Beyond Opuz v. Turkey: the CJEU’s Judgment in WS and the Refugee Law Consequences of the State’s Failure to Protect Victims of Domestic Violence

By Dr. Türkan Ertuna Lagrand

Introduction

Fifteen years after Opuz v. Turkey, Türkiye is once more the source for a groundbreaking judgment of a European court focusing on domestic violence. In its judgment of 16 January 2024 in WS (C-621/21), the Court of Justice of the EU (CJEU) has established some long-awaited crucial interpretations to contribute to the advancement of international and European refugee law. Yet, the significance of the judgment goes beyond the confines of refugee law and crystallises the link between refugee law and constitutional obligations of a State to protect individuals from discrimination, torture, mal-treatment or treatment incompatible with human dignity as well as their right to life. In this sense, while the judgment of the European Court of Human Rights (ECtHR) in Opuz v. Turkey established in 2009 that a State’s failure to protect individuals from domestic violence may lead to a violation of its constitutional obligation to safeguard the right to life, the judgment of the CJEU further builds up on that case law. It establishes that the external consequence of such failure might be the granting of refugee status to the victim of domestic violence whom the State has failed to protect.

For a comprehensive understanding of the State’s responsibilities in cases of domestic violence it is important to read the respective judgments of both European courts together. The CJEU has also drawn parallels with the European Convention on Human Rights (ECHR) as well as its case-law in reaching its conclusion. It is in this context that, while the CJEU has built its argumentation on the violation of Article 2 ECHR, the Advocate General in his opinion has directly discussed the ECtHR’s judgment in Opuz v. Turkey to explain his argumentation that a State’s duty based on Article 2 extends to protecting victims of domestic violence (paragraph 107).

Facts of the case

The case concerns WS, a Turkish national whose application for international protection was examined by the Bulgarian State Agency for Refugees. WS stated that she had been forcibly married at the age of sixteen to a man who beat and threatened her during their married life while her biological family and in-laws not only refused to assist her but also added to the violence and threats against her. She lodged complaints with the prosecutor’s office and was repeatedly placed in ‘violence prevention and monitoring’ centres where she claimed not to feel safe. A five-month custodial sentence was imposed on her husband, yet was suspended given the absence of previous convictions. WS consequently fled and entered in a religious marriage with another man, and got divorced from her husband when she had already left Türkiye. Her final application for international protection before Bulgarian authorities was based on her claim to a well-founded fear of persecution by non-State actors on account of her membership of ‘a particular social group’ and her assertion that the Turkish State was not able to defend her against those non-State actors, which would result in her return to Türkiye exposing her to an ‘honour killing’ or a forced marriage.

The judgment

In an appeal against the negative decision of the Bulgarian Authorities, the Bulgarian Administrative Court in Sofia stayed the proceedings to refer five questions for a preliminary ruling. In its judgment, the CJEU firstly ruled that women in a country as a whole may be regarded as belonging to ‘a particular social group’, as a ‘reason for persecution’ capable of leading to the recognition of refugee status, thereby ending once and for all the discussion whether the size of the group may prevent such qualification as a whole. Secondly, the CJEU ruled that where an applicant claims being persecuted in his or her country of origin by non-state actors (e.g. husband or partner), this could lead to a refugee status if such acts are based on one of the listed grounds for persecution and in the absence of protection from those acts by the State. Finally, should the national authorities decide that the applicant does not qualify for refugee status, the concept of ‘serious harm’ should be interpreted as covering the real threat to the applicant of being killed or subjected to acts of violence inflicted by a member of his or her family or community due to the alleged transgression of cultural, religious or traditional norms, leading to the recognition of subsidiary protection status.

The judgment also ends a debate that has continued thus far regarding the question of whether the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) was to be considered a ‘relevant treaty’ in the meaning of 78(1) TFEU, according to which the EU Asylum Law is to be interpreted. Despite the Advocate General’s negative opinion on the issue based on the fact that the EU had not ratified the CEDAW (para 59 and 60 of the Opinion of the AG), the CJEU ruled that, since all Member States of the EU have ratified it, the CEDAW is a relevant treaty for the interpretation of European Refugee Law (para 44 of the judgment). This point is important due to the links established between violence against women and discrimination, a concept crucial for establishing the existence of persecution.

State’s failure to protect victims of domestic violence from a Refugee Law perspective

The judgment is certainly one that will have important consequences in the area of international and European refugee law and will be debated at length in these circles. This contribution focuses on the judgment of the CJEU insofar as it relates to constitutional obligations of the state to protect individuals and the consequences established in the present case of failing to observe these obligations.

A refugee is defined in the 1951 Geneva Convention as ‘any person who … owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country’. The EU Qualification Directive takes up this definition, and supplements international protection by establishing subsidiary protection for those who do not qualify as a refugee in the meaning of the Geneva Convention but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, would face a real risk of suffering serious harm (Article 2).

The Directive identifies the ‘actors of persecution and serious harm’ as the State and parties or organisations controlling the State or substantial parts of it, as well as non-State actors, if it can be demonstrated that the State (or the parties or organisations controlling it) are unable or unwilling to provide protection against persecution or serious harm (Article 6). It is in this connection that domestic violence simultaneously becomes the subject of refugee law, and comes into the sphere of constitutional safeguards against mal-treatment.

