EHRM, 09-06-2009, nr. 33401/02

These regulations, which were drawn up to govern the implementation of Law no. 4320, set out the measures to be taken in respect of the family members perpetrating violence and the procedures and principles governing the application of those measures, in order to protect family members subjected to domestic violence.

The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), was adopted in 1979 by the UN General Assembly and ratified by Turkey on 19 January 1986.

The CEDAW defines discrimination against women as ‘… any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.’ As regards the States' obligations, Article 2 of the CEDAW provides, in so far as relevant, the following:

The Committee on the Elimination of All Forms of Discrimination Against Women (hereinafter ‘the CEDAW Committee’) has found that ‘gender-based violence is a form of discrimination that seriously inhibits women's ability to enjoy rights and freedoms on a basis of equality with men’ and is thus prohibited under Article 1 of CEDAW. Within the general category of gender-based violence, the Committee includes violence by ‘private act’1. and ‘family violence’.2. Consequently, gender-based violence triggers duties in States. The General Recommendation no. 19 sets out a catalogue of such duties. They include a duty on States to ‘take all legal and other measures that are necessary to provide effective protection of women against gender-based violence3. including penal sanctions, civil remedies and compensatory provisions to protect women against all kinds of violence.’4. In its Concluding Comments on the combined fourth and fifth periodic report of Turkey (hereinafter ‘Concluding Comments’), the CEDAW Committee reiterated that violence against women, including domestic violence, is a form of discrimination (see, CEDAW/C/TUR/4–5 and Corr.1, 15 February 2005, § 28).

Furthermore, in its explanations of General Recommendation no. 19, the CEDAW Committee considered the following:

In the case of A.T. v. Hungary (decision of 26 January 2005), where the applicant had alleged that her common-law husband and father of her two children had been physically abusing and threatening her from 1998 onwards, the CEDAW Committee directed Hungary to take measures ‘to guarantee the physical and mental integrity of the applicant and her family’, as well as to ensure that she was provided with a safe place of residence to live with her children, and that she received child support, legal assistance and compensation in proportion to the harm sustained and the violation of her rights. The Committee also made several general recommendations to Hungary on improving the protection of women against domestic violence, such as establishing effective investigative, legal and judicial processes, and increasing treatment and support resources.

In the case of Fatma Yıldırım v. Austria (decision of 1 October 2007), which concerned the killing of Mrs Yıldırım by her husband, the CEDAW Committee found that the State Party had breached its due diligence obligation to protect Fatma Yıldırım. It therefore concluded that the State Party had violated its obligations under Article 2 (a) and (c) through (f), and Article 3 of the CEDAW read in conjunction with Article 1 of the CEDAW and General Recommendation 19 of the Committee and the corresponding rights of the deceased Fatma Yıldırım to life and to physical and mental integrity.

The United Nations General Assembly Declaration on the Elimination of Violence against Women (1993), in its Article 4(c), urges States to ‘exercise due diligence to prevent, investigate and, in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by the State or private persons’.

In his third report, of 20 January 2006, to the Commission on Human Rights of the UN Economic and Social Council (E/CN.4/2006/61), the Special Rapporteur on violence against women considered that there is a rule of customary international law that ‘obliges States to prevent and respond to acts of violence against women with due diligence’.

In its Recommendation Rec(2002)5 of 30 April 2002 on the protection of women against violence, the Committee of Ministers of the Council of Europe stated, inter alia, that member States should introduce, develop and/or improve where necessary national policies against violence based on maximum safety and protection of victims, support and assistance, adjustment of the criminal and civil law, raising of public awareness, training for professionals confronted with violence against women and prevention.

The Committee of Ministers recommended, in particular, that member States should penalise serious violence against women such as sexual violence and rape, abuse of the vulnerability of pregnant, defenceless, ill, disabled or dependent victims, as well as penalising abuse of position by the perpetrator. The Recommendation also stated that member States should ensure that all victims of violence are able to institute proceedings, make provisions to ensure that criminal proceedings can be initiated by the public prosecutor, encourage prosecutors to regard violence against women as an aggravating or decisive factor in deciding whether or not to prosecute in the public interest, ensure where necessary that measures are taken to protect victims effectively against threats and possible acts of revenge and take specific measures to ensure that children's rights are protected during proceedings.

