Press Release No: Individual Application 86/21

Press Release concerning the Judgment Finding a Violation of the Obligations to Protect Life and Conduct an Effective Investigation

On 29 September 2021, the Plenary of the Constitutional Court found a violation of the obligation to protect life and conduct an effective investigation, safeguarded by Article 17 of the Constitution, regarding the process whereby the public officers were investigated in the individual application lodged by T.A. (no. 2017/32972).

The Facts

The applicant’s daughter S.E. divorced her husband V.A. in 2013. At the end of the divorce proceedings, the family court held that the custody of the joint child would be entrusted to the mother, and that the child would see the father weekends. However, V.A. disturbed S.E. many times through communication devices and by getting closer to her, visiting her workplace and home, and threatened to kill her as well as insulting her, during both the divorce proceedings and the process after the divorce decision was issued. After each incident, S.E. filed a criminal complaint with the police against V.A., stating that she was in fear of her life. The police took preventive and protective measures, including the one prescribing that V.A. would not get closer than 100 meters to S.E., in accordance with the Law no. 6284 on Protecting Family and Preventing Violence against Women, and submitted them to the judge for approval. Although the family court ordered injunctions in favour of S.E., whereby V.A. was also prohibited to get closer to S.E., the last injunction ordered against V.A. in the form of a restraining order was not served on him who was the only addressee of the said decision. It is also unclear whether the previous injunction had been communicated to V.A.

Subsequently, an action was brought against V.A. for insult and threat, the hearing of which was held before the magistrates’ court. However, V.A. did not attend the hearing despite the proper service of summons, and therefore he was ordered to be brought before the court by force. At the hearing, S.E. also claimed that she was in fear of her life, that V.A. did not comply with the injunction and that his relationship with the joint child should be terminated. In this sense, reiterating her aforementioned requests, S.E. filed a complaint with the chief public prosecutor’s office for an action to be taken. She enclosed the transcript of messages sent by V.A. to her petition.

On 15 November 2013, when the last injunction expired, S.E. was killed by her ex-husband V.A. during the delivery of the joint child to the latter. The incumbent assize court, relying on the indictment issued by the chief public prosecutor’s office, sentenced V.A. to life imprisonment for intentional killing, which was subsequently reduced to 25 years’ imprisonment. The court sentenced V.A. to imprisonment also for other imputed offences. The decision was upheld by the Court of Cassation. The applicant’s complaint against the relevant public officers was dismissed by the incumbent public authorities and the regional administrative court.

The Applicant’s Allegations

The applicant claimed that the right to life had been violated due to the death of her daughter for the public authorities’ failure to effectively implement the protective and preventive measures ordered so as to prevent the violence against women and lack of a criminal investigation against the public officers being negligent in the incident.

The Court’s Assessment

In its many previous applications, the Court has examined whether the legislative infrastructure for the protection of victims of violence or those who face the risk of violence has been sufficient in terms of complaints concerning the violence against women. As also stated in these decisions, for the purposes of adopting an effective and immediate method to protect the family and to prevent violence against women, and affording an immediate protection to the person exposed to violence or who faces such a risk, Law no. 6284 and the relevant regulation issued in accordance with this Law have been put into practice in accordance with the standards set forth by the international conventions to which Turkey is a party.

It has been observed that Law no. 6284 sets forth relevant principles and procedures as well as sanctions with respect to measures to be taken for the protection of women, children and family members exposed to or potentially exposed to violence and prevention of violence against these persons. In addition, administrative units such as the Violence Prevention and Monitoring Centre (“the Centre”) have been established through Law no. 6284 for the purpose of preventing violence against women. Accordingly, it has been understood that the necessary legal infrastructure has been established within the framework of the State's obligation to afford protection, and that the legal system set up to protect those who are, or who face the risk of being, exposed to violence is adequate.

In the circumstances of the case, it appears that V.A. had constantly disturbed S.E. through communication devices (voice calls, text messages) or by getting closer to her, insulted and threatened her, and that several incidents had occurred between the parties within a short period of time (about 6 months). During the period elapsing from S.E.'s divorce to her death, a number of injunctions were ordered in her favour, the last of which was to prevent her husband from getting closer her.

Accordingly, in consideration of the fact that serious complaints had constantly been made to the police and judicial authorities on account of the said incidents and that the injunctions had been notified every time to the Centre that was responsible for monitoring the process, it is obvious beyond any doubt that the public authorities, which were responsible/authorized for the prevention of violence against women and needed to act in cooperation/coordination with each other, were indeed aware of the imminent and real risk to S.E.’s life, as well as they were in a position to predict any attack that would have serious life-threatening consequences.

It has been clearly observed in view of the process resulting in the murder of S.E. that the injunction ordered following the last incident, which was a restraining order, was not served on V.A., that in spite of the alleged failure to comply with the injunction, the imposition of forced imprisonment was never considered, that the Centre never contacted S.E. to provide support services for the prevention of violence, and that the incumbent public authorities, who had the opportunity, even in the absence of evidence, to order an ex officio injunction and submit it to the competent authority for approval, made no attempt to take these steps in order to prevent violence, nor did they properly follow the injunctions already ordered.

In consideration of the fact that S.E. was killed during the delivery of the joint child to V.A., the public authorities’ failure to make an evaluation regarding the delivery of the joint child or the child’s meeting with the father also constituted another serious negligence pointing to the authorities’ failure to take the necessary measures to prevent the life-threatening situation and to implement Law no. 6284 in an effective and practical manner.

As a result, the public authorities cannot be said to have effectively exercised the public power entrusted to them, which was based on the legal/institutional infrastructure, in accordance with their obligation to protect life pursuant to Law no. 6284 and the relevant legislation. In other words, it is clear that public authorities failed to take and implement the necessary measures to protect the life of S.E.

Besides, in the present case, the relevant units did not grant a leave for investigation against the responsible public officers, which was also deemed appropriate by the appellate authorities. The procedure whereby a leave is sought for an investigation against the responsible public officers should not be applied in a way giving the impression that it will hinder the effective conduct of investigation or that the public officers are exempted from criminal investigation. In order for the prevention of similar incidents, it is also of importance that those responsible for minimising the risks to the life and physical integrity of individuals and for taking the necessary measures be identified and the State show a deterrent judicial reaction to the responsibilities established.

Consequently, the Court has found a violation of the right to life insofar as it relates to the obligations to protect life and conduct an effective investigation.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.