The competent national authority must ascertain the existence of protection against persecution committed by non-State actors, by first identifying the actors of protection, which can only be the State or the parties or organizations controlling it, and by ensuring that these actors of protection are willing and able to offer protection (Article 7). In order to decide whether or not the State (or the party or organization controlling it) is affording protection against persecution, the competent national authority must determine that the protection is effective and of a non-temporary nature. Article 7 explains that such protection can be assumed to exist when the actor of protection has taken reasonable steps to prevent the persecution or suffering of serious harm by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and when the applicant has access to such protection. To clarify, in order for acts of domestic violence to be regarded as acts of persecution, the compulsory element is that the State (or the party or organization controlling it) is unable or unwilling to provide a type of protection to the victim that can be qualified as effective and non-temporary, enabling such acts to be detected, prosecuted and punished, and to which the victim has access.

The CJEU emphasises in its judgment that there does not have to be a link between the reasons of persecution and the absence of protection as long as the link exists between the former and the persecutory act itself (paragraphs 66, 67 and 69).

State’s failure to protect victims of domestic violence from a Human Rights Law perspective

In the context of domestic violence, the duty of a State to protect individuals from domestic violence is best explained in the seminal judgment of the ECtHR in Opuz v. Turkey. This case was brought against the Turkish State for failing to protect the applicant and her mother from the violence perpetrated by the husband of the applicant, which eventually led to the death of the applicant’s mother. In observing that the escalating and continuous violence was known to the authorities, the ECtHR found that the authorities could have foreseen the fatal attack against the mother, and that their failure to take reasonable measures led to their failure in their positive obligation to protect the right to life of the applicant’s mother within the meaning of Article 2 ECHR. Furthermore, the ECtHR found that the violence suffered by the applicant, in the form of physical injuries and psychological pressure, were sufficiently serious to amount to ill-treatment within the meaning of Article 3 ECHR. The ECtHR ruled on this issue that the State authorities’ failure to take protective measures in the form of effective deterrence against serious breaches of the applicant’s personal integrity by her husband has been a violation of Article 3 ECHR. Finally, by extensively referring to CEDAW and relevant general recommendations of the CEDAW Committee, the ECtHR reiterated that gender based violence is a form of discrimination against women, and ruled that the general and discriminatory judicial passivity in Turkey, albeit unintentional, led to the violation of Article 14 ECHR on the prohibition of discrimination.

The judgment in Opuz v. Turkey has been groundbreaking in that it established prevention of domestic violence to be a positive obligation of the state, the violation of which leading to a violation of the ECHR’s prohibition of torture and inhuman treatment as well as the prohibition of discrimination.

A closer look reveals that the ECtHR indicates in that judgment that Article 2 ECHR on the right to life instructs States not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (paragraph 128). The ECtHR further explains that ‘this involves a primary duty on the State to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression, and punishment of breaches of such provisions. It also extends in appropriate circumstances to a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual’ (paragraph 128). When it is alleged that the State has violated its positive obligation to protect the right to life in the context of its duty to prevent and suppress offences against an individual, ‘it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk’ (paragraph 130). Considering that the right to life is a right fundamental in the scheme of the ECHR, the ECtHR establishes that it would be sufficient for an applicant to demonstrate that the State did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge (paragraph 130).

The ECtHR in its judgment had also refuted the claims of the Turkish government that any further interference by the State would have amounted to a breach of the victim’s rights under Article 8 ECHR, namely of their right to respect for private and family life. The ECtHR did this by referring to an earlier judgment in a similar case of domestic violence involving Bulgaria (Bevacqua and S. v. Bulgaria), in which the Bulgarian State held that no assistance was required as the dispute concerned a ‘private matter’. The ECtHR reiterated first of all that such an interpretation of the right to respect for private and family life would be incompatible with the State’s positive obligations to secure the enjoyment of the applicant’s rights; and second of all that in some instances State intervention with private or family life of the individuals might even be necessary in order to protect the health and rights of others or to prevent the commission of criminal acts (paragraph 144). Similarly, once the situation is brought to the attention of the State authorities, they cannot rely on the victim’s attitude (such as withdrawing the complaint against the perpetrator) for their failure to take adequate measures which could prevent the likelihood of an aggressor carrying out his threats against the physical integrity of the victim (paragraph 153).

Concluding Remarks

Read in conjunction with Opuz v. Turkey, the judgment of the CJEU in WS establishes an extensive set of legal consequences of a State’s failure to safeguard the constitutional safeguard of right to life in cases of domestic violence. In their investigation regarding the protection against persecution provided by the State with a view to granting refugee status, national authorities may refer to the ECtHR’s analysis regarding effective protection. In this sense, the judgment of the CJEU in WS is very important in establishing consequences of a State’s failure to protect victims of domestic violence from a Refugee Law perspective. It also deserves attention that both judgments of the two European courts lay links to the CEDAW, and thereby render ‘discrimination’ to be a central concept in assessing violence against women, including domestic violence.

It is important to emphasize the State’s duty to protect against domestic violence amongst ongoing debate regarding the Council of Europe Convention on preventing and combating violence against women and domestic violence (‘Istanbul Convention’). Türkiye having withdrawn from the Istanbul Convention in 2021 adds to concerns about the situation of women in the country as even back in 2009 the ECtHR in Opuz v. Turkey had described the climate in the country as being ‘conducive to domestic violence’. At the EU level, there is much attention to the topic as, despite five EU Member States still not having ratified it, the Istanbul Convention came into effect regarding the EU on 10 October 2023. Furthermore, on 6 February, political agreement has been reached between the European Parliament and the Council on the Proposal for a Directive on combating violence against women and domestic violence. The judgment of the CJEU in WS extending the consequences of State’s duty to protect against domestic violence should be considered in the context of these developments.