With regard to violence within the family, the Committee of Ministers recommended that Member states should classify all forms of violence within the family as criminal offences and envisage the possibility of taking measures in order, inter alia, to enable the judiciary to adopt interim measures aimed at protecting victims, to ban the perpetrator from contacting, communicating with or approaching the victim, or residing in or entering defined areas, to penalise all breaches of the measures imposed on the perpetrator and to establish a compulsory protocol for operation by the police, medical and social services.

In Velazquez-Rodriguez, the Inter-American Court stated:

The legal basis for the ultimate attribution of responsibility to a State for private acts relies on State failure to comply with the duty to ensure human rights protection, as set out in Article 1(1) of the American Convention on Human Rights.2. The Inter-American Court's case-law reflects this principle by repeatedly holding States internationally responsible on account of their lack of due diligence to prevent human rights violations, to investigate and sanction perpetrators or to provide appropriate reparations to their families.

The Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women 1994 (Belém do Pará Convention)3. sets out States' duties relating to the eradication of gender based violence. It is the only multilateral human rights treaty to deal solely with violence against women.

The Inter-American Commission adopts the Inter-American Court's approach to the attribution of State responsibility for the acts and omissions of private individuals. In the case of Maria Da Penha v. Brazil,4. the Commission found that the State's failure to exercise due diligence to prevent and investigate a domestic violence complaint warranted a finding of State responsibility under the American Convention and the Belém do Pará Convention. Furthermore, Brazil had violated the rights of the applicant and failed to carry out its duty (inter alia, under Article 7 of the Convention of Belém do Pará, obliging States to condemn all forms of violence against women), as a result of its failure to act and its tolerance of the violence inflicted. Specifically, the Commission held that:

In 11 member States of the Council of Europe, namely in Albania, Austria, Bosnia and Herzegovina, Estonia, Greece, Italy, Poland, Portugal, San Marino, Spain and Switzerland, the authorities are required to continue criminal proceedings despite the victim's withdrawal of complaint in cases of domestic violence.

In 27 member States, namely in Andorra, Armenia, Azerbaijan, Belgium, Bulgaria, Cyprus, the Czech Republic, Denmark, England and Wales, Finland, the Former Yugoslav Republic of Macedonia, France, Georgia, Germany, Hungary, Ireland, Latvia, Luxembourg, Malta, Moldova, the Netherlands, the Russian Federation, Serbia, Slovakia, Sweden, Turkey and Ukraine, the authorities have a margin of discretion in deciding whether to pursue criminal proceedings against perpetrators of domestic violence. A significant number of legal systems make a distinction between crimes which are privately prosecutable (and for which the victim's complaint is a pre-requisite) and those which are publicly prosecutable (usually more serious offences for which prosecution is considered to be in the public interest).

It appears from the legislation and practice of the above-mentioned 27 countries that the decision on whether to proceed where the victim withdraws his/her complaint lies within the discretion of the prosecuting authorities, which primarily take into account the public interest in continuing criminal proceedings. In some jurisdictions, such as England and Wales, in deciding whether to pursue criminal proceedings against the perpetrators of domestic violence the prosecuting authorities (Crown Prosecution Service) are required to consider certain factors, including: the seriousness of the offence; whether the victim's injuries are physical or psychological; if the defendant used a weapon; if the defendant has made any threats since the attack; if the defendant planned the attack; the effect (including psychological) on any children living in the household; the chances of the defendant offending again; the continuing threat to the health and safety of the victim or anyone else who was, or could become, involved; the current state of the victim's relationship with the defendant; the effect on that relationship of continuing with the prosecution against the victim's wishes; the history of the relationship, particularly if there was any other violence in the past; and the defendant's criminal history, particularly any previous violence. Direct reference is made to the need to strike a balance between the victim's and any children's Article 2 and Article 8 rights in deciding on a course of action.

