SECOND SECTION

Application no. 63034/11 Halime KILIÇ against Turkey lodged on 5 August 2011

STATEMENT OF FACTS

The applicant, Ms Halime Kılıç , is a Turkish national, who was born in 1940 and lives in Diyarbakır . She is represented before the Court by Ms M. Nergiz , a lawyer practising in Diyarbakır .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant ’ s daughter, F.B., married S.B. in 1991. They had seven children, born in 1993, 1994, 1997, 1999, 2001, 2005 and 2006. The applicant ’ s daughter was subjected to domestic violence for many years. S.B. often ill-treated her under the influence of drugs and alcohol. Nevertheless, fearing the risk of further ill-treatment, F.B. always refrained from filing a complaint with the public prosecutor.

1. First complaint by the applicant ’ s daughter

Following repeated acts of violence against her and her children, on 16 July 2008 F.B. lodged a criminal complaint with the Diyarbakır public prosecutor. She explained that over the last three days, her husband, under the influence of alcohol, had been beating her and her children, and threatening her with death. F.B. stated that she had left home and gone to live with her parents as she feared further ill-treatment. She also asked for protection under Law no. 4320, stating that her life was at risk.

On 17 July 2008 the applicant ’ s daughter was examined by a doctor from the Diyarbakır Forensic Institution, who noted the presence of several bruises on her left zygomatic bone (cheekbone), mandible (jawbone), left lumbar region and on the exterior part of her left arm, measuring 2 to 20 cm respectively. It was further stated that these injuries were not life ‑ threatening.

On 18 July 2008 the Diyarbakır Family Court delivered a restraining order pursuant to Law no. 4320 and ordered that S.B. should not engage in violent or threatening behaviour towards his spouse, should leave the shared home and relinquish it to his spouse, that he should not approach the house in which his spouse was living or her workplace, that he should not disturb his spouse by way of communication devices, that he should not arrive at the home or workplace of his spouse under the influence of alcohol or other intoxicating substances. The court further decided that the above-mentioned restrictions should be applied for a period of six months and that S.B. should be warned that in case of failure to comply with the measures imposed, he would face imprisonment.

On 24 July 2008 F.B. ’ s statement was taken once again, regarding the same incident, at the police station. In her statement, F.B. repeated her allegations and complained that her husband had been ill-treating her since the beginning of their marriage. She asked to have a restraining order and repeated once again that she feared for her life. She also stated that she had not been admitted to the women ’ s shelter as she had seven children.

On the same day, the police also heard from the applicant and F.B. ’ s sisters, Sı.K . and Sa.K . The applicant stated that S.B. had been ill-treating her daughter for almost sixteen years. She submitted that under the influence of alcohol S.B. had sometimes cut himself with a razor, and ill ‑ treated F.B. and the children. She also stated that she feared for her daughter ’ s life. Sı.K . explained that her brother-in-law had been beating her sister with wet towels and that she had seen the bruises on F.B. on many occasions. Finally, Sa.K . also stated that she also had seen bruises on her sister ’ s body many times.

On 25 July 2008 S.B. was heard by the police. He stated that F.B. suffered from diabetes and fell down frequently. He denied beating her, and stated that the bruises on her body were the result of these falls. He maintained that he loved his wife, but was very jealous and did not want her to go out of the house. According to him, his wife was acting under the influence of her mother, who was trying to get them divorced to obtain pension. He admitted that he had been drinking, but stated that he would quit.

On 7 October 2008 the Diyarbakır Public Prosecutor initiated criminal proceedings against S.B., accusing him of minor bodily harm pursuant to Article 86 of the Criminal Code.

2. Second complaint by the applicant ’ s daughter

On 26 July 2008, as F.B. and her two sisters were leaving the court house, they were attacked by S.B., who threatened F.B. with death. After the incident, F.B. was taken to the emergency clinic at the Diyarbakır Research and Teaching Hospital. According to the medical report, she had oedema and redness, measuring 3 to 4 cm, on the exterior part of her right arm.

In their police statements F.B. ’ s sisters explained that as they were leaving the court house, S.B. had approached them and threatened to kill himself by cutting his throat with a razor that he had taken out of his pocket. He then attacked them. Fearing that he would get more violent, F.B. interfered and S.B. hit her too. In her statement, F.B. also made a similar submission.

On 14 August 2008 the Diyarbakır Public Prosecutor initiated an investigation into the incident.

Upon the request of the public prosecutor, on 18 August 2008 the Diyarbakır Family Court delivered a restraining order, bearing the same terms as the previous one, delivered on 18 July 2008.

