Increase in the Numbers of Women Victimization and Access to Justice For the Women of *

Prof. Dr. Füsun Sokullu-Akıncı**

A. Introduction It is an undeniable fact that violence exists in the nature of all liv- ing creatures. Human beings are not exempt from this. History is full of examples of violence: especially violence to women. The mummies discovered in archeological excavations reveal the fact that broken bones are 9-20% in men and 30-50% in women1. So women have always been disadvantaged in terms of being victims of violence. Violence is both an individual and societal concept as well, i.e. it is true within the individual as well as the social sphere. Violence has no limits, it may occur everywhere. It is seen especially within close relation- ships. No country or society in the world is exempt of violence. Being subject to violence, more than one and a half million people lose their lives every year. Those who loose their health are much above this2. One * Paper presented at the Stockholm Criminology Symposium on June 14, 2011, under the heading: Violence in Close Relationships. ** Director, Research Center for Criminal Law and Criminology, University, Law Faculty 1 ASAL, “Kadın Eşe Yönelik Aile İçi Şiddet”, in Güncel Ceza Hukuku ve Kriminoloji Çalışmaları II, İ.Ü. Hukuk Fakültesi Ceza Hukuku ve Kriminoloji Araştırma ve Uygu- lama Merkezi Yayını, Istanbul, 2008, p. 85. 2 WHO, World Report on Violence and Health, World Health Organization, Geneva, 2002. 162 Füsun Sokullu Akıncı [Annales XLIII, N. 60, 161-183, 2011] of the recent approaches to violence is accepting it as a multi faceted phenomenon. In fact this is called the ecological model3 and tries to un- derstand and treat violence as the product of multiple layers of influence on behaviour. These levels are: individual, relationship, community and societal. Violence is disgusting whoever the victim may be. But, is one of the worse kinds of violence. Domestic violence exists in all sections of society, in all countries throughout the history. While fac- tors such as ethnicity, religion, economic status, class, sexual orientation, and disability may shape the violence, it is not confined to any particular culture, country, or religion. In the Council of region, roughly one in four women experiences violence at some point in her life4. Women have always been subject to violence and still are subject to violence in all parts of the world. In today’s world, violence is exercised on women at every scene of daily life: at home, at work, in the streets. Some women live violence for a long period of time, some as a temporary crisis, but it is a fact that they experience violence as a part of their lives. At home it is domestic violence or even honour killings. At work it is bullying, mobbing, and in some parts of the world, women are not even allowed to exercise their basic rights such as travelling or settlement. In some societies women are not permitted to choose their husbands or partners by themselves and they are forced to marry against their will5. They cannot vote, they cannot even drive their cars and they are only allowed to go out with the company of a man. According to statistics and newspapers 6 in Turkey, is increasing drastically during the last few years. A most recent 3 WHO, pp. 12-13. 4 Council of Europe Council of Europe, “Stocktaking study on the measures and actions taken in Council of Europe member States to combat violence against women, 5 SOKULLU-AKINCI, “Women as Victims of Violence”, Güncel Ceza Hukuku ve Krimi- noloji Çalışmaları II, İ.Ü. Hukuk Fakültesi Ceza Hukuku ve Kriminoloji Araştırma ve Uygulama Merkezi Yayını, Istanbul, 2008, p. 203. 6 According to the bianet, which gathers numbers from the news in the papers,internet sites and news agencies, that in 2010, men have murdered at least 217 women and 3 children, wounded 164 women and 4 children. Increase in the Numbers of Women Victimization and Access to Justice ... 163 survey sponsored by the EU and the General Directory of the ’s Statute of the Turkish Ministry Responsible of Women, and realized by the Hacettepe University indicates that the violence against women in Turkey is a very serious problem. This comprehensive nationwide sur- vey on the prevalence of domestic violence against women in Turkey, comprising interviews with over 10 798 women in all regions of Turkey, found that 39.3 percent of women in Turkey aged 15-60, and 43.2 percent of women in rural areas, had experienced physical and/or sexual violence by their husbands or partners at some point in their lives7. These num- bers are for the year 2008. According to their places of settlement the percentages of women subject to violence is 8:

http://bianet.org/bianet/bianet/127369-erkekler-2010da-217-kadin-oldurdu (bianet. org.tr) 7 See table 4.1 in Türkiye’de Kadına Yönelik Aile İçi Şiddet Araştırması, Hacettepe Üniver- sitesi Nüfus Etütleri Enstitüsü ,Türkiye Başbakanlık Kadının Statüsü genel Müdürlüğü, (Turkish Republic Prime Ministry Directorate General on the Status of Women, Hac- ettepe University Institute of Population Studies, ICON-, “National Research on Do- mestic Violence against Women in Turkey), , 2009, p. 47. 8 ICON, p. 49. sexual7 violence by their husbands or partners at some point in their lives . These numbers are for the year 2008.