Romania seems to be the only State which bases the continuance of criminal proceedings entirely, and in all circumstances, on the wishes/complaints of the victim.

According to this report, Law no. 4320 (see paragraph 70 above) is not yet being fully implemented. In recent years there has been an increase in ‘protection orders’ or injunctions issued by family courts. However, some courts, in response to applications made to them by women in mortal danger, are still setting hearings two or even three months ahead. Under these circumstances, judges and prosecutors treat an action under Law no. 4320 as if it were a form of divorce action, whereas the point of the law is to take urgent action on behalf of women who are seeking to protect their own lives. Once the injunction has been issued, women are confronted with a number of problems with its implementation.

In the two years before the Report was released approximately 900 women have applied to Mor Çatı and made great efforts to use Law no. 4320, but of this number only 120 have succeeded. Mor Çatı has identified serious problems with the implementation of Law no. 4320. In particular, it was observed that domestic violence is still treated with tolerance at police stations, and that some police officers try to act as arbitrators, or take the side of the male, or suggest that the woman drop her complaint. There are also serious problems in serving the injunction issued by a court under Law no. 4320 on the husband. In the case of a number of women wishing to work with Mor Çatı, injunctions were not implemented because their husbands were police officers or had friendly relations with officers at the police station in question.

Furthermore, there are unreasonable delays in issuing injunctions by the courts. This results from the attitude of the courts in treating domestic violence complaints as a form of divorce action. It is considered that behind such delays lies a suspicion that women might be making such applications when they have not suffered violence. The allegations that women abuse Law no. 4320 are not correct. Since the economic burden of the home lies almost 100% with men, it would be impossible for women to request implementation of Law no. 4320 unless they were confronted with mortal danger. Finally, the injunctions at issue are generally narrow in scope or are not extended by the courts.

According to this report, a culture of violence has developed in Turkey and violence is tolerated in many areas of life. A survey of legal actions at a magistrate's court dealing with civil matters (sulh hukuk mahkemesi) and three civil courts (asliye hukuk mahkemesi) in Diyarbakır identified 183 actions brought under Law no. 4320 from the date on which the law entered into force in 1998 until September 2005. In 104 of these cases, the court ordered various measures, while in the remaining 79 actions the court held that there were no grounds for making an order, or dismissed the action, or ruled that it lacked jurisdiction.

Despite the importance of the problem of domestic violence, very few applications have been made under the said law, because either the public is not generally aware of it or the level of confidence in the security forces is very low in the region. The most important problems were caused by the delay in issuing injunctions and the authorities' failure to monitor the implementation of injunctions.

Moreover, the negative attitude of police officers at police stations towards victims of domestic violence is one of the obstacles preventing women from using this law. Women who go to police stations because they are subjected to domestic violence are confronted with attitudes which tend to regard the problem as a private family matter into which the police are reluctant to interfere.

This report makes recommendations to improve the implementation of Law no. 4320 and to enhance the protection of victims of domestic violence.

This statistical information report was prepared following the interviews conducted with 2,484 women. It appears that all of the complainants were subjected to psychological violence and approximately 60% were subjected to physical violence. The highest number of victims are from the age group 20–30 (43%). 57% of these women are married. The majority of victims are illiterate or have a low educational level. 78% of the women are of Kurdish origin. 91% of the victims who called the emergency helpline are from Diyarbakır. 85% of the victims have no independent source of income.

According to this Report, statistical information about the extent of violence against women in Turkey is limited and unreliable. Nonetheless, it appears that a culture of domestic violence has placed women in double jeopardy, both as victims of violence and because they are denied effective access to justice. Women from vulnerable groups, such as those from low-income families or who are fleeing conflict or natural disasters, are particularly at risk. In this connection, it was found that crimes against women in southeast Turkey have gone largely unpunished.

It was noted that women's rights defenders struggle to combat community attitudes, which are tolerant of violence against women and are frequently shared by judges, senior government officials and opinion leaders in society. Even after legislative reforms have removed the legal authorisation for discriminatory treatment, attitudes that pressure women to conform to certain codes of behaviour restrict women's life choices.

