.K.B. appealed to the Court of Cassation, which dismissed the appeal without reference to gender discrimination. The CmEDAW held that the Turkish court violated Articles 5(a), 11(1a) and 11(1d) of CEDAW by basing their decisions on gender stereotypes, tolerating allegations of extramarital relationships by male employees but not by female employees. It recommended adequate compensation to be paid to R.K.B, issued the State to take measures to implement laws on gender equality in the work environment; and to provide training to judges, lawyers and law enforcement personnel on women’s rights and gender-based stereotypes. The decision is of particular importance in a country where almost 80% of women are unemployed (Richinick) and where women’s participation in the labor force has been declining. It also stresses that mere adoption of laws is not enough to protect rights – implementation is the key. The decision also emphasizes the role of the courts (and not the executive branch) as ultimately responsible for rights’ violation.
Ebcin v. Turkey, ECtHR, 2011., Turkey, ECtHR, 2011.
A teacher was attacked in the street by two individuals who threw acid in her face. She alleged that the authorities had failed to prevent the attack on basis of a report by the Turkish Human Rights Foundation according to which 91 of 143 teacher killings in south-east Turkey between 1984 and 1995 were attributed to the PKK (Workers' Party of Kurdistan, an illegal organization). Her claim for compensation was twice set aside by the Supreme Administrative Court. Her aggressors were not arrested until six years later; the proceedings against the instigator of the aggression lasted over seven years and those against his accomplice were still pending before the Court of Cassation. The ECtHR did not hold the authorities responsible for any failure to take steps to protect the applicant individually due to lack of proof of any intimidation or threats to which she might have been subjected. But the Court found that the administrative and criminal proceedings had failed to provide prompt and adequate protection against a serious act of violence and that there had been a violation of Articles 3 and 8. The Court did not examine the case under Article 6.
Opuz v. Turkey, Turkey, European Court of Human Rights, 2009.
State failure to protect victims from domestic violence. Applicant brought this case against Turkey, alleging failure to protect her and her mother from domestic violence, violence which resulted in her mother's death and her own mistreatment. The victim and her mother were repeatedly abused and threatened by the victim's husband, abuse which was medically documented. The victim's husband and his father were at one point indicted for attempted murder against the two women, but both were acquitted. The abuse continued after the acquittal and eventually resulted in the husband's father killing the victim's mother. The husband's father was tried and convicted for intentional murder, but because he argued provocation and exhibited good behavior during the trial, his sentence was mitigated and he was released pending an appeal. Taking into consideration regional and international treaties as well as the domestic situation in Turkey, the ECHR held that Turkey violated Articles 2, 3, 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The ECHR ordered Turkey to pay the victim non-pecuniary damages and costs.
Salmanoglu and Polattas v. Turkey, ECtHR, 2009, Turkey, ECtHR, 2009.
The applicants, 16 and 19 years old at the time, were arrested in the context of a police operation against the PKK (the Workers' Party of Kurdistan). Both girls claimed that, during their police custody, they were blindfolded and beaten. N also alleged that she was sexually harassed and, forced to stand for a long time, was deprived of food, water and sleep. P further alleged that she was anal raped. The applicants were examined during their police custody by three doctors who all noted that there was no sign of physical violence to their bodies. Both applicants also had a "virginity test"; the examinations recorded that the girls were still virgins. A month later, P was given a rectal examination; the doctor noted no sign of intercourse. Following complaints made by the two applicants, an investigation was launched by the prosecution authorities, followed by criminal proceedings against the police officers who had questioned the applicants during their police custody. During the first hearing of the case, the girls further submitted that, when brought before the public prosecutor and judge with a view to their being remanded in custody, they had not made statements about their ill-treatment as they were scared. In particular, they both contended that, during certain medical examinations and when they had made statements to the prosecution, the presence of police officers had intimidated them. The accused police officers denied both ill treatment and presence during their medical examinations or the taking down of their statements. The applicants were subsequently both diagnosed with post-traumatic stress disorder. P was further declared as having a major depressive disorder. The applicants subsequently underwent psychotherapy. The domestic courts ultimately acquitted the police officers on the ground that there was insufficient evidence against them. Subsequently, that judgment was quashed; however, the criminal proceedings against the police officers were terminated as the prosecution had become time-barred. In the meantime, the applicants were convicted of membership of an illegal organization and of throwing alcohol. They were sentenced to terms of imprisonment amounting to more than 12 and 18 years, respectively. The ECtHR took consideration of the circumstances of the case as a whole, and in particular the virginity tests carried out without any medical or legal necessity as well as the post-traumatic stress and depressive disorders suffered, and was persuaded that the applicants had been subjected to severe ill-treatment during their detention in police custody, in violation of Article 3. The Court further concluded that the Turkish authorities had not effectively investigated the applicants' allegations of ill-treatment after seven years, in further violation of Article 3. The Court awarded the applicants non-pecuniary damages and costs and expenses.
