YILDRIM V AUSTRIA Flashcards
(6 cards)
YILDRIM v AUSTRIA (Facts of the case)
Fatma Yildirim married Irfan Yildirim in 2001, she already had three children from her previous marriage: two were adults, and the youngest, Melissa, was three years old. The marriage broke down in July 2003, Fatma Yildirim wanted to divorce but Irfan Yildirim would not agree, and threatened to kill her and her children, should she divorce him. On 4th August, Irfan Yildirim attacked Fatma Yildirim and threatened to kill her in person and subsequently by phone. He also came to her workplace and threatened her on a number of occasions. Fatma Yildirim reported these threats and the attack, applied for an injunction, and asked that Irfan Yildirim be detained. This request was refused. On 26th August, Fatma Yildirim applied for a divorce and was granted a protection order for herself and Melissa. On 11th September, Irfan Yildirim followed Fatma Yildirim home from work and fatally stabbed her in the street near the family’s apartment.
As in the case of Şahide Goekce, Fatma Yildirim’s children were represented by the Vienna Intervention Centre against Domestic Violence and the Association for Women’s Access to Justice. As in Şahide Goekce’s case, the applicants argued that:
The Austrian authorities argued that Irfan Yildirim did not seem violent when they interviewed him and had no previous convictions. The applicants argued against this and that a risk assessment should be more thorough and look at the experience of the victim of the threats.
The children of Fatma Yildirim had failed in an application for compensation for the death of their mother, as the Austrian authorities held that they had discharged all their obligations relating to her protection, including issuing a protection order, and had not committed any unlawful action.
YILDRIM v AUSTRIA (Decision of the committee)
The CEDAW Committee reaffirmed its stance that Austria’s comprehensive domestic violence framework must be supported by state actors adhering to due diligence obligations. The Committee found that Fatma Yildirim was in extreme danger due to Irfan Yildirim’s continued threats and violations of a protection order. The authorities’ failure to detain him was deemed a significant oversight, as his detention would not have been disproportionate; a perpetrator’s rights cannot outweigh a woman’s right to life and physical and mental integrity. The Committee recommended that Austrian authorities strengthen the enforcement and monitoring of domestic violence laws, prosecute offenders promptly, and enhance coordination and training among law enforcement and judicial personnel.
V.K. v. Bulgaria, Communication
VK, a Bulgarian woman, married her husband in 1995. They had two children, born in 1997 and 2001. Throughout the marriage, VK experienced severe emotional, psychological, economic, and physical abuse. Despite her qualifications and experience, VK’s husband prohibited her from working. He exerted complete control over the family’s finances, providing her with only a small, specified amount for basic needs. VK was treated as a housekeeper rather than a partner, subjected to humiliation, and isolated from her friends and family.
The abuse escalated to physical violence, prompting VK’s parents to call the police. A medical report confirmed bruising on VK’s forehead and hands, consistent with her reports of assault. The violence intensified when her husband ceased financial support for her and the children, attempting to force her into compliance. VK secured work to support her family and sought protective measures and financial maintenance in Polish courts, but her applications went unanswered. The situation worsened, culminating in her husband attempting to strangle her.
In a desperate effort to escape, VK attempted to flee with her children to a shelter. However, her husband locked their 6-year-old son in the apartment, forcing VK to leave with only her 10-year-old daughter. For months, VK was denied contact with her son, who was moved to a new kindergarten. Eventually, VK located her son, and together with both children, fled to Bulgaria to seek safety and legal assistance.
In Bulgaria, VK obtained a temporary protection order. However, the court denied her application for a permanent order, citing that no act of violence had occurred in the preceding month. VK argued that her husband’s years of abusive conduct should be considered, but her appeal was rejected. She highlighted systemic failures in Bulgaria’s legal framework, including the court’s narrow interpretation of domestic violence as requiring immediate threats to physical safety.
The judicial system further compounded VK’s suffering. Domestic violence was not treated as a criminal matter unless it resulted in death or permanent injury. Judicial officers lacked training to handle domestic violence cases, often viewing it as a private matter. Emotional, psychological, and economic abuse were largely ignored, and women seeking protection bore an unreasonable burden of proof. VK also faced ongoing harassment from her husband, including threats to take custody of their children and legal complaints to regain access to her apartment.
