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The Committee on
the Elimination of Discrimination against Women, established under article
17 of the Convention on the Elimination of All Forms of Discrimination
against Women,
Meeting on 6 August 2007,
Having concluded its consideration of communication No. 5/2005, submitted to
the Committee on the Elimination of Discrimination against Women by the
Vienna Intervention Centre against Domestic Violence and the Association for
Women's Access to Justice on behalf of Hakan Goekce, Handan Goekce and
Guelue Goekce, descendants of Sahide Goekce (deceased) under the Optional
Protocol to the Convention on the Elimination of All Forms of Discrimination
against Women,
Having taken into account all written information made available to it by
the authors of the communication and the State party,
Adopts the following:
VIEWS UNDER ARTICLE 7, PARAGRAPH 3, OF THE OPTIONAL PROTOCOL
1. The authors of the communication dated 21 July 2004 with supplementary
information dated 22 November and 10 December 2004, are the Vienna
Intervention Centre against Domestic Violence and the Association for
Women's Access to Justice, two organizations in Vienna, Austria, that
protect and support women victims of gender-based violence. They claim that
Sahide Goekce (deceased), an Austrian national of Turkish origin and former
client of the Vienna Intervention Centre against Domestic Violence, is a
victim of a violation by the State party of articles 1, 2, 3 and 5 of the
Convention on the Elimination of All Forms of Discrimination against Women.
The Convention and its Optional Protocol entered into force for the State
party on 30 April 1982 and 22 December 2000, respectively.
THE FACTS AS PRESENTED BY THE AUTHORS
2.1 The first violent attack against Sahide Goekce by her husband, Mustafa
Goekce, that the authors are aware of took place on 2 December 1999 at
approximately 4 p.m. in the victim's apartment at which time Mustafa Goekce
choked Sahide Goekce and threatened to kill her. Sahide Goekce spent the
night with a friend of hers and reported the incident to the police with the
help of the Youth Welfare Office of the 15th district of Vienna the
following day.
2.2 On 3 December 1999, the police issued an expulsion and prohibition to
return order against Mustafa Goekce covering the Goekce apartment, pursuant
to Section 38a of the Security Police Act (Sicherheitspolizeigesetz). FN1 In
the documentation supporting the order, the police officer in charge of the
case stated that two light red bruises were visible under Sahide Goekce's
right ear that, according to her, were from the choking.
---------------------------------------------------------------------------------------------------------------------FN1
This act has been translated as both the Security Police Act and the
maintenance of Law and Order Act.
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2.3 Under section 107, paragraph 4, of the Penal Code (Strafgesetzbuch), a
threatened spouse, direct descendant, brother or sister or relative who
lives in the same household of the accused must give authorization in order
to prosecute the alleged offender for making a criminal dangerous threat.
Sahide Goekce did not authorize the Austrian authorities to prosecute
Mustafa Goekce for threatening her life. Mustafa Goekce was, therefore,
charged only with the offence of causing bodily harm. He was acquitted
because Sahide Goekce's injuries were too minor to constitute bodily harm.
2.4 The next violent incidents of which the authors have knowledge occurred
on 21 and 22 August 2000. When the police arrived at the Goekce's apartment
on 22 August 2000, Mustafa Goekce was grabbing Sahide Goekce by her hair and
was pressing her face to the floor. She later told the police that Mustafa
Goekce had threatened to kill her the day before if she reported him to the
police. The police issued a second expulsion and prohibition to return order
against Mustafa Goekce covering the Goekce's apartment and the staircase of
the apartment building, which was valid for 10 days. They informed the
Public Prosecutor that Mustafa Goekce had committed aggravated coercion
(because of the death threat) and asked that he be detained. The request was
denied.
2.5 On 17 December 2001, 30 June 2002, 6 July 2002, 25 August 2002 and 16
September 2002 the police were called to the Goekce's apartment because of
reports of disturbances and disputes and/or battering.
2.6 The police issued the third expulsion and prohibition to return order
against Mustafa Goekce (valid for 10 days) as a result of an incident on 8
October 2002 that Sahide Goekce had called in; she claimed that Mustafa
Goekce called her names, tugged her by her clothes through the apartment,
hit her in the face, choked her and again threatened to kill her. Her cheek
was bruised and she had haematoma on the right side of her neck. Sahide
Goekce pressed charges against her husband for causing bodily harm and
making a criminal dangerous threat. The police interrogated Mustafa Goekce
and again requested that he be detained. Again, the Public Prosecutor denied
the request.
2.7 On 23 October 2002, the Vienna District Court of Hernals issued an
interim injunction for a period of three months against Mustafa Goekce,
which forbade Mustafa Goekce from returning to the family apartment and its
immediate environs and from contacting Sahide Goekce or the children. The
order was to be effective immediately and entrusted to the police for
execution. The children are all minors (two daughters and one son) born
between 1989 and 1996.
2.8 On 18 November 2002, the Youth Welfare Office (which had been in
constant contact with the Goekce family because of the violent assaults that
took place in front of the children) informed the police that Mustafa Goekce
had not obeyed the interim injunction and was living in the family
apartment. The police did not find him there when they checked.
2.9 The authors indicate that the police knew from other sources that
Mustafa Goekce was dangerous and owned a handgun. At the end of November
2002, Remzi Birkent, the father of Sahide Goekce, informed the police that
Mustafa Goekce had frequently phoned him and threatened to kill Sahide
Goekce or another family member; no police report was filed by the police
officer taking the statement of Mr. Birkent. Mustafa Goekce's brother also
informed the police about the tension between Sahide Goekce and her husband
and that Mustafa Goekce had threatened to kill her several times. His
statement was not taken seriously by the police or recorded. The police did
not check whether Mustafa Goekce had a handgun even though a weapons
prohibition was in effect against him.
2.10 On 5 December 2002, the Vienna Public Prosecutor stopped the
prosecution of Mustafa Goekce for causing bodily harm and making a criminal
dangerous threat on grounds that there was insufficient reason to prosecute
him.
2.11 On 7 December 2002, Mustafa Goekce shot Sahide Goekce with a handgun in
their apartment in front of their two daughters. The police report reads
that no officer went to the apartment to settle the dispute between Mustafa
Goekce and Sahide Goekce prior to the shooting.
2.12 Two-and-a-half hours after the commission of the crime, Mustafa Goekce
surrendered to the police. He is reportedly currently serving a sentence of
life imprisonment in an institution for mentally disturbed offenders. FN2
---------------------------------------------------------------------------------------------------------------------FN2
He is reportedly of sound mind (compos mentis) vis-à-vis the murder but was
diagnosed to be mentally disturbed to a higher degree generally.
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THE COMPLAINT
3.1 The authors complain that Sahide Goekce is a victim of a violation by
the State party of articles 1, 2, 3 and 5 of the Convention on the
Elimination of All Forms of Discrimination against Women because the State
party did not actively take all appropriate measures to protect Sahide
Goekce's right to personal security and life. The State party failed to
treat Mustafa Goekce as an extremely violent and dangerous offender in
accordance with criminal law. The authors claim that the Federal Act for the
Protection against Violence within the Family (Bundesgesetz zum Schutz vor
Gewalt in der Familie) does not provide the means to protect women from
highly violent persons, especially in cases of repeated, severe violence and
death threats. Instead, the authors insist that detention is necessary. The
authors also allege that had the communication between the police and Public
Prosecutor been better and faster, the Public Prosecutor would have known
about the ongoing violence and death threats and may have found that he had
sufficient reason to prosecute Mustafa Goekce.