Case Number E.2005/151, K. 2008/37, Turkey, Constitutional Court of Turkey, 2008.
The Constitutional Court held that a provision in the Turkish Penal Code that increases the penalty by half for the crime of laceration if committed against family members is constitutional. Although such a penalty treats family members differently than non-family members, the Court found that such differential treatment did not violate the equality principle under the Turkish Constitution. Under the equality principle, criminals who have committed the same offence may not be subject to the same penalty if they have different legal statuses. Here, the Court found that the Turkish Legislature, through the Turkish Penal Code, expressed a preference for family members, giving family members a different legal status and thus the provision did not violate the equality principle. In reaching its decision, the Court also noted that Turkey has taken “extensive legal and administrative measures” to prevent and reduce domestic violence in Turkey. Because the state must protect family members from danger and family members have a different legal status, the Court found that the provision increasing the term of imprisonment and fine for laceration against a family member is constitutional.
Case Number E.2006/156, K.2008/125, Turkey, Constitutional Court of Turkey, 2008.
The Constitutional Court found that a Labour Law that states that an employer must pay severance to a woman who requests to terminate her employment contract within a year of getting married is constitutional and not discriminatory.
Under Article 14.1 of the Turkish Labour Law, an employer must pay severance to a woman who requests to terminate her employment contract within a year of getting married. The Izmir 6th Labour Court found that this provision is discriminatory under the Constitution as it treats male and female workers differently. Using Article 41 and Article 50 of the Turkish Constitution, the Constitutional Court, however, ruled that the law is not discriminatory and does not violate the Constitution. Under Article 41, Turkey has the power to “take necessary measures” to ensure the “peace and welfare” of the family, specifically in regards to the protection of mothers and children. Article 50 allows women, and other protected groups, to enjoy “special working conditions.” The Court found that the goal of the Labour Law to protect both female workers and the family union aligned with these two Articles, and thus was neither discriminatory nor in violation of the Constitution.
Yilmaz v. Turkey, ECtHR, 2008, Turkey, ECtHR, 2008.
A 20-year-old Y killed himself while performing his compulsory military service after being provoked by Sergeant A’s physical and verbal violence who had been informed of Y’s problems linking to his sister’s marital difficulties. The ECtHR concluded a violation of Article 2 as the authorities failed to effectively protect the victim from the improper conduct of his superiors.
Case Number E.1999/35, K.2002/104, , Turkey, Constitutional Court of Turkey, 2002.
The Constitutional Court found that the legislature could take necessary measures to reduce violence within families.
Articles 1.1 of the Law on the Protection of the Family allows judges to take measures against one spouse, not both, and not against the children or members of the family, if a spouse has subjected another family member to domestic violence. The Gulyaly Peace Court found that because the Articles did not provide for an injunction or penalty if a child committed a violent act, rather than a spouse or parent, the Articles violated the principle of equality. Relying on Article 41 of the Turkish Constitution, which focuses on the family as the foundation of Turkish Society and gives the legislature the power to protect the family unit, the Constitutional Court found that Article 1.1 does not violate the Constitution because it protects the family unit and ensures peace within a family unit. The Court also found that the provision did not violate the Turkish equality principle, because the legal status of spouses differs from that of other family members and just cause exists to treat such groups differently.
Jabari v. Turkey, ECtHR, 2000, Turkey, ECTtHR, 2000.