The CEDAW Committee intervened, requesting interim protective measures, but Bulgarian authorities delayed their response. They dismissed VK’s allegations as unsubstantiated, describing the abuse as “serious family rows” rather than unilateral violence. In her final statement to the Committee, VK emphasized the flawed understanding of domestic violence in Bulgaria’s legal system. She noted its failure to account for the cumulative impact of emotional and psychological abuse and criticized the courts for narrowly focusing on immediate threats. VK also detailed ongoing harassment, including threats to separate her children and take them abroad.
The CEDAW Committee found that the Bulgarian courts applied an overly restrictive definition of domestic violence, focusing only on physical harm and immediate threats, ignoring emotional and psychological abuse. The courts required proof beyond a reasonable doubt, placing an unfair burden on the victim, and excluded past incidents of violence due to procedural limitations. The Committee criticized the courts for relying on gender stereotypes, viewing domestic violence as a private matter, and disregarding the broader scope of abuse. It also noted the lack of shelter provisions for victims, which violated CEDAW, and acknowledged the moral and financial harm suffered by VK.
Committee recommendations:
* Remove inflexible time limits on the availability of protection orders, and all other undue administrative and legal burdens on women;
* Ensure that the burden of proof for securing protection orders does not discriminate against women;
* Ensure the availability of shelter places for women and their children, where necessary, supporting non-governmental organizations in providing these;
* Ensuring training for judges.
Maria da Penha Maia Fernandes v. Brazil
Mrs. Maria da Penha Maia Fernandes, the victim, endured a sustained period of domestic abuse at the hands of her husband, Marco Antônio Heredia Viveiros, an economist from Fortaleza, Ceará, Brazil. The abuse, which included both physical and psychological violence, escalated over time, with Mr. Viveiros inflicting harm not only on his wife but also on their daughters. Despite the recurring nature of the violence, Mrs. Fernandes was unable to extricate herself from the abusive relationship for an extended period.
The pivotal moment in the case occurred on May 29, 1983, when Mr. Viveiros attempted to murder his wife by shooting her while she slept. This violent act resulted in Mrs. Fernandes suffering permanent injuries, including irreversible paraplegia, which necessitated numerous surgeries and left her with both physical and psychological scars. In an attempt to obfuscate the crime, Mr. Viveiros falsely reported the shooting as an attempted robbery. However, within two weeks, he allegedly attempted to kill his wife again by attempting to electrocute her while she was bathing. This second violent episode ultimately compelled Mrs. Fernandes to seek legal separation.
Further investigation revealed that Mr. Viveiros had engaged in deceptive practices to conceal his criminal history from his wife, including a prior bigamous marriage and a child born in Colombia. These revelations, along with his prior attempts to secure financial gain through fraudulent means (such as convincing his wife to name him as the beneficiary of her life insurance policy), substantiated the premeditated nature of his violent actions
Maria tried to access justice through Brazilian courts, but although the shooting occurred in 1983, charges would not be brought against M.V. until 1985 and the first trial would not begin until 1991. For 15 years, Maria’s case remained in the Brazilian justice system, and M.V. remained free. With the help of the Center for Justice and International Law (CEJILJ) and the Latin American and Caribbean Committee for the Defence of Women’s Rights (CLADEM), Maria brought her case to the Inter-American Commission on Human Rights.
The Inter-American Commission on Human Rights determined that Brazil had violated its human rights obligations towards Maria da Penha by failing to adequately address the violence she suffered. The Commission cited several legal frameworks in its ruling, including the American Declaration on the Rights and Duties of Man, the American Convention on Human Rights, and the Belem do Pará Convention, all of which Brazil was found to have violated.
Specifically, the Commission concluded that Brazil’s failure to prosecute and convict the perpetrator, Mr. Viveiros, despite overwhelming evidence and prolonged legal proceedings, was indicative of the state’s condoning of violence against women. This systemic failure to act reflected a broader pattern of ineffective judicial actions and impunity for perpetrators of domestic violence. The Commission highlighted that Brazil’s inaction violated Maria’s rights to equal protection under the law, the right to justice, and the right to judicial protection.
