CEDAW Committee, Goecke v. Austria, Comm. No. 5/2005, UN Doc. CEDAW/C/39/D/6 (2005), excerpt | Samuel Moyn | August 10, 2016

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CEDAW Committee, Goecke v. Austria, Comm. No. 5/2005, UN Doc. CEDAW/C/39/D/6 (2005), excerpt

CEDAW Committee, Goecke (Deceased) v. Austra, Comm. No. 5/2005

UN Doc. CEDAW/C/39/D/6 (2005)

2.1 The first violent attack against Şahide Goekce by her husband, Mustafa Goekce, that the authors are aware of took place on 2 December 1999 at approximately 4 p.m. in the victim’s apartment at which time Mustafa Goekce choked Şahide Goekce and threatened to kill her. Şahide Goekce spent the night with a friend of hers and reported the incident to the police with the help of the Youth Welfare Office of the 15th district of Vienna the following day.

2.2 On 3 December 1999, the police issued an expulsion and prohibition to return order against Mustafa Goekce covering the Goekce apartment, pursuant to Section 38a of the Security Police Act (Sicherheitspolizeigesetz). In the documentation supporting the order, the police officer in charge of the case stated that two light red bruises were visible under Şahide Goekce’s right ear that, according to her, were from the choking.

2.3 Under section 107, paragraph 4, of the Penal Code (Strafgesetzbuch), a threatened spouse, direct descendant, brother or sister or relative who lives in the same household of the accused must give authorization in order to prosecute the alleged offender for making a criminal dangerous threat. Şahide Goekce did not authorize the Austrian authorities to prosecute Mustafa Goekce for threatening her life. Mustafa Goekce was, therefore, charged only with the offence of causing bodily harm. He was acquitted because Şahide Goekce’s injuries were too minor to constitute bodily harm.

2.4 The next violent incidents of which the authors have knowledge occurred on 21 and 22 August 2000. When the police arrived at the Goekce’s apartment on 22 August 2000, Mustafa Goekce was grabbing Şahide Goekce by her hair and was pressing her face to the floor. She later told the police that Mustafa Goekce had threatened to kill her the day before if she reported him to the police. The police issued a second expulsion and prohibition to return order against Mustafa Goekce covering the Goekce’s apartment and the staircase of the apartment building, which was valid for 10 days. They informed the Public Prosecutor that Mustafa Goekce had committed aggravated coercion (because of the death threat) and asked that he be detained. The request was denied.

2.5 On 17 December 2001, 30 June 2002, 6 July 2002, 25 August 2002 and 16 September 2002 the police were called to the Goekce’s apartment because of reports of disturbances and disputes and/or battering.

2.6 The police issued the third expulsion and prohibition to return order against Mustafa Goekce (valid for 10 days) as a result of an incident on 8 October 2002 that Şahide Goekce had called in; she claimed that Mustafa Goekce called her names, tugged her by her clothes through the apartment, hit her in the face, choked her and again threatened to kill her. Her cheek was bruised and she had haematoma on the right side of her neck. Şahide Goekce pressed charges against her husband for causing bodily harm and making a criminal dangerous threat. The police interrogated Mustafa Goekce and again requested that he be detained. Again, the Public Prosecutor denied the request.

2.7 On 23 October 2002, the Vienna District Court of Hernals issued an interim injunction for a period of three months against Mustafa Goekce, which forbade Mustafa Goekce from returning to the family apartment and its immediate environs and from contacting Şahide Goekce or the children. The order was to be effective immediately and entrusted to the police for execution. …

2.8 On 18 November 2002, the Youth Welfare Office (which had been in constant contact with the Goekce family because of the violent assaults that took place in front of the children) informed the police that Mustafa Goekce had not obeyed the interim injunction and was living in the family apartment. The police did not find him there when they checked….

2.10 On 5 December 2002, the Vienna Public Prosecutor stopped the prosecution of Mustafa Goekce for causing bodily harm and making a criminal dangerous threat on grounds that there was insufficient reason to prosecute him.

2.11 On 7 December 2002, Mustafa Goekce shot Şahide Goekce with a handgun in their apartment in front of their two daughters. The police report reads that no officer went to the apartment to settle the dispute between Mustafa Goekce and Şahide Goekce prior to the shooting.

2.12 Two-and-a-half hours after the commission of the crime, Mustafa Goekce surrendered to the police. He is reportedly currently serving a sentence of life imprisonment in an institution for mentally disturbed offenders….

 

4.1 By its submission of 4 May 2005, the State party describes the sequence of events leading up to the murder of Şahide Goekce. Mustafa Goekce was not prosecuted for making a criminal dangerous threat against Şahide Goekce on 2 December 1999 because she did not authorize the authorities to do so. The authorities proceeded to prosecute him for maliciously inflicting bodily harm. According to the court records, Şahide Goekce did not want to testify against Mustafa Goekce and expressly asked the court not to punish her husband. He was acquitted because of an absence of evidence….

