Women and Justice: Court: European Court of Human Rights

International Case Law

Korneykova and Korneykov v. Ukraine European Court of Human Rights (2016)

Abortion and reproductive health rights, Custodial violence

The first applicant, a woman in her fifth month of pregnancy, was taken into police custody on suspicion of robbery and subsequently detained pending trial.  The woman gave birth to her son, the second applicant, while in detention.  The woman claimed that she had been shackled to bed during her stay in the maternity hospital, placed in a metal cage during court hearings before and after giving birth, and that the physical conditions of her and her child’s detention and the medical care provided to the child in pre-trial detention had been inadequate.  The Court considered that shackling to a gynecological examination chair before and after birth giving on the basis that she could escape or behave violently was unjustified, inhuman and degrading given the woman’s condition, and that holding a person in a metal cage during a trial constituted an affront to human dignity. The Court also held that keeping the woman’s son in detention without any monitoring by a pediatrician for almost three months following his birth and without adequate healthcare constituted a violation of his rights.

Garnaga v. Ukraine European Court of Human Rights (2013)

Gender discrimination, International law

The applicant requested Ukrainian authorities to change her patronymic to the one derived from her stepfather’s name and was refused because local legislation allowed a citizen to change the patronymic only in the event of a change of his/her father’s name.  At the same time, the applicant successfully changed her surname to the surname of her stepfather.  The Court held that given that the Ukrainian legislation recognizes the right of the individual to change his/her name and the procedure of changing names is flexible, the denial on changing the patronymic was not sufficiently justified.  Furthermore, the court held that the authorities had not secured the applicant’s right to respect for her private life as no reasons had been given by the Ukrainian authorities for denying the applicant her right to decide an important aspect of her private and family life and no such justification had otherwise been established.

Y. v. Slovenia European Court of Human Rights (2015)

International law, Sexual violence and rape, Statutory rape or defilement

Applicant is a citizen of Ukraine who came to Slovenia as a teenager with her family.  Applicant alleged that when she was 14 a family friend repeatedly sexually assaulted her.  The police investigated and an expert in gynecology examined the applicant.  After complaints and a letter from the State Prosecutor’s Office to the local police a criminal complaint was issued.  The ensuing investigation and trial extended over a period of eight years.  During that time the defendant was allowed to repeatedly cross examine the applicant.  Moreover, a lawyer with whom the applicant had shared confidential information about the case was allowed to represent the defendant.  The defendant was acquitted, the applicant was referred to civil court for damages, and the applicant received a settlement from the government for the undue delays in the proceedings.  The Court found that Slovenia violated the European Convention of Human Rights in two ways.  Slovenia violated Article 3 when it failed to promptly investigate and prosecute the complaint of sexual abuse.  Furthermore, Slovenia violated Article 8 because it failed to sufficiently protect the applicant’s personal integrity and privacy in the proceedings.

Case of W. v. Slovenia European Court of Human Rights (2014)

International law, Sexual violence and rape

In 1990 at age 18, W. was raped by a group of seven men.  Three other men aided and abetted the rape.  Seven months later, the court acquitted the men of all charges, finding that the victim had not “seriously resisted sexual intercourse.”  The Public Prosecutor appealed the judgement and in 1991, a year after the assault, the appellate court overturned the acquittal.  The Slovenian authorities attempted to locate the perpetrators, but two defendants had emigrated to Austria and could not be found.  Between 1995 and 2001, the victim wrote eight letters to the court urging the proceedings to continue and five hearings were adjourned for failure of some of the defendants to appear.  Various excuses, such as frequent changes in the presiding judges, were offered to the victim as excuses for the stalled proceedings.  Finally, in May 2001, the authorities issued an international arrest warrant for the defendants located abroad.  In June 2002, six defendants were found guilty of rape and aggravated rape.  However, due to the passage of time, they were only sentenced to eight months to one year of prison.  The last defendant was extradited in 2004, convicted of aiding and abetting the rape, and sentenced to eight months in prison.  The victim received €5,000 from the Slovenian government in recognition of delay in prosecuting the defendants; however, the European Court of Human Rights (ECtHR) found that this amount (while the statutory maximum in Slovenia) was insufficient redress.  The ECtHR noted that Slovenian authorities failed to proceed with the case in a diligent manner and that the defendants received prison sentences of less than the minimum sentences prescribed by law.  Thus, the domestic authorities failed to comply with their obligations under Article 3 of the European Convention of Human Rights.  The ECHR, deciding in equity, awarded the victim €15,000 in addition to the €5,000 she received from the domestic authorities.

Case of Bălşan v. Romania European Court of Human Rights (2017)

Divorce and dissolution of marriage, Domestic and intimate partner violence, International law

Applicant is a Romanian citizen who alleged that her husband had been violent towards her and their children on numerous occasions.  The assaults intensified when the applicant initiated divorce proceedings against her husband.  The applicant’s husband assaulted and threatened her on multiple occasions, for which she required and obtained medical treatment.  She then used her medical records as proof when she lodged formal complaints against her husband at the prosecutor’s office.  She told prosecutors of the incidences of violence and the fact that her husband repeatedly locked her out of their shared residence.  The police did not pursue criminal charges and only imposed an administrative fine, holding that the applicant had provoked the disputes.  A similar pattern of abuse, medical attention, and contact with the authorities occurred over a period of months.  The applicant brought the case to the European Court of Human Rights alleging that the State “had failed to protect her from domestic violence and to hold the perpetrator accountable.”  The Court found that there were violations of Article 3 and Article 14 of the European Convention on Human Rights, which forbid torture and discrimination, respectively.  The Court found that the authorities were aware of the violence against the applicant, and thus they had an obligation to act on the complaints.  The applicant exhausted domestic avenues, but without success.  The state’s responses did not comply with international standards about required state action to violence against women and domestic violence. (Available in English, Romanian, and Croatian. English version is official.)

TUNCER GÜNEŞ v. TURKEY European Court of Human Rights (2013)

Gender discrimination

The applicant, Gülizar Tuncer Güne?, is a Turkish national who was born in 1966 and lives in Istanbul (Turkey). The case concerned her complaint that she had not been allowed to keep just her maiden name after her marriage in March 2005. She claimed in particular that the fact that Turkish law allowed married men but not married women to use only their own surname after marriage amounted to discrimination based on sex. She relied in particular on Article 8 (right to respect for private and family life) and Article 14 (prohibition of discrimination) of the Convention.

Boso v. Italy European Court of Human Rights (2002)

Gender discrimination

In 1984, Ms. Boso, an Italian citizen who is married, decided to have an abortion despite her husband’s opposition. Mr. Boso initiated a suit against his wife claiming that the termination deprived the unborn child of its right to life. He also challenged the constitutionality of Italian legislation which provided that women could unilaterally decide whether to have an abortion. The European Court of Human Rights dismissed the complaint which alleged that the termination of a pregnancy by the applicant´s wife violated the right to life under the Convention and also his rights under Articles 8 and 12 of the Convention. The Constitutional Court dismissed the complaint on the grounds that the decision to grant the mother full responsibility was logical given the effects of pregnancy, both physical and mental, on the pregnant woman. Mr. Boso’s appeal to the Venice District Court alleging violations of Article 2, 8 and 12 of the Convention was also dismissed. The applicant’s final appeal to the Court of Cassation, again on constitutional and convention grounds, was similarly dismissed.

Seferovic v. Italy European Court of Human Rights (2011)

Custodial violence

The detention pending deportation of a woman who had recently given birth found to be unlawful and violated Article 5 § 1 (f) and Article 5 § 5 (right to liberty and security) of the European Convention on Human Rights. In September 2000, the applicant, a woman from Bosnia and Herzegovina, applied to the Italian authorities for refugee status. The application was not forwarded to the competent commission because it contained formal defects. On September 26, 2003 the applicant gave birth to a child, who died a few days later at the hospital. Then, on November 11, 2003 the police served her with a deportation order and transferred her to a holding center pending such deportation that the applicant's placement and detention had been in breach of Italian immigration law no. 286 of 1998, which provided that her deportation should have been suspended until six months after she had given birth (March 26, 2004), regardless of the fact that the baby had died. In March 2006, the Rome Civil Court granted Ms Seferovic refugee status. In addition, by way of just satisfaction, the government was required to pay the applicant 7,500 euros (EUR) for non-pecuniary damage for her unlawful detention as there was no redress available under Italian law.