According to their places8 of settlement the percentages of women subject164 to violenceFüsun is : Sokullu Akıncı [Annales XLIII, N. 60, 161-183, 2011]

THE PERCENTAGE OF WOMEN VICTIMS OF PHYSICAL VIOLENCE PERFORMED BY HUSBANDS OR PARTNERS, IN TURKEY IN 2008.

Last 12 In Their Whole Lives Months

West East Whole Istanbul Aegean Mid Middleeastern Urban Rural Turkey Anatolia Blacksea Anatolia

West East Mediterra Marmara Marmara nean West Northeastern Southeastern Blacksea Anatolia Anatolia

In fact violence against women has increased 1400% during the last few years. Unfortunately this ratio cannot be seen in official statistics. It may be due to the well-known fact that crimes within the family tend to In factbe black violence numbers. against women has increased 1400% during the last few years. Unfortunately this ratio cannot be seen in official statistics. It may be due toBefore the well-known analyzing the fact factors that forcrimes this drasticwithin increase,the family we tend must to first be go blackover numbers. the causes of violence in general: violence is explained with numer- Beforeous theoriesanalyzing such the factors as instinct for this theories, drastic frustration-aggression increase, we must first theories, go overand the social causes learning of violence theories in 9general:. There areviolence also various is explained theories with explaining numerous theories such as instinct theories, frustration-aggression violence in theTürkiye’de family: Kadına Individualistic Yönelik Aile theories, İçi Şiddet socio-cultural Araştırması theories 10 7 and social learning theories See table 4.1 in , HacettepeIn Üniversitesi fact in all circumstances, Nüfus Etütleri Enstitüsü violence ,Tü ifrkiye not Başbakanlıkprevented, Kadınınis normalizedICON Statüsüfrom genel one generationMüdürlüğü, (Turkishto the other. Republic There Prime is a Mi viciousnistry circleDirectorate called General the “cycle on the Status of Women, Hacettepe University Institute of Population Studies, -, “NationalICONof violence”. Research Research on Domestic show Violence that both against men Wom anden women in Turkey), who Ankara, were victims 2009, p.8 47.of violence or witnesses of violence in their childhood practice violence , p. 49. 9 For a detailed anlalysis of violence see AYTAÇ/BİLGEL/BOZKURT/YILDIZ, “Şiddetin Kavramsal ve Kuramsal Çerçevesi” in İşyerinde Şiddet, (ed. AYTAÇ/BAY- RAM), Beta, İstanbul, 2011, Pp. 7-12. 3 10 SOKULLU-AKINCI, Viktimoloji, pp. 68-72. Increase in the Numbers of Women Victimization and Access to Justice ... 165 in their adult lives11. In fact, Turkish research of 2009 shows clearly that violence passes from one generation to the other. In fact both male of- fenders and women victims who were interviewed stressed that, violence existed in their families. Violence is learnt in Turkey in the socialization process and it is passed from one generation to the other. Boys and who witness violence in this process are affected in different ways: Boys think that this is a standard way of treating the females; girls on the other hand accept violence more easily. Women who are subject to violence also respond to it in a violent way. And they also show violence to their children12. Violence in the family should not be regarded as a private matter. Violence against women is a human rights violation. It deprives women of their fundamental rights and freedoms and represents a serious ob- stacle to equality between women and men. Domestic violence occurs at all levels of society in all Council of Europe member states13. 12% to 15% of European women over 16 suffer domestic abuse in a relationship. Many continue to suffer physical and sexual violence from former part- ners even after the break-up. Too many have died14.

11 SOKULLU-AKINCI, Viktimoloji, p.67. 12 ÜNER/YÜKSEL/KOÇ et al., “Sonuçlara Genel Bakış”, Türkiye’de Kadına Yönelik Aile İçi Şiddet Araştırması, Türkiye Başbakanlık Kadının Statüsü genel Müdürlüğü, Hacette- pe Üniversitesi Nüfus Etütleri Enstitüsü, (Turkish Republic Prime Ministry Directorate General on the Status of Women, Hacettepe University Institute of Population Studies, ICON-, “National Research on Domestic Violence against Women in Turkey), Ankara, 2009, p. 187. 13 HAGELMAN-WHITE/KATENBRINK/RABE, “Stocktaking study on the measures and actions taken in Council of Europe member States to combat violence against wom- en, Council of Europe, Directorate General of Human Rights Strasbourg, 2006, p. 7 14 HAGELMAN et al., p.8. 166 Füsun Sokullu Akıncı [Annales XLIII, N. 60, 161-183, 2011]

All types of violence are committed against women in Turkey: fam- ily and intimate partner violence occur as domestic or family violence15, some of which are honour crimes16. Self inflicted violence; especially suicidal behaviour is seen in some provinces, for example, in one of the South East , Batman. In Batman there is an increase in the suicide rates. To be able to evade the provisions of the new Criminal Code concerning honour killings, people of Batman, instead of killing the victim themselves are making her kill herself17. There are also examples of forced prostitution and trafficking of women, as sexual slaves18 where some of the victims are wives of the offenders. With this entire grave picture in front of us, by 2006 Turkey did not seem to make much effort