4.3 On 18 September 2000, the Public Prosecutor received a written complaint (Anzeige) regarding the incident of 22 August 2000. When interrogated, Şahide Goekce said that she had suffered an epileptic fit and bouts of depression and denied that Mustafa Goekce had threatened to kill her. As a consequence, the Public Prosecutor discontinued the proceedings against Mustafa Goekce for aggravated coercion and making a criminal dangerous threat. …

4.5 Mustafa Goekce and Şahide Goekce agreed to go into partner therapy and to stay in contact with the Youth Welfare Office. Until summer 2002, they were in therapy. The city administration also offered them a new and more spacious apartment to meet their pressing accommodation needs. …

4.7 A police report of 18 November 2002 showed that the Youth Welfare Office requested the police to come to the Goekce apartment because he had violated the interim injunction and was in the apartment. Mustafa Goekce was no longer there when the police arrived. Şahide Goekce seemed angry that the police had come and asked them why they came almost on a daily basis although she had expressly declared that she wished to spend her life together with her husband.

4.8 On 6 December 2002, the Vienna Public Prosecutor’s Office withdrew the charges of making a criminal dangerous threat that related to an incident that took place on 8 October 2002, because Şahide Goekce gave a written statement to the Police in which she claimed that a scrap had caused her injury. She also stated that her husband had repeatedly over a number of years threatened to kill her. The Public Prosecutor proceeded on the assumption that the threats were a regular feature of the couple’s disputes and would not be carried out. Şahide Goekce repeatedly tried to play down the incidents in the interest of preventing the prosecution of Mustafa Goekce. By doing this and refusing to testify in the criminal proceedings, she contributed to the fact that he could not be convicted of a crime.

4.9 On 7 December 2002, Mustafa Goekce came to the apartment in the early hours of the morning and opened the door with a key given to him by Şahide Goekce one week earlier. He left the apartment at 8.30 a.m. only to return at noon. Şahide Goekce shouted at him that he was not the father of all her children and Mustafa Goekce shot her dead with a handgun that he had purchased three weeks earlier, despite a valid weapons prohibition against him….

4.11 As to admissibility, the State party disputes that domestic remedies have been exhausted. Firstly, Şahide Goekce did not give the competent authorities her authorization to prosecute Mustafa Goekce for making a criminal dangerous threat. Nor was she prepared to testify against him.

4.13 Şahide Goekce never made use of section 382b of the Act on the Enforcement of Judgments to request an interim injunction against Mustafa Goekce. Instead, she made it clear that she was not interested in further interference with her family life. She never made a clear decision to free herself and the children from their relationship with her husband (for example, she gave him the keys to the apartment, despite there being a valid interim injunction). …

4.14 Against this background, the use of detention was not justified in relation to the incident of 8 October 2002. Mustafa Goekce had no criminal record and the Public Prosecutor did not know at the time that Mustafa Goekce had a weapon. The Public Prosecutor did not consider that the known facts indicated an imminent danger of Mustafa Goekce committing a homicide…

4.16 The State party also argues that special training courses are held on a regular basis for judges and the police on domestic violence. Cooperation between judges and the police is constantly reviewed in order to ensure more rapid intervention by organs of the State — the aim being to prevent as far as possible tragedies such as that of Şahide Goekce without improper interference into a person’s family life and other basic rights.

8.17 The State party … submits that detention is ordered when there are sufficiently substantiated fears that a suspect would carry out a threat if he/she were not detained. It maintains that mistakes in assessing how dangerous an offender is cannot be excluded in an individual case. The State party asserts that, although the present case is an extremely tragic one, the fact that detention must be weighed against an alleged perpetrator’s right to personal freedom and a fair trial cannot be overlooked. Reference is made to the case law of the European Court of Human Rights that depriving a person of his or her freedom is, in any event, ultima ratio and may be imposed only if and insofar as this is not disproportionate to the purpose of the measure. The State party also contends that, were all sources of danger to be excluded, detention would need to be ordered in situations of domestic violence as a preventive measure. This would reverse the burden of proof and be in strong contradiction with the principles of the presumption of innocence and the right to a fair hearing. Protecting women through positive discrimination by, for example, automatically arresting, detaining, prejudging and punishing men as soon as there is suspicion of domestic violence, would be unacceptable and contrary to the rule of law and fundamental rights….

8.19 The State party summarizes its position by asserting that Şahide Goekce could not be guaranteed effective protection because she had not been prepared to cooperate with the Austrian authorities. In light of the information available to the public authorities, any further interference by the State in the fundamental rights and freedoms of Mustafa Goekce would not have been permissible under the Constitution.

8.20 The State party asserts that its system of comprehensive measures aimed at combating domestic violence does not discriminate against women and the authors’ allegations to the contrary are unsubstantiated. Decisions, which appear to be inappropriate in retrospect (when more comprehensive information is available) — are not discriminatory eo ipso. The State party maintains that it complies with its obligations under the Convention concerning legislation and implementation and that there has been no discrimination against Şahide Goekce as a woman.