3.2 The authors further contend that the State party also failed to fulfil
its obligations stipulated in the general recommendations Nos. 12, 19 and 21
of the Committee on the Elimination of Discrimination against Women, the
United Nations Declaration on the Elimination of Violence against Women, the
concluding comments of the Committee (June 2000) on the combined third and
fourth periodic report and the fifth periodic report of Austria, the United
Nations Resolution on Crime Prevention and Criminal Justice Measures to
Eliminate Violence against Women, several provisions of the outcome document
of the twenty-third special session of the General Assembly, article 3 of
the United Nations Universal Declaration of Human Rights, articles 6 and 9
of the International Covenant on Civil and Political Rights, several
provisions of other international instruments, and the Austrian
Constitution.
3.3 With regard to article 1 of the Convention, the authors contend that
women are far more affected than men by the failure of public prosecutors to
take domestic violence seriously as a real threat to life and their failure
to request detention of alleged offenders as a matter of principle in such
cases. Women are also disproportionately affected by the practice of not
prosecuting and punishing offenders in domestic violence cases
appropriately. Furthermore, women are disproportionately affected by the
lack of coordination of law enforcement and judicial personnel, the failure
to educate law enforcement and judicial personnel about domestic violence
and the failure to collect data and maintain statistics on domestic
violence.
3.4 With regard to article 1 together with article 2 (a), (c), (d) and (f)
and article 3 of the Convention, the authors maintain that the lack of
detention of alleged offenders in domestic violence cases, inadequate
prosecution and lack of coordination among law enforcement and judicial
officials and the failure to collect data and maintain statistics of
incidences of domestic violence resulted in inequality in practice and the
denial of Sahide Goekce's enjoyment of her human rights. She was exposed to
violent assault, battery, coercion and death threats and when Mustafa Goekce
was not detained, she was murdered.
3.5 With regard to articles 1 together with 2 (e) of the Convention, the
authors state that the Austrian criminal justice personnel failed to act
with due diligence to investigate and prosecute acts of violence and protect
Sahide Goekce's human rights to life and personal security.
3.6 With regard to article 1 together with article 5 of the Convention, the
authors claim that the murder of Sahide Goekce is one tragic example of the
prevailing lack of seriousness with which violence against women is taken by
the public and by the Austrian authorities. The criminal justice system,
particularly public prosecutors and judges, consider the issue a social or
domestic problem, a minor or petty offence that happens in certain social
classes. They do not apply criminal law to such violence because they do not
take the danger seriously and view women's fears and concerns with a lack of
gravity.
3.7 The authors request the Committee to assess the extent to which there
have been violations of the victim's human rights and rights protected under
the Convention and the responsibility of the State party for not detaining
the dangerous suspect. The authors also request the Committee to recommend
that the State party offer effective protection to women victims of
violence, particularly migrant women, by clearly instructing public
prosecutors and investigating judges about what they ought to do in cases of
severe violence against women.
3.8 The authors further request the Committee to recommend to the State
party to implement a ôpro-arrest and detentionö policy in order to
effectively provide safety for women victims of domestic violence and a
ôpro-prosecutionö policy that would convey to offenders and the public that
society condemns domestic violence and ensure coordination among the various
law enforcement authorities.
3.9 The authors also request the Committee to recommend to the State party
to ensure that all levels of the criminal justice system (police, public
prosecutors, judges) routinely cooperate with organizations that work to
protect and support women victims of gender-based violence and to ensure
that training programmes and education on domestic violence be compulsory
for criminal justice personnel.
3.10 As to the admissibility of the communication, the authors maintain that
there are no other domestic remedies that could possibly have been used to
protect Sahide Goekce's personal security and to prevent her homicide. Both
the expulsion and prohibition to return orders and the interim injunction
proved ineffective. All of the deceased's own attempts to obtain protection
(calling the Vienna Police several times when Mustafa Goekce assaulted and
choked her; three formal complaints to the police; pressing charges against
Mustafa Goekce) and the attempts of others (neighbours calling the Vienna
Police; the victim's father reporting on the death threats; Mustafa Goekce's
brother reporting that Mustafa Goekce had a handgun) were in vain.
3.11 In the submission of 10 December 2004, the authors indicate that no
civil action has been brought by the heirs under the Act on Official [State]
Liability. The authors contend that such an action would not be an effective
remedy against the lack of protection of Sahide Goekce and the failure to
prevent her homicide. Suing the State for omissions and negligence would not
bring her back and would serve the different purpose of providing the heirs
with compensation for sustaining a loss and other damages. The two
approaches, compensation on the one hand and protection on the other are
opposites. They differ in respect of the beneficiary (the heirs versus the
victim), what the intentions are (to compensate for loss versus to save a
life) and timing (after death rather than prior to death). If the State
party protected women effectively, there would be no need to establish State
liability. Additionally, compensation suits entail huge costs. The authors
state that they have submitted the communication in order to call the State
party to account for its omissions and negligence rather than to obtain
compensation for the heirs. Finally, suing the State party would be unlikely
to bring effective relief in accordance with article 4 of the Optional
Protocol.
3.12 The authors also state that they have not submitted the communication
to any other body of the United Nations or any regional mechanism of
international settlement or investigation.
3.13 On the issue of locus standi, the authors maintain that it is justified
and appropriate for them to submit the complaint on behalf of Sahide Goekce
- who cannot give consent because she is dead. They consider it appropriate
to represent her before the Committee because she was a client of theirs and
had a personal relationship with them and because they are special
protection and support organizations for women victims of domestic violence;
one of the two organizations is an intervention centre against domestic
violence that was reportedly established pursuant to Section 25, paragraph
3, of the Federal Security Police Act. They are seeking justice for Sahide
Goekce and to improve the protection of women in Austria from domestic
violence so that her death would not be in vain. This being said, the
authors have obtained the written consent of the City of Vienna Office for
Youth and Family Affairs, the guardian of Sahide Goekce's three minor
children.
THE STATE PARTY'S SUBMISSION ON ADMISSIBILITY
4.1 By its submission of 4 May 2005, the State party describes the sequence
of events leading up to the murder of Sahide Goekce. Mustafa Goekce was not
prosecuted for making a criminal dangerous threat against Sahide Goekce on 2
December 1999 because she did not authorize the authorities to do so. The
authorities proceeded to prosecute him for maliciously inflicting bodily
harm. According to the court records, Sahide Goekce did not want to testify
against Mustafa Goekce and expressly asked the court not to punish her
husband. He was acquitted because of an absence of evidence.
4.2 On 23 August 2000, the police issued an expulsion and prohibition to
return order against Mustafa Goekce. They reported by phone to the Public
Prosecutor about an incident involving aggravated coercion and making a
criminal dangerous threat that had occurred the previous day.
4.3 On 18 September 2000, the Public Prosecutor received a written complaint
(Anzeige) regarding the incident of 22 August 2000. When interrogated,
Sahide Goekce said that she had suffered an epileptic fit and bouts of
depression and denied that Mustafa Goekce had threatened to kill her. As a
consequence, the Public Prosecutor discontinued the proceedings against
Mustafa Goekce for aggravated coercion and making a criminal dangerous
threat.
4.4 On 13 January 2001, the court with competence over guardianship matters
restricted Mustafa Goekce's and Sahide Goekce's role in the care and
upbringing of their children and required them to comply with measures
agreed upon in cooperation with the Youth Welfare Office. In its decision,
the court noted that Mustafa Goekce and Sahide Goekce always tried to give
an impression of living a well-ordered life. When asked about the charges of
inflicting bodily harm and making a criminal dangerous threat, both Mustafa
Goekce and Sahide Goekce considered it important to note that they had
reconciled fully shortly after each incident.
4.5 Mustafa Goekce and Sahide Goekce agreed to go into partner therapy and
to stay in contact with the Youth Welfare Office. Until summer 2002, they
were in therapy. The city administration also offered them a new and more
spacious apartment to meet their pressing accommodation needs. In spite of
these arrangements, the police repeatedly intervened in the couple's
disputes on 17 December 2001, 30 June 2002, 6 July 2002, 25 August 2002 and
16 September 2002.
4.6 On 23 October 2002 the Hernals District Court issued an interim
injunction against Mustafa Goekce pursuant to section 382b of the Act on the
Enforcement of Judgments (Exekutionsordnung) that prohibited him from
returning to the apartment and its immediate surroundings and from
contacting the children and Sahide Goekce. She gave testimony before the
judge in the presence of Mustafa Goekce (although she had been informed of
her rights) that she would make every effort to keep the family together,
that Mustafa Goekce had a very good relationship with the children and that
he assisted her in the household because of her epilepsy.
4.7 A police report of 18 November 2002 showed that the Youth Welfare Office
requested the police to come to the Goekce apartment because he had violated
the interim injunction and was in the apartment. Mustafa Goekce was no
longer there when the police arrived. Sahide Goekce seemed angry that the
police had come and asked them why they came almost on a daily basis
although she had expressly declared that she wished to spend her life
together with her husband.
4.8 On 6 December 2002, the Vienna Public Prosecutor's Office withdrew the
charges of making a criminal dangerous threat that related to an incident
that took place on 8 October 2002, because Sahide Goekce gave a written
statement to the Police in which she claimed that a scrap had caused her
injury. She also stated that her husband had repeatedly over a number of
years threatened to kill her. The Public Prosecutor proceeded on the
assumption that the threats were a regular feature of the couple's disputes
and would not be carried out. Sahide Goekce repeatedly tried to play down
the incidents in the interest of preventing the prosecution of Mustafa
Goekce. By doing this and refusing to testify in the criminal proceedings,
she contributed to the fact that he could not be convicted of a crime.
4.9 On 7 December 2002, Mustafa Goekce came to the apartment in the early
hours of the morning and opened the door with a key given to him by Sahide
Goekce one week earlier. He left the apartment at 8.30 a.m. only to return
at noon. Sahide Goekce shouted at him that he was not the father of all her
children and Mustafa Goekce shot her dead with a handgun that he had
purchased three weeks earlier, despite a valid weapons prohibition against
him.
4.10 According to an expert witness at the trial of Mustafa Goekce, he had
committed the murder under the influence of a paranoid jealousy psychosis
which absolved him of criminal responsibility. For this reason, the Vienna
Public Prosecutor's Office requested that he be placed in an institution for
the criminally insane. On 23 October 2003, the Vienna Regional Criminal
Court ordered Mustafa Goekce to be placed in such an institution.
4.11 As to admissibility, the State party disputes that domestic remedies
have been exhausted. Firstly, Sahide Goekce did not give the competent
authorities her authorization to prosecute Mustafa Goekce for making a
criminal dangerous threat. Nor was she prepared to testify against him. She
asked the court not to punish her husband and, after filing charges,
regularly made great efforts to play down the incidents and deny their
criminality.
4.12 The State party further argues that the Federal Act for the Protection
against Violence within the Family constitutes a highly effective system to
combat domestic violence and establishes a framework for effective
cooperation among various institutions. Details are provided about aspects
of the system, including the role of intervention centres. In addition to
criminal measures, there are a number of police and civil-law measures to
protect against domestic violence. Shelters supplement the system. It is
possible to settle disputes in less severe cases under the Maintenance of
Law and Order Act (Sicherheitspolizeigesetz).
4.13 Sahide Goekce never made use of section 382b of the Act on the
Enforcement of Judgments to request an interim injunction against Mustafa
Goekce. Instead, she made it clear that she was not interested in further
interference with her family life. She never made a clear decision to free
herself and the children from their relationship with her husband (for
example, she gave him the keys to the apartment, despite there being a valid
interim injunction). Without such a decision on the part of Ms. Goekce, the
authorities were limited in the actions that they could take to protect her.
Effective protection was doomed to fail without her cooperation.
4.14 Against this background, the use of detention was not justified in
relation to the incident of 8 October 2002. Mustafa Goekce had no criminal
record and the Public Prosecutor did not know at the time that Mustafa
Goekce had a weapon. The Public Prosecutor did not consider that the known
facts indicated an imminent danger of Mustafa Goekce committing a homicide;
detention could only be justified ultima ratio. In light of Sahide Goekce's
apparent anger at the police intervention on 18 November 2002 (see above
paragraph 4.7), the Public Prosecutor could not assume that the charge would
lead to a conviction and prison sentence. The court must take the principle
of proportionality into account when detaining a defendant and must, in any
event, set aside the detention if the duration becomes disproportionate to
the expected sentence.
4.15 Furthermore, Sahide Goekce would have been free to address the
Constitutional Court (Verfassungsgerichtshof) with a complaint in accordance
with article 140, paragraph 1, of the Federal Constitution (Bundes-Verfassungsgesetz)
that would challenge the provision that did not allow her to appeal against
the decisions of the Public Prosecutor not to issue a warrant for the arrest
of Mustafa Goekce. Assuming that they can show a current and direct interest
in the preventive effect of the repeal of the pertinent provision for the
benefit of victims of domestic violence, such as Sahide Goekce, it may still
be possible for her surviving heirs to address the Constitutional Court on
this question.
4.16 The State party also argues that special training courses are held on a
regular basis for judges and the police on domestic violence. Cooperation
between judges and the police is constantly reviewed in order to ensure more
rapid intervention by organs of the State - the aim being to prevent as far
as possible tragedies such as that of Sahide Goekce without improper
interference into a person's family life and other basic rights.
THE AUTHOR'S COMMENTS ON THE STATE PARTY'S OBSERVATIONS ON ADMISSIBILITY
5.1 By their submission of 31 July 2005, the authors contend that the victim
and the authors have exhausted all domestic remedies, which would have been
likely to bring sufficient relief. They claim that there is no legal
obligation to apply for civil measures - such as an interim injunction.
5.2 The authors also are of the view that the idea of requiring a woman who
is under threat of death to file an application to the Constitutional Court
was not an argument put forward by the State party in good faith. The
procedure lasts for some two to three years and, for this reason, would be
unlikely to bring sufficient relief to a woman who has been threatened with
death.
5.3 The authors consider that the State party has wrongfully placed the
burden and responsibility of taking steps against a violent husband on the
victim and has failed to understand the danger the victim faces and the
power of the perpetrator over the victim. The authors, therefore, believe
that section 107, paragraph 4, of the Penal Code covering authorization for
prosecutions against persons who make criminal dangerous threats should be
repealed so that the burden will be placed on the State - where it belongs -
and would reinforce the fact that making a criminal threat is a crime
against the community as well as a crime against an individual victim.
5.4 The authors clarify that Sahide Goekce was afraid to leave her violent
husband. Victims try to avoid actions that might increase the danger they
face (the ôStockholm Syndromeö) and often feel compelled to act in the
interest of the perpetrator. She should not be blamed for not being in a
position to separate due to psychological, economic and social factors.
5.5 The authors also dispute the State party's description of certain facts;
Mustafa Goekce (and not Sahide Goekce) stated that she had an epileptic fit
and suffered from depression. She did not, as claimed by the State party,
deny the threats of her husband. She refused to testify against Mustafa
Goekce only once. If Sahide Goekce played down the incidents in front of the
Youth Welfare Office, it was because she was afraid to lose her children.
The authors also point out that Mustafa Goekce quit therapy and that it
would have been easy for the police to discover that Mustafa Goekce was
carrying a gun. They also point out that Sahide Goekce called the police the
night before she was killed - a fact that demonstrates how great her fear
was and that she was willing to take steps to prevent him from coming to the
apartment.
5.6 As to the State party's comments about effective cooperation among
various institutions, the police and the Public Prosecutor only began to
talk to the Vienna Intervention Centre against Domestic Violence after
Sahide Goekce's death.
ADDITIONAL COMMENTS OF THE STATE PARTY ON ADMISSIBILITY
6.1 By its submission of 21 October 2005, the State party firmly rejects the
arguments put forward by the authors and maintains its previous submission.
The State party points out that the authors not only refer to alleged
failures on the part of the competent Public Prosecutor and investigating
judge but to the law itself. Their criticism relates to the legal framework,
the application of legal provisions that protect the right to life, physical
integrity and the right to respect for private and family life and the
failure to take enough effective measures in a general, abstract way.
6.2 Under article 140, paragraph 1, of the Federal Constitution any
individual may challenge legal provisions for being unconstitutional if
he/she alleges direct infringement of individual rights insofar as the law
has been operative for that individual without the delivery of a judicial
decision or ruling. There are no time limits for filing such applications.
6.3 The aim of the procedure would be to redress an alleged violation in
law. The Constitutional Court only considers the application legitimate if
in repealing the provision at issue, the legal position of the applicant
would be changed to such an extent that the alleged negative legal
implications no longer exist. Furthermore, the legally protected interests
of the applicant must be actually affected. This must be the case both at
the time that the application is filed and when the Constitutional Court
takes its decision. Successful applicants are entitled to compensation.
6.4 Section 15 of the Constitutional Court Act (Verfassungsgerichtshofgesetz)
contains the general requirements as to form when addressing the
Constitutional Court. These requirements include: that the application must
be in writing; that the application must refer to a specific provision in
the Constitution; the applicant must set out the facts; and the application
must contain a specific request. Under section 62, paragraph 1 of the Act,
the application must state precisely which provisions should be repealed.
Moreover, the application must explain in detail why the challenged
provisions are unlawful and to what extent the law had been operative for
the applicant without the delivery of a judicial decision or ruling. Under
section 17, paragraph 2 of the Act, applications must be filed by an
authorized lawyer.
6.5 If the Constitutional Court agrees with the applicant, it issues a
ruling setting aside these provisions. The Federal Chancellor is then under
an obligation to promulgate the repeal of these provisions in the Federal
Law Gazette, which comes into force at the end of the day of its
promulgation. The Constitutional Court may also set a maximum deadline of 18
months for the repeal - which does not necessarily apply to the applicants,
themselves. A time limit is fixed if the legislature is to be given an
opportunity to introduce a new system that complies with the constitutional
framework. In light of its previous decisions, it can be assumed that the
Constitutional Court would make use of the latter possibility if it were to
decide that a provision should be repealed.
6.6 The procedure under article 140, paragraph 1, of the Federal
Constitution may indeed take two to three years, as stated by the authors.
However, proceedings may be shorter if their urgency is explained to the
Constitutional Court. Constitutional Court proceedings do not provide rapid
redress. However, article 4, paragraph 1, of the Optional Protocol to the
Convention on the Elimination of All Forms of Discrimination against Women
prescribes the exhaustion of all available domestic remedies unless the
proceedings would be unreasonably prolonged or no effective relief could be
expected.
6.7 The requirement of exhausting domestic remedies reflects a general
principle of international law and a usual element of international human
rights mechanisms. It gives the State concerned an opportunity to remedy
human rights violations first at the domestic level.
6.8 The State party argues that Sahide Goekce or her surviving relatives
should have made use of the possibility of filing an individual application
before the Constitutional Court before submitting a communication to the
Committee, as required by article 4, paragraph 1, of the Optional Protocol.
The proceedings before the Constitutional Court are not unreasonably
prolonged. Moreover, it cannot be said, in light of the case law of the
Court, that the surviving relatives would not be entitled to file an
individual application because - as far as can be seen - no similar cases
have been brought before the Court.
6.9 The State party further maintains that article 4, paragraph 1, of the
Optional Protocol does not include only remedies that are successful in any
event. If successful, the application could lead to the repeal of the
procedural provisions in dispute or to the introduction by the legislature
of a new system in the field of domestic violence in line with the
intentions of the authors. It is true that now, after the death of Sahide
Goekce, there is no effective relief with respect to the effective
protection of her personal security and life. However, in the present
proceedings, the Committee should examine at the admissibility stage whether
Sahide Goekce had an opportunity under domestic law to subject the legal
provisions which prevented her from asserting her rights to a constitutional
review and whether her surviving relatives have an opportunity to make use
of the same mechanism to repeal the legal provisions of concern at the
domestic level in order to realize their aims.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE CONCERNING ADMISSIBILITY
7.1 During its thirty-fourth session (16 January to 3 February 2006), the
Committee considered the admissibility of the communication in accordance
with rules 64 and 66 of its rules of procedure. It ascertained that the
matter had not already been or was being examined under another procedure of
international investigation or settlement.
7.2 With regard to article 4, paragraph 1, of the Optional Protocol to the
Convention on the Elimination of All Forms of Discrimination against Women
(the domestic remedies rule), the Committee noted that authors must use the
remedies in the domestic legal system that were available to them and would
enable them to obtain redress for the alleged violations. The substance of
their complaints that were subsequently brought before the Committee should
first be made to an appropriate domestic body. Otherwise, the motivation
behind the provision would be lost. The domestic remedies rule was designed
so that States parties have an opportunity to remedy a violation of any of
the rights set forth under the Convention through their legal systems before
the Committee addresses the same issues. The Human Rights Committee had
recently recalled the rationale of its corresponding rule in Panayote Celal,
on behalf of his son, Angelo Celal, v. Greece (1235/2003), paragraph 6.3:
"The Committee recalls that the function of the exhaustion requirement under
article 5, paragraph 2 (b), of the Optional Protocol is to provide the State
party itself with the opportunity to remedy the violation suffered ..."
7.3 The Committee noted that, in communications denouncing domestic
violence, the remedies that came to mind for purposes of admissibility
related to the obligation of a State party concerned to exercise due
diligence to protect; investigate the crime, punish the perpetrator, and
provide compensation as set out in general recommendation 19 of the
Committee.
7.4 The Committee considered that the allegations made relating to the
obligation of the State party to have exercised due diligence to protect
Sahide Goekce were at the heart of the communication and were of great
relevance to the heirs. Thus, the question as to whether domestic remedies
had been exhausted in accordance with article 4, paragraph 1, of the
Optional Protocol must be examined in relation to these allegations. The
allegations essentially related to flaws in law as well as the alleged
misconduct or negligence of the authorities in applying the measures that
the law provided. With regard to alleged flaws in law, the authors claimed
that, according to the Penal Code, Sahide Goekce was unable to appeal
against the decisions made by the Public Prosecutor not to detain her
husband for making a criminal dangerous threat against her. The State party
argued that a procedure, the aim of which would be to redress an alleged
violation in law, was set out under article 140, paragraph 1, of the Federal
Constitution and would have been available to the deceased and remained
available to her descendants. The State party submitted that the failure of
the deceased and her descendants to use the procedure should have barred the
admissibility of the communication.
7.5 The Committee noted that the procedure under article 140, paragraph 1,
of the Federal Constitution could not be regarded as a remedy, which was
likely to bring effective relief to a woman whose life was under a criminal
dangerous threat. Neither did the Committee regard this domestic remedy as
being likely to bring effective relief in the case of the deceased's
descendants in light of the abstract nature of such a constitutional remedy.
Accordingly, the Committee concluded that, for purposes of admissibility
with regard to the authors' allegations about the legal framework for the
protection of women in domestic violence situations in relation to the
deceased no remedies existed which were likely to bring effective relief and
that the communication in this respect was therefore admissible. In the
absence of information on other available, effective remedies, which Sahide
Goekce or her heirs could have pursued or still might have pursued, the
Committee concluded that the authors' allegations relating to the actions or
omissions of public officials were admissible.
7.6 On 27 January 2006, the Committee declared the communication admissible.
THE STATE PARTY'S REQUEST FOR A REVIEW OF ADMISSIBILITY AND SUBMISSION ON
THE MERITS
8.1 By its submission of 12 June 2006, the State party requests the
Committee to review its decision on admissibility. The State party
reiterates that the descendants of Sahide Goekce should avail themselves of
the procedure under article 140, paragraph 1, of the Federal Constitution in
order to try to bring about an amendment to the legal provision that barred
Sahide Goekce from appealing against the decisions made by the Public
Prosecutor not to detain Mustafa Goekce. It maintains that this remedy is
quite effective to pursue the aim of the communication at the domestic
level.
8.2 The State party also submits that, after the Public Prosecutor dropped
the charges against Mustafa Goekce, Sahide Goekce would have been free to
bring an action, known as ôassociated prosecutionö (Subsidiaranklage),
against her husband. The Austrian legal system provides that an injured
person may bring an action instead of the Public Prosecutor if the latter
drops the charges and refuses to prosecute the offender. The Public
Prosecutor is under an obligation to inform the injured person of this
option.
8.3 The State party revisits the sequence of events leading up to the murder
of Sahide Goekce. The State party indicates that a comprehensive report on
the case of Mustafa Goekce by the Vienna Senior Public Prosecutor's Office
confirms that Sahide Goekce did not authorize the prosecution of her husband
for making a criminal dangerous threat against her on 2 December 1999 and
that the charges against him had to be dropped as a result. With regard to
the ex officio prosecution of Mustafa Goekce for maliciously inflicting
bodily harm in relation to the same incident, Sahide Goekce confirmed in the
F³nfhaus District Court what her husband had stated, i.e. that she was
epileptic and was suffering bouts of depression and that the bruising on her
neck was caused by her husband holding her. Mustafa Goekce was acquitted of
the charges of maliciously inflicting bodily harm in the absence of further
evidence against him.
8.4 The State party provides more information relating to the incident that
occurred on 21 August 2000: records show that Sahide Goekce was not injured
and that Mustafa Goekce did not hit her; she was informed about possible
means of protection that the Federal Act for the Protection against Violence
within the Family provides and given a leaflet with information for victims
of violence; the Vienna Intervention Centre and the Youth Welfare Office
were also informed ex officio about this incident; and on 24 August 2000,
Mustafa Goekce went to the Schmelz police office together with the couple's
son, Hakan Goekce, who stated that his mother had started quarrelling with
his father and had attacked him.
8.5 The State party asserts that, on 1 September 2000, Sahide Goekce (who,
according to the record was questioned in her husband's absence) stated that
her husband never threatened to kill her. She had had an epileptic fit and
perhaps in her confusion made the accusations against her husband; during
such fits she made weird statements, which she could not remember
afterwards. On 20 September 2000, the Public Prosecutor withdrew the charges
against Mustafa Goekce.
8.6 The State party submits that the Public Prosecutor brought charges
against Mustafa Goekce for causing bodily harm and threatening to kill
Sahide Goekce immediately following the 8 October 2002 incident. However, he
did not request that Mustafa Goekce be arrested. Sahide Goekce reported to
the police without her husband being present that he had choked her and
threatened to kill her. She was again informed in detail about the
possibility of filing a request for an interim injunction under section 382b
of the Act on the Enforcement of Judgments and was given an information
sheet for victims of violence. Mustafa Goekce completely denied the charges
against him. There was evidence that Mustafa Goekce was slightly injured
during the quarrel on 8 October 2002.
8.7 The State party submits that Sahide Goekce was given the opportunity to
testify without her husband being present at the interim injunction hearings
at the Hernals District Court. At those hearings Sahide Goekce stated that
she would make every effort to keep the family together. She also stated
that he had a very good relationship with the children and helped her with
the household. According to a report of the police inspectorate
Kriminalkommissariat West, Mustafa Goekce subsequently repeatedly
disregarded the interim injunction and the police responded by coming to the
Goekce home several times to the annoyance of Sahide Goekce.
8.8 The State party submits that the Public Prosecutor withdrew the charges
against Mustafa Goekce on 6 December 2002 because it could not be proved
with sufficient certainty that Mustafa Goekce was guilty of making criminal
dangerous threats against his wife that went beyond the harsh statements
resulting from his background. As regards the physical evidence, the State
party maintains that it could not be ascertained which spouse started the
aggressive acts. The State party also submits that proceedings against
Mustafa Goekce for causing bodily harm were discontinued because he had no
criminal record and because it could not be excluded that Sahide Goekce had
attacked her husband.
8.9 By judgement of 17 October 2003, the Vienna Regional Criminal Court
ordered that Mustafa Goekce be placed in an institution for mentally
deranged offenders for killing Sahide Goekce. According to the expert
opinion obtained by the Court, Mustafa Goekce committed the offence under
the influence of a jealousy psychosis that absolved him of criminal
responsibility.
8.10 The State party notes that it is difficult to make a reliable prognosis
as to how dangerous an offender is and that it is necessary to determine
whether detention would amount to a disproportionate interference in a
person's basic rights and fundamental freedoms. The Federal Act for the
Protection against Violence within the Family aims to provide a highly
effective yet proportionate way of combating domestic violence through a
combination of criminal and civil-law measures, police activities and
support measures. Close cooperation is required between criminal and civil
courts, police organs, youth welfare institutions and institutions for the
protection of victims, including in particular, intervention centres for
protection against violence within the family, as well as rapid exchange of
information between the authorities and institutions involved.
8.11 The State party points out that, aside from settling disputes, the
police issue expulsion and prohibition to return orders, which are less
severe measures than detention. Section 38a, paragraph 7, of the Security
Police Act requires the police to review compliance with expulsion and
prohibition to return orders at least once in the first three days.
According to the instructions of the Vienna Federal Police Directorate, it
is best for the police to carry out the review through personal contact with
the person at risk in the home without prior warning at a time when it is
likely that someone will be at home. Police inspectorates in Vienna must
keep a domestic violence index file in order to be able to rapidly access
reliable information.