15 See SOKULLU-AKINCI, “La Recherche de 2006 sur la violence domestique en Tur- quie”, Revue Internationale de Criminologie et de Police Technique et Scientifique, No. 3, 2007, p 327. 16 For details and examples see SOKULLU-AKINCI, “Homicides Committed for Hon- our”, Annales Internationales de Criminologie, Vol. 44, ½, p. 81., 17 SOKULLU-AKINCI, “Homicides”, p. 98. 18 SOKULLU-AKINCI, “Women as Victims of Violence”, p. 205. Increase in the Numbers of Women Victimization and Access to Justice ... 167 to diminish the violence against women. The passiveness of the Turkish Government is evident in the Stocktaking study on the measures and actions taken in Council of Europe member States to combat violence against women, p. 42, Appendix I: Dissemination of Recommendation Rec (2006) 19. After this, some positive attempts were made to combat with do- mestic violence against women in Turkey. A “Civil Initiative and Action Plan for the years 2007-2010” was prepared. This action plan was quite comprehensive and aimed: 1. To make necessary amendments in the laws so as to combat domestic violence and achieve . 2. To remove the negative attitudes that cause domestic violence and create awareness in the society. 3. To strengthen the women’s socio-economic position in the society. 4. To enable victims of violence reach to protective measures. 5. To establish rehabilitation centres for offenders and victims of domestic violence. 6. To enable coordination between entities, that provides service to domestic violence victims20. The fact that this action plan encompassed different government bodies and positive ambitions to prevent domestic violence seemed quite remarkable but it is sad to see that violence to women is growing constantly in Turkey and it is mostly between intimate partners.

19 HAGELMAN-WHITE, Combating Violence Against Women, Stocktaking study on the measures and actions taken in Council of Europe member States to combat violence against women, Appendix I: Dissemination of Recommendation Rec (2006) Stras- bourg, p. 42. 20 SOKULLU,AKINCI, “Violence”, Pp. 210-213. 168 Füsun Sokullu Akıncı [Annales XLIII, N. 60, 161-183, 2011]

B. The Right Of Access To Justice “Access to justice is a basic human right, as well as an indispensable means of combating poverty and preventing and resolving conflict”21. Access to justice is important for persons whose rights are violated. Justice means both criminal and civil justice. Since we are examining the subject in terms of Criminology we shall be concentrating more on criminal justice. “In some countries of Europe and CIS (Commonwealth of Indepen- dent States) region, both courts and governments have been run ineffi- ciently and without systems of democratic accountability, while in some countries, public corruption has been fostered at every level. Hence, par- liaments are unable to assert their policy-making role, or effectively over- see executive action. As a result, the poor and other vulnerable groups may be victimized by corrupt or indifferent officials, without having a reasonable chance to seek legal remedies for mistreatment. Moreover, it is important to understand that access to justice means much more than improving an individual's access to courts or guaranteeing legal represen- tation. It is about ensuring that legal and judicial outcomes are just and equitable and that systems work in practice for the poor and disadvan- taged as well”22. Women are one of the most disadvantaged groups of all. By and large, women have less access to and ownership of judicial processes because of their marginalized status vis á vis men in most societies. In addition to state-sponsored or condoned against women, women are marginalized from the justice system because injustices against women are much more likely to occur in private than injustices against men. Also, men are likely to mediate women’s access to state institutions due to unequal power relations in the home, at work or in the State23. In order to ameliorate the gender disparities in access

21 United Nations Development Programme, Gender in Turkey, http://europeandcis. undp.org/gender/turkey 22 United Nations Development Programme, Gender in Turkey, http://europeandcis. undp.org/gender/turkey 23 Charlesworth & Chinkin, 1994. Increase in the Numbers of Women Victimization and Access to Justice ... 169 to justice, attention and resources need to be allocated to resolving this marginalization and improving women’s ability to access justice mecha- nisms24.

C. Why Is Access To Justice Poor For The Women Of Turkey? In spite of all the resistance of sexist male dominated circles, positive developments have been achieved in the Turkish legal system:

I. The Constitution In 2004 a new paragraph and in 2010 a new sentence was added to Article 1025 of the Constitution. This article is on equality before the law and the second paragraph of the article ensures that men and women have equal rights. The State shall have the obligation to ensure that this equality exists in practice. Precautions for the achievement of this pur- pose cannot be considered as a violation of the principle of equality. This last sentence is for securing positive discrimination to women. In fact sometimes, to achieve substantial equality, discriminative provisions are placed in the laws. If someone is in a disadvantageous

