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

Antonia Ross summarises the 2007 decision of the Committee on the Elimination of Discrimination against Women (CEDAW Committee) in Şahide Goekce v. Austria

Şahide Goekce (Şahide), an Austrian national of Turkish origin, lived with her husband, Mustafa Goekce (Mustafa), and their two daughters, in Austria.  Mustafa subjected Şahide to physical violence, taunting and death threats for over three years, before fatally shooting her on 7 December 2002. 

The first reported case of violence by Mustafa against Şahide took place in December 1999, when Mustafa allegedly choked and threatened to kill Şahide.  Police were called to the family apartment several times between 2000 and 2002 in response to reports of disturbances, disputes and/or battering.  During this period, Mustafa was issued with two expulsion and prohibition to return orders and an interim injunction order.  It is alleged that police were informed that Mustafa had breached the interim injunction order and that he was in possession of a handgun, despite being subject to a weapons prohibition.  On two occasions the police requested that Mustafa be detained for making a criminally dangerous threat (a death threat) and assaulting Şahide.  These requests were denied by the Police Prosecutor.  It appears that no explanation was provided at the time for the refusal.

On 5 December 2002, the Public Prosecutor stayed all court proceedings against Mustafa.  The Public Prosecutor claimed that there were insufficient reasons to prosecute Mustafa for causing bodily harm and making criminally dangerous threats.

On 7 December 2002, Şahide phoned a police emergency call service but no police officer was sent to the apartment in response to the call. Several hours later, Mustafa shot and killed Şahide in the family apartment, in front of their two daughters, with a handgun he had purchased three weeks earlier.  Mustafa surrendered himself to police two-and-a-half hours after committing the crime.

Mustafa was found guilty of murdering Şahide.  Nevertheless, Mustafa was held to have committed the homicide under the influence of a “paranoid jealous psychosis” as Şahide had claimed that Mustafa was not the father of “all of her children,” in an argument that preceded her murder.  The court accepted that the psychosis met the requirements for a defence of mental illness.  On this ground Mustafa was absolved of criminal responsibility.  He is now serving a life sentence in a mental health institution.

The communication was jointly brought before the CEDAW Committee by the Vienna Intervention Centre against Domestic Violence and the Association for Women’s Access to Justice, on behalf of Şahide and with the written consent of the guardian of Şahide’s three minor children, the City of Vienna Office for Youth and Family Affairs.

The authors submitted that Austria failed to protect the deceased from domestic violence because the State Party did not take effective measures to protect Şahide’s right to personal security and life and because it did not recognise Mustafa as an extremely violent and dangerous offender.  The authors claimed that slow and ineffective communication between police and the Public Prosecutor lead to Mustafa avoiding conviction.  Moreover, the authors claimed that Austria’s existing domestic laws do not adequately protect women from violent persons, especially where the offender is repeatedly violent or makes death threats.  The authors claimed that Austria violated articles 1, 2, 3 and 5 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).  They cited several other international instruments in support of their claim, including General Recommendations 12, 19 and 21, the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.

State Party’s observations on admissibility

Austria contested the admissibility of the communication on the ground that Şahide had failed to exhaust domestic remedies, 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).  The State Party pointed out several instances where Şahide did not exhaust domestic remedies, including her failure to request an interim injunction order against Mustafa.  The State Party further submitted that in light of the Public Prosecutor’s decision to drop charges against Mustafa, Şahide had the opportunity to bring an associated protection order against her husband.  The State Party claimed that the deceased had the opportunity to file a complaint regarding the conduct of the responsible Public Prosecutor, at any time, if she was unsatisfied with the officer’s actions.  Finally, the State Party noted that Şahide could have challenged the constitutional validity of denying her the right to appeal the Public Prosecutor’s decision not to issue a warrant for the arrest of Mustafa.  The State Party indicated that this avenue of review could still be open to Şahide’s heirs.  

CEDAW Committee’s decision on admissibility

The CEDAW Committee declared the communication admissible under the Optional Protocol.  Under article 4(1) of the Optional Protocol, the authors were excused from showing that Şahide had exhausted domestic remedies before relying upon CEDAW because the CEDAW Committee determined that no effective remedies existed.  