The applicant fled to Turkey from Iran fearing that she would be convicted of having committed adultery, an offence under Islamic law, and sentenced to be stoned to death or flogged. She was arrested at Istanbul airport on the ground that she had entered Turkey using a forged passport. No charges were brought against her on account of the forged passport but she was ordered to be deported. The applicant subsequently lodged an asylum request, which was rejected by the authorities on the ground that the request had not been submitted within five days of her arrival in her Turkey. Later the applicant was granted refugee status by the UNHCR. The Ankara Administrative Court dismissed the applicant's petition against the implementation of her deportation on the grounds that there was no need to suspend it since it was not tainted with any obvious illegality and its implementation would not cause irreparable harm to the applicant. The applicant complained that her right not to be subjected to ill-treatment guaranteed under Article 3 ECHR would be breached if she were to be deported to Iran. She further complained that she had no effective remedy in the domestic law of the respondent state to challenge her deportation, in breach of Article 13. The ECtHR was not persuaded that the authorities of the respondent state conducted any meaningful assessment of the applicant's claim, including its arguability. It would appear that her failure to comply with the five-day registration requirement under the Asylum Regulation 1994 denied her any scrutiny of the factual basis of her fears about being removed to Iran. The automatic and mechanical application of such a short time-limit for submitting an asylum application must be considered at variance with the protection of the fundamental value embodied in Article 3 of the Convention. It fell to the branch office of the UNHCR to interview the applicant about the background to her asylum request and to evaluate the risk to which she would be exposed in the light of the nature of the offence with which she was charged. The Administrative Court on her application for judicial review limited itself to the issue of the formal legality of the applicant's deportation rather than the more compelling question of the substance of her fears, even though by that stage the applicant must be considered to have had more than an arguable claim that she would be at risk if removed to her country of origin. It further observed that the government have not sought to dispute the applicant's reliance on the findings of Amnesty International concerning the punishment meted out to women who are found guilty of adultery. Having regard to the fact that the material point in time for the assessment of the risk faced by the applicant was the time of its own consideration of the case, the Court was not persuaded that the situation in the applicant's country of origin has evolved to the extent that adulterous behavior was no longer considered a reprehensible affront to Islamic law. It had taken judicial notice of recent surveys of the current situation in Iran and noted that punishment of adultery by stoning still remained on the statute book and may be resorted to by the authorities. Having regard to the above considerations, the Court found it substantiated that there was a real risk of the applicant being subjected to treatment contrary to Article 3 if she was returned to Iran. Accordingly, the order for her deportation to Iran would, if executed, give rise to a violation of Article 3. The Court held that there had been a breach of Article 13. The notion of an effective remedy under Article 13 requires independent and rigorous scrutiny of a claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3 and the possibility of suspending the implementation of the measure impugned. Since the Administrative Court failed in the circumstances to provide any of these safeguards, the Court was led to conclude that the judicial review proceedings did not satisfy the requirements of Article 13.
Case Number E.1999/27, K.1999/42, Turkey, Constitutional Court of Turkey, 1999.
Article 237.4 of the Turkish Criminal Code provides for a penalty of two to six month imprisonment if a man or woman holds a religious wedding ceremony before a civil ceremony. Under Turkey’s principle of equality, different individuals with different legal statuses may be treated differently. The Constitutional Court found that the statute does not violate the principle of equality because unmarried individuals have a different legal status than those who have conducted a religious wedding ceremony. In reaching its decision, the Court also noted that legislature has discretionary power to make laws, the Constitution provides for the protection of family life, and the statute does not prohibit religious ceremonies entirely.
Aydin v. Turkey, ECtHR, 1997, Turkey, ECtHR, 1997.
The applicant was allegedly tortured and raped while in the custody of the State security forces although according to the Government reports, she and the other members of her family were never detained. They filed a complaint to the Public Prosecutor who sent them to the State hospital for a medical examination, resulting in a perfunctory report not focusing on whether the applicant had in fact been raped. The Public Prosecutor thereupon reported to the Principal State Counsel that there was no evidence to support the applicant's complaints but the investigation was continuing. The Court found violations of Article 3 ad 16 of the ECHR. The court noted that the rape of a 17-year-old detainee who had also been subjected to other forms of physical and mental sufferings by an official of the State is an especially grave and abhorrent form of ill-treatment and amounted to torture. The failure of the authorities to conduct an effective investigation into the applicant’s alleged suffering while in detention resulted in her being denied access to a court to seek compensation. The Court dismissed the intimidation and harassment claim due to lack of sufficient evidence.