3. Third complaint by the applicant ’ s daughter

On 9 October 2008 at 11 p.m. S.B. came to the applicant ’ s house, where F.B. and her children were staying. He started beating F.B. and threatened to kill her with a knife. The family called the police, and when the police arrived S.B. resisted the officers, hit his head on the walls and tried to cut his own throat with a knife. The police had to use force to arrest him and he was taken into custody for violating the restraining order. While he was in custody, he continued his threats against F.B. and stated that he was determined to go back to the applicant ’ s house and that he did not mind the consequences. He also stated that he would kill himself.

On the same day, F.B. gave a statement to the police. She explained once again that S.B. had been ill-treating her for many years and that she had obtained a restraining order from the Family Court. However, he did not comply with the orders and continued harassing her and her children. That evening, he had come to her parents ’ home, started shouting and threatened to kill her with a knife. She stated that she feared for her life. When asked if she wanted to go to a women ’ s shelter, she refused, stating that she would not leave her seven children behind.

Subsequently, F.B. underwent a medical check at the Diyarbakır Teaching and Research Hospital. The medical report indicated that she had bruises and redness on her right elbow, caused by a blunt object.

A medical report dated 9 October 2008 revealed that the alcohol level in in S.B. ’ s blood was 1 ,39 promille .

S.B. was subsequently heard by the public prosecutor and the investigating judge. In his submissions, he denied the allegations and stated that he had gone to the applicant ’ s house to convince F.B. to return home. According to him, a fight had broken out. He also said that he had the right to shout at his wife. When asked about the medical report issued in respect of F.B., he said that during the fight he had twisted her elbow. Despite the public prosecutor ’ s request to remand him in custody, the investigating judge ordered S.B. ’ s release.

Further to this incident, the public prosecutor requested the Family Court to issue a restraining order and consequently on 13 October 2008 t he Diyarbakır Family Court delivered a third restraining order, bearing the same terms as the previous one s .

4. Further events

On an unspecified date in October 2008, the applicant ’ s daughter initiated divorce proceedings against S.B.

On 20 October 2008 the applicant ’ s daughter filed a further complaint with the public prosecutor and stated that she fea r ed that her life was in danger and she requested protection.

On 7 November 2008 S.B. shot F.B in front of their house. He then killed himself.

On 30 December 2008 the Diyarbakır Magistrates ’ Court dropped the case against S.B., noting that he had died on 7 December 2008.

Following the death of her daughter, on 13 January 2009 the applicant filed a criminal complaint with the public prosecutor ’ s office and stated that the State had failed in its duty to protect her daughter ’ s right to life. In her petition she referred to the relevant Articles of the Convention and to the conclusions of the Court in the case of Opuz v. Turkey (no. 33401/02, ECHR 2009).

On 2 February 2011 the Diyarbakır public prosecutor, without giving a detailed reasoning , decided not to initiate proceedings .

On 3 February 2011 the applicant appealed .

On 4 April 2011 the Siverek Assize Court rejected the applicant ’ s appeal.

B. Relevant domestic law and practice

A description of the relevant domestic law as well as international and comparative law may be found in the case of Opuz , cited above , (§ § 72 ‑ 106).

COMPLAINTS

The applicant claimed that the domestic authorities had failed to safeguard the right to life of her daughter, who had been shot and killed by her husband. She stated that domestic violence was tolerated by the authorities and the protective measures foreseen by Law no. 4320 remained ineffective. She pointed out in this respect that although three separate restraint orders had been delivered by the Family Court, the authorities had failed in securing their execution. Despite several requests to be provided with protection, the authorities had rejected her daughter ’ s requests and had not admitted her to a women ’ s shelter because she had seven children. The applicant further stated that following the death of her daughter, no effective investigation had been carried out. In this connection, the applicant relied on Articles 2, 3, 6 and 13 of the Convention.

She also complained that her daughter had been discriminated against on account of her gender in violation of Article 14, taken in conjunction with Articles 2 and 3. In this respect, she stated that the respondent State had failed in protecting women from domestic violence.

QUESTIONS TO THE PARTIES

1. Has the applicant exhausted all effective domestic remedies and complied with the six-month time-limit as required by Article 35 § 1 of the Convention?

2. Has there been a violation of Article 2 of the Convention in the present case? In particular, given the fact that the authorities were aware of the danger posed by the applicant ’ s son-in-law, did they comply with their positive obligation to take all necessary steps to protect the rights of the applicant ’ s daughter, as required by Article 2 of the Convention?

3. Having regard to the procedural oblig ation of the right to life (see Salman v. Turkey [GC], no. 21986/93, § 104, ECHR 2000 ‑ VII), was the investigation in the present case by the domestic authorities in breach of Article 2 of the Convention?

4. Did the applicant have at her disposal an effective domestic remedy for her grievances raised under Article 2, as required by Article 13 of the Convention?

5. Was the alleged lack of protection of women against domestic violence, as demonstrated in the present case, in breach of Article 14 of the Convention, in conjunction with Article 2?

The Government are requested to send a full copy of the investigation file.