This guest post was written by Fleur van Leeuwen (*)
Around a month ago, the Court ruled in Civek v. Turkey that it was not necessary to examine the applicant’s complaint of discrimination in a domestic violence case that ended in death. This was disheartening, especially because in recent domestic violence judgments the Court has always addressed alleged violations of article 14. What was perhaps even more disturbing about the Civek judgement was that the Court – without any apparent reason – observed that men can also be victims of domestic violence, thereby implying that domestic violence is a gender neutral phenomenon. In doing so, it seconded the worrisome wording of the Istanbul Convention, which – by denoting that men may also be victims of domestic violence and by referring to violence against women and domestic violence – explicitly positions the latter as a gender neutral form of violence.
Rejoice the latest domestic violence judgment of the Court in M.G. v. Turkey! Here the Court does find it necessary to examine the alleged violation of article 14, and – noteworthy – specifically refers in this context to its previous findings in Opuz and Durmaz regarding the discriminatory climate in Turkey. It speaks purposefully of ‘violence against women’ and thereby firmly classifies the experiences of M.G. as gender-based. And, notably, the Court refers in its reasoning to various provisions of the Istanbul Convention, but refrains from citing the aforementioned contentious passages. There is therefore good reason to believe that Civek was a one-time-only mishap, and that the Court is back on track as far as acknowledging the gendered nature of domestic violence is concerned.
M.G. v. Turkey
M.G. had been subjected to violence by her then-husband since the beginning of their marriage in 1997. In July 2006 she flees her home and lodges a complaint with the public prosecutor. One month later, she also starts divorce proceedings. The divorce is granted a year later but it takes until February 2012 before the estranged husband is charged with injuring his former wife. In the period between the divorce and the start of the criminal prosecution, M.G. and her children lived in fear, as Turkish law did not explicitly provide for protection measures for unmarried victims of domestic violence and left these up to the discretion of the domestic courts.
In light of the five and a half years that had passed between the complaint and the start of the criminal proceedings, the Court:
‘(S)ouligne en ce sens que la Convention d’Istanbul impose aux États Parties de prendre « les mesures législatives et autres nécessaires pour que les enquêtes et les procédures judiciaires relatives à toutes les formes de violences couvertes par le champ d’application de la (…) Convention soient traitées sans retard injustifié tout en prenant en considération les droits de la victime à toutes les étapes des procédures pénales’. (para. 94)
And found that:
‘(R)ien ne saurait expliquer la passivité du procureur de la République pendant une période aussi longue – plus de cinq ans et six mois – avant le déclenchement des poursuites pénales. De même, rien ne saurait expliquer la durée de la procédure pénale initiée après la plainte déposée par la requérante’. (para. 95)
In regards to the lack of protection after her divorce and before the instalment of criminal proceedings, the Court noted that the applicant must have lived in a situation of fear, vulnerability and insecurity. It found:
‘inacceptable que la requérante ait dû, de nombreuses années après avoir saisi les instances nationales des violences dont elle fut victime, vivre dans la crainte des agissements de son ex-mari.’ (para. 106)
It consequently held that Turkey had violated article 3 of the Convention.
Discrimination against women
The Court then examined the alleged violation of article 14 of the Convention: the prohibition of discrimination. It referred in this respect to its findings in the Opuz and Durmaz cases where it had concluded that:
‘la passivité généralisée et discriminatoire de la justice turque de nature à créer un climat propice à cette violence.’ (para. 116)
Although the facts in the case of M.G. were part of a period after these cases, the Court observed that the findings it had reached back then remained valid. This, it ruled, together with the notion that the legal framework in Turkey at the time did not guarantee divorced women the benefit of protection measures, made Turkey violate article 14 in combination with article 3.