12.1.2 The Committee notes that the State party has established a comprehensive model to address domestic violence that includes legislation, criminal and civil-law remedies, awareness-raising, education and training, shelters, counselling for victims of violence and work with perpetrators. However, in order for the individual woman victim of domestic violence to enjoy the practical realization of the principle of equality of men and women and of her human rights and fundamental freedoms, the political will that is expressed in the aforementioned comprehensive system of Austria must be supported by State actors, who adhere to the State party’s due diligence obligations.

12.1.3 In the instant case, the Committee notes that during the three-year period starting with the violent episode that was reported to the police on 3 December 1999 and ending with the shooting of Şahide Goekce on 7 December 2002, the frequency of calls to the police about disturbances and disputes and/or battering increased; the police issued prohibition to return orders on three separate occasions and twice requested the Public Prosecutor to order that Mustafa Goekce be detained; and a three-month interim injunction was in effect at the time of her death that prohibited Mustafa Goekce from returning to the family apartment and its immediate environs and from contacting Şahide Goekce or the children. The Committee notes that Mustafa Goekce shot Şahide Goekce dead with a handgun that he had purchased three weeks earlier, despite a valid weapons prohibition against him as well as the uncontested contention by the authors that the police had received information about the weapon from the brother of Mustafa Goekce. In addition, the Committee notes the unchallenged fact that Şahide Goekce called the emergency call service a few hours before she was killed, yet no patrol car was sent to the scene of the crime.

12.1.4 The Committee considers that given this combination of factors, the police knew or should have known that Şahide Goekce was in serious danger; they should have treated the last call from her as an emergency, in particular because Mustafa Goekce had shown that he had the potential to be a very dangerous and violent criminal. The Committee considers that in light of the long record of earlier disturbances and battering, by not responding to the call immediately, the police are accountable for failing to exercise due diligence to protect Şahide Goekce.

12.1.5 Although, the State party rightly maintains that, it is necessary in each case to determine whether detention would amount to a disproportionate interference in the basic rights and fundamental freedoms of a perpetrator of domestic violence, such as the right to freedom of movement and to a fair trial, the Committee is of the view, as expressed in its views on another communication on domestic violence, that the perpetrator’s rights cannot supersede women’s human rights to life and to physical and mental integrity. In the present case, the Committee considers that the behaviour (threats, intimidation and battering) of Mustafa Goekce crossed a high threshold of violence of which the Public Prosecutor was aware and as such the Public Prosecutor should not have denied the requests of the police to arrest Mustafa Goekce and detain him in connection with the incidents of August 2000 and October 2002.

12.1.6 While noting that Mustafa Goekce was prosecuted to the full extent of the law for killing Şahide Goekce, the Committee still concludes that the State party violated its obligations under article 2 (a) and (c) through (f), and article 3 of the Convention read in conjunction with article 1 of the Convention and general recommendation 19 of the Committee and the corresponding rights of the deceased Şahide Goekce to life and physical and mental integrity. …

12.3 Acting under article 7, paragraph 3, of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, the Committee on the Elimination of Discrimination against Women is of the view that the facts before it reveal a violation of the rights of the deceased Şahide Goekce to life and physical and mental integrity under article 2 (a) and (c) through (f), and article 3 of the Convention read in conjunction with article 1 of the Convention and general recommendation 19 of the Committee and makes the following recommendations to the State party:

(a) Strengthen implementation and monitoring of the Federal Act for the Protection against Violence within the Family and related criminal law, by acting with due diligence to prevent and respond to such violence against women and adequately providing for sanctions for the failure to do so;

(b) Vigilantly and in a speedy manner prosecute perpetrators of domestic violence in order to convey to offenders and the public that society condemns domestic violence as well as ensure that criminal and civil remedies are utilized in cases where the perpetrator in a domestic violence situation poses a dangerous threat to the victim; and also ensure that in all action taken to protect women from violence, due consideration is given to the safety of women, emphasizing that the perpetrator’s rights cannot supersede women’s human rights to life and to physical and mental integrity;

(c) Ensure enhanced coordination among law enforcement and judicial officers and also ensure that all levels of the criminal justice system (police, public prosecutors, judges) routinely cooperate with non-governmental organizations that work to protect and support women victims of gender-based violence;

(d) Strengthen training programmes and education on domestic violence for judges, lawyers and law enforcement officials, including on the Convention on the Elimination of All Forms of Discrimination against Women, general recommendation 19 of the Committee, and the Optional Protocol thereto.

12.4 In accordance with article 7, paragraph 4, the State party shall give due consideration to the views of the Committee, together with its recommendations, and shall submit to the Committee, within six months, a written response, including any information on any action taken in the light of the views and recommendations of the Committee. The State party is also requested to publish the Committee’s views and recommendations and to have them translated into the German language and widely distributed in order to reach all relevant sectors of society.

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August 10, 2016

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Samuel Moyn

Harvard Law School

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