International Planned Parenthood Federation – European Network (“IPPF EN”) v. Italy European Court of Human Rights (2013)

Gender discrimination

Italian government’s failure to take measures to ameliorate the less favorable treatment suffered by women falling into certain vulnerable categories with respect to access to abortion services was a violation of Article E (prohibition of direct and indirect discrimination) of the Revised European Social Charter (the “Charter”) in conjunction with Article 11 (right to protection of health) of the Charter. IPPF EN complaint stated that the high number of medical personnel electing to be conscientious objectors resulted in the violation of the rights of women to have access to procedures for the termination of pregnancy, thus violating their right to protection of health. Committee finds that certain categories of women in Italy are subject to discrimination in the form of impeded access to lawful abortion facilities as a combined effect of their gender, health status, territorial location and socio-economic status. Committee finds that Italian authorities should have adopted the necessary measures to compensate for deficiencies in service provisions caused by health personnel choosing to exercise their right to conscientious objection to performing abortions.

The Case of Yazgül Ylmaz v. Turkey European Court of Human Rights (2011)

Custodial violence

In this case the applicant complained that, at the age of 16, she was sexually harassed while in police detention. She was given a gynecological examination – unaccompanied and without her or her guardian’s consent – to verify whether her hymen had been broken. After being acquitted and released, she suffered from post-traumatic stress and depression. Her allegations of assault in custody were largely corroborated by subsequent medical examinations. No disciplinary proceedings were brought against the prison doctors concerned. The European Court of Human Rights noted that that the law at that time did not provide the necessary safeguards concerning examinations of female detainees and that additional guarantees were required for gynecological examinations, particularly for minors. The general practice of automatic gynecological examinations for female detainees – supposed to prevent false sexual assault accusations against police officers – was not in the interests of detained women and had no medical justification. The applicant had complained of sexual harassment, not rape, which could not be disproved by an examination of her hymen. The Court noted that the new Turkish Code of Criminal Procedure regulated gynecological examinations, but made no specific provision for minors. It held that there had been a violation of Article 3 of the European Convention on Human Rights (prohibition of inhuman treatment) concerning both the gynecological examinations of the applicant while in police custody and the inadequate investigation concerning those responsible.

The Case of Durmaz v. Turkey European Court of Human Rights (2015)

Domestic and intimate partner violence

The applicant, Ümran Durmaz, is a Turkish national who was born in 1955 and lives in ?zmir, Turkey. The case concerned her complaint of the authorities’ failure to carry out an effective investigation into the death of her daughter. Ms Durmaz’ daughter, Gülperi O., died in July 2005 in a hospital in ?zmir – where she had been working as a nurse – after her husband had taken her to the emergency department, informing the doctors that she had taken an overdose of two medicines. The doctors pumped her stomach but were unable to save her. When questioned by the police, her husband, who worked at the hospital’s pharmacy, also stated that the couple had had a row on the same day and he had hit her. Gülperi O.’s father subsequently lodged a complaint with the prosecutor, stating that she had not been suicidal, and alleging that her husband was responsible for her death. In the course of the ensuing investigation, a forensic medical examination found no trace of medicines or other drugs in Gülperi O.’s blood or in other samples taken from her body, but it noted that there was an advanced oedema in her lungs. In February 2006, the prosecutor decided to close the investigation, concluding that Gülperi O. had committed suicide. An objection by Ms Durmaz – stating, in particular, that the prosecutor had failed to question her late daughter’s husband, despite the fact that by his own admission he had beaten her, and that the prosecutor’s conclusion ran contrary to the findings of the forensic examination – was dismissed by the courts. Relying in particular on Article 2 (right to life), Ms Durmaz complained that the investigation into the death of her daughter had been ineffective. In particular, further expert reports would have been required, and the prosecutor should have investigated whether the cause of Gülperi O.’s death could have been an internal hemorrhage caused by the blows inflicted by her husband.

The Case of Emel Boyraz v. Turkey European Court of Human Rights (2015)

Employment discrimination

The case concerned a dismissal from public sector employment – a State-run electricity company – on grounds of gender. Ms Boyraz, the applicant, had worked as a security officer for almost three years before being dismissed in March 2004 because she was not a man and had not completed military service. In the Court’s opinion, the mere fact that security officers had to work on night shifts and in rural areas and had to use firearms and physical force under certain conditions had not in itself justified any difference in treatment between men and women. Moreover, the reason for Ms Boyraz’ dismissal had not been her inability to assume such risks or responsibilities, there having been nothing to indicate that she had failed to fulfil her duties, but the decisions of Turkish administrative courts. The Court also considered that the administrative courts had not substantiated the grounds for the requirement that only male staff could be employed as security officers in the branch of the State-run electricity company. The Court therefore concluded that the difference in treatment of which she had been a victim had not pursued a legitimate aim and had amounted to discrimination on grounds of sex. Consequently, there had been a violation of Article 14 in conjunction with Article 8.

The Case of Serife Yigit v. Turkey European Court of Human Rights (2010)

Property and inheritance rights

The applicant, ?erife Yi?it, is a Turkish national who was born in 1954 and lives in Gaziantep, Turkey. In 1976, she married Ömer Koç (Ö.K.) in a religious ceremony (imam nikah?). Ö.K. died on 10 September 2002. The youngest of their six children, Emine, was born in 1990. On 11 September 2003 ?erife Yi?it brought an action, in her own name and that of Emine, seeking to have her marriage with Ö.K. recognised and to have Emine entered in the civil register as his daughter. The District Court allowed the second request but rejected the request concerning the marriage. The applicant further applied to the retirement pension fund (Ba?-Kur) to have Ö.K.’s retirement pension and health-insurance benefits transferred to her and her daughter. The benefits were granted to Emine but not to her mother, on the ground that her marriage to Ö.K. had not been legally recognized. The applicant appealed unsuccessfully against that decision. Relying on Article 8 of the Convention (right to respect for family life), the applicant complained about the Turkish courts’ refusal to transfer her deceased partner’s social-security entitlements to her. In its judgment of 20 January 2009 the Chamber examining the case found that it was not unreasonable for special protection to be afforded only to civil marriages in Turkey, pointing out that marriage remained an institution widely recognized as conferring a particular status on those who entered into it. It considered that the difference in treatment between married and unmarried couples with regard to survivors’ benefits was aimed at protecting the traditional family based on the bonds of marriage and was therefore legitimate and justified. Accordingly, the Chamber held by four votes to three that there had been no violation of Article 8. On 14 September 2009 the case was referred to the Grand Chamber at the applicant’s request.

LEVENTOĞLU ABDULKADİROĞLU v. TURKEY European Court of Human Rights (2013)

Gender discrimination

The case concerned the complaint by a woman that, under Turkish law, she was not allowed to keep just her maiden name in official documents after getting married, whereas married men kept their surname. The Court held that this difference in treatment on grounds of sex between persons in an analogous situation had no objective and reasonable justification. Accordingly, the obligation imposed on married women to bear their husband’s surname – even if they could put their maiden name in front of it – had no objective and reasonable justification, in breach of Article 8 in conjunction with Article 14.

Omeredo v. Austria European Court of Human Rights (2011)

Female genital mutilation or female genital cutting

The applicant is a Nigerian national who fled due to not wanting to undergo female genital mutilation (FGM) and sought asylum in Austria. Austria rejected her application for asylum and she appealed, complaining under Article 3 of the Convention that she runs the risk of being forced to undergo FGM if she is expelled to Nigeria. The Court rejects her application because they reasoned that due to her age and work experience she should have been able to live in Nigeria on her own.

L.R. v. United Kingdom European Court of Human Rights (2014)

Sexual violence and rape, Trafficking in persons

The applicant is an Albanian national who was abducted and brought into the UK where she was forced to work as a prostitute. She escaped and requested asylum for fear of retribution from her abductor if she returned to Albania. Her request for asylum was rejected by the UK government and she complained that her removal was in violation of Articles 2, 3, 4, and 8 of the Convention. The UK did grant her application though, so the issue was resolved without having to consider whether there was a violation of the Convention.

Sandra Jankovic v. Croatia European Court of Human Rights (2009)

Gender-based violence in general

The applicant brought a claim in Split Municipal Court for protection against being disturbed in occupying her room. After years the applicant finally gained possession of the room and then was assaulted by several individuals. Although the applicant tried to get a criminal case brought, it was dismissed by the domestic courts. She then brought a complaint relying on Articles 3 and 8 of the Convention before this Court. The applicant argued that the national authorities failed to afford her adequate protection against violence inflicted by private individuals, which was an Article 8 violation. The Court agreed that Article 8 applied due to the circumstances under which she had been attacked and found that Article 8 had been violated due to the delay of the authorities in prosecuting the crime.

Juhnke v. Turkey European Court of Human Rights (2008)

Custodial violence, Sexual harassment

The applicant was a German national arrested in Turkey on suspicion of belonging to a terrorist organization. She claimed that she was subjected to a gynecological exam during her detainment and that the local gendarmes stripped her naked and sexually harassed her. The court found that in these circumstances the gynecological exam was an interference with her right to physical integrity and her right to respect for her private life.