Hence, unlike Civek, the Court does not treat M.G. as an isolated case of domestic abuse but relates the experiences of M.G. to the general discriminatory climate in Turkey, which it found to be conducive to violence. In that sense, the Court’s reasoning in M.G. resembles its pre-Civek case law on domestic violence, especially the Moldovan cases of 2013 and 2014, in which the Court held that:
‘the combination of the (..) factors clearly demonstrates that the authorities’ actions were not a simple failure or delay in dealing with violence against the first applicant, but amounted to repeatedly condoning such violence and reflected a discriminatory attitude towards the first applicant as a woman. The findings of the United Nations Special rapporteur on violence against women (…) only support the impression that the authorities do not fully appreciate the seriousness and extent of the problem of domestic violence in Moldova and its discriminatory effect on women.’ (Eremia, para. 89; Mudriç, para. 63; T.M. & C.M., para. 62)
It is in that respect interesting to see that the Court in M.G. relies solely on its findings in its former Turkish domestic violence cases for establishing this discriminatory climate.
Violence against women
What is moreover significant in M.G. is that the Court speaks purposefully on various occasions of ‘violence against women’. It, for example, highlights in its discussion of the alleged violation of article 14 that:
‘(E)n outre que l’article 3 de la Convention d’Istanbul estime que le « terme ’violence à l’égard des femmes’ doit être compris comme une violation des droits de l’homme et une forme de discrimination à l’égard des femmes (droit international pertinent, paragraphe 54 ci-dessus).’ (para. 116)
Unlike Civek, the Court does not observe that domestic violence also affects men (Civek, para. 50), but instead finds, for instance, that it had already established in Opuz that domestic violence mainly affects women. (M.G., para. 96). Hence without further ado it classifies the experiences of M.G. as gender-based.
The Istanbul Convention
By the same token, it is noteworthy that the Court explicitly refers to the Istanbul Convention in its reasoning on various occasions. It is the first time that it does so and may signal a future cross-pollination of the Court and GREVIO (the monitoring body of the Istanbul Convention) and their respective instruments. This would be a welcome development. Although GREVIO can take the work of the Court into consideration when monitoring the implementation of the Istanbul Convention (see article 68 (8) Istanbul Convention), it is not clear if and to what extent the Court can and will make use of the Istanbul Convention (and GREVIO’s reports).
Considering that GREVIO does not have the possibility to examine individual complaints, it would be a welcome addition to the monitoring possibilities of the Istanbul Convention if the Court takes obligations of the latter into consideration when examining complaints of violence against women. But even more importantly, cross-pollination would provide the Court with expert knowledge on the topic of violence against women and its gendered nature, which may ensure a fully gender-sensitive approach to inter alia domestic violence cases. It is too early to cheer though, as it remains to be seen whether the Court will also refer to the Istanbul Convention in cases of violence against women that do not concern states parties to that convention.
Back on track
It appears that with M.G., the Court is back on track as far as acknowledging the gendered nature of domestic violence is concerned. There is certainly still room for improvement, as the Court – also in this case – does not address the obligation for states parties to address systemic discrimination against women and its accompanying harmful gender stereotypes as a root cause of domestic violence. Yet it does (once again) acknowledge that domestic violence is a form of violence against women and in that sense gender-based, stemming from a broader discriminatory climate. There is therefore every reason to believe that last month judgment in Civek was a one-time-mishap. Rejoice!
(*) LL.M., Ph.D., human rights researcher, and lecturer.
 The Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence that was adopted in 2011 and entered into force in 2014.
 Notably, it did guarantee such measures in cases of violence within marriage.
 The section in the judgment on domestic practice does refer to a Human Rights Watch report. This report is not mentioned by the Court in its reasoning regarding the general discriminatory climate but it is mentioned in regards to the domestic law at the time, which did not guarantee protective measures. The Court concluded that this was evidence of the applicant’s statements regarding that law.
 In Civek v. Turkey the judgment referred to the Istanbul Convention only in its section on ‘relevant law and practice,’ as Turkey is a state party to this Convention.
 Turkey ratified the Istanbul Convention in 2012.