The Report states that at every level of the criminal justice system the authorities fail to respond promptly or rigorously to women's complaints of rape, sexual assault or other violence within the family. The police are reluctant to prevent and investigate family violence, including the violent deaths of women. Prosecutors refuse to open investigations into cases involving domestic violence or to order protective measures for women at risk from their family or community. The police and courts do not ensure that men, who are served with court orders, including protection orders, comply with them. They accord them undue leniency in sentencing, on the grounds of ‘provocation’ by their victim and on the flimsiest of evidence.

There are many barriers facing women who need access to justice and protection from violence. Police officers often believe that their duty is to encourage women to return home and ‘make peace’ and fail to investigate the women's complaints. Many women, particularly in rural areas, are unable to make formal complaints, because leaving their neighbourhoods subjects them to intense scrutiny, criticism and, in some cases, violence.

Furthermore, although some courts appear to have begun implementing the reforms, the discretion accorded to the courts continues to accord the perpetrators of domestic violence unwarranted leniency. Sentences in such cases are still frequently reduced at the discretion of the judges, who continue to take into account the ‘severe provocation’ of the offence to custom, tradition or honour.

Finally, this Report makes a number of recommendations to the Turkish Government and to community and religious authorities with a view to addressing the problem of domestic violence.

This report was prepared in order to look into the judicial dimensions of the phenomenon of so-called ‘honour crimes’. A survey was carried out of judgments in cases before the Diyarbakır assize courts and children's courts. The purpose of the survey was to identify the proportion of such unlawful killings referred to the courts, the judiciary's attitude to them, the defendants' lines of defence in these cases, the role of social structure (i.e. family councils and custom) and the reasons for the murders. To that end, cases in the Diyarbakır assize courts and children's courts between 1999 and 2005 were examined. In these seven years, 59 cases were identified in which a judgment was given. In these cases, there were 71 victims/persons killed, and 81 people were tried as defendants.

According to the researchers, in cases where the victim/person killed was male, it was observed that defendants claimed, in their defence, that the victim/person killed had raped, sexually assaulted, or abducted a relative of the defendant, or had attempted to draw a relative of the defendant into prostitution. In cases where the victim/person killed was a woman, defendants alleged, in their defence, that the victim/person killed had been talking to other men, had taken up prostitution, or had committed adultery. In 46 of the judgments, mitigating provisions concerning unjustified provocation were applied. In cases of 61 convictions, the provisions of Article 59 of the Turkish Criminal Code concerning discretionary mitigation were applied.

The applicant asserted at the outset that domestic violence was tolerated by the authorities and society and that the perpetrators of domestic violence enjoyed impunity. In this connection, she pointed out that, despite their numerous criminal complaints to the Diyarbakır Chief Public Prosecutor's Office, none of the protective measures provided for in Law no. 4320 had been taken to protect the life and well-being of herself and her mother. Conversely, on a number of occasions, the authorities had tried to persuade the applicant and her mother to abandon their complaints against H.O. The domestic authorities had remained totally passive in the face of death threats issued by H.O. and had left her and her mother to the mercy of their aggressor.

The applicant pointed out that by a petition dated 27 February 2002 her mother had applied to the Chief Public Prosecutor's Office and had informed the authorities of the death threats issued by H.O. However, the Public Prosecutor had done nothing to protect the life of the deceased. In the applicant's opinion, the fact that the authorities had not taken her mother's complaint seriously was a clear indication that domestic violence was tolerated by society and the national authorities.

The applicant also claimed that, although H.O. had been convicted of murder, the punishment imposed on him was not a deterrent and was considerably less than the normal sentence imposed for murder. The imposition of a lenient sentence had resulted from the fact that, in his defence submissions before the Assize Court, the accused had claimed to have killed her mother in order to protect his honour. It was the general practice of the criminal courts in Turkey to mitigate sentences in cases of ‘honour crimes’. In cases concerning ‘honour crimes’, the criminal courts imposed a very lenient punishment or no punishment at all on the perpetrators of such crimes.

