Twitter Facebook Linkedin Youtube

VICTIMS OF DOMESTIC VIOLENCE AND THE DUE DILIGENCE OBLIGATION OF THE STATE

Leyla SARIKAMI?

Leyla SARIKAMI?

Introduction

Fatma Yildirim had been brutally abused by her husband for years before he murdered her. She did report the violence to the police for several times and obtained protection orders. However, the Austrian authorities repeatedly failed to ensure her safety. She was stabbed to death by her husband. Unfortunately, women all over the world are victims of domestic violence and have the same faith as Fatma Yildirim. Could a situation like this be prevented? After two organizations in Vienna made an individual communication, the Convention on the Elimination of All sorts of discrimination against women (hereafter; CEDAW) Committee under the Optional Protocol made a decision in 2007 regarding this case. According to the Committee of the CEDAW, the Austrian government had failed to implement the law. Furthermore, they had also failed in their duty to provide ‘due diligence’.[1]

The case of Fatma Yildirim vs Austria can be considered as one of the most high profile cases and can be regarded as groundbreaking.[2] Based on article 7, paragraph 3 of the Optional Protocol, the Committee of the CEDAW was competent to make a decision on this case.[3] On August 6th 2007 the Committee on the Elimination of Discrimination against Women adopted the annexed text as the Commitee’s view under article 7 in respect of communication.[4]

Firstly, in this paper the merits of the case will be discussed. Furthermore, the following research question will be answered: Did the applicants have the opportunity to lodge their complaint with the European Court of Human rights and how expedient is the decision made by the Committee of the CEDAW in light of recent developments?

Facts of the case Fatma Yildirim (deceased) v Austria (Communication No. 6/2005)

 July 21st 2004, The Vienna Intervention Centre against Domestic Violence and the Association for Women’s access to Justice, made a communication to the Committee of the CEDAW. These organization protect and support women victims of gender-based violence.[5] Fatma Yildirim was a former client of the Vienna Intervention Centre against Domestic Violence. She was subject to repeated death threats from her husband Ifran Yildirim. This started from July 2003 on a trip to Turkey. Ifran Yildirim also threatened to kill her children.[6] On 6 August 2003 the police issued an expulsion and prohibition to return order against Irfan Yildirim.[7] The police also reported to the Vienna Public Prosecutor that Irfan Yildirim had made a criminal dangerous threat against Fatma Yildirim and requested that Irfan Yildirim be detained. However, the Public Prosecutor rejected the request.[8] In August, Irfan YIldirim visited several times the workplace of Fatma Yildirim and frequently threatened to kill her. On August 14th 2003, Fatma Yildirim gave a formal statement about the threats made to her life to the police, who in turn reported to the Vienna Public Prosecutor, requesting that Irfan Yildirim be detained. This request was also refused.[9] On September 11th 2003, Irfan Yildirim fatally stabbed Fatma Yildirim near her apartment when she was on her way back home from work. [10] Irfan Yildirim was arrested and convicted of killing Fatma Yildirim. At the time of the application he was serving a sentence of life imprisonment. The organizations claim that Fatma Yildirim was a victim of a violation by Austria of article 1,2,3 and 5 of the Convention on the Elimination of All forms of Discrimination against women.

Legal arguments

The authors: The authors submitted that the Austrian government violated articles 1,2,3 and 5 of the Convention by failing to take appropriate preventive measures to protect Fatma Yildirim’s right to life.[11] Furthermore, the authors claim that the Public Prosecutor should have detained Irfan Yildirim under the Code of Criminal Procedure and they claim that the Austrian government did not fulfill its obligation laid down in international instruments and documents.[12] The authors submitted that public prosecutors do not take domestic violence seriously and therefore women are dealing with a threat to life and that there is a lack of coordination and education on domestic violence of police officers and judicial personnel. [13] Therefore, according to the authors, the Austrian government has violated article 1 together with article 2 (A), (C), (D) and (F) and article 3 of the CEDAW. Because the Austrian government did not take this case seriously, Fatma Yildirim was stabbed to death. They also failed to act with due diligence.

