Women and Justice: Keywords

Domestic Case Law

Jeffries v. R Supreme Court of New South Wales (Court of Criminal Appeal) (2008)

Domestic and intimate partner violence

The appellant in this case was convicted of multiple domestic violence offenses and sentenced to prison. The appellant sought an appeal on the basis that the judge in the lower court “erred in failing to consider special circumstances in relation to the question of accumulation” and also imposed a “manifestly excessive” sentence. In light of the seriousness of the appellant’s offenses, as well as his history of domestic violence against the victim in the case, the Court ordered the appeal dismissed. When dismissing the appeal, the Court noted the appellant’s “pessimistic . . . prospects of rehabilitation,” as well as general goals of deterrence and community safety.



R v. Hamid Supreme Court of New South Wales (Court of Criminal Appeal) (2006)

Domestic and intimate partner violence

The Respondent in this case faced a prison term of two years and six months based on his convictions for 9 counts of serious domestic violence offenses. The Respondent was also ordered to refrain from any harassment or threatening conduct toward the victims (or those in domestic relationships with the victims) for ten years. In response to the sentencing of the Respondent, “the Crown submitted that the sentences imposed upon the Respondent were manifestly inadequate.” The Crown noted that “a number of individual sentences were themselves inadequate given the objective seriousness of the crimes involved.” The Court emphasized the importance of both specific and general deterrence for domestic violence offenses and noted “[r]ecognition of the harm done to the victim and the community as a result of crimes of domestic violence is important.” The Court ultimately held that “the sentences imposed upon the Respondent were manifestly inadequate” and resentenced the Respondent.



1 BvR 300/02 Federal Constitutional Court (Bundesverfassungsgericht) (2002)

Domestic and intimate partner violence

Mr. Z appealed to the Court against an injunction issued against him by a lower court in expedited proceedings prohibiting him from approaching his partner and from re-entering the flat he shared with her on the grounds of protection from domestic violence. The Court did not allow the appeal on the grounds that the injunction did not breach a constitutional right of the claimant. The need for immediate short-term protection from further domestic violence justified the expedited nature of the proceedings.



Case Number E.1999/35, K.2002/104 Constitutional Court of Turkey (2002)

Domestic and intimate partner violence, Gender-based violence in general

The Constitutional Court found that the legislature could take necessary measures to reduce violence within families. Articles 1.1 of the Law on the Protection of the Family allows judges to take measures against one spouse, not both, and not against the children or members of the family, if a spouse has subjected another family member to domestic violence. The Gulyaly Peace Court found that because the Articles did not provide for an injunction or penalty if a child committed a violent act, rather than a spouse or parent, the Articles violated the principle of equality. Relying on Article 41 of the Turkish Constitution, which focuses on the family as the foundation of Turkish Society and gives the legislature the power to protect the family unit, the Constitutional Court found that Article 1.1 does not violate the Constitution because it protects the family unit and ensures peace within a family unit. The Court also found that the provision did not violate the Turkish equality principle, because the legal status of spouses differs from that of other family members and just cause exists to treat such groups differently.



Case Number E.2005/151, K. 2008/37 Constitutional Court of Turkey (2008)

Domestic and intimate partner violence, Gender-based violence in general

The Constitutional Court held that a provision in the Turkish Penal Code that increases the penalty by half for the crime of laceration if committed against family members is constitutional. Although such a penalty treats family members differently than non-family members, the Court found that such differential treatment did not violate the equality principle under the Turkish Constitution. Under the equality principle, criminals who have committed the same offence may not be subject to the same penalty if they have different legal statuses. Here, the Court found that the Turkish Legislature, through the Turkish Penal Code, expressed a preference for family members, giving family members a different legal status and thus the provision did not violate the equality principle. In reaching its decision, the Court also noted that Turkey has taken “extensive legal and administrative measures” to prevent and reduce domestic violence in Turkey. Because the state must protect family members from danger and family members have a different legal status, the Court found that the provision increasing the term of imprisonment and fine for laceration against a family member is constitutional.



B., M.P. v. G., R.A. Lomas de Zamora Family Court #3 (2006)

Domestic and intimate partner violence

M.P.B. suffered repeated domestic violence and abuse at the hands of her husband R.A.G. In civil suit, M.P.B. was granted exclusive control of the spousal home and custody of her children. The court imposed a restraining order on R.A.G.; he was unable to go within 300 meters of the family home, his wife’s work, or the 9 and 12 year-old children’s school. This case is fairly punitive toward the father by Argentinean standards. The judge cited both Argentinean statutes and international human rights law in arriving at her decision.

M.P.B. sufrió repetida violencia doméstica y abuso a manos de su esposo R.A.G. En una demanda civil, a M.P.B. se le otorgó el control exclusivo de la casa del cónyuge y la custodia de sus hijos. El tribunal impuso una orden de restricción a R.A.G: no podía ir a menos de 300 metros del hogar familiar, del trabajo de su esposa o de la escuela de niños de 9 y 12 años. Este caso es bastante punitivo hacia el padre para los estándares argentinos. El juez citó tanto los estatutos argentinos como el derecho internacional de los derechos humanos al llegar a su decisión.



Memoranda

Domestic Violence in Turkey (2011)

Domestic and intimate partner violence

This memorandum provides a brief overview of violence against women in Turkey and, in doing so, highlights select reports and news stories, and references key legal obligations and case law touching on this problem.