Failure to act with due diligence to prevent domestic violence-related death a violation of CEDAW (Fatma Yildirim (deceased) v. Austria)

Sarah Dobinson summarises the 2007 decision of the Committee on the Elimination of Discrimination against Women in Fatma Yildirim (deceased) v. Austria.

The deceased victim, Fatma Yildirim, an Austrian national of Turkish decent, was reportedly abused and threatened with physical violence and death by her husband, Irfan Yildirim, for a period of three months, culminating in him fatally stabbing her on 11 September 2003.

Irfan first threatened to kill Fatma in July 2003.  The couple argued frequently and Fatma wanted a divorce, but Irfan threatened to kill her and her children (from another marriage) if she divorced him.  His residency permit was dependent on him staying married to Fatma. 

Fatma left the couple’s apartment on 4 August with her 5-year-old daughter for fear of their safety.  Upon returning to collect personal belongings, Irfan assaulted her and threatened to kill her.  Fatma reported the incident to the police, who issued an expulsion and prohibition to return order against Irfan on the apartment, and reported the incident to the Vienna Intervention Centre against Domestic Violence (‘Vienna Intervention Centre’).  The police also informed the Public Prosecutor and requested that Irfan be detained.  The request was rejected.

On 8 August, Fatma applied for an interim injunction against Irfan.  Over the next 4 days Irfan repeatedly went to Fatma’s workplace and called her to harass her and make death threats against her and her children.  Each incident was reported to the police.  On these occasions the police spoke with Irfan either in person or by phone but did nothing more.  The Vienna Intervention Centre asked the police to pay closer attention to the case and Fatma gave a formal statement.  A police request was again made to the Public Prosecutor for Irfan to be detained, and was again refused.

Fatma then filed a petition for divorce.  As a result, an interim injunction was issued on 1 September forbidding Irfan from going to the apartment or Fatma’s workplace and their surrounds, and from contacting her.  On 11 September, Irfan followed Fatma home from work and fatally stabbed her near their apartment.  He was arrested on 19 September while trying to enter Bulgaria and is serving a life sentence for Fatma’s murder. 

The Vienna Intervention Centre and the Association for Women’s Access to Justice submitted a communication to the Committee on the Elimination of Discrimination against Women on behalf of their client Fatma Yildirim with her children’s permission.  They alleged that Austria had violated articles 1, 2, 3 and 5 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) as the State failed to take appropriate positive measures to protect Fatma’s right to life and personal security.  In particular, the authors highlighted the failure in communications between the police and the Public Prosecutor, and the failures of the Public Prosecutor to order Irfan’s detention.  They also contended that the State had failed to fulfil its obligations in General Recommendations No.’s 12, 19 and 21, and argued that the failures of the current methods of addressing domestic violence in Austria disproportionately affect women.

Austria’s observations on admissibility

The State Party contested the admissibility of the communication, arguing that domestic remedies had not been exhausted, as required by article 4(1) of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (Optional Protocol).

They highlighted liability claims filed by Fatma’s youngest daughter, which were decided after the communication was submitted.  In response to the author’s argument that the law regulating the Public Prosecutor’s ability to detain alleged offenders fails both in its application, and in its failure to provide for complaints against decisions not to detain, the State Party argued that Fatma could have brought a case before the Constitutional Court to contend the validity of this law.  They also argued that her heirs could do so now in an attempt to change the relevant law.

CEDAW Committee’s decision on admissibility

The CEDAW Committee declared the communication admissible under the Optional Protocol.

In response to the State Party’s argument that Fatma should have sought a constitutional remedy, the Committee made clear that this “could not be regarded as a remedy which was likely to bring effective relief to a woman whose life was under a dangerous criminal threat.”  They also found that the abstract nature of this domestic remedy was unlikely to bring effective relief if Fatma’s descendants brought such a case.

As to the liability proceedings pursued by Fatma’s daughter, the Committee asserted its ability to review admissibility decisions relating to the exhaustion of domestic remedies as they stand at the time of consideration, as apposed to at the time of submission.  In so doing, the Committee did not need to address the author’s argument that, even if successful, a liability claim could not be regarded as an effective domestic remedy in this type of case, as it focussed on the heir and not the victim, and compensated for the State’s negligence rather than ensuring protection of the victim’s life.

Austria’s observations on the merits

Austria argued that Fatma’s rights under CEDAW had not been violated.  The State Party argued that the decisions of the Public Prosecutor had to be made using a proportionality assessment, weighing the basic right to life and physical integrity of Fatma with the basic right to freedom of Irfan, and that in light of the facts they were justifiable.  They also highlighted the legislative and other measures in place and argued that these ‘adequately and effectively’ address domestic violence in Austria.

CEDAW Committee’s views

The CEDAW Committee concluded that Austria had violated its obligations under articles 2(a), (c) through (f) and 3 of CEDAW, read in conjunction with article 1 and General Recommendation No. 19 (violence against women) through its failure to protect Fatma’s right to life and to physical and mental integrity.  Recalling General Recommendation No. 19, the Committee affirmed that States can be held accountable for the private acts of non-State actors if “they fail to act with due diligence to prevent violations of rights.”  The fact that Irfan was prosecuted to the full extent of the law did not prevent the failure to detain him prior to the murder from constituting a breach of the State Party’s due diligence obligation.

Noting that Austria had in place a comprehensive model to address domestic violence, the Committee stressed that this alone was insufficient to comply with CEDAW, as

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 [model]…must be supported by State actors, who adhere to the State party’s due diligence obligations. 

The Committee noted that the facts showed that Fatma had made positive and determined attempts to save her own life and sever ties with Irfan and that the Austrian authorities knew, or should have known, that she was in serious danger.  As such, the failure to detain Irfan was a breach of the State’s due diligence obligation.  The Committee emphasised the fact that in cases of violence against women, “the perpetrators rights cannot supersede women’s rights to life and physical and mental integrity.”

Recommendations

Among the recommendations made, the Committee called on Austria to strengthen the implementation and monitoring of relevant law and ensure that the available criminal and civil remedies are employed vigilantly and quickly in cases of domestic violence where the perpetrator poses a dangerous threat. 

Communication No. 6/2005, UN Doc. CEDAW/C/39/D/6/2005 (1 October 2007)

Decision

Case Comments (Byrnes and Bath)

Sarah Dobinson is a student of the Juris Doctor of Law at the University of New South Wales and a current intern at the Australian Human Rights Centre.

This summary is published as part of the Optional Protocol to CEDAW website – Australian Human Rights Centre partnership.

AHRC

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