State: The State party argued that there was a effective remedy provided in the Federal Act for the Protection against Violence within the Family. Furthermore, the State party submitted that Irfan Yildirim had no criminal record. He did not use a weapon and he was co-operative to the police officers. Fatma Yildirim also had no appeared injuries. Therefore, the State party argued that a detention of Irfan Yildirim would not have been appropriate.[14] Regarding the effective remedy, the State party addressed that the authors of the complaint could have applied to the Constitutional Court to review the Public Prosecutors’s rejections about the arrest warrant. Therefore, the State party concludes that domestic remedies have not been exhausted. [15]

Decision of the Committee: The Committee decided that the complaint was admissible and that there was indeed no effective remedy provided in Austrian Law. The Committee concluded that the State party violated its obligations under article 2(a) and (c) through (f), and article 3 of the Convention read in conjunction with article 1 of the Convention and general recommendation 19 of the Committee and the corresponding rights of the deceased, Fatma Yildirim, to life and to physical and mental integrity. Furthermore, the Committee made recommendations to the State party to strengthen implementation and monitoring of the Federal Act for the Protection against Violence within in the Family and to act with due diligence to prevent and respond to such violence against women. [16] The committee also decided that the perpetrator’s right cannot replace the right of women to life and to physical and mental integrity. [17]

Impossibility for the applicant to lodge this complaint to the European Court of Human rights 

The system of the European Court of Human rights is based on the principle of subsidiarity.[18] This means that the European Court of Human Rights can only intervene where States have failed in their obligations. The admissibility criteria are set out in Article 34 and Article 35 of the European Convention on Human Rights. Article 34 regulates the individual applications and article 35 sets out the precise criteria for admissibility. According to article 34, “the court may receive applications from any person, non-governmental organization or group of individuals claiming to be a victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”[19] The organizations that have made the individual communication to the Committee are the Vienna Intervention Centre against Domestic Violence and the Association for Women’s Access to Justice. These are non-governmental organization and therefore may exercise the right of application.[20] However, under article 34 only individuals who are victims of a breach of the Convention can apply to the Court. [21] Victims must be personally affected by the alleged violation.[22] According to the Kaya and Polat v Turkey case[23], applications can be brought only by living persons or on their behalf. This means that a deceased person can’t lodge an application, not even by a representative. Fatma Yildirim died in 2003. She could not have brought in the application to the court, because she was deceased. There is a similarity with the case Fairfield vs United Kingdom. In this case, the court ruled that the applicant in that case, the daughter of the victim, did not have a requisite standing under article 34 of the Convention, because the victim was deceased before the application. Therefore, the court rejected the application as incompatible ratione personae with the provisions of the Convention in accordance with article 35, paragraph 3 and 4.[24] If the organizations would have brought this case to the European Court of Human Rights, the Court would have probably rejected the application as incompatible rations personae with the provisions of the Convention, because Fatma Yildirim was already deceased before the application.  She died on September 11th 2003 and the date of the application is July 21st 2004.  Therefore, the organization saw more benefit in bringing the case to the treaty body of the CEDAW, instead of applying the European Court of Human Rights. 

Analysis of the contents of the case

In this case, the State party argued that there was a highly effective system to combat domestic violence within the Federal Act for the Protection against Violence within the Family. The State party also states that the organizations that have made the individual communication on behalf of the victim could also address the Constitutional Court and indicate there was no appeal available to Fatma Yildirim against the Public Prosecutor’s failure to give an arrest warrant. Therefore, according to the State Party, the domestic remedies had not been exhausted. Remedies need to be exhausted only if they are effective and available.[25] The remedy must be capable and provide redress, offer reasonable prospect of success and may not prolong the procedure too much.[26] The Committee of the CEDAW argued that there was no effective remedy provided in Austrian law. The decision made by the Committee under the Optional Protocol, obligated States to protect women from domestic violence. This obligation extends beyond passing laws. In my view this decision is favourable/ desirable in the light of recent developments. Women all over the world are victim of domestic violence. In this case, the victim could have survived if the Austrian government would have taken preventive measures and fulfilled their due diligence obligations.

If we look at the wording of the provision that is at stake, article 2 and 3, we can conclude that the Austrian government indeed had failed to implement these provisions. These articles obligate the countries to take appropriate measures to ensure women the exercise and enjoyment of human rights and fundamental freedoms. If the Austrian government did not fail their due diligence obligation, Fatma Yildirim could still be alive.

The decision of the Committee also gained support from the Austrian government. The Austrian government took measures to support this decision by creating legal reforms to protect women from violence, including an amendment to the Code of Criminal Procedure, new protection measures and the specializing of domestic violence prosecutors. The Austrian government also increased the funding to implement the law by 60 percent in 2007.[27] The decision made by the Committee is well received and is favorable.

.

Leyla SARIKAMIŞ
Yazarın diğer yazıları için tıklayınız.