The Government stressed that the local authorities had provided immediate and tangible follow-up to the complaints lodged by the applicant and her mother. In this connection, subsequent to the filing of their complaints, the authorities had registered the complaints, conducted medical examinations, heard witnesses, conducted a survey of the scenes of the incidents and transmitted the complaints to the competent legal authorities. When necessary and depending on the gravity of the incident, the aggressor had been remanded in custody and had been convicted by the criminal courts. These proceedings had been carried out within the shortest time possible. The authorities had displayed diligence and were sensitive to the complaints, and no negligence had been shown.

However, by withdrawing their complaints, the applicant and her mother had prevented the authorities from pursuing criminal proceedings against H.O. and had thus contributed to the impunity enjoyed by the aggressor. In this regard, it did not appear from the case file that the applicant and her mother had withdrawn their complaints as a result of any pressure exerted on them either by H.O. or the public prosecutor in charge of the investigation. The pursuit of criminal proceedings against the aggressor was dependent on the complaints lodged or pursued by the applicant, since the criminal acts in question had not resulted in sickness or unfitness for work for ten days or more, within the meaning of Articles 456 § 4, 457 and 460 of the Criminal Code. Furthermore, in most cases the criminal courts had not convicted H.O. because the evidence against him was insufficient. Accordingly, the authorities could not be expected to separate the applicant and her husband and convict the latter while they were living together as a family, as this would amount to a breach of their rights under Article 8 of the Convention.

As regards the petition filed by the applicant's mother on 27 February 2002, the Government claimed that the content of this petition was no different to the previous ones and was of a general nature. There was no tangible fact or specific indication that her life was indeed in danger. In the petition the mother had failed to request any protection at all but she had merely requested a speedy examination of her complaint and the punishment of the applicant's husband. Nonetheless, subsequent to the receipt of the petition dated 27 February 2002, the authorities had registered the complaint and had held a hearing on 27 May 2002, which had been followed by other hearings. Finally, following the killing of the applicant's mother by H.O., the latter had been convicted and had received a heavy punishment.

Referring to international practice, Interights submitted that where the national authorities failed to act with due diligence to prevent violence against women, including violence by private actors, or to investigate, prosecute and punish such violence, the State might be responsible for such acts. The jus cogens nature of the right to freedom from torture and the right to life required exemplary diligence on the part of the State with respect to investigation and prosecution of these acts.

In the context of domestic violence, victims were often intimidated or threatened into either not reporting the crime or withdrawing complaints. However, the responsibility to ensure accountability and guard against impunity lay with the State, not with the victim. International practice recognised that a broad range of interested persons, not just the victim, should be able to report and initiate an investigation into domestic violence. Further, international practice increasingly suggested that where there was sufficient evidence and it was considered in the public interest, prosecution of perpetrators of domestic violence should continue even when a victim withdrew her complaint. These developments indicated a trend away from requiring victim participation towards placing the responsibility for effective prosecution squarely on the State.

While a decision not to prosecute in a particular case would not necessarily be in breach of due diligence obligations, a law or practice which automatically paralysed a domestic violence investigation or prosecution where a victim withdrew her complaint would be. In respect of these obligations and with reference to the Fatma Yıldırım v. Austria decision of the CEDAW Committee (cited in the relevant international material section), it was submitted that the State had not only to ensure an appropriate legislative framework, but ensure effective implementation and enforcement practice.

The Court reiterates that the positive obligations laid down in the first sentence of Article 2 of the Convention also require by implication that an efficient and independent judicial system should be set in place by which the cause of a murder can be established and the guilty parties punished (see, mutatis mutandis, Calvelli and Ciglio v. Italy, [GC], no. 32967/96, ECHR 2002, § 51). The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility (see Paul and Audrey Edwards, cited above, §§ 69 and 71). A requirement of promptness and reasonable expedition is implicit in the context of an effective investigation within the meaning of Article 2 of the Convention (see Yaşa v. Turkey, 2 September 1998, §§ 102–104, Reports 1998-VI; Çakıcı v. Turkey [GC], no. 23657/94, §§ 80–87 and 106, ECHR 1999-IV). It must be accepted that there may be obstacles or difficulties which prevent progress in an investigation in a particular situation. However, a prompt response by the authorities in investigating a use of lethal force may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of tolerance of unlawful acts (see Avşar v. Turkey, no. 25657/94, § 395, ECHR 2001-VII (extracts)).