Case of Y.F. v. Turkey European Court of Human Rights (2003)

Custodial violence

The applicant alleged that the forced gynecological exam of his wife constituted a breach of Article 8 of the Convention. The Government argued that the exam was carried out with the consent of both the applicant and his wife. The Court found that the interference with the woman’s right to physical integrity was not “in accordance with law” because the Government failed to demonstrate a medical necessity or circumstanced defined by law for an exam, and there was the question of consent.

W. v. Slovenia European Court of Human Rights (2014)

Sexual violence and rape

The applicant was raped by a group of men, some of whom were juveniles at the time. The Maribor Basic Court first acquitted them, but on appeal it was remitted to a new panel of judges. The case was delayed for a decade because some of the defendants had emigrated to Austria. The court finally tried the defendants in trials in the early 2000’s. The applicant alleged a violation of Article 3 of the Convention because the delays in the criminal proceedings against the individuals who raped her. The Court ruled that the compensation awarded to the applicant by the domestic court did not constitute consistent redress and that there was a violation of Article 3 of the Convention.

P.M. v. Bulgaria European Court of Human Rights (2012)

Sexual violence and rape

The applicant was raped at a party in 1991 when she was 13 years old. Her parents informed the police. The criminal proceeding started twice but were both terminated. At the third time of reopening the investigation, both people accused were convicted guilty by the court but relieved due to the expired limitation period. The European Court of Human Rights held that the case was admissible and that the authorities led the investigation ineffectively and slowly, which caused the expired limitation period. There was a violation of Article 3, prohibition of torture, of the Convention for Protection of Human Rights and Fundamental Freedoms.

M. and Others v. Italy and Bulgaria European Court of Human Rights (2012)

Sexual violence and rape

In May 2003, a Roma family with Bulgarian nationality traveled to Italy with a promise of work in a villa. M.’s parents alleged that they were threatened and forced to return to Bulgaria, leaving M.—their 17 year old daughter—in the villa, where she was raped and beaten. M.’s mother returned to Italy on 24 May and reported to the police that her daughter had been kidnapped. M. was rescued from the villa seventeen days later, on 11 June 2003. No criminal proceedings were taken against M.’s kidnapper but the police instituted proceedings against M.’s parents for perjury and libel, believing that the accusations of kidnapping were untrue and that M.’s parents had contracted to marry M. to the alleged kidnapper for a sum of money. The European Court of Human Rights found a violation of Article 3—prohibition of ill-treatment—in the investigation of rape and beating by the Italian authorities, which it ruled was ineffective. The Court found no violation of Article 3, however, in the steps taken by the police to secure the release of M.

P. and S. v. Poland European Court of Human Rights (2012)

Sexual violence and rape

The applicants, P. and S., were daughter and mother. P., a fourteen-year-old girl, was raped and impregnated by a classmate. Abortion in Poland is available in the case of rape so in May 2008 P. received a certificate from the public prosecutor to allow her to get a legal abortion in Poland. She went to three hospitals who refused to perform the operation: one brought her to a Catholic priest—who urged her not to get an abortion—without her permission. Hospital officials issued a press release after which anti-abortion campaigners harassed P. A criminal proceeding against P. on suspicion of sexual intercourse with a minor was initiated in July 2008 but later terminated, the court finding that P. could only be considered a victim, not a perpetrator. The police then alleged that S. was trying to coerce P. into having an abortion, leading to the authorities removing P. from her mother’s custody and placing her in a juvenile shelter. The Minister of Health intervened and P. got an abortion without being an officially registered patient or receiving any post-abortion care. The European Court of Human Rights held that there was a violation of Article 8: right to respect for private and family life. The Court found that the state should ensure people’s legal rights are facilitated by procedures to fulfill those rights. The Court also found that the hospital press release of information led to interference with the applicants’ lives. The Court held that there was a violation of Article 5(1) because the separation of P. from her parents was taken to prevent abortion rather than within in the purpose of the Article, which is for educational supervision. Finally, there was a violation of Article 3: the difficulties P. met in seeking abortion and subsequent trial for intercourse with a minor constituted ill treatment.

I.G. v. The Republic of Moldova European Court of Human Rights (2012)

Gender discrimination

A 14-year-old girl was allegedly raped by an acquaintance. She complained that the authorities had failed to investigate her allegations effectively and that the requirement of corroborative evidence of resistance had been discriminatory against her. The Court found a violation of Article 3 on effective investigation and ordered the State to pay the applicant just satisfaction for non-pecuniary damage and awards the applicant EUR 10,000.

Unal Tekeli v. Turkey European Court of Human Rights (2004)

Gender discrimination

The European Court of Human rights held that a Turkish Law preventing married women from keeping their own surname after marriage is unlawful discrimination on the basis of sex. As required under Turkish law, upon marriage Ms. Unal Tekeli took her husband’s last name. She continued to use her maiden name in her professional life and put it in front of her legal surname, but could not use her maiden name in official documents. She brought suit in the Turkish Courts requesting that she be able to use her maiden name and that the law was discriminatory, but her case was dismissed both at the trial court and upon appeal. After being dismissed, she brought suit in the European Court of Human Rights, alleging discrimination. The Court first determined that differential treatment did exist because under the law, married men were treated differently from married women. Next, it found that no objective and reasonable justification existed for such differential treatment. It acknowledged that Turkey has a goal of preserving the family unit, but noted that this goal was not defeated by allowing women to keep their surnames. Thus, preserving the family unit was not a justification for the unequal treatment of married men and married women. The Court held that the difference in treatment based on sex violated international law.

Tanbay Tuten v. Turkey European Court of Human Rights (2013)

Gender discrimination

Ms. Tanbay Tuten, a university professor, was married and took her husband’s surname as required by law in 1992. She continued, however, to use her maiden name in her professional life, even though she could not use it in official documents. In 2007, she brought a proceeding in the Turkish Courts requesting that she be allowed to use only her maiden name, but was denied in the lower court and on appeal. Ms. Tuten brought her case to the European Court of Human Rights contending that the law is discrimination on ground of sex. The Court held that the difference in treatment on grounds of sex was in violation of Article 14 and Article 8 of the Convention and based its analysis on Tekeli v. Turkey.

W.H. v. Sweden European Court of Human Rights (2014)

Gender discrimination

A woman seeking asylum in Sweden was denied asylum by the Swedish Migration Board, the Migration Court, and denied an appeal of the previous decisions by the Migration Court of Appeals. The migration courts found that although the applicant belonged to a minority (Mandaean) in Iraq, the one threat she had received several years ago was not based on her minority beliefs but on her marital status (as she was divorced) and therefore her return to Iraq could not be deemed unsafe. The courts also found that the situation in Iraq did not constitute grounds for asylum nor that she was still being searched for in Iraq. Swedish law (the Aliens Act (Utlänningslagen, 2005:716)) states that “an alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden.” Moreover, the Aliens Act continues, “if a residence permit cannot be granted on the above grounds, such a permit may be issued to an alien if, after an overall assessment of his or her situation, there are such particularly distressing circumstances (synnerligen ömmande omständigheter) to allow him or her to remain in Sweden (Chapter 5, section 6).” The applicant brought this suit complaining that her return to Iraq would constitute a violation of Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”) The applicant lost this suit as well, as the court held that her circumstances would not prevent her from settling safely and reasonably in the Kurdistan Region of Iraq once deported from Sweden. The evidence did not show that the applicant would face a risk of treatment prohibited by Article 3 in the Kurdistan Region. The Court looked at precedent holding that the general situation in Iraq was not so serious as to cause, by itself, a violation of Article 3 of the Convention in the event of a person’s return to that country (F.H. v. Sweden (no. 32621/06, § 93, 20 January 2009)). Taking into account the international and national reports available at the time of the decision, the Court saw no reason to alter the position taken four years before. The Court gave deference to the Swedish Migration Court’s decision and found no violation of Article 3. According to the Court, “Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens.”

O’Keeffe v. Ireland European Court of Human Rights (2014)

Gender-based violence in general, Sexual violence and rape

Louise O’Keeffe was repeatedly sexually abused by her school principal during the 1970s. When these events were reported to the police in 1996, the complete police investigation revealed that the principal had sexually abused twenty-one former students during a ten-year period. In total, the principal was charged with 386 criminal offences of sexual abuse. O’Keeffe brought a civil action against the Minister for Education and the Attorney General of Ireland, claiming that the State had vicarious liability for the personal injury she suffered as a result of the abuse in the public school. The High Court ruled that the state did not have vicarious liability for its employee’s actions, and the Supreme Court dismissed O’Keeffe’s appeal. In January 2014, O’Keeffe brought a case to the European Court of Human Rights, alleging violations of Article 3 (torture or inhuman or degrading treatment) of the European Convention on Human Rights, and Article 13, alleging that she did not have an effective domestic remedy. The European Court of Human Rights held the following: (1) the Irish State failed to meet its positive obligation, in violation of Article 3; (2) there was no violation of the procedural obligations under Article 3 since an effective official investigation into the ill-treatment of the applicant had been carried out in 1995 once the a complaint was made by another former pupil to the police; (3) the applicant did not have an adequate remedy available to her regarding her Article 3 complaints, in violation of Article 13; and (4) the applicant was awarded 85,000 euros for the costs and expenses of the proceedings. As a result of this case, Irish Prime Minister Enda Kenny gave an apology to O’Keeffe, and, in August 2014, the Irish government submitted an Action Plan to the Council of Europe setting out the measures that have been taken since this ECtHR decision.