24 UNDP., PRIMERS IN GENDER AND DEMOCRATIC GOVERNANCE, Gender Equality and Justice Programming: Equitable Access to Justice for Women, p. 5 (www.undp.org/women). 25 Article 10 : Equality before the Law (1) All individuals are equal without any discrimination before the law, irrespective of language, race, colour, sex, political opinion, philosophical belief, religion and sect, or any such considerations. (2) Men and women have equal rights. The State shall have the obligation to ensure that this equality exists in practice. Precautions for the achievement of this purpose cannot be considered as a violation of the principle of equality. (3) Precautions for the children, elderly, handicapped and wives and children of martyrs and disabled war veterans cannot be considered as a violation of this principle. (4) No privilege shall be granted to any individual, family, group or class. (5) State organs and administrative authorities shall act in compliance with the prin- ciple of equality before the law in all their proceedings. 170 Füsun Sokullu Akıncı [Annales XLIII, N. 60, 161-183, 2011] situation in the society, because of his/her race, age, sex, to elevate this, special precautions are to be provided for him/her. For example if a blind student is accepted to a university, he should have extra support and help, for reaching to the necessary materials26. This discrimination is positive and it does not violate the principle of equality before the law. The same is true for women. In male dominated societies, because of their sex, they are considered as second-class citizens, thus they should be granted extra protection and rights. This discrimination should not be considered a violation of the principle of equality.

II. Civil Code and Criminal Code New Civil Code of 2002 and the Criminal Code of 2005 have advanced provisions concerning women’s rights and the protection of women from sexual assaults and violence in the family. As a result of the reforms, Turkey’s Civil and Penal Codes now in- clude:

a. Civil Code Among numerous reforms in the Civil Code: 1. Equal rights to marital property for both spouses; 2. Equal rights to custody of children for married spouses, and automatic custody for if the parents are not married;

b. Criminal Code 1. A general principle of gender equality under the Penal Code (Arts. 2/1 and 3/2).

26 KARAN, “Ayırımcılık Yasağı Kapsamında Geçici veya Sürekli Özel Önlemler, Güncel Hukuk, Haziran 2011, p. 13. Increase in the Numbers of Women Victimization and Access to Justice ... 171

2. Increased sentences for murders in the name of “custom,” re- placing the prior provision that reduced sentences for “honor” murders (TCC. Art. 83). 3. A prohibition on unauthorized genital examinations27 4. Criminal penalties for inciting suicide (TCC. Art. 84) 5. Criminal penalties for (TCC. Art. 102) 6. Even though there is no specific article regulating the crime of domestic violence in the Criminal Code, there is art. 86/2 which stipulates that assault and battery to family members including the wife will be sentenced to one and a half years to four and a half years of prison sentence, and article 96 which stipulates that anyone tormenting family members (including the wife) will be sentenced to three to eight years of prison sentence. Also Art. 232 of the Penal Code provides for impris- onment of up to one year for the maltreatment of anyone living under the same roof. This of course includes the wife. These reforms are not without problems: the sad outcome is the attitude of the regional courts of first instance. For example, the case of article 86 of the Turkish Criminal Code, on assault and battery: 2nd. paragraph of the article states that it is an extenuating (mitigating) cir- cumstance if the injury caused is very minor and in such a situation, the proceedings will initiate with the complaint of the victim. The 3rd. para- graph on the other hand, states that if the crime is committed to certain family members or to the spouse, it is an attenuating circumstance and the proceedings start ex officio (without the complaint of the victim). As a result of this, even if the injury is a minor one, still the punishment is ag- gravated, the proceedings will start ex officio and during the proceedings the victim has no right to remise complaint. These provisions were put there as a reform and with the aim of protecting the women victims, who in most cases cannot make a complaint for obvious reasons. Even if she

27 Art. 287 of the Turkish Criminal Code. Genital examinations ordered by a judge are however still legal. 172 Füsun Sokullu Akıncı [Annales XLIII, N. 60, 161-183, 2011] manages to complain, later the violent husband forces her to remise the complaint. 36 judges of the first instance criminal courts from different regions of Turkey applied to the Constitutional Court for the 36 cases of violence to the wife, for the annulment of this paragraph on grounds of unconstitutionality. The Constitutional Court of Turkey overturned the appeal for annulment by majority. The Same Court overturned unani- mously, the claim that the attenuating circumstance was unconstitutional. The court said that, “Family members have the highest responsibility to treat one another with kindness and compassion. So to be able to reduce the number of violent crimes committed and to prevent the cover up of domestic violence, it is acceptable that the law might make some crimes to be investigated on victim’s complaint and some ex officio (without the victim’s complaint=on its own initiative)”28. Another example is that, the Penal Code reform has generated some uncertainty concerning “honor” and “custom” crimes. Instead of using the word for “honor” (namus), the revised Penal Code in article 82, uses the term for “custom” (töre), creating confusion as to what constitutes custom, and whether the provision includes honor crimes in sentencing for murders in the name of “custom.” The United Nations Committee on the Elimination of Discrimination against Women (CEDAW) has expressed concern about this ambiguity: The use of the term “custom killing” instead of “” in the Penal Code may result in less vigorous prosecution of, and less severe sentences for, the perpetrators of such crimes against women29.