The Court notes that a comprehensive investigation has indeed been carried out by the authorities into the circumstances surrounding the killing of the applicant's mother. However, although H.O. was tried and convicted of murder and illegal possession of a firearm by the Diyarbakır Assize Court, the proceedings are still pending before the Court of Cassation (see paragraphs 57 and 58 above). Accordingly, the criminal proceedings in question, which have already lasted more than six years, cannot be described as a prompt response by the authorities in investigating an intentional killing where the perpetrator had already confessed to the crime.

In the light of the foregoing, the Court considers that the above-mentioned failures rendered recourse to criminal and civil remedies equally ineffective in the circumstances. It accordingly dismisses the Government's preliminary objection (see paragraph 114 above) based on non-exhaustion of these remedies.

Moreover, the Court concludes that the criminal-law system, as applied in the instant case, did not have an adequate deterrent effect capable of ensuring the effective prevention of the unlawful acts committed by H.O. The obstacles resulting from the legislation and failure to use the means available undermined the deterrent effect of the judicial system in place and the role it was required to play in preventing a violation of the applicant's mother's right to life as enshrined in Article 2 of the Convention. The Court reiterates in this connection that, once the situation has been brought to their attention, the national authorities cannot rely on the victim's attitude for their failure to take adequate measures which could prevent the likelihood of an aggressor carrying out his threats against the physical integrity of the victim (see Osman v. the United Kingdom, cited above, § 116). There has therefore been a violation of Article 2 of the Convention.

The Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim (see Costello-Roberts v. the United Kingdom, 25 March 1993, § 30, Series A no. 247-C).

As regards the question whether the State could be held responsible, under Article 3, for the ill-treatment inflicted on persons by non-state actors, the Court recalls that the obligation on the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment, including such ill-treatment administered by private individuals (see, mutatis mutandis, H.L.R. v. France, 29 April 1997, § 40, Reports 1997-III). Children and other vulnerable individuals, in particular, are entitled to State protection, in the form of effective deterrence, against such serious breaches of personal integrity (see A. v. the United Kingdom, 23 September 1998, § 22, Reports 1998-VI).

The Court considers that the applicant may be considered to fall within the group of ‘vulnerable individuals’ entitled to State protection (see, A. v. the United Kingdom, cited above, § 22). In this connection, it notes the violence suffered by the applicant in the past, the threats issued by H.O. following his release from prison and her fear of further violence as well as her social background, namely the vulnerable situation of women in south-east Turkey.

The Court observes also that the violence suffered by the applicant, in the form of physical injuries and psychological pressure, were sufficiently serious to amount to ill-treatment within the meaning of Article 3 of the Convention.

Therefore, the Court must next determine whether the national authorities have taken all reasonable measures to prevent the recurrence of violent attacks against the applicant's physical integrity.

In carrying out this scrutiny, and bearing in mind that the Court provides final authoritative interpretation of the rights and freedoms defined in Section I of the Convention, the Court will consider whether the national authorities have sufficiently taken into account the principles flowing from its judgments on similar issues, even when they concern other States.

Furthermore, in interpreting the provisions of the Convention and the scope of the State's obligations in specific cases (see, mutatis mutandis, Demir and Baykara v. Turkey [GC], no. 34503/97, §§ 85 and 86, 12 November 2008) the Court will also look for any consensus and common values emerging from the practices of European States and specialised international instruments, such as the CEDAW, as well as giving heed to the evolution of norms and principles in international law through other developments such as the Belém do Pará Convention, which specifically sets out States' duties relating to the eradication of gender-based violence.