S.A.S. v. France European Court of Human Rights (2014)

Gender discrimination

S.A.S, a 23 year old French citizen, filed an application against France to challenge the ban on the full face veil. She argued that as a woman wearing a face veil, the ban constituted a violation of her right to private life, freedom of religion, freedom of expression and her right not to be discriminated against. The French Government recognised that the ban may represent a limitation on Article 9 of the Convention i.e. the freedom to manifest one’s religion, but argued, however, that the limitation pursued legitimate aims and was necessary in a democratic society for the fulfillment of those aims. The Government argued that the ban sought to protect equality between men and women, as to consider that women must conceal their faces in public places amounted to denying them the right to exist as individuals. The Government also argued that this forced them to express their individuality only in the private family space or in an exclusively female space. The Government indicated that the practice of wearing the veil was incompatible in French society with the fundamental rules of social communication, tolerance and the requirements of “living together”. The court held that the ban imposed by the Law of 11 October 2010 was to be regarded as proportionate to the aim pursued, namely the preservation of the conditions of “living together” as an element of the “protection of the rights and freedoms of others” and thus no violation of Articles 8 or 9 of the Convention was found.

Dogru v. France European Court of Human Rights (2009)

Gender discrimination

Gender discrimination. The Muslim applicant, aged eleven at the material time, was enrolled in the first year of a state secondary school and wore a headscarf to school. On seven occasions in January 1999 the applicant went to physical education and sports classes wearing her headscarf and refused to take it off despite repeated requests to do so by her teacher, who explained that wearing a headscarf was incompatible with physical education classes. At a meeting on 11 February 1999 the school's pupil discipline committee decided to expel the applicant from the school for breaching the duty of assiduity by failing to participate actively in physical education and sports classes. The applicant's parents appealed against that decision to the appeal panel. The applicant claimed that expelling her for wearing the headscarf had amounted to an interference with her religious freedom under Article 9 of the Convention. The court however held that her rights were not infringed, following the Turkish case of Leyla Sahin (Leyla Sahin v. Turkey ([GC], no. 44774/98, ECHR 2005-XI) whereby it was found that secularism, as upheld by the French Government in that case, was of fundamental constitutional value in terms of the importance of the protection of women's rights. It was held that secularism was undoubtedly one of the fundamental principles of the State which was in harmony with the rule of law and respect for human rights and democracy. The court thus noted that secularism was the guarantor of democratic values, ensuring that all citizens are treated equally. The court confirmed that the freedom to manifest one's religion could be restricted in order to defend such values. It concluded that this notion of secularism was consistent with the values underpinning the Convention.

Siliadin v. France European Court of Human Rights (2005)

Employment discrimination, Trafficking in persons

Domestic slavery. The applicant arrived in France in 1994 aged 15 years with a passport and a tourist visa. She had agreed to work for Mr. and Mrs D. until the cost of her air ticket had been reimbursed. During this time, Mrs. D. was to attend to her immigration status and find her a place at school. In reality her passport was taken away and she became an unpaid housemaid for Mr. and Mrs. D. She worked seven days a week, without a day off, and was never paid, except by Mrs. B.’s mother who gave her one or two 500 FRF notes. At an initial hearing, Mr. and Mrs. B. were convicted; however, this was overturned on appeal. The Court of Appeal ruled that the additional investigations and hearings had shown that, while it did appear that the applicant had not been paid or that the payment was clearly disproportionate to the amount of work carried out, in contrast, the existence of working or living conditions that were incompatible with human dignity had not been established. The European Court of Human Rights rejected this decision and held that in this case there had been a domestic slavery to the fore. The Court focused on the vulnerable nature of the applicant and the fact that the work being carried out without remuneration and against her will. This case brings the issue of domestic slavery to the fore. In a report by the Committee on Equal Opportunities for Women and Men it was observed that 95% of the domestic slavery victims taken up by the Committee against Modern Slavery since 1994 were women. The case also demonstrates the specific threat that domestic slavery poses to women and highlights that over 4 million women worldwide are sold into domestic slavery each year.

Söderman v. Sweden European Court of Human Rights (2013)

Sexual harassment

In 2002, when Eliza Söderman (applicant) was 14 years old, she discovered that her stepfather had attempted to secretly film her naked by hiding a recording video camera in the bathroom. The applicant’s mother destroyed the videotape and reported the incident to the police who prosecuted the stepfather for sexual molestation. The stepfather was acquitted on appeal in 2007 because although he had intentionally filmed the minor, his behavior was not covered under the provision of sexual molestation because he had no intention of the applicant finding out about the film. Further, the Swedish appeals court pointed out that there is no general prohibition in Swedish law of filming an individual without their consent, even if that individual is a minor. The applicant brought this complaint to the European Court on Human Rights relying on Article 8 (right to respect for private life) of the European Convention on Human Rights to which Sweden is a party. The applicant alleged that Sweden had failed to comply with its obligation to provide her with remedies against her stepfather’s violation of her personal integrity. The court held for the applicant and held that Sweden had violated Article 8. The Court held so because Swedish laws in force at the time allowed for the applicant’s stepfather to film her naked in her home without any remedy. The stepfather had been acquitted of sexual molestation not on account of lack of evidence but because his actions did not constitute sexual molestation at the time. The provision on sexual molestation has since been amended in Sweden (in 2005), which to court highlighted as evidence that the previous version of the sexual molestation provision had not protected the applicant from the act in question.

Aydin v. Turkey European Court of Human Rights (1997)

Custodial violence

The applicant was allegedly tortured and raped while in the custody of the State security forces although according to the Government reports, she and the other members of her family were never detained. They filed a complaint to the Public Prosecutor who sent them to the State hospital for a medical examination, resulting in a perfunctory report not focusing on whether the applicant had in fact been raped. The Public Prosecutor thereupon reported to the Principal State Counsel that there was no evidence to support the applicant's complaints but the investigation was continuing. The Court found violations of Article 3 ad 16 of the ECHR. The court noted that the rape of a 17-year-old detainee who had also been subjected to other forms of physical and mental sufferings by an official of the State is an especially grave and abhorrent form of ill-treatment and amounted to torture. The failure of the authorities to conduct an effective investigation into the applicant’s alleged suffering while in detention resulted in her being denied access to a court to seek compensation. The Court dismissed the intimidation and harassment claim due to lack of sufficient evidence.

V. C. v. Slovakia European Court of Human Rights (2011)

Forced sterilization

VC, a Romani woman, was forcibly sterilized in a state hospital in Eastern Slovakia during a cesarean section. While she was in the height of labor, hospital staff insisted that she sign a consent form for sterilization, without informing her about what the procedure entailed. She was only told that a future pregnancy could kill her and was pressured to immediately undergo the procedure. VC did not understand what she was agreeing to but fearing for her life, she signed the form. After learning that the sterilization was not medically necessary, VC filed a civil lawsuit in Slovakia. All her petitions were rejected, and she filed a complaint against Slovakia at the ECtHR The Court found a violation of Articles 3 and 8 of the ECHR, i.e. the right to freedom from inhuman and degrading treatment and the right to private and family life respectively. The court noted that sterilization is never a lifesaving procedure and cannot be performed without the full and informed consent of the patient even if doctors believe that future pregnancy may pose a risk to the woman. However, it did not address whether such conduct was a violation of the right to non-discrimination (Article 14), thus falling short of addressing the crux of the problem: racial stereotypes. The ruling is the first of its kind issued by the ECHR, and will have the major effect of bringing justice to the potentially thousands of Roma women who were sterilized without their consent in Central and Eastern Europe.

M. and Nalbandov v. Russia European Court of Human Rights (2008)

Custodial violence, International law, Sexual violence and rape

M., a 19-year-old witness in a murder case, was called for questioning to the police station. After M. denied any involvement in the murder, the officers threatened her, repeatedly beat her, and raped her. Eventually M. confessed. She was subsequently handed over to the prosecution authorities. M.’s requests to be released were denied. After the interrogation, the prosecution officials repeatedly raped her. The case was passed to the district court but was subsequently closed due to lack of proof of the guilt of the accused as “genetic expertise gives the probability of 99.999999 and not 100%”. It also turned out that two of the rapists had support from their parents, who were judges of the regional courts. Nine years after the crime, the case was brought to the ECtHR. The Court found a violation of Article 3 as Russia failed to punish torture, inhuman, and humiliating treatment, by failing to provide effective investigation of the complaint.

D.J. v. Croatia European Court of Human Rights (2012)

Sexual violence and rape

DJ was allegedly raped by his colleague. The Croatian authorities failed to conduct an effective investigation of the rape allegation by failing to conduct a proper inspection of the scene of the alleged crime, interview the injured party and other witnesses, and secure forensic evidence. The trial judge placed his emphasis on DJ alleged antisocial behavior thus lacked perceived impartiality. The ECtHR found Croatia in breach of the procedural aspect of Article 3 and 8 of the ECHR. It stressed that ‘the allegation that a rape victim was under the influence of alcohol or other circumstances concerning the victim’s behaviour or personality cannot dispense the authorities from the obligation to effectively investigate.’ The case adds to the Court’s jurisprudence recognizing violence against women as a form of ill-treatment prohibited by Article 3 of the ECHR and refines the contents of the state’s positive obligations to punish rape and investigate rape cases.

N. v. Sweden European Court of Human Rights (2010)

Gender discrimination

N and her husband X applied for asylum after arriving in Sweden, claiming persecution in Afghanistan because of X’s political position. The asylum application being rejected, N appealed claiming that, as she had in the meantime separated from her husband, she would risk social exclusion and possibly death if she returned to Afghanistan. Her appeal was also rejected. She applied for a residence permit three times, as well as for divorce from X., submitting that she was at an ever-heightened risk of persecution in Afghanistan, as she had started an extra-marital relationship with a man in Sweden which was punishable by long imprisonment or even death in her country of origin. All her applications were rejected. While being aware of reports of serious human rights violations in Afghanistan, the Court did not find that they showed, on their own, that there would be a violation of the Convention if N were to return to that country. Examining N.'s personal situation, however, the Court noted that women were at a particularly heightened risk of ill-treatment in Afghanistan if they were perceived as not conforming to the gender roles ascribed to them by society, tradition or the legal system there. The mere fact that N had lived in Sweden might well be perceived as her having crossed the line of acceptable behavior. The fact that she wanted to divorce her husband, and in any event did not want to live with him any longer, might result in serious life-threatening repercussions upon her return to Afghanistan. Among other things, the Court noted that a recent law, the Shiite Personal Status Act of April 2009, required women to obey their husbands' sexual demands and not to leave home without permission. Reports had further shown that around 80 % of Afghani women were affected by domestic violence, acts which the authorities saw as legitimate and therefore did not prosecute. Unaccompanied women, or women without a male "tutor", faced continuous severe limitations to having a personal or professional life, and were doomed to social exclusion. They also often plainly lacked the means for survival if not protected by a male relative. Consequently, the Court found that if N were deported to Afghanistan, Sweden would be in violation of Article 3.

A. v. Croatia European Court of Human Rights (2011)

Domestic and intimate partner violence

A, a Croatian woman was subjected to repeated violent behavior by her mentally-ill ex-husband, B, often in front of their daughter, whom on occasions turned violent towards the daughter too. Seven sets of proceedings were brought against B and although some protective measures were implemented, others were not. The prison sentences were not served and some of the treatment was not undergone due to a lack of qualified providers. A was refused an injunction prohibiting B from harassing and stalking her on basis that there was no immediate risk to her life. B was eventually imprisoned for making death threats to the judge and the judge's daughter. The ECtHR found that A would have been more effectively protected from B’s violence if the authorities had had an overview of the situation as a whole, rather than in numerous sets of separate proceedings. A failure to enforce protective measures undermined the deterrent purpose of such sanctions. It was still uncertain whether the husband had undergone any psychiatric treatment. A’s Article 8 right to respect for private life was breached for a prolonged period. The Court dismissed the allegation that domestic violence legislation applied in a discriminatory fashion in Croatia.

Yilmaz v. Turkey European Court of Human Rights (2008)

Gender-based violence in general

A 20-year-old Y killed himself while performing his compulsory military service after being provoked by Sergeant A’s physical and verbal violence who had been informed of Y’s problems linking to his sister’s marital difficulties. The ECtHR concluded a violation of Article 2 as the authorities failed to effectively protect the victim from the improper conduct of his superiors.

Bevacqua and S. v. Bulgaria European Court of Human Rights (2008)

Divorce and dissolution of marriage, Domestic and intimate partner violence

Following divorce and during extended custody proceedings in Bulgaria, B agreed to the father having contact with the child, S. However, he refused B’s contact with S. B recovered S from the kindergarten, which led to the father threatening her and eventually entering her home seeking to recover the child. B moved to a hostel for victims of domestic violence in another town, but the authorities threatened to prosecute her for abduction of S. Despite being asked by B to make an interim order concerning custody of S, the Bulgarian courts failed to do so. In order to avoid prosecution B agreed to care for S with the father in alternate months. S was subject to further violence by the father. She was granted custody of the child eventually, but the father was not prosecuted for his violence, or for subsequent violence against her. The ECtHR found violations of B and S’ right to respect for private and family life under Art 8 of the ECHR. The Court held that the Bulgarian court's failure to adopt interim custody measures without delay had adversely affected the well-being of S and insufficient measures had been taken in reaction to the father's behavior, however, the length of proceedings had not been unreasonable.

B.S. v. Spain European Court of Human Rights (2012)

Gender discrimination

A Spanish woman of Nigeria origin was allegedly verbally and physically abused when she was stopped and questioned while working as a prostitute in the street on two occasions. She lodged a complaint with the investigating judge who asked the police headquarters to produce an incident report in which the identities of the police officers on patrol at the time of the incidents differed from those indicated by the applicant. The judge subsequently made a provisional discharge order and discontinued the proceedings on basis of insufficient evidence. The applicant applied for a review, asking to identify the police officers and obtaining witness statements, but the request was rejected. She lodged an appeal, leading to the reopening of the proceedings at which the police officers were acquitted on basis of the police headquarters’ report. The applicant was again stopped for questioning. Her criminal complaint, review request and subsequent appeal were all unsuccessful. The ECtHR considered that the investigative steps taken had not been sufficiently thorough and effective to satisfy the requirements of Article 3 of the Convention, and found a violation of Article 3. With respect to allegations of ill-treatment, the Court was unable to find a violation in this respect due to inconclusive evidence. The Court considered that the domestic courts had not taken into account the applicant's special vulnerability inherent in her situation as an African woman working as a prostitute. The authorities had not taken all possible measures to ascertain whether or not a discriminatory attitude might have played a role in the events. The Court therefore concluded that there had been a violation of Article 14 in conjunction with Article 3.

Una mujer española de origen nigeriano fue supuestamente abusada verbal y físicamente cuando fue detenida e interrogada mientras trabajaba como prostituta en la calle en dos ocasiones. Presentó una queja ante el juez, el que pidió a la comisaría de policía que presentara un informe de incidentes en el que las identidades de los policías en patrulla en el momento de los incidentes no coincidieran con las indicadas por el solicitante. Despues, el juez dictó una orden de baja provisional e interrumpió el procedimiento por falta de pruebas. La solicitante solicitó una revisión, solicitando identificar a los oficiales de policía y obteniendo declaraciones de testigos, pero su solicitud fue rechazada. Ella presentó una apelación, lo que llevó a la reapertura de los procedimientos en los cuales los agentes de policía fueron absueltos con base en el informe de la sede de la policía. La solicitante fue nuevamente detenido para ser interrogada. Su denuncia penal, solicitud de revisión y posterior apelación fueron infructuosas. El TEDH consideró que las medidas de investigación tomadas no habían sido lo suficientemente exhaustivas y efectivas para satisfacer los requisitos del artículo 3 de la Convención, y encontró una violación del artículo 3. Con respecto a las denuncias de malos tratos, el Tribunal no pudo encontrar una Violación a este respecto debido a pruebas no concluyentes. El Tribunal consideró que los tribunales nacionales no habían tenido en cuenta la especial vulnerabilidad de la demandante inherente a su situación como mujer africana que trabajaba como prostituta. Las autoridades no habían tomado todas las medidas posibles para determinar si una actitud discriminatoria podría haber desempeñado un papel en los hechos. En consecuencia, el Tribunal concluyó que se había violado el artículo 14 en relación con el artículo 3.