28 SOKULLU-AKINCI, Victimology, Pp. 78-79, ft.nt. 160. 29 Concluding comments of the Committee on the Elimination of Discrimination against Women: Turkey, para. 363, February 15, 2005, http://www.un.org/womenwatch/daw/ cedaw/cdrom_cedaw/EN/files/cedaw25years/content/english/CONCLUDING_ COMME NTS_ENGLISH/Turkey/ Turkey%20-%20CO-5.pdf (accessed December 30, 2010). Increase in the Numbers of Women Victimization and Access to Justice ... 173

III. Law on the Protection of the Family30 Law on the Protection of the Family (1998) (Amended in 2007) established the protection order system for persons abused within the family. There is no differentiation between male and female. The abused party may apply to the public prosecutor for an immediate order from a family court. The family court issues the court order and it is for a maxi- mum of 6 months. It can be renewed for another six months if necessary. The court order may require the offender to: Leave the family home, to stay away from the home or the school of the victim, surrender weapons that he/possesses, refrain from violence, threat, property damage, con- tacting the victim, using substances within the family home31. This law is indeed an important milestone to the fight with violence to women, but the fact that it in not known sufficiently by women them- selves is a big disadvantage. The 2009 survey indicates that the percent- age of physical violence towards women (in 12 months) is 39.3 % and sexual violence is 15.3%. The total number of married women subjects to this survey is 10.79832. Another survey which covered 1800 women in 56 provinces indicates that women who are aware of the Law on the Protection of the Family and the protection it gives to women is only 57.2 33. Women who have applied for the application of the provisions of this Law is 7.5%, those who did not are, 92.7%34. But the gravest fact is that the judiciary’s perception of this Law is variable i.e. the interpreta-

30 An extensive critical research was made by three young academics and was published recently questioning ironically “What and Whom the Law on the Protection of the Fam- ily is Protecting”. The book includes interviews with the judges, public prosecutors and the attorneys: AYATA/ERYILMAZ/KALEM, Ailenin Korunmasına Dair Kanun Kimi ve Neyi Koruyor? Hakim. Savcı. Avukat Anlatıları. İnsan Hakları Hukuku Çalışmaları, İstanbul Bilgi Üniversitesi Yayınları, İstanbul, 2011. 31 , “He Loves You, He Beats You”, Family Violence in Turkey and Ac- cess to Protection, May 2011, p. 7. 32 ICON, p. 47. 33 ALTINAY/ARAT, Türkiye’de Kadına Yönelik Şiddet, İstanbul, p. 96. 34 ALTINAY/ARAT, p. 97. 174 Füsun Sokullu Akıncı [Annales XLIII, N. 60, 161-183, 2011] tion of the provisions of this Law is not coherent, thus the application is incongruous35. Especially because of the patriarchal structure of certain sections of the society, these amendments and new provisions could not easily be transferred to practice. The judges, public prosecutors and attorneys that participated in a series of seminars organized by one of the private universities in Istanbul on human rights, could not think in terms of international standards on human rights and women’s rights. They were mostly thinking in terms of the previously accepted cultural patterns and models. While issues that took place in the new laws were discussed, they made strange remarks such as: “When a protection order is issued for a husband, where will he stay?” “When the husband is imprisoned for violence to his wife, who will look after the wife and the children?” “Those rules cannot be applied everywhere, because economical end cultural realities are different in different parts of Turkey”36. Law on the Protection of the Family is perceived as a Law, which only aims to protect the family, to keep it intact. “Whatever happens in the family stays in the family” is a famous proverb (saying) in Turkish. When violence is in the family, it is considered as a matter of the family, and not to be interfered by outsiders. Even the police do not want to cope with it. As the European Court of Human Rights mentioned in the Opuz Case, “The negative attitude of police officers at police stations towards victims of domestic violence is one of the obstacles preventing women from using this law. Women who go to police stations because they are subjected to domestic violence are confronted with attitudes which tend

35 AYATA/DİLEK, “Kadınlar için Gerçek Adalet”, Pp. 14-15. 36 AYATA/DİLEK, p. 13. Increase in the Numbers of Women Victimization and Access to Justice ... 175 to regard the problem as a private family matter into which the police are reluctant to interfere.”37. When the women come to the police station for complaint, the police act as a mediator, and they try not to give too much importance and send the women back to her home where she may face even worse violence. For example, in the Opuz case, Nahide Opuz and her were attacked by Nahide Opuz’s husband many times; they were both threatened by killing. The women complained 8 times to the police and the public prosecutor. One very serious incident was driving a car towards the two women and injuring both of them, especially the mother gravely. Another one was stabbing Nahide Opus 7 times. The offender was only prosecuted for these two incidents because Nahide Opuz remised the complaint (in the abolished Turkish Criminal Code, this crime was pros- ecuted upon complaint of the victim) that she had made for the other in- cidents, because the violent husband was released by the authorities and she was afraid of him. He was only tried for the two serious crimes and was condemned to a prison sentence, which was converted to a fine. The last incident is that Nahide Opuz’s mother filed a petition to the Public Prosecutor, who asked the telephone company to give the list of the calls made to the petitioner. But two weeks after this she was murdered by his son in law. Nahide Opuz, in the application she made to the European Court of Human Rights complained that neither she nor her mother was ef- fectively protected by the police and by the judiciary. Violence in to her and to her mother was tolerated and many times they were persuaded to withdraw (remise) their complaints. The threats of death they were subjected were not taken seriously38. Finally, In July 22,2009, the - pean Court of Human Rights gave its judgment which directly addressed the failure of the Turkish state to take reasonable measures to prevent domestic violence perpetrated against the applicant, Nahide Opuz, and the murder of her mother. The European Court of Human Rights held