Nevertheless, it is not the Court's role to replace the national authorities and to choose in their stead from among the wide range of possible measures that could be taken to secure compliance with their positive obligations under Article 3 of the Convention (see, mutatis mutandis, Bevacqua and S. v. Bulgaria, cited above, § 82). Moreover, under Article 19 of the Convention and under the principle that the Convention is intended to guarantee not theoretical or illusory, but practical and effective rights, the Court has to ensure that a State's obligation to protect the rights of those under its jurisdiction is adequately discharged (see Nikolova and Velichkova v. Bulgaria, no. 7888/03, § 61, 20 December 2007).

Turning to its examination of the facts, the Court notes that the local authorities, namely the police and public prosecutors, did not remain totally passive. After each incident involving violence, the applicant was taken for medical examination and criminal proceedings were instituted against her husband. The police and prosecuting authorities questioned H.O. in relation to his criminal acts, placed him in detention on two occasions, indicted him for issuing death threats and inflicting actual bodily harm and, subsequent to his conviction for stabbing the applicant seven times, sentenced him to pay a fine (see paragraphs 13, 24 and 44 above).

However, none of these measures were sufficient to stop H.O. from perpetrating further violence. In this respect, the Government blamed the applicant for withdrawing her complaints and failing to cooperate with the authorities, which prevented the latter from continuing the criminal proceedings against H.O., pursuant to the domestic law provisions requiring the active involvement of the victim (see paragraph 70 above).

The Court reiterates its opinion in respect of the complaint under Article 2, namely that the legislative framework should have enabled the prosecuting authorities to pursue the criminal investigations against H.O. despite the withdrawal of complaints by the applicant on the basis that the violence committed by H.O. was sufficiently serious to warrant prosecution and that there was a constant threat to the applicant's physical integrity (see paragraphs 137–148 above).

However, it cannot be said that the local authorities displayed the required diligence to prevent the recurrence of violent attacks against the applicant, since the applicant's husband perpetrated them without hindrance and with impunity to the detriment of the rights recognised by the Convention (see, mutatis mutandis, Maria da Penha v. Brazil, cited above, §§ 42–44). By way of example, the Court notes that, following the first major incident (see paragraphs 9 and 10), H.O. again beat the applicant severely, causing her injuries which were sufficient to endanger her life, but he was released pending trial ‘considering the nature of the offence and the fact that the applicant had regained full health’. The proceedings were ultimately discontinued because the applicant withdrew her complaints (see paragraphs 13 and 19 above). Again, although H.O. assaulted the applicant and her mother using a knife and caused them severe injuries, the prosecuting authorities terminated the proceedings without conducting any meaningful investigation (see paragraphs 20 and 21 above). Likewise, H.O. ran his car into the applicant and her mother, this time causing injuries to the former and life-threatening injuries to the latter. He spent only 25 days in prison and received a fine for inflicting serious injuries on the applicant's mother (see paragraphs 23–36 above). Finally, the Court was particularly struck by the Diyarbakır Magistrate's Court's decision to impose merely a small fine, which could be paid by instalments, on H.O. as punishment for stabbing the applicant seven times (see paragraphs 37 and 44).

In the light of the foregoing, the Court considers that the response to the conduct of the applicant's former husband was manifestly inadequate to the gravity of the offences in question (see, mutatis mutandis, Ali and Ayşe Duran v. Turkey, no. 42942/02, § 54, 8 April 2008). It therefore observes that the judicial decisions in this case reveal a lack of efficacy and a certain degree of tolerance, and had no noticeable preventive or deterrent effect on the conduct of H.O.

As regards the Government's assertion that, in addition to the available remedies under Law no. 4320, the applicant could have sought shelter in one of the guest houses set up to protect women, the Court notes that until 14 January 1998 — the date on which Law no. 4320 entered into force — Turkish law did not provide for specific administrative and policing measures designed to protect vulnerable persons against domestic violence. Even after that date, it does not appear that the domestic authorities effectively applied the measures and sanctions provided by that Law with a view to protecting the applicant against her husband. Taking into account the overall amount of violence perpetrated by H.O., the prosecutor's office ought to have applied on its own motion the measures contained in Law no. 4320, without expecting a specific request to be made by the applicant for the implementation of that law.