The CEDAW Committee provided an important discussion on which domestic remedies should be exhausted under article 4(1) of the Optional Protocol.  It noted that in communications denouncing domestic violence, the allegations regarding the obligation of the State Party to exercise due diligence to protect the victimised person “were at the heart of the communication.”  In determining whether domestic remedies had been exhausted, the Committee was obliged to consider the allegations concerning the State Parties’ due diligence obligation to protect.  In this case, the allegations made by the authors related to flaws in domestic law and the alleged misconduct and/or negligence of Austrian authorities.  The CEDAW Committee found that filing an associated protection order and lodging a complaint under the Public Prosecutors Act were too burdensome and would unreasonably prolong proceedings to be considered as effective means of protecting Şahide from Mustafa’s dangerous threats.

State Party’s observations on the merits

In its observation on the merits, Austria submitted that it did not violate CEDAW.

The State Party claimed that an adequate framework was in place to protect Şahide from domestic violence.  It also submitted that a number of steps were taken for Şahide’s protection, but that she rejected help several times, instead blaming her injuries on having epilepsy.  It also alleged that Sahide provided Mustafa with a set of keys to the family apartment. The measures taken by the State Party included; legally banning Mustafa from returning to the family apartment, providing Şahide with information regarding local domestic violence services and informing her of her right to file an application for an interim injunction order against Mustafa.

The State Party submitted that it is difficult to reliably ascertain the true extent of the danger of an offender.  Austria proposed that the Public Prosecutor stayed the prosecution against Mustafa because there was insufficient evidence to know with certainty that Mustafa was guilty of making criminally dangerous threats and that it was unclear which spouse had attacked whom.  According to the State Party, Şahide was unwilling to assist state authorities to prosecute Mustafa.  The State Party further noted that it was aware that Mustafa had a weapons ban against him, but that it was unaware that Mustafa was in possession of a handgun.

CEDAW Committee’s views

The CEDAW Committee found that Austria had violated its obligations under article 2(a) and 2(c) through (f), and article 3 of CEDAW read in conjunction with article 1 and General Recommendation No. 19 (violence against women), by failing to effectively protect Şahide’s right to life and physical and mental integrity.  The CEDAW Committee found that Austria did not violate article 5 of CEDAW, as the authors of the communication had submitted.

The CEDAW Committee stressed that a State Party can be responsible for acts of violence committed by a non-state actor (i.e., a private individual).  A State Party can be liable where it fails to prevent violations of rights, if it does not properly deal with acts of violence or if it does not provide necessary compensation.  A State Party can still be liable even where it has prosecuted a domestic violence offender to the full extent of the law.

The CEDAW Committee recognised that a national domestic violence support system, both legislative and community-based, must be adequately enforced by the State Party.  On the facts, the CEDAW Committee found that Austria’s comprehensive state services and legislative protections from domestic violence were not matched by satisfactory state enforcement.  The CEDAW Committee concluded that the Public Prosecutor was aware of the high risk of violence that Mustafa posed to Şahide and was therefore under an obligation to detain Mustafa following his acts of violence.  Further, by not responding to the emergency call from Şahide, the CEDAW Committee found that the police were “accountable for failing to exercise due diligence to protect Şahide Goekce.”  In the context of domestic violence, the CEDAW Committee recognised that “a person’s right to freedom of movement and right to a fair trial…cannot supersede a woman’s human right to life and to physical and mental integrity.”

Recommendations

The CEDAW Committee made several recommendations, including that the State Party strengthen its implementation and monitoring of relevant domestic laws and ensure that criminal and civil remedies are vigilantly and speedily applied for the protection of persons experiencing domestic violence.

Communication No. 5/2005, UN Doc. CEDAW/C/39/D/5/2005 

Decision

Case comment (Byrnes and Bath)

See also Fatima Yildirim (deceased) v. Austria (decision and summary

Antonia Ross is a combined Bachelor of Law / International Studies student at the University of New South Wales

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

AHRC

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