37 OPUZ v. Turkey, paragraph 96, STRASBOURG, 9 June 2009. 38 Z. Elif Yarsuvat , “AIHM’nin Opuz - Türkiye kararı ve çıkarılması gereken dersler”, www. yarsuvat-law.com.tr/articles/article1.6/2009.pdf 176 Füsun Sokullu Akıncı [Annales XLIII, N. 60, 161-183, 2011] that Turkey had failed to fulfill its obligations to protect the right to life of Nahide’s mother (under article 2 of the ECHR) and that it was in breach of the right not to be subject to torture or cruel, inhuman, or degrading treatment (article 3 of the ECHR) for its failure to protect the applicant against ill-treatment perpetrated by her former husband. It also held that Turkey was in violation of the right to non- discrimination (article 14 of the ECHR), confirming that domestic violence is a form of dis- crimination against women39. The Turkish Republic is the first state to be convicted to pay compensation for not being able to prevent domestic violence and discrimination against women40. According to the most prominent Turkish NGO, “Mor Çatı” (Purple Roof) shelter, approximately 900 women have applied to Mor Çatı in the years 2005 and 2006 and made great efforts for the application of the Family Protection Law, but of this number only 120 have succeeded41. Both the police and the judiciary think that their primary aim is to protect the family, not the individual women. In terms of sociology the subculture of both these professions has the element of conservatism. So if the laws do not take this into consideration, judges and the police will go on considering violence as a matter of family and not to be interfered by anyone. “There are many barriers facing women who need access to justice and protection from violence. Police officers often believe that their duty is to encourage women to return home and “make peace” and fail to investigate the women’s complaints. Many women, particularly in rural areas, are unable to make formal complaints, because leaving their neighbourhoods subjects them to intense scrutiny, criticism and, in some cases, violence”42. When any incident occurs in the street, Turkish people tend to help; but if it is between a man and a woman no one helps. There are even examples where women are dragged from their arms or even hair, by a

39 He loves, p. 52. 40 Merve AKIN, “Aile içi şiddet mağdurları”, unpublished presentation, p. 22. 41 OPUZ v. Turkey paragraph 92. 42 OPUZ v. Turkey paragraph 102. Increase in the Numbers of Women Victimization and Access to Justice ... 177 man and no one helps, thinking that it is a family matter. Within the fam- ily does the man have the right to drag his wife? There is a very grave example: “A couple of years ago a female judge was beaten in the courthouse corridor. The courthouse’s police was there but he refrained from interfering, thinking that they were man and wife,” said a judge during an interview. He went on saying, “That police is a member of our society. So I cannot criticize him. It is a patriarchal struc- ture. I also come from a patriarchal society. In this structure the husband has the right to everything”43. According to the Report of the Amnesty International, statistical information about the extent of violence against women in Turkey is limited and unreliable. Nonetheless, it appears that a culture of domestic violence has placed women in double jeopardy, both as victims of vio- lence and also because they are denied effective access to justice. Women from vulnerable groups, such as those from low-income families or who are fleeing conflict or natural disasters, are particularly at risk. In this con- nection, it was found that crimes against women in southeast Turkey have gone largely unpunished44. In traditional, male dominated and segregated societies, marriages are regarded as a way of escape from a psychologically very unhealthy environment. The youngsters hurry into marriage to get away from this and the problem starts with the types of marriage in Turkey. There are a variety of arranged marriages; some are between relatives such as cousins. Even after the engagement, couples do not have to know one another. Therefore problems that couples would normally encounter during flirt- ing and engagement periods, arise after the couples get married. So espe- cially during the first years of marriage, severe problems occur and men only know to solve them by violence, because male offenders who have witnessed violence in their family use the same techniques and methods, to keep the women under control. On the other hand, women who were subject to violence, regard this situation as their destiny, since they are 43 AYATA/DİLEK, p. 15. 44 Amnesty International’s 2004 Report titled “Turkey: Women Confronting Family Vio- lence”, in OPUZ v. Turkey, paragraph 99. 178 Füsun Sokullu Akıncı [Annales XLIII, N. 60, 161-183, 2011] part of their culture. After the enormous migration to the western urban parts of Turkey, this culture of the rural areas of can now be seen as a part of the urban life. I would like to add that there is there is a draft Law for “Protection of Women and the Family Members from Violence”, which is duly revised according to the criticisms of the academics and the NGO’s. In this draft law there are new protective measures such as monitoring the couples with GPS devices in the form of electronic bracelets, which enable the law enforcement to see if the aggressive husband approaches the woman. A similar method is allied in Spain for several years with great success45.