This being said, even assuming that the applicant had been admitted to one of the guest houses, as suggested by the Government, the Court notes that this would only be a temporary solution. Furthermore, it has not been suggested that there was any official arrangement to provide for the security of the victims staying in those houses.

Finally, the Court notes with grave concern that the violence suffered by the applicant had not come to an end and that the authorities had continued to display inaction. In this connection, the Court points out that, immediately after his release from prison, H.O. again issued threats against the physical integrity of the applicant (see paragraph 59 above). Despite the applicant's petition of 15 April 2008 requesting the prosecuting authorities to take measures for her protection, nothing was done until after the Court requested the Government to provide information about the measures that have been taken by their authorities. Following this request, on the instructions of the Ministry of Justice, the Diyarbakır Public Prosecutor questioned H.O. about the death threats issued by him and took statements from the applicant's current boyfriend (see paragraphs 60–67 above).

The applicant's legal representative again informed the Court that the applicant's life was in immediate danger, given the authorities' continuous failure to take sufficient measures to protect her client (see paragraph 68 above). It appears that following the transmission of this complaint and the Court's request for an explanation in this respect, the local authorities have now put in place specific measures to ensure the protection of the applicant (see paragraph 69 above).

Having regard to the overall ineffectiveness of the remedies suggested by the Government in respect of the complaints under Article 3, the Court dismisses the Government's objection of non-exhaustion of domestic remedies.

The Court concludes that there has been a violation of Article 3 of the Convention as a result of the State authorities' failure to take protective measures in the form of effective deterrence against serious breaches of the applicant's personal integrity by her husband.

The applicant alleged that the domestic law of the respondent State was discriminatory and insufficient to protect women, since a woman's life was treated as inferior in the name of family unity. The former Civil Code, which was in force at the relevant time, contained numerous provisions distinguishing between men and women, such as the husband being the head of the family, his wishes taking precedence as the representative of the family union, etc. The then Criminal Code also treated women as second-class citizens. A woman was viewed primarily as the property of society and of the male within the family. The most important indicator of this was that sexual offences were included in the section entitled ‘Crimes Relating to General Morality and Family Order’, whereas in fact sexual offences against women are direct attacks on a woman's personal rights and freedoms. It was because of this perception that the Criminal Code imposed lighter sentences on persons who had murdered their wives for reasons of family honour. The fact that H.O. received a sentence of 15 years is a consequence of that classification in the Criminal Code.

Despite the reforms carried out by the Government in the areas of the Civil Code and Criminal Code in 2002 and 2004 respectively, domestic violence inflicted by men is still tolerated and impunity is granted to the aggressors by judicial and administrative bodies. The applicant and her mother had been victims of violations of Articles 2, 3, 6 and 13 merely because of the fact that they were women. In this connection, the applicant drew the Court's attention to the improbability of any men being a victim of similar violations.

The Government averred that there was no gender discrimination in the instant case, since the violence in question was mutual. Furthermore, it cannot be claimed that there was institutionalised discrimination resulting from the criminal or family laws or from judicial and administrative practice. Nor could it be argued that the domestic law contained any formal and explicit distinction between men and women. It had not been proven that the domestic authorities had not protected the right to life of the applicant because she was a woman.

The Government further noted that subsequent to the reforms carried out in 2002 and 2004, namely revision of certain provisions of the Civil Code and the adoption of a new Criminal Code, and the entry into force of Law no. 4320, Turkish law provided for sufficient guarantees, meeting international standards, for the protection of women against domestic violence. The Government concluded that this complaint should be declared inadmissible for failure to exhaust domestic remedies or as being manifestly ill-founded since these allegations had never been brought to the attention of the domestic authorities and, in any event, were devoid of substance.

Interights submitted that the failure of the State to protect against domestic violence would be tantamount to failing in its obligation to provide equal protection of the law based on sex. They further noted that there was increasing recognition internationally — both within the United Nations and Inter-American systems — that violence against women was a form of unlawful discrimination.

In its recent ruling in the case D.H. and Others v. Czech Republic ([GC], no. 57325/00, 13 November 2007, §§ 175–180) the Court laid down the following principles on the issue of discrimination: