Strasbourg Observers

Just another murder or gender-based violence? A commentary on Civek versus Turkey

March 03, 2016

By Fleur van Leeuwen, LL.M. Ph.D., human rights researcher and lecturer.

On 14 January 2011 Selma Civek was murdered by her husband. It was the denouement of years of battering and abuse. Last week the European Court of Human Rights (the Court) ruled that Turkey had violated Civek’s right to life. It deemed it unnecessary to examine the alleged violation of article 14 of the Convention: the prohibition of discrimination. Although the Court found that Turkey had violated the Convention and ordered the state to pay compensation, the judgment is very disappointing. The Court did not question the role that Civek’s gender played in the case and therefore ignored the gendered reality of domestic violence and the particular response that is needed to tackle this widespread human rights problem. Instead, it dealt with the case in a gender-neutral fashion, treating Civek’s death as it would any other murder, focusing on the question whether the authorities knew or could have reasonably known that Civek’s life was in danger and – if so – acted with due diligence. What is even more disquieting is that the Court observed – without any apparent reason – that domestic violence not only affects women but also men and children and thus seemed to second – once more – to the worrisome ambiguity regarding the nature of domestic violence as a (non)-gendered human rights issue that also entered the text of the Convention on Preventing and Combating violence against women and domestic violence (the Istanbul Convention).

Civek versus Turkey

Civek had complained many times to the authorities about her violent husband and had spent time in a shelter for abused women in Ankara. The Court noted that:

‘Au regard des faits, on peut raisonnablement considérer que les forces de l’ordre étaient informées des violences exercées par H.C. contre Selma Civek durant la période précédant son assassinat (…) Pour apprécier les renseignements que pouvaient détenir les forces de l’ordre quant à la question de savoir si l’animosité du père des requérants envers leur mère pouvait l’inciter à tenter de la tuer, la Cour relève que la police avait été informée de la probabilité de cet assassinat par les nombreuses plaintes de Selma Civek et par les témoignages des requérants. (..) On peut dès lors estimer que les autorités savaient ou auraient dû savoir que Selma Civek était susceptible de faire l’objet d’une agression fatale. De plus, eu égard aux circonstances, ce risque pouvait être considéré comme réel et imminent’ (paras. 51-53)

But although the husband had been placed under judicial supervision and was charged by the prosecutor for making death threats and failing to comply with the requirements of the previous protection order, no practical measures were taken to ensure her de facto protection from him. The Court therefore found that the Turkish authorities had not complied with their positive obligations under article 2.

Concerning the alleged violation of article 14 of the Convention – the prohibition of discrimination – the Court held that:

‘Eu égard au constat de violation relatif à l’article 2 de la Convention (…), la Cour estime qu’il n’est pas nécessaire, dans les circonstances de la présente affaire, de se prononcer séparément sur le grief des requérants fondé sur l’article 14 de la Convention combiné avec l’article 2 de la Convention’ (para. 69)


Notwithstanding that the Court has frequently found it unnecessary to examine a complaint under article 14 when it has already found a violation of a substantive article (also in cases concerning other forms of violence against women, like rape and forced sterilisation), it is in this case remarkable because the Court generally addresses complaints of discrimination in domestic violence cases. Never before did the Court hold in a domestic violence case that discussion of a violation of article 14 was unnecessary.[1] It is also surprising because in its previous judgment on domestic violence in Turkey (Opuz versus Turkey) the Court recognised that:

‘(…) the general and discriminatory judicial passivity in Turkey, albeit unintentional, mainly affected women, the Court considers that the violence suffered by the applicant and her mother may be regarded as gender-based violence which is a form of discrimination against women.’ (para. 200)

Not only did it thus highlight in this past judgment that gender-based violence constitutes gender discrimination – a definitive novelty for the Court – but it also explicitly recognised the deficiencies in Turkey regarding the way it tackled domestic violence, noting that Turkey created ‘a climate that was conducive to domestic violence’ (para. 198). Did Civek not offer a good opportunity to reexamine that discriminatory climate seven years after Opuz?

Moreover, I would argue that, in light of the statistics and literature on domestic violence, it is always necessary to examine a complaint of gender discrimination in domestic violence cases. It is widely supported that gender generally plays a role in domestic violence and that women and girls are not only affected disproportionately but also differently.[2] In cases of domestic violence where the Court finds that the authorities failed to act with due diligence to address the violence there is therefore a prima facie indication of gender-based discrimination that warrants further examination.

Systemic discrimination of women

But the role of gender in domestic violence cases does not only necessitate examination of the reasons for finding (direct or indirect) discrimination in the individual case. I contend that a key element in establishing whether a state party has acted with due diligence to address domestic violence is to see whether it has taken measures (that could reasonably be expected) to combat systemic discrimination against women. As noted, there is substantive literature about the fact that women – generally – experience domestic violence because they are women. The acts of violence stem from and maintain a system in which women are unequal to men in opportunities and prospects and are more prone to certain human rights violations. This situation of structural discrimination against women that is embedded in the system of a society (its laws, unwritten codes, and practices) needs to be tackled if one is to effectively combat domestic violence.

Hence I would argue that if a state does not take measures (that it could reasonably be expected to take) to address systemic discrimination, or worse, when it is complicit in reinforcing this system, it does not act with due diligence to protect the respective woman’s right to life (and freedom from torture and ill-treatment for that matter) and therefore does not comply with its positive obligations under the Convention.

Although the Court has never explicitly paid attention to systemic discrimination against women in domestic violence cases, it has in previous judgments implicitly touched upon some of its symptoms when it held for example that ‘the authorities’ actions (…) amounted to condoning such (domestic) violence and reflected a discriminatory attitude towards her as a woman.’ (T.M. and C.M. versus the Republic of Moldova, 2014; Mudric versus the Republic of Moldova, 2013). It is to be regretted that the Court did not build on these recent domestic violence judgments in Civek and, for example, pay attention to the gender roles and stereotypes in Turkish society and the part these have played in the case of Civek.[3]

Domestic violence a non-gendered human rights issue?

What is possibly even more disheartening is the fact that the Court implies in its judgment that domestic violence is seemingly a non-gendered human rights issue. Instead of assuming that domestic violence is prima facie gendered, as I previously proposed, the Court purposefully hints at the exact opposite. In the discussion on the alleged violation of article 2 it observes – without any apparent reason – that:

‘Par ailleurs, elle ne concerne pas exclusivement les femmes : les hommes peuvent eux aussi faire l’objet de violences domestiques, ainsi que les enfants, qui en sont souvent directement ou indirectement victimes.’ (para. 50)

Although the Court had made a similar statement in Opuz versus Turkey, it did not repeat this understanding in later domestic violence rulings.

The idea of domestic violence as a non-gendered human rights issue is ambiguous, considering that domestic violence was originally recognised as a human rights problem because of its gendered nature. It was acknowledged as a human rights issue because of the fact that it disproportionately affected women; the large scale on which it took place; and the impunity with which it was done. It was an issue because it stemmed from and was a manifestation of gender-based discrimination. This understanding of domestic violence as a gendered human rights issue was – regrettably – altered in the text of the Istanbul Convention, which – by referring to violence against women and domestic violence – explicitly positioned the latter as a gender neutral form of violence. It is disquieting to see that the Court seconds to this (mis)understanding.

A one-time-only mishap

A murder of a woman by her husband after years of domestic abuse is generally not a common murder, but a manifestation of gender-based violence.

Recent surveys of domestic violence in Turkey show that 40 percent of all women experience intimate partner violence in their lives. Research also shows that 34 percent of Turkish men find violence ‘occasionally necessary,’ while 37.6 percent express that some principles such as honour, decency and discipline render violence necessary. Domestic violence is not gender-neutral and by ignoring the gendered reality of this type of abuse and treating the death of Civek as just another murder the Court does not do justice to Civek or to women’s human rights in general. I therefore hope that Civek was a one-time-only mishap and that the Court will acknowledge the role that gender plays in future domestic violence cases.


[1]The Court made such a statement in Airey versus Ireland (1979). But since that case did not deal with domestic violence an sich but with the difficulty of obtaining a divorce I did not include this judgment. In the case of Bevacqua and S. versus Bulgaria of 2008 the Court decided – without any explanation – to examine the complaint solely under article 8 of the Convention.

[2]See for example: World Health Organisation, Global and regional estimates of violence against women: prevalence and health effects of intimate partner violence and non-partner sexual violence, 2013; D. Thomas & M. Beasley, ‘Domestic Violence as a Human Rights Issue’, 15 Human Rights Quarterly 1, 1993, pp. 36 – 62.

[3] Recognising and naming harmful gender roles and stereotypes is after all an important step in battling systemic discrimination against women and hence in fighting its manifestations, like domestic violence. See for example R. J. Cook & S. Cusack, Gender Stereotyping – Transnational Legal perspectives, University of Pennsylvania Press, Philadelphia, 2010; and A. Timmer, ‘Toward an Anti-Stereotyping Approach for the European Court of Human Rights’, 11 Human Rights Law Review 4, 2011, pp. 707-738.

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