Moreover, the Commission emphasized the ineffectiveness of Brazil’s gender-based violence policies, such as the creation of specialized police stations and shelters for survivors. These measures were deemed insufficient, as only a small percentage of complaints led to investigations or convictions. The Commission concluded that Brazil’s failures contributed to a climate of tolerance for domestic violence, thereby perpetuating gender-based discrimination and failing to provide effective protection for women.
Ultimately, the Commission found that Brazil had violated its duties under the American Convention and the Belem do Pará Convention by not taking positive, effective measures to prevent, punish, and eradicate violence against women. The recommendations pointed to the need for Brazil to ensure real judicial remedies, investigate and punish gender-based violence, and create a system that effectively addresses the violations faced by women.
Maria Da Penha Maia Fernandes v. Brazil (2001) is considered a landmark case on violence against women for more than one reason. Not only was it the first time the Commission heard a case related to domestic violence, but it was the first time it had found a state in violation of a woman’s rights for failing to take action to address it. Maria’s case was also the first time the Commission issued a decision on a state’s failure to comply with its obligations under the Belém do Pará Convention, ensuring that the gender dimensions of Maria’s case (beyond the domestic violence she suffered at the hands of M.V.) were not overlooked and the discrimination she faced within the Brazilian court system was addressed.
In addition, the “Maria da Penha Law on Domestic and Family Violence” (the “Maria da Penha Act”, 2006) was enacted as a result of the Commission’s decision. This law established special courts, increased sentences for perpetrators and established police stations and shelters for women in big cities (among other instruments for the prevention and relief of domestic violence). Within 5 years of the Maria da Penha Act, more than 331,000 prosecutions were held in Brazil and almost 2 million calls had been made to the Service Center for Women.
Jessica Lenahan (Gonzales) v. United States
Jessica Lenahan’s three daughters – Leslie (age 7), Katheryn (age 8) and Rebecca (age 10) – were abducted by her estranged husband, Simon Gonzales (S.G.) in June 1999. Fearing for their safety, Jessica repeatedly contacted the police asking for help finding the girls and to enforce the protection order she had against S.G. The police insufficiently responded to Jessica’s calls, failing to develop a coherent response to her concerns despite the existence of the protection order. During one call, Jessica begged for a missing children alert to be issued or for the department to contact the Denver police (where S.G. had taken the girls), to which the officer on the other line advised her to contact the Court about S.G.’s violation of their divorce decree and ended their conversation with, ”at least you know where the kids are right now.” Another time, she spoke with a dispatcher who told her, “I don’t know what else to say, I mean…. I wish you guys uh, I wish you would have asked or had made some sort of arrangements. I mean that’s a little ridiculous making us freak out and thinking the kids are gone…”
At 3:25 am, S.G. drove to the police department and opened fire. In the shootout that ensued with police, S.G. was shot and killed by the police. Leslie, Katheryn and Rebecca’s bodies were found in the back of S.G.’s truck with multiple gunshot wounds and were reportedly dead at the time they were discovered.
When Jessica heard about the shooting from S.G.’s girlfriend, she drove to the police station. Jessica reported that on her arrival she could not get any information on whether her daughters were alive or not, and her requests to see the girls and identify them were ignored for around 12 hours. Despite continual requests for information on the time, place and cause of Leslie, Katheryn and Rebecca’s deaths, neither Jessica nor her family were ever given information indicating a proper investigation had been carried out by police.
The Commission concluded that the United States was responsible for violating the human rights of Jessica Lenahan and her daughters, Leslie, Katheryn, and Rebecca, under the American Declaration on the Rights and Duties of Man. Specifically, the Commission identified violations of Articles 1 (right to life, liberty, and security of person), 2 (right to equal protection under the law without discrimination), 7 (special protection for mothers and children), and 18 (right to judicial protection). The violations were rooted in the systemic failure of the U.S. to respond effectively to gender-based violence, which culminated in the tragic deaths of Leslie, Katheryn, and Rebecca. The Commission determined that the state’s failure to protect these women and girls amounted to a form of discrimination, which severely impaired their rights and left them vulnerable to harm.
