4/4/2019

Individual Application 24/19

Press Release concerning the Judgment Finding a Violation of the Right to Protect Corporeal and Spiritual Existence due to Dismissal of the Request for Imposition of a Preventive Imprisonment

The Facts

The applicant had applied to the family court for having been subject to violence by her husband while divorce proceedings between them had been pending. On 24 June 2014, the court issued a protection order in favour of the applicant for a period of five months.

As the applicant was again subject to violence by her husband on 9 November 2014, while the divorce proceedings were still pending, a criminal case was initiated. The applicant applied to the family court, requesting the imposition of a preventive imprisonment on her husband. Upon the court’s rejection of her request and the subsequent dismissal of her objection, the applicant lodged an individual application.

The Applicant’s Allegations

The applicant maintained that her right to protect her corporeal and spiritual existence had been violated due to dismissal of her request for imposition of a preventive imprisonment on her husband.

The Court’s Assessment

Article 17 of the Constitution safeguards everyone’s right to protect and improve their corporeal and spiritual existence.

In the circumstances of the present case, an examination was made as to whether the State had fulfilled its positive obligation to establish an effective legal system, as well as whether reasonable practical measures required under the administrative and legal legislation had been taken.

In the present case, the applicant was again subject to violence within the five-month period when the protection order was in force. Although the applicant requested that a preventive imprisonment be imposed on his husband due to the violence she had been subject to, the decision of the incumbent court dismissing her request did not contain any assessment or reason as regards the said violence. It has therefore been concluded that the reasons stated in the decision were not relevant and sufficient within the scope of the applicant’s right to protect her corporeal and spiritual existence.  

Pursuant to Article 13 of the Law no. 6284 on Protection of Family and Prevention of Violence against Women, in case of a failure to comply with the requirements of a protection order granted by a judge, preventive imprisonment shall be imposed. The purpose of the preventive imprisonment is to prevent any perpetrator of violence from acting contrary to the protection order and to ensure deterrence. Given that the protection order applicable for five months in favour of the applicant had already terminated on the date of the judgment rendered by the Constitutional Court, there was no legal interest in conducting retrial for redress of the consequences of the violation.

Consequently, the Constitutional Court found a violation of the right to protect corporeal and spiritual existence safeguarded by Article 17 of the Constitution.