_____________________________________________________________________________________________________________

Bibliography

[1] Progress of the Worlds Women, UN women website, (accessed 23th of March 2014) <http://progress.unwomen.org/landmark-court-cases/>

[2]Progress of the Worlds Women, UN women website, (accessed 23th of March 2014) <http://progress.unwomen.org/landmark-court-cases/>

[3] Convention on the Elimination of All Sorts of Discrimination against Women, UN Women website, (accessed 23th of March 2014) <http://www.un.org/womenwatch/daw/cedaw/protocol/text.htm>

[4] Fatma Yildirim (deceased) v Austria, Communication NO. 6/2005, CEDAW, Committee’s view

<http://www.bka.gv.at/DocView.axd?CobId=29081>

[5]Fatma Yildirim (deceased) v Austria, Communication NO. 6/2005, CEDAW, Committee’s view

<http://www.bka.gv.at/DocView.axd?CobId=29081>

[6]Fatma Yildirim (deceased) v Austria, Communication NO. 6/2005, CEDAW, p 2.4

<http://www.bka.gv.at/DocView.axd?CobId=29081>2.2

[7]Fatma Yildirim (deceased) v Austria, Communication NO. 6/2005, CEDAW, p 2.4

<http://www.bka.gv.at/DocView.axd?CobId=29081>

[8]Fatma Yildirim (deceased) v Austria, Communication NO. 6/2005, CEDAW, p 2.4

<http://www.bka.gv.at/DocView.axd?CobId=29081>

[9]Fatma Yildirim (deceased) v Austria, Communication NO. 6/2005, CEDAW, p 2.10

<http://www.bka.gv.at/DocView.axd?CobId=29081>

[10]Fatma Yildirim (deceased) v Austria, Communication NO. 6/2005, CEDAW, p 2.13

<http://www.bka.gv.at/DocView.axd?CobId=29081>

[11]Fatma Yildirim (deceased) v Austria, Communication NO. 6/2005, CEDAW, p 2.4

<http://www.bka.gv.at/DocView.axd?CobId=29081>

[12]Fatma Yildirim (deceased) v Austria, Communication NO. 6/2005, CEDAW, p 3.2

<http://www.bka.gv.at/DocView.axd?CobId=29081>

[13]Fatma Yildirim (deceased) v Austria, Communication NO. 6/2005, CEDAW, p 3.3

<http://www.bka.gv.at/DocView.axd?CobId=29081>

[14]Fatma Yildirim (deceased) v Austria, Communication NO. 6/2005, CEDAW, p 3.3

<http://www.bka.gv.at/DocView.axd?CobId=29081>

[15]Fatma Yildirim (deceased) v Austria, Communication NO. 6/2005, CEDAW, p 3.4

<http://www.bka.gv.at/DocView.axd?CobId=29081>

[16]Fatma Yildirim (deceased) v Austria, Communication NO. 6/2005, CEDAW, p 3.5

<http://www.bka.gv.at/DocView.axd?CobId=29081>

[17]Fatma Yildirim (deceased) v Austria, Communication NO. 6/2005, CEDAW, p 3.5

<http://www.bka.gv.at/DocView.axd?CobId=29081>

[18]European Court of Human Rights, Practical guide on admissibility criteria, Council of Europe, 2011<http://www.dp-rs.si/fileadmin/dp.gov.si/pageuploads/RAZNO/Admissibility_guide_ENG.pdf>

[19]European Convention on Human Rights, 1953, European Council. Article 34

[20]Court of Human Rights, Practical guide on admissibility criteria, Council of Europe, 2011<http://www.dp-rs.si/fileadmin/dp.gov.si/pageuploads/RAZNO/Admissibility_guide_ENG.pdf>

[21]Court of Human Rights, Practical guide on admissibility criteria, Council of Europe, 2011<http://www.dp-rs.si/fileadmin/dp.gov.si/pageuploads/RAZNO/Admissibility_guide_ENG.pdf>

[22]Van Dijk and Godefridus, Theory and practice of the European Convention on Human Rights, Kluwer Law International, 1998 p 53

[23] Kaya and Polat v Turkey, 158/1996/777/978, February 2005, European Court of Human Rights

[24]Fairfield v United Kingdom, March 2005, European Court of human Rights, Decision 24790/04

[25]Krause and Scheinin, International Protection of Human Rights; A Textbook, Åbo Akademi University Institute for Human Right, 2009 p 264

[26]Krause and Scheinin, International Protection of Human Rights; A Textbook, Åbo Akademi University Institute for Human Right, 2009 p 264

[27]Progress of the Worlds Women, UN women website, (accessed 23th of March 2014) <http://progress.unwomen.org/landmark-court-cases/>

BENZER İÇERİKLER

Yorum Ekleyebilirsiniz