III. Labour Law In 2003, an article is added to the Labour Law banning discrimina- tion: ARTICLE 5. - No discrimination based on language, race, sex, po- litical opinion, philosophical belief, religion and sex or similar reasons is permissible in the employment relationship. But the rate of women’s participation in the labor force in Turkey is one of the lowest in the world (24.6%) and has been following a down- ward trend nationwide since 2005. Leaving out unpaid female agricultural workers, urban participation rates are even lower: only 20 of every 100 adult women in urban areas participate in the labor force and 62 percent of women who do not work in a paid job indicate being a full time home- maker as the reason. According to data collected in December 2008, the urban female unemployment rate is 18.5 percent, while the employment rate is 17.6 percent46. While the employment rate of the female popula- tion was 31% percent in the mid-1990s, it gradually dropped to 22.3 per- cent in 200647. In 2007 it became 22.8 (men:66.8), in 2008, 23.5 (men: 45 Comunidad de Madrid, “Evaluation of Electronic Monitoring and Dissuation of Do- mestic Violence in Spain”, http://www.addstrain.com/uploaded/Spanish%20Case%20 Study%20Comunidad%20Eng.pdf iolen 46 The Initiative for Women’s Labor and Employment – KEIG 30 47 The Sixth Periodic Country Report for Turkey, Article 11(1), p. 45. Increase in the Numbers of Women Victimization and Access to Justice ... 179

66.6), in 2009, 24.2 (men: 64.6)48. It never reached the 31% level of the mid-1990s. In fact, no factor is facilitating the women’s participation in the labour market: the absence of sufficient child-care facilities, difficul- ties in access to secondary and further education and the existence of stereotypes all contribute to this. Unpaid work in subsistence agriculture and employment in the informal sector continue to be challenges. There are no social inclusion mechanisms for women to counter-balance the impact of poverty, migration and other socio-economic problems49. While the vast gender gap in employment and labor force partici- pation is one of the worst gender indicators in Turkey, the state lacks a coordinated national action plan on this matter, and despite concerted efforts by women’s NGOs, there has been little progress since 2005, if any. Government actions mentioned in the official report are of an ad hoc, once-off, —project basis, primarily emphasizing entrepreneurship and micro credit support programs. The emphasis on entrepreneurship and micro credit as the main channels for women’s entry into the labor market falls short of challeng- ing formal paid wage and salary employment as a male domain. Two important prerequisites for successful entrepreneurship—having prior business experience and contacts, and start-up capital—, are possible if the person is already employed in a paid job. Women are unable to access loans since they own very few personal assets. Entrepreneurship also in- volves high risks and carries the threat of being excluded from the social security system50.

Turkish Statistical Institute (TUIK), Household Labor Force Survey Results (2006). http://tuikrapor.tuik.gov.tr/reports/rwservlet?isgucu&report=isg_durum_ web_2000.RDF&desformat=html&p_tu 4&p_YIL1E=2006&ENVID=isgucuEnv 32 TUIK. 2009. Household Labor Force Survey Results for December 2008. TUIK website: http://www.tuik.gov.tr/PreTablo.do?tb_id=25&ust_id=8 48 European Commission, Turkey 2010 Progress Report, Brussels, 9 November 2010 SEC(2010) 1327, p. 101. 49 European Commission, Turkey 2010 Progress Report, Brussels, 9 November 2010 SEC(2010) 1327, p. 25. 50 Shadow NGO Report on Turkey’s Sixth Periodic Report to the Committee on the Elim- 180 Füsun Sokullu Akıncı [Annales XLIII, N. 60, 161-183, 2011]

With regard to gender equality and women's rights, the legal frame- work is broadly in place. This framework has been strengthened through the constitutional amendment permitting the adoption of positive dis- crimination measures for women. However, sustained further efforts are needed to turn this legal framework into political, social and economic reality. Because the reality is that, women’s representation in politics, se- nior positions in public administration and in trade unions is very low51. Honour killings, early and forced marriages and domestic violence against women remain serious problems. Legislation needs to be imple- mented consistently across the country. Further training and awareness raising on women’s rights and gender equality are needed52.

C. What Makes the Women So Vulnerable to Violence?

1. Unequal Status The scale of violence that women experience, and their reluctance to seek help, is intrinsically linked to their unequal status in Turkish so- ciety. Since 2007, women have held just 9 percent of seats in the national parliament53, and only 27 of the nearly 3,000 mayors in the country are female54. Women represent 27 percent of the paid work force55. 19 per- cent of women are engaged in income-generating work in Turkey, and ination of Discrimination against Women, Pp. 13-14. 51 European Commission, Turkey 2010 Progress Report, Brussels, 9 November 2010 SEC(2010) 1327, p. 25. 52 European Commission, Turkey 2010 Progress Report, p. 79. 53 United Nations Economic Commission for Europe (UNECE), gender statistics data- base, http://w3.unece.org/pxweb/dialog/Saveshow.asp?lang=1 (accessed December 19, 2010). 54 Directorate General on the Status of Women, Status of Women in Turkey, 2010, p. 29, in Turkish 55 United Nations Development Programme, the Index 2010, http:// hdr.undp.org/en/statistics/gii/ (accessed December 19, 2010). Increase in the Numbers of Women Victimization and Access to Justice ... 181 in the east this is roughly 10 percent56. New illiteracy figures released by the government show great disparities between men and women: 3.8 million of the 4.7 million people who are illiterate in Turkey are wom- en57. In 2010, Turkey ranked 83 on the United Nations Development Programme’s 2010 global —third to last in the group of countries with “high human development,” and down six places compared to the 2008 Index58.