E.S. and Others v. Slovakia European Court of Human Rights (2009)

Domestic and intimate partner violence, Property and inheritance rights

E.S.’s ex-husband S was convicted of ill-treatment, violence and sexual abuse against E.S. and their daughters and sentenced to four years' imprisonment. E.S. requested an interim measure ordering S to move out of the council flat of which they were joint tenants. The domestic courts dismissed her request, finding it lack the power to restrict S’ right to use the property under the relevant legislation. The appellate courts upheld that decision noting that E.S. would be entitled to bring proceedings to terminate the joint tenancy after a final divorce decision and, in the meantime, she could apply for an order refraining S from inappropriate behavior. The Constitutional Court subsequently held that E.S.'s rights were not violated as she had not applied for such an order. However, it held that the lower courts had failed to take appropriate action to protect E.S.'s children from ill-treatment. It did not award compensation as it considered it provide appropriate just satisfaction by a finding of a violation. Following the advent of new legislation, E.S. made further applications and two orders were granted: one preventing S from entering the flat; the other awarding her exclusive tenancy. In the meantime, E.S. had had to move away from their home, family and friends and her children had had to change school. The ECtHR concluded that Slovakia had failed to fulfill its obligation to protect all of the applicants from ill-treatment, in violation of Articles 3 and 8. The alternative measure proposed by Slovakia, i.e. an order restraining S from inappropriate behavior, would not have provided the applicants with adequate protection against S and therefore did not amount to an effective domestic remedy. The ECtHR ordered the Slovak Republic to pay non-pecuniary damages of EUR 8,000.

Izci v. Turkey European Court of Human Rights (2013)

Gender-based violence in general

A Turkish woman was allegedly attacked by the police following her participation in a peaceful demonstration to celebrate Women’s Day in Istanbul and that such police brutality in Turkey was tolerated and often went unpunished. The ECtHR considered that the police officers had failed to show a certain degree of tolerance and restraint before attempting to disperse a crowd which had neither been violent nor presented a danger to public order,and that the use of disproportionate force against the demonstrators had resulted in the injuring of Ms Izci. Moreover, the failure of the Turkish authorities to find and punish the police officers responsible raised serious doubts as to the State’s compliance with its obligation under the ECHR to carry out effective investigations into allegations of ill-treatment. Finally, the use of excessive violence by the police officers had had a dissuasive effect on people’s willingness to demonstrate. The Court reiterated that a great number of applications against Turkey concerning the right to freedom of assembly and/or excessive use of force by law enforcement officials during demonstrations were currently pending. Considering the systemic aspect of the problem, it therefore requested the Turkish authorities to adopt general measures, in accordance with their obligations under Article 46 of the Convention, in order to prevent further similar violations in the future.

Kalucza v. Hungary European Court of Human Rights (2012)

Domestic and intimate partner violence, Property and inheritance rights

K’s partner Gy.B. acquired ownership of K’s ex-husband share of their jointly owned flat and had it registered as his place of residence. K sought to have him evicted when their relationship ended, lodged numerous criminal complaints for rape, assault and harassment but Gy.B.was acquitted on four occasions and was convicted on only two occasions, released on parole and ordered to pay a fine. On three occasions K herself was found guilty of disorderly conduct, grievous bodily harm and assault. She also faced a trespassing charge brought by Gy.B. because she had the flat's locks changed. During the criminal proceedings, K made two requests for a restraining order against Gy.B. and both were dismissed on basis that she was also responsible for the bad relationship. Civil proceedings concerning ownership of the flat were also suspended while Gy.B.’s violent behavior against her continued and a medical report was drawn up recording her injuries with an expected healing time of eight to ten days. The ECtHR found that the Hungarian authorities had not taken sufficient measures for her effective protection, in violation of Article 8. The Court noted that it had taken the authorities too long - more than one-and-half years - to decide on K’s first restraining order request, undermining the reason behind such a measure which was to provide immediate protection to victims of violence. Sufficient reasons for dismissing the restraining order requests were not given, the courts relying simply on the fact that both parties were involved in the assaults, ruling out the possibility of a victim having acted in legitimate self-defense in the event of a mutual assault. The Court commented that restraining orders could have been issued against both parties and ordered Hungary to pay K non-pecuniary damages.

Jabari v. Turkey European Court of Human Rights (2000)

Gender-based violence in general

The applicant fled to Turkey from Iran fearing that she would be convicted of having committed adultery, an offence under Islamic law, and sentenced to be stoned to death or flogged. She was arrested at Istanbul airport on the ground that she had entered Turkey using a forged passport. No charges were brought against her on account of the forged passport but she was ordered to be deported. The applicant subsequently lodged an asylum request, which was rejected by the authorities on the ground that the request had not been submitted within five days of her arrival in her Turkey. Later the applicant was granted refugee status by the UNHCR. The Ankara Administrative Court dismissed the applicant's petition against the implementation of her deportation on the grounds that there was no need to suspend it since it was not tainted with any obvious illegality and its implementation would not cause irreparable harm to the applicant. The applicant complained that her right not to be subjected to ill-treatment guaranteed under Article 3 ECHR would be breached if she were to be deported to Iran. She further complained that she had no effective remedy in the domestic law of the respondent state to challenge her deportation, in breach of Article 13. The ECtHR was not persuaded that the authorities of the respondent state conducted any meaningful assessment of the applicant's claim, including its arguability. It would appear that her failure to comply with the five-day registration requirement under the Asylum Regulation 1994 denied her any scrutiny of the factual basis of her fears about being removed to Iran. The automatic and mechanical application of such a short time-limit for submitting an asylum application must be considered at variance with the protection of the fundamental value embodied in Article 3 of the Convention. It fell to the branch office of the UNHCR to interview the applicant about the background to her asylum request and to evaluate the risk to which she would be exposed in the light of the nature of the offence with which she was charged. The Administrative Court on her application for judicial review limited itself to the issue of the formal legality of the applicant's deportation rather than the more compelling question of the substance of her fears, even though by that stage the applicant must be considered to have had more than an arguable claim that she would be at risk if removed to her country of origin. It further observed that the government have not sought to dispute the applicant's reliance on the findings of Amnesty International concerning the punishment meted out to women who are found guilty of adultery. Having regard to the fact that the material point in time for the assessment of the risk faced by the applicant was the time of its own consideration of the case, the Court was not persuaded that the situation in the applicant's country of origin has evolved to the extent that adulterous behavior was no longer considered a reprehensible affront to Islamic law. It had taken judicial notice of recent surveys of the current situation in Iran and noted that punishment of adultery by stoning still remained on the statute book and may be resorted to by the authorities. Having regard to the above considerations, the Court found it substantiated that there was a real risk of the applicant being subjected to treatment contrary to Article 3 if she was returned to Iran. Accordingly, the order for her deportation to Iran would, if executed, give rise to a violation of Article 3. The Court held that there had been a breach of Article 13. The notion of an effective remedy under Article 13 requires independent and rigorous scrutiny of a claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3 and the possibility of suspending the implementation of the measure impugned. Since the Administrative Court failed in the circumstances to provide any of these safeguards, the Court was led to conclude that the judicial review proceedings did not satisfy the requirements of Article 13.

Ebcin v. Turkey European Court of Human Rights (2011)

Gender-based violence in general

A teacher was attacked in the street by two individuals who threw acid in her face. She alleged that the authorities had failed to prevent the attack on basis of a report by the Turkish Human Rights Foundation according to which 91 of 143 teacher killings in south-east Turkey between 1984 and 1995 were attributed to the PKK (Workers' Party of Kurdistan, an illegal organization). Her claim for compensation was twice set aside by the Supreme Administrative Court. Her aggressors were not arrested until six years later; the proceedings against the instigator of the aggression lasted over seven years and those against his accomplice were still pending before the Court of Cassation. The ECtHR did not hold the authorities responsible for any failure to take steps to protect the applicant individually due to lack of proof of any intimidation or threats to which she might have been subjected. But the Court found that the administrative and criminal proceedings had failed to provide prompt and adequate protection against a serious act of violence and that there had been a violation of Articles 3 and 8. The Court did not examine the case under Article 6.

Salmanoglu and Polattas v. Turkey European Court of Human Rights (2009)

Custodial violence

The applicants, 16 and 19 years old at the time, were arrested in the context of a police operation against the PKK (the Workers' Party of Kurdistan). Both girls claimed that, during their police custody, they were blindfolded and beaten. N also alleged that she was sexually harassed and, forced to stand for a long time, was deprived of food, water and sleep. P further alleged that she was anal raped. The applicants were examined during their police custody by three doctors who all noted that there was no sign of physical violence to their bodies. Both applicants also had a "virginity test"; the examinations recorded that the girls were still virgins. A month later, P was given a rectal examination; the doctor noted no sign of intercourse. Following complaints made by the two applicants, an investigation was launched by the prosecution authorities, followed by criminal proceedings against the police officers who had questioned the applicants during their police custody. During the first hearing of the case, the girls further submitted that, when brought before the public prosecutor and judge with a view to their being remanded in custody, they had not made statements about their ill-treatment as they were scared. In particular, they both contended that, during certain medical examinations and when they had made statements to the prosecution, the presence of police officers had intimidated them. The accused police officers denied both ill treatment and presence during their medical examinations or the taking down of their statements. The applicants were subsequently both diagnosed with post-traumatic stress disorder. P was further declared as having a major depressive disorder. The applicants subsequently underwent psychotherapy. The domestic courts ultimately acquitted the police officers on the ground that there was insufficient evidence against them. Subsequently, that judgment was quashed; however, the criminal proceedings against the police officers were terminated as the prosecution had become time-barred. In the meantime, the applicants were convicted of membership of an illegal organization and of throwing alcohol. They were sentenced to terms of imprisonment amounting to more than 12 and 18 years, respectively. The ECtHR took consideration of the circumstances of the case as a whole, and in particular the virginity tests carried out without any medical or legal necessity as well as the post-traumatic stress and depressive disorders suffered, and was persuaded that the applicants had been subjected to severe ill-treatment during their detention in police custody, in violation of Article 3. The Court further concluded that the Turkish authorities had not effectively investigated the applicants' allegations of ill-treatment after seven years, in further violation of Article 3. The Court awarded the applicants non-pecuniary damages and costs and expenses.