8.12 The State party indicates that its legislation is subject to regular
evaluation as is the electronic register of judicial proceedings. Increased
awareness has led to significant law reform and enhanced protection of
victims of domestic violence, such as the abolition of the requirement in
section 107, paragraph 4, of the Penal Code that a threatened family member
must authorize the prosecution of a perpetrator who has made a criminal
dangerous threat.
8.13 The State party maintains that the issue of domestic violence and
promising counterstrategies have regularly been discussed at meetings
between the heads of the Public Prosecutor's Offices and representatives of
the Federal Ministry of the Interior, including in connection with the case
at issue. It also maintains that considerable efforts are being made to
improve cooperation between Public Prosecutor's Offices and intervention
centres against violence within the family. The State party also refers to
efforts in the area of statistics made by the Federal Ministry of the
Interior and its subordinate bodies.
8.14 The State party indicates that the Federal Act for the Protection
against Violence within the Family and its application in practice are key
elements of the training of judges and public prosecutors. Examples of
seminars and local events on victim protection are given. Future judges are
provided each year with information on "violence within the family",
"protection of victims" and "law and the family". Programmes cover the
basics of the phenomenon of violence against women and children, including
forms, trauma, post-traumatic consequences, dynamics of violent
relationship, psychology of offenders, assessment factors of how dangerous
an offender is, institutions of support, laws and regulations and the
electronic registers. Interdisciplinary and comprehensive training has also
been carried out.
8.15 The State party recognizes the need for persons affected by domestic
violence to be informed about legal avenues and available counselling
services. The State party reports that judges provide information at
district courts free of charge once a week to anyone interested in the
existing legal protection instruments. Psychological advice is also
provided, including at the Hernals District Court. The State party also
indicates that pertinent information is offered (posters and flyers in
Arabic, German, English, French, Polish, Russian, Serbo-Croat, Spanish and
Hungarian) at district courts. A toll-free Hotline for Victims has also been
installed where lawyers provide legal advice around the clock free of
charge. The State party further submits that women's homes act as shelters
where women victims of violence are offered counselling, care and assistance
in dealing with public authorities. In domestic violence cases where an
expulsion and prohibition to return order has been issued, police officers
must inform persons at risk of the possibility of obtaining an interim
injunction under section 382a of the Act on the Enforcement of Judgments. In
Vienna, the person concerned is given an information sheet (available in
English, French, Serbian, Spanish and Turkish).
8.16 The State party submits that the authors of the present communication
give abstract explanations as to why the Federal Act for the Protection
Against Violence in the Family as well as practice regarding detentions in
domestic violence cases and prosecution and punishment of offenders
allegedly violate articles 1, 2, 3 and 5 of the Convention. The State party
considers that it is evident that its legal system provides for
comprehensive measures to combat domestic violence adequately and
efficiently. The State party maintains that Sahide Goekce was offered
numerous forms of assistance by the State in the case at issue.
8.17 The State party further submits that detention is ordered when there
are sufficiently substantiated fears that a suspect would carry out a threat
if he/she were not detained. It maintains that mistakes in assessing how
dangerous an offender is cannot be excluded in an individual case. The State
party asserts that, although the present case is an extremely tragic one,
the fact that detention must be weighed against an alleged perpetrator's
right to personal freedom and a fair trial cannot be overlooked. Reference
is made to the case law of the European Court of Human Rights that depriving
a person of his or her freedom is, in any event, ultima ratio and may be
imposed only if and insofar as this is not disproportionate to the purpose
of the measure. The State party also contends that, were all sources of
danger to be excluded, detention would need to be ordered in situations of
domestic violence as a preventive measure. This would reverse the burden of
proof and be in strong contradiction with the principles of the presumption
of innocence and the right to a fair hearing. Protecting women through
positive discrimination by, for example, automatically arresting, detaining,
prejudging and punishing men as soon as there is suspicion of domestic
violence, would be unacceptable and contrary to the rule of law and
fundamental rights.
8.18 The State party maintains that it would have been possible for the
author to file a complaint at any time against the Public Prosecutor for
his/her conduct pursuant to section 37 of the Public Prosecutors Act.
Furthermore, Sahide Goekce did not avail herself of any of the various
available avenues of redress. Her failure to authorize the prosecution of
Mustafa Goekce for making a criminal dangerous threat in December 1999 and
the fact that she largely refused to testify and asked the Court not to
punish her husband resulted in his acquittal. Sahide Goekce claimed that her
allegations regarding the August 2000 incident were made while she was in a
state of confusion as a result of depression and again, the Public
Prosecutor determined that there was no adequate basis to prosecute Mustafa
Goekce. The State party further submits that the facts that were available
concerning the incident of 8 October 2002 did not indicate that Mustafa
Goekce should be detained either. The Public Prosecutor was unaware that
Mustafa Goekce was in possession of a firearm. Lastly, the State party
submits that it could not be deduced from police reports and other records
that there was a danger that Mustafa Goekce would actually commit the
criminal act.
8.19 The State party summarizes its position by asserting that Sahide Goekce
could not be guaranteed effective protection because she had not been
prepared to cooperate with the Austrian authorities. In light of the
information available to the public authorities, any further interference by
the State in the fundamental rights and freedoms of Mustafa Goekce would not
have been permissible under the Constitution.
8.20 The State party asserts that its system of comprehensive measures FN3
aimed at combating domestic violence does not discriminate against women and
the authors' allegations to the contrary are unsubstantiated. Decisions,
which appear to be inappropriate in retrospect (when more comprehensive
information is available) - are not discriminatory eo ipso. The State party
maintains that it complies with its obligations under the Convention
concerning legislation and implementation and that there has been no
discrimination against Sahide Goekce as a woman.
---------------------------------------------------------------------------------------------------------------------FN3
To illustrate the effectiveness of the measures, which are applied, the
State party submits the statistics on prohibition orders to enter the common
home and other legal measures.
---------------------------------------------------------------------------------------------------------------------
8.21 In the light of the above, the State party asks the Committee to reject
the present communication as inadmissible; in eventu, to reject it for being
manifestly ill-founded and, in eventu, to hold that the rights of Sahide
Goekce under the Convention have not been violated.
AUTHORS' COMMENTS ON THE STATE PARTY'S REQUEST FOR A REVIEW OF ADMISSIBILITY
AND SUBMISSION ON THE MERITS
9.1 By their submission of 30 November 2006, the authors argue that neither
the children of the victim nor the authors intended to have statutory
provisions reviewed by the Constitutional Court - a motion that would be
deemed inadmissible. They would have lacked standing to bring such an action
before the Constitutional Court. The authors note that the main focus of the
communication is that legal provisions were not applied - not that those
provisions should be amended or repealed. Furthermore, the authors claim
that their suggestions for improvements to the existing laws and enforcement
measures could never be realized by means of a constitutional complaint.
Therefore, bringing a constitutional complaint should not be regarded as a
domestic remedy for purposes of article 4, paragraph 1, of the Optional
Protocol.
9.2 The authors consider that it is inadmissible at this stage for the State
party to introduce an argument concerning the remedy of "associated
prosecution" in light of the fact that the State party was given two earlier
opportunities to comment on the question of admissibility, besides which
this remedy would be costly and would not bring any effective relief. The
authors are of the view that the Optional Protocol and the rules of
procedure of the Committee as well as general legal principles ("ne bis in
idem") do not provide for reversing the admissibility decision of 27 January
2006.
9.3 The authors note that the State party refers to actions taken and legal
provisions that entered into force years after the murder of Sahide Goekce.