A central issue identified by the Commission was gender-based violence, which it recognized as one of the most pervasive and extreme forms of discrimination against women. The Commission emphasized that states have a duty to act with due diligence to ensure the security of women, whether the violence is perpetrated by public officials or private individuals.
In this case, the USA failed to meet its obligations, as evidenced by several systemic failures. These included the historical issue of the non-enforcement of protection orders, a disorganized police response to escalating violence, and the insensitive and dismissive reactions of police dispatchers to Jessica’s calls for help. This failure to act appropriately undermined public trust in the state’s ability to protect women and girls from violence, reproducing social tolerance for such acts. The Commission determined that these systemic failures constituted a violation of the right to equal protection under the law (Article 2).
Furthermore, the Commission recognized that certain groups of women, including young girls like Leslie, Katheryn, and Rebecca, face multiple and intersecting forms of discrimination, which increase their vulnerability to violence. Given the heightened risk the girls faced due to their sex and age, the Commission found that the USA had a responsibility to implement special protection measures. The failure to do so was seen as a violation of the right to life (Article 1) and the right to special protection for mothers and children (Article 7), as these measures could have prevented or mitigated the violence they ultimately faced.
In addition to the failures in protection and response, the Commission highlighted that the United States violated the rights of Jessica and her family under Article 18 by failing to launch a thorough, prompt, and impartial investigation into the deaths of Leslie, Katheryn, and Rebecca, as well as into the systemic failures surrounding the non-enforcement of Jessica’s protection order. The absence of such an investigation not only compounded the injustice but also failed to address the broader issues that contributed to the tragic outcome.
As a result, the Commission made several recommendations for the United States. These included conducting serious, impartial, and exhaustive investigations into the causes of the deaths and the systemic failures involved, and keeping the family informed about the progress of these investigations. The Commission also recommended offering full reparations to Jessica and her family, taking into account their specific needs and perspectives. Additionally, it called for federal and state reforms to ensure the mandatory enforcement of protection orders, the allocation of adequate resources to support their implementation, and the establishment of regulations, training programs, and model protocols for law enforcement to follow. The Commission further recommended adopting legislative reforms to protect children in domestic violence situations, addressing discriminatory stereotypes related to domestic violence, and implementing comprehensive public policies and institutional programs aimed at the eradication of such stereotypes and improving the protection of women and children. Finally, the Commission suggested the design of specific protocols for investigating cases of missing children in the context of restraining order violations to ensure more effective law enforcement responses in the future.
This was the first domestic violence case to be brought against the USA before an international body. The Commission treated the American Declaration on the Rights and Duties of Man as a binding human rights instrument, recognizing its legal obligations under the Organization of American States (OAS) Charter. The Commission ruled that Jessica’s case was admissible and emphasized that the American Declaration constitutes a source of legal obligation for OAS member states, including those not party to the American Convention on Human Rights. This decision marked a key moment in international human rights law, as the Commission interpreted the American Declaration through a gendered lens, reinforcing the responsibility of all states to address violence against women, regardless of their ratification status of the American Convention, specifically under Articles 1, 2, 7, and 18 of the Declaration. The ruling underscored the international obligation to protect women’s rights and combat gender-based violence.
Rumor v. Italy
The applicant complained that the authorities had failed to support her following the serious incident of domestic violence against her in November 2008 or to protect her from further violence. She alleged in particular that her former partner had not been obliged to have psychological treatment and continued to represent a threat to both her and her children. She further claimed that the reception centre chosen for his house arrest, situated just 15km from her home, had been inadequate, submitting that she had been intimidated twice by employees of the reception centre which was in breach of a court order prohibiting any form of contact with her former partner. Lastly, she alleged that these failings had been the result of the inadequacy of the legislative framework in Italy in the field of the fight against domestic violence and that this discriminated against her as a woman.
The Court held that there had been no violation of Article 3 (prohibition of inhuman and degrading treatment) alone and in conjunction with Article 14 (prohibition of discrimination) of the Convention. It found that the Italian authorities had put in place a legislative framework allowing them to take measures against persons accused of domestic violence and that that framework had been effective in punishing the perpetrator of the crime of which the applicant was the victim and preventing the recurrence of violent attacks against her physical integrity.