Case of Eremia v. The Republic of Moldova European Court of Human Rights (2013)

Domestic and intimate partner violence

E’s husband, a police officer, had been abusive towards her, often in the presence of their teenage daughters, whose psychological well-being was adversely affected as a result. A protection order had been issued against E’s husband upon E’s first request but was not respected by the husband and was partly revoked on appeal. E filed a criminal complaint and claimed being pressured by other police officers to withdraw the complaint. Although a criminal investigation was finally launched, and substantive evidence of the husband’s guilt was found, the prosecutor suspended the investigation for one year subject to the condition that the investigation would be reopened if the husband committed another offence during that time on basis that the husband had committed “a less serious offence” and “did not represent a danger to society.” The ECtHR found a violation of Article 3 in respect of E as the suspension of E’s husband’s criminal investigation in effect shielded him from criminal liability rather than deterring him from committing further violence against E. The Court concluded that the refusal to speed up the urgent examination of their request for a divorce, the failure to enforce the protection order and the insult of E by suggesting reconciliation since she was “not the first nor the last women to be beaten up by her husband”, and by suspending the criminal proceedings amounted to “repeatedly condoning such violence and reflected a discriminatory attitude towards the first applicant as a woman” thus violating Article 14 of the Convention. There was also a violation of Article 8 in respect of E’s daughters in respect of their right to respect of private life, including a person’s physical and psychological integrity. The Court ordered the State to pay the applicants non-pecuniary damages and cost and expenses.

Menesheva v. Russia European Court of Human Rights (2000)

Custodial violence, International law, Sexual violence and rape

The applicant was arrested and bundled into an unmarked car after refusing them entry into her flat. Without being given any reason for her arrest she was taken to the District Police Station where she was allegedly beaten, insulted, threatened with rape and violence against her family. Her requests for medical assistance and access to a lawyer were also refused. Later in the day she was taken home but then re-arrested and suffered more ill-treatment. No record of her detention was kept. She was then brought before a judge of the District Court who, without introducing himself or explaining his ruling, sentenced her to five days detention for resisting arrest (an administrative offence). In the meantime her keys were taken from her and her flat was searched. After her release she was examined by a medical expert who established that she had multiple bruises. The applicant brought proceedings against her ill-treatment by the police and her unlawful detention and lodged a claim for damages. Her claim and appeal all failed. She subsequently attempted to challenge her five days' detention before the Regional Court. In reply she was informed that no appeal against a decision on administrative detention was provided for by law. Her subsequent appeals were all rejected on the ground that the courts lacked jurisdiction over the subject matter. Later the decision was quashed on the grounds that the judge who had convicted the applicant had not examined the circumstances of the case and had not established whether she was guilty of any administrative offence. It was also held that the police had acted in violation of the procedural law. The Office of the Prosecutor General ordered the District Prosecutor's Office to complete a criminal investigation of the alleged ill-treatment and unlawful arrest and detention under the supervision of the Prosecutor General within 30 days. The parties have not provided any update concerning the criminal investigation since 2004. The ECtHR held that the ill-treatment at issue amounted to torture within the meaning of Article 3 and found that there had been a violation in this regard. On account of the lack of an effective investigation into the applicant's allegations of ill-treatment, the Court also found a violation of Article 3. There had been a violation of Article 13 as the applicant had been denied an effective domestic remedy in respect of the ill-treatment by the police. The Court concluded that the period of the applicant's detention until her appearance before a judge did not comply with the guarantees of Article 5 § 1 and that there had therefore been a violation of that provision. The ensuing detention order was inconsistent with the general protection from arbitrariness guaranteed by Article 5 thus there had been a violation. The applicant's allegations that there had been no adversarial proceedings as such, and that even the appearances of a trial had been neglected to the extent that she did not even have a chance to find out the purpose of her brief appearance before the judge, were corroborated in the court ruling quashing that judgment. It followed that there had been a violation of Article 6 § 1. The Court therefore ordered the applicant pecuniary damages, non-pecuniary damages and costs and expenses.

X and Y v. The Netherlands European Court of Human Rights (1985)

Sexual violence and rape

A mentally handicapped girl was raped but had no legal capacity to appeal against the prosecution’s decision not to press charges. The ECtHR found that positive obligations under Article 8 could arise requiring the State to adopt measures even in the sphere of the relations of individuals between themselves. Local legislation therefore suffered from a deficiency regarding the victim, which disclosed a failure to provide adequate protection.

Rantsev v. Cyprus and Russia European Court of Human Rights (2010)

Trafficking in persons

R arrived in Cyprus on an "artiste" visa. She started work as an artiste in a cabaret in Cyprus only to leave work three days later. After finding her, the manager of the cabaret where she had worked took her to the police asking them to declare her illegal in the country and to detain her. The police concluded that R did not appear to be illegal and refused to detain her. They asked the cabaret manager to collect her from the police station and to return with her later that morning to make further inquiries into her immigration status. The cabaret manager collected R and took her to the house of another employee of the cabaret, where the cabaret manager also remained. Later R fell from the window and was found dead in the street below the apartment. Following R’s death, interviews were conducted so was an autopsy. An inquest hearing was finally held nine months later in the applicant, R’s father's absence. The court decided that R died out of an accident and there was no evidence to suggest criminal liability for her death. Upon a request by the applicant, after the body was repatriated from Cyprus to Russia. Forensic medical experts in Russia carried out a separate autopsy and the findings of the Russian authorities, which concluded that R had died in strange and unestablished circumstances requiring additional investigation, were forwarded to the Cypriot authorities in the form of a request for mutual legal assistance under treaties in which Cyprus and Russia were parties. The request asked, inter alia, that further investigation be carried out, that the institution of criminal proceedings in respect of R's death be considered and that the applicant be allowed to participate effectively in the proceedings. Cyprus subsequently confirmed to the Russian Prosecution Service that the inquest into R's death was completed and that the verdict delivered by the court was final. The applicant has continued to press for an effective investigation into his daughter's death. The Cypriot Ombudsman, the Council of Europe's Human Rights Commissioner and the United States State Department have published reports which refer to the prevalence of trafficking in human beings for commercial sexual exploitation in Cyprus and the role of the cabaret industry and "artiste" visas in facilitating trafficking in Cyprus. The ECtHR found a violation of Article 2 as a result of the failure of the Cypriot authorities to investigate effectively R’s death. As regards Russia, the Court concluded that there it had not violated Article 2 as the Russian authorities were not obliged themselves to investigate R's death, which had occurred outside their jurisdiction. With respect to Article 3, the Court held that any ill-treatment which R may have suffered before her death had been inherently linked to her alleged trafficking and exploitation and that it would consider this complaint under Article 4. The Court noted that, like slavery, trafficking in human beings, by its very nature and aim of exploitation, was based on the exercise of powers attaching to the right of ownership; it treated human beings as commodities to be bought and sold and put to forced labor; it implied close surveillance of the activities of victims, whose movements were often circumscribed; and it involved the use of violence and threats against victims. Accordingly the Court held that trafficking itself was prohibited by Article 4. It concluded that there had been a violation by Cyprus of its positive obligations arising under that Article on two counts: first, its failure to put in place an appropriate legal and administrative framework to combat trafficking as a result of the existing regime of artiste visas, and, second, the failure of the police to take operational measures to protect R from trafficking, despite circumstances which had given rise to a credible suspicion that she might have been a victim of trafficking. In light of its findings as to the inadequacy of the Cypriot police investigation under Article 2, the Court did not consider it necessary to examine the effectiveness of the police investigation separately under Article 4. There had also been a violation of Article 4 by Russia on account of its failure to investigate how and where R had been recruited and, in particular, to take steps to identify those involved in R's recruitment or the methods of recruitment used. The Court held that the detention by the police following the confirmation that R was not illegal had no basis in domestic law. It further held that her subsequent detention in the apartment had been both arbitrary and unlawful. There was therefore a violation of Article 5 § 1 by Cyprus. The Court rejected the applicant's other complaints. As important as this case is for taking aim at the exploitive nature of the sex industry and the willingness of States to turn a blind eye to it, Rantsev brings with it questions regarding the very ability of the Court to adjudicate over issues emanating from Article 4 of the European Convention on Human Rights (ECHR). With the determination of the Court that obligations emanating from Article 4 of the ECHR come into play because trafficking is based on slavery, the Court reveals itself as not having truly engaged with the legal distinctions that exist between these two concepts. As a result, the Court has further muddied the waters as to where legal distinction should be made regarding various types of human exploitation, be it the forced labor, servitude or slavery.