9.4 The authors submit that the observations of the State party place the
burden and responsibility for dealing with the violent husband on the victim
and place the blame on her for not having taken appropriate action. The
authors assert that this position demonstrates how little the authorities
understand about the dynamics of partner violence, the dangerous situation
of the victim and the power that the perpetrator has over the victim, whom
he ended up killing.
9.5 The authors note that the State party acknowledged every violent
incident that took place. However, the authors maintain that the State party
did not describe some of the details accurately. The authors claim that it
was Mustafa Goekce who stated that Sahide Goekce had had an epileptic fit -
the explanation for the bruising on her neck - and that he comforted her.
9.6 The authors dispute the State party's contention that Sahide Goekce
asked the Court not to punish her husband or denied that he had threatened
to kill her. They claim that the record of the interrogation shows that
Mustafa Goekce repeatedly said that he would kill Sahide Goekce. Moreover,
Sahide Goekce only once refused to testify against her husband and the
reason for there being no further criminal proceedings was that the Public
Prosecutor did not initiate them. As to the State party's assertion that
Sahide Goekce played down the incidents before the Youth Welfare Office, the
authors submit that Sahide Goekce would have been afraid of losing her
children and of the social and cultural contempt for a woman of Turkish
descent whose children had been taken away.
9.7 The authors point out that the State party admits that Mustafa Goekce
repeatedly ignored the interim injunction issued by the District Court of
Hernals. The authors criticize the police for not having taken seriously the
information that they received from the brother of Mustafa Goekce about the
weapon.
9.8 The authors argue that the State party has not taken responsibility for
the failures of the authorities and officers. They submit that when making a
determination about detaining Mustafa Goekce, the State party should have
conducted a comprehensive assessment of how dangerous Mustafa Goekce would
become. Furthermore, the State party should have considered the social and
psychological circumstances of the case. The authors consider that the
exclusive use of civil remedies was inappropriate because they do not
prevent very dangerous violent criminals from committing or repeating
offences.
9.9 The authors draw attention to flaws in the system of protection. One
such flaw is that the police and public prosecutors are unable to
communicate with each other rapidly enough. Another such flaw is that police
files regarding domestic violence are not made available to the officers who
operate the emergency call services. The authors also complain that
systematically coordinated and/or institutionalized communication between
the Public Prosecutor's Office and the Family Court does not exist. They
also maintain that government funding remains inadequate to provide
extensive care for all victims of domestic violence.
9.10 The authors refer to an exchange of information between representatives
of the police and a representative of the Intervention Centre shortly after
Sahide Goekce was killed, during which the Chief of Police admitted to
deficits in the emergency call service. The authors state that in the
instant case, Sahide Goekce called this service a few hours before she was
killed, yet no patrol car was sent to the scene. While the Chief of Police
requested representatives of the Intervention Centre to instruct victims
about the information that they should provide to the police, the authors
argue that it would not be reasonable to expect victims of violence to
provide in an emergency all information that may be relevant considering
their mental state. Furthermore, regarding the instant case, German was not
Sahide Goekce's mother tongue. The authors maintain that the authorities
should gather data about dangerous violent offenders in a systematic manner
that can be retrieved anywhere in an emergency.
9.11 The authors submit that it is incorrect to claim that Sahide Goekce did
not avail herself of the available avenues of redress. In 2002, the year she
was killed, Sahide Goekce repeatedly tried to obtain help from the police -
but she and her family were not taken seriously; often their complaints were
not recorded. Further, the authors argue that several physical attacks by
Mustafa Goekce were known to the police but not adequately documented such
that the information could be retrieved for use in assessing how dangerous
he might become. The authors maintain that the potential for violence on the
part of a spouse who does not accept being separated from the other
spouse/family is extremely high. In the specific case of Sahide Goekce, her
spouse was unreasonably jealous and unwilling to accept a separation, which
constituted a high risk that was not taken into account.
THE STATE PARTY'S SUPPLEMENTARY OBSERVATIONS
10.1 By its submission of 19 January 2007, the State party provides detailed
information about the so-called "associated prosecution", whereby a private
party takes over the prosecution of the defendant. The State party submits
that the requirements are more stringent than those that apply to the Public
Prosecutor in order to prevent chicanery. Under this procedure, a person
whose rights have allegedly been violated through the commission of a crime
becomes a private party to the proceedings.
10.2 The State party indicates that Sahide Goekce was informed of her right
to ôassociated prosecutionö on 14 December 1999, 20 September 2000 and 6
December 2002.
10.3 The State party also submits that Sahide Goekce would have been
entitled to bring a complaint under section 37 of the Public Prosecutor's
Act (Staatsanwaltschaftsgesetz) to either the head of the Public
Prosecutor's Office in Vienna, the Senior Public Prosecutor's Office or the
Federal Ministry of Justice, had she considered the official actions of the
responsible Public Prosecutor to have been unlawful. There are no formal
requirements and complaints may be filed in writing, by e-mail or by fax or
telephone.
10.4 The State party indicates that an interim injunction for protection
against domestic violence may be sought by persons who live or have lived
with a perpetrator in a family relationship or a family-like relationship
under section 382b of the Act on the Enforcement of Judgments, when there
have been physical attacks, threats of physical attacks or any conduct that
severely affects the mental health of the victim and when the home fulfils
the urgent accommodation needs of the applicant. The perpetrator may be
ordered to leave the home and the immediate surroundings and prohibited from
returning. If further encounters become unacceptable, the perpetrator may be
banned from specifically defined places and given orders to avoid encounters
as well as contact with the applicant so long as this does not infringe upon
important interests of the perpetrator. In cases where an interim injunction
has been issued, the public security authorities may determine that an
expulsion order (Wegweisung) is also necessary as a preventive measure.
10.5 The State party states that interim injunctions can be issued during
divorce proceedings, marriage annulment and nullification proceedings,
during proceedings to determine the division of matrimonial property or the
right to use the home. In such cases, the interim injunction is valid for
the duration of the proceedings. If no such proceedings are pending, an
interim injunction may be issued for a maximum of three months. An expulsion
and prohibition to return order expires after 10 days but is extended for
another 10 days if a request for an interim injunction is filed.
REVIEW OF ADMISSIBILITY
11.1 In accordance with rule 71, paragraph 2, of its rules of procedure, the
Committee has re-examined the communication in light of all the information
made available to it by the parties, as provided for in article 7, paragraph
1, of the Optional Protocol.
11.2 As to the State party's request to review admissibility on the grounds
that Sahide Goekce's heirs did not avail themselves of the procedure under
article 140, paragraph 1, of the Federal Constitution, the Committee notes
that the State party has not introduced new arguments that would alter the
Committee's view that, in light of its abstract nature, this domestic remedy
would not be likely to bring effective relief.
11.3 As to the State party's argument that Sahide Goekce, as a private
individual, would have been free to bring an action, known as ôassociated
prosecutionö against her husband after the Public Prosecutor decided to drop
the charges against him, the Committee does not regard this remedy as having
been de facto available to the author, considering that the requirements for
a private individual to take over the prosecution of the defendant are more
stringent than those for the Public Prosecutor, that German was not Sahide
Goekce's mother tongue and, most importantly, that she was in a situation of
protracted domestic violence and threats of violence. Moreover, the fact
that the State party introduced the notion of ôassociated prosecutionö late
in the proceedings indicates that this remedy is rather obscure.