2. Attitude of the Law Enforcement It is not just the element of conservatism of the police subculture59 that causes their indifference; they should be better educated and informed about the fact that violence to women is generally repeated. The Opuz Case is a good example where H.O. attacked his wife and her mother more than 7 times. This should be explained to the police forces and a central registry should be kept. In a study by Sherman on violence to women, 13 different police units responded to one couple in 48 hours, with none of them aware of the prior police contacts60.

56 ALTINAY/ARAT, “Violence Against Women in Turkey, A Nationwide Study,” 2009, Table 8, http://www.kadinayoneliksiddet.org/KYS_ENG.pdf (accessed February 27, 2011). 57 Directorate General on the Status of Women, Status of Women in Turkey, 2010, p. 10, in Turkish http://www.ksgm.gov.tr/Pdf/trde_kadinin_durumu_2011_subat.pdf (accessed March 4, 2011) and reported on in English http://www.hurriyetdailynews. com/n.php?n=nearly-4-million-turkish-women-illiterate-2011-02-01 (accessed March 4, 2011) 58 Ibid. The index is based on a range of factors that influence or indicate the status of women in a society. The factors are: maternal mortality rates, adolescent fertility rates, percentage of seats in parliament, population with at least secondary education, labor force participation rate, contraceptive prevalence rate, antenatal coverage of at least one visit, and births attended by skilled health personnel. 59 SOKULLU-AKINCI, Polis, Toplumsal bir Kurum olarak Gelişmesi, Polis Alt-kültürü ve Insan Hakları, Istanbul, 1990, Pp. 81-82. 60 SHERMAN 1992: 215 in SHERMAN/STRANG, “Policing Domestic Violence: the Problem-Solving Paradigm”, Paper presented at the conference ‘Problem-Solving Polic- ing as Crime Prevention’ Stockholm, 1996. 182 Füsun Sokullu Akıncı [Annales XLIII, N. 60, 161-183, 2011]

D. Convention to Prevent and Combat Violence Against Women Recently (April 7, 2011), The Council of Europe adopted a new Convention to Prevent and Combat Violence Against Women. Ironically, it was signed in Istanbul. The Convention holds the state responsible of negative duties and positive duties and that the state officials should both respect the law and also to prevent the commission of wrongful acts with due diligence. The parties to the Convention should adopt gender- sensitive policies. Systematic and adequate data must be collected. The judiciary, the police and services should all be in harmony. Ex- isting patterns of behavior of women and men are often influenced by prejudices, gender stereotypes, and gender-biased customs. Notions like custom, culture, religion, tradition and honour will not justify any act of violence. The Convention regulates that the national laws do not contain loopholes for interpretations inspired by such convictions. Particular articles of the Convention stress the importance of: Awareness raising of the general public, Education for promotion of gender equality, mutual respect, non- violence concepts are to be given to the children primarily as a responsi- bility of parents and also educational institutions, Training of professionals Participation of the private sector and the media Protection and support for the victims and child witnesses (es- pecially vulnerable Persons), Shelters for victims of violence Telephone helplines Reporting by professionals such as doctors and psychiatrists (who are bound by the rules of professional secrecy). Increase in the Numbers of Women Victimization and Access to Justice ... 183

Forced marriages, stalking, forced abortion, forced sterilization are all regulated in detail.

Conclusion Violence against women is both a result and a cause of inequality between women and men. This is an undeniable reality in the family as well as in the society. A culture of silence and denial strengthens and multiplies its effects. The Turkish legal system is like any other civilized country’s legal system. There are numerous laws and regulations for the protection of women and prevention of violence against women. In fact Turkey rec- ognized women’s rights and especially the right to elect and be elected, equal wages, before many European countries. Turkey indicated her will- ingness in doing all. By signing the Convention to Prevent and Combat Violence Against Women adopted by the Council of Europe. It is called the , because it was signed in Istanbul and Turkey was the first country to sign it. In fact, by Dec. 19, 2011, 18 countries have signed it. A positive development is that the Turkish National As- sembly ratified the convention in Nov.24, 2011. Another positive development is that special technical equipments (GPS devices) will be provided and installed on both men and women so that if the violent man approaches to the woman, it will be monitored and the law enforcement will interfere immediately. The most important point to be stressed is the education of the police and the whole society so that the conservative culture which en- hances gender inequality will be erased from our society. This is what the Istanbul Convention is all about.