Hajduová v. Slovakia European Court of Human Rights (2010)

Domestic and intimate partner violence

Mrs. Hajduová was verbally and physically assaulted by her (now former) husband, who repeatedly threatened to kill her and her children. Mrs. Hajduová’s husband was convicted, and the district court ordered psychiatric treatment but no incarceration. The psychiatric hospital did not carry out the treatment, and Ms. Hajduová’s husband was released as the district court failed to order the hospital to retain him for psychiatric treatment. After his release, he verbally threatened Mrs. Hajduová and her lawyer. As a result, they filed criminal complaints against him, and the district court, in accordance to its earlier decision, arranged for psychiatric treatment and transported Mrs. Hajduová’s husband to a different hospital. Mrs. Hajduová filed a complaint with the Constitutional Court; she cited the violation of her right to liberty and security the right to a fair trial, the right to integrity and privacy and the right to the protection of private and personal life and claimed that the district court failed to ensure her husband’s placement in a psychiatric hospital immediately after his conviction. The Constitutional Court rejected her complaint on the grounds that she should have pursued an action for the protection of her personal integrity before ordinary courts. Mrs. Hajduová then filed a claim with the European Court of Human Rights (the “European Court”) alleging the failure of the Slovak Republic to fulfill its positive obligations to protect her from her husband, in violation of the right to private and family life (Article 8 of the Convention). Under Article 8, the State has positive obligations to implement effective measures to ensure respect for private and family life, and the duty to protect the physical and moral integrity of an individual from attack by other persons. The European Court further held that Mrs. Hajduová’s husband’s history of physical abuse and menacing behavior was sufficient to establish a well-founded belief that his threats would be carried out. It was the domestic authorities’ failure to ensure that Mrs. Hajduová’s husband was duly detained for psychiatric treatment which enabled him to continue his threats against her and her lawyer. The lack of sufficient measures taken by the domestic authorities, in particular the district court’s failure to comply with its statutory duties to ensure psychiatric treatment, amounted to a breach of the State’s positive obligation under Article 8 of the Convention to secure respect for the Mrs. Hajduová’s private life. The European Court awarded the claimant EUR 4,000 in damages.

Kontrová v. Slovakia European Court of Human Rights (2007)

Domestic and intimate partner violence

Mrs. Kontrová, (the claimant) a married women with two children, filed a criminal complaint against her husband, accusing him of assaulting and beating her with an electric cord. In her complaint, she mentioned the long history of physical and psychological abuse by her husband and submitted a medical report indicating that her latest injuries would prevent her from working for at least seven days. This statement was later modified upon the advice of a police officer, so that it could have been treated as a minor offence and the police decided to take no further action. One month later, the Police Department received two night emergency calls reporting that Mrs. Kontrová’s husband had a shotgun and was threatening to kill himself and the children. Despite the fact that the following morning Mrs. Kontrová went to the police station and inquired about her criminal complaint from the previous month as well as the incident of the previous night, the police took no further action and no new criminal complaint was filed. Four days later, Mrs. Kontrová’s husband shot and killed their two children and himself. Criminal proceedings initiated against the police officers involved in the case on the grounds of dereliction of duty produced no tangible results, and Mrs. Kontrová’s complaints lodged in the Constitutional Court were dismissed twice on the grounds that they were inadmissible. Mrs. Kontrová filed a claim with the European Court of Human Rights alleging a breach of the protection of her rights to life, privacy, a fair trial and right for an effective remedy. The local police department knew all about Mrs. Kontrová and her family, which triggered various specific obligations, such as registering the complaint, launching a criminal investigation and commencing criminal proceedings against Mrs. Kontrová’s husband, which the police failed to do. The direct consequence of this was the death of Mrs. Kontrová’s children and husband. The European Court further held that the Slovak Republic failed to fulfill its obligation to achieve an ‘effective’ remedy and Mrs. Kontrová’s compensation. The only action available to Mrs. Kontrová related to the protection of her personal integrity and this provided her with no such remedy. This amounted to a breach of right to an effective remedy , in connection with a breach right to life. The European Court held that an examination of the other Articles was not necessary and awarded her EUR 25,000 in damages.

Collins and Akaziebie v. Sweden European Court of Human Rights (2007)

Female genital mutilation or female genital cutting, Harmful traditional practices

The first applicant, the mother, filed for asylum upon arriving in Sweden, claiming she had fled Nigeria while pregnant with her daughter, the second applicant, in an attempt to flee the female-genital mutilation ("FGM") that would have been performed on her during childbirth if she stayed in Nigeria. The Swedish Migration Board rejected the asylum application, explaining that FGM was not grounds for asylum, and that FGM was outlawed by Nigerian law so it was unlikely the first applicant would be submitted to the procedure upon return to Nigeria. The Swedish Aliens Appeal Board rejected the applicant's appeal, rejecting her argument that FGM was a deep-rooted Nigerian tradition, carried out despite modern law. Following several more attempts within Sweden to be granted asylum, the applicants filed a complaint with the ECHR, alleging that if they were returned to Nigeria, they would face a high likelihood of being submitted to FGM. The argued this would violate Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The ECHR rejected the complaint, ruling that the applicants had failed to "substantiate that they would face a real and concrete risk of being subjected to female genital mutilation upon returning to Nigeria.

Case of Burghartz v. Switzerland European Court of Human Rights (1994)

Gender discrimination

Gender-based law on marital names.  The Court found no legal justification for a law to require married women to take their husbands' surnames.

Opuz v. Turkey European Court of Human Rights (2009)

Domestic and intimate partner violence

State failure to protect victims from domestic violence. Applicant brought this case against Turkey, alleging failure to protect her and her mother from domestic violence, violence which resulted in her mother's death and her own mistreatment. The victim and her mother were repeatedly abused and threatened by the victim's husband, abuse which was medically documented. The victim's husband and his father were at one point indicted for attempted murder against the two women, but both were acquitted. The abuse continued after the acquittal and eventually resulted in the husband's father killing the victim's mother. The husband's father was tried and convicted for intentional murder, but because he argued provocation and exhibited good behavior during the trial, his sentence was mitigated and he was released pending an appeal. Taking into consideration regional and international treaties as well as the domestic situation in Turkey, the ECHR held that Turkey violated Articles 2, 3, 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The ECHR ordered Turkey to pay the victim non-pecuniary damages and costs.

Case of Abdulaziz, Cabales and Balkandali v. the United Kingdom European Court of Human Rights (1985)

Gender discrimination

Three lawfully and permanently settled residents of the UK challenged the Government's refusal to permit their husbands to join or remain with them on the basis of the 1980 immigration rules in force at the time. The rules applied stricter conditions for the granting of permission for husbands to join their wives than vice versa. These conditions did not apply to the wives of male permanent residents. The Court found that Article 8 encompassed the right to establish one's home in the State of one's lawful residence, and that being forced to either move abroad or be separated from one's spouse was inconsistent with this principle. On this basis the applicants claimed that, as a result of unjustified differences of treatment in securing the right to respect for their family life, based on sex, race and, in the case of Mrs. Balkandali, birth, they had been victims of a violation of Article 14 of the Convention, taken in conjunction with Article 8. The applicants claimed there was no objective and reasonable justification for the difference in treatment, rather the Government's claims ignored the modern role of women and the fact that men may be self-employed and create rather than seek jobs, as in the case of Mr. Balkandali.

M.C. v. Bulgaria European Court of Human Rights (2003)

Sexual violence and rape

The victim, a 14-year old, alleged she was raped by two men, but an ensuing investigation found insufficient evidence of the girl having been compelled to have sex. The investigation found that force was not used and that therefore rape had not occurred. Before the ECHR, therefore, the victim alleged that Bulgarian law failed to protect her because it required force to be present for rape to have occurred, a higher standard than in other countries, where for example, only non-consent was necessary. She also challenged the thoroughness of the investigation. The ECHR found that Bulgaria violated its positive obligations under Articles 3 and 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms. It ordered Bulgaria to pay the victim non-pecuniary damages and costs.

Case of Schmidt v. Germany European Court of Human Rights (1994)

Gender discrimination

Gender-based service-or-tax requirement.  The Court found a law that required men only to serve as firefighter and required women to pay a tax was discriminatory in violation of the ECHR.

Case of Airey v. Ireland European Court of Human Rights (1979)

Domestic and intimate partner violence

Family law, domestic violence and the right of access to court.  Petitioner, a domestic violence survivor, could not find legal assistance to appear before a court.  The Court ruled that member states must guarantee effective access to the courts.