Accordingly, the Committee does not find the remedy of ôassociated
prosecutionö to be a remedy that Sahide Goekce would have been obliged to
exhaust under article 4, paragraph 1, of the Optional Protocol.
11.4 As to the State party's contention that Sahide Goekce would have been
entitled to bring a complaint under section 37 of the Public Prosecutor's
Act, the Committee considers that this remedy - designed to determine the
lawfulness of official actions of the responsible Public Prosecutor - cannot
be regarded as a remedy which is likely to bring effective relief to a woman
whose life is under a dangerous threat, and should thus not bar the
admissibility of the communication.
11.5 The Committee will proceed to consideration of the merits of the
communication.
CONSIDERATION OF THE MERITS
12.1.1 As to the alleged violation of the State party's obligation to
eliminate violence against women in all its forms in relation to Sahide
Goekce in articles 2 (a) and (c) through (f), and article 3 of the
Convention, the Committee recalls its general recommendation 19 on violence
against women. This general recommendation addresses the question of whether
States parties can be held accountable for the conduct of non-State actors
in stating that ôà discrimination under the Convention is not restricted to
action by or on behalf of Governments àö and that ô[U]nder general
international law and specific human rights covenants, States may also be
responsible for private acts if they fail to act with due diligence to
prevent violations of rights or to investigate and punish acts of violence,
and for providing compensationö.
12.1.2 The Committee notes that the State party has established a
comprehensive model to address domestic violence that includes legislation,
criminal and civil-law remedies, awareness-raising, education and training,
shelters, counselling for victims of violence and work with perpetrators.
However, in order for the individual woman victim of domestic violence to
enjoy the practical realization of the principle of equality of men and
women and of her human rights and fundamental freedoms, the political will
that is expressed in the aforementioned comprehensive system of Austria must
be supported by State actors, who adhere to the State party's due diligence
obligations.
12.1.3 In the instant case, the Committee notes that during the three-year
period starting with the violent episode that was reported to the police on
3 December 1999 and ending with the shooting of Sahide Goekce on 7 December
2002, the frequency of calls to the police about disturbances and disputes
and/or battering increased; the police issued prohibition to return orders
on three separate occasions and twice requested the Public Prosecutor to
order that Mustafa Goekce be detained; and a three-month interim injunction
was in effect at the time of her death that prohibited Mustafa Goekce from
returning to the family apartment and its immediate environs and from
contacting Sahide Goekce or the children. The Committee notes that Mustafa
Goekce shot Sahide Goekce dead with a handgun that he had purchased three
weeks earlier, despite a valid weapons prohibition against him as well as
the uncontested contention by the authors that the police had received
information about the weapon from the brother of Mustafa Goekce. In
addition, the Committee notes the unchallenged fact that Sahide Goekce
called the emergency call service a few hours before she was killed, yet no
patrol car was sent to the scene of the crime.
12.1.4 The Committee considers that given this combination of factors, the
police knew or should have known that Sahide Goekce was in serious danger;
they should have treated the last call from her as an emergency, in
particular because Mustafa Goekce had shown that he had the potential to be
a very dangerous and violent criminal. The Committee considers that in light
of the long record of earlier disturbances and battering, by not responding
to the call immediately, the police are accountable for failing to exercise
due diligence to protect Sahide Goekce.
12.1.5 Although, the State party rightly maintains that, it is necessary in
each case to determine whether detention would amount to a disproportionate
interference in the basic rights and fundamental freedoms of a perpetrator
of domestic violence, such as the right to freedom of movement and to a fair
trial, the Committee is of the view, as expressed in its views on another
communication on domestic violence, that the perpetrator's rights cannot
supersede women's human rights to life and to physical and mental
integrity.FN4 In the present case, the Committee considers that the
behaviour (threats, intimidation and battering) of Mustafa Goekce crossed a
high threshold of violence of which the Public Prosecutor was aware and as
such the Public Prosecutor should not have denied the requests of the police
to arrest Mustafa Goekce and detain him in connection with the incidents of
August 2000 and October 2002.
---------------------------------------------------------------------------------------------------------------------FN4
See paragraph 9.3 of the Committee's views on communication No. 2/2003, A.T.
v. Hungary.
---------------------------------------------------------------------------------------------------------------------
12.1.6 While noting that Mustafa Goekce was prosecuted to the full extent of
the law for killing Sahide Goekce, the Committee still concludes 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 Sahide Goekce to life and physical and
mental integrity.
12.2 The Committee notes that the authors also made claims that articles 1
and 5 of the Convention were violated by the State party. The Committee has
stated in its general recommendation 19 that the definition of
discrimination in article 1 of the Convention includes gender-based
violence. It has also recognized that there are linkages between traditional
attitudes by which women are regarded as subordinate to men and domestic
violence. At the same time, the Committee is of the view that the
submissions of the authors of the communication and the State party do not
warrant further findings.
12.3 Acting under article 7, paragraph 3, of the Optional Protocol to the
Convention on the Elimination of All Forms of Discrimination against Women,
the Committee on the Elimination of Discrimination against Women is of the
view that the facts before it reveal a violation of the rights of the
deceased Sahide Goekce to life and physical and mental integrity 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 makes the following recommendations to the State party:
(a) Strengthen implementation and monitoring of the Federal Act for the
Protection against Violence within the Family and related criminal law, by
acting with due diligence to prevent and respond to such violence against
women and adequately providing for sanctions for the failure to do so;
(b) Vigilantly and in a speedy manner prosecute perpetrators of domestic
violence in order to convey to offenders and the public that society
condemns domestic violence as well as ensure that criminal and civil
remedies are utilized in cases where the perpetrator in a domestic violence
situation poses a dangerous threat to the victim; and also ensure that in
all action taken to protect women from violence, due consideration is given
to the safety of women, emphasizing that the perpetrator's rights cannot
supersede women's human rights to life and to physical and mental integrity;
(c) Ensure enhanced coordination among law enforcement and judicial officers
and also ensure that all levels of the criminal justice system (police,
public prosecutors, judges) routinely cooperate with non-governmental
organizations that work to protect and support women victims of gender-based
violence;
(d) Strengthen training programmes and education on domestic violence for
judges, lawyers and law enforcement officials, including on the Convention
on the Elimination of All Forms of Discrimination against Women, general
recommendation 19 of the Committee, and the Optional Protocol thereto.
12.4 In accordance with article 7, paragraph 4, the State party shall give
due consideration to the views of the Committee, together with its
recommendations, and shall submit to the Committee, within six months, a
written response, including any information on any action taken in the light
of the views and recommendations of the Committee. The State party is also
requested to publish the Committee's views and recommendations and to have
them translated into the German language and widely distributed in order to
reach all relevant sectors of society.
* The following members of the Committee participated in the examination of
the present communication: Ms. Ferdous Ara Begum, Ms. Magalys Arocha
Dominguez, Ms. Meriem Belmihoub-Zerdani, Ms. Saisuree Chutikul, Ms. Mary
Shanthi Dairiam, Mr. Cees Flinterman, Ms. Naela Mohamed Gabr, Mr. Françoise
Gaspard, Ms. Violeta Neubauer, Ms. Pramila Patten, Ms. Silvia Pimentel, Ms.
Fumiko Saiga, Ms. Heisoo Shin, Ms. Glenda P. Simms, Ms. Dubravka Simonović,
Ms. Anamah Tan, Ms. Maria Regina Tavares da Silva and Ms. Zou Xiaoqiao.
.
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