Evaluating the Effectiveness of Legal Reforms in Addressing Domestic Violence Cases in Turkey Through the Passivity of the Legal System

Abstract

Although Turkey introduced a well-structured legal reform to address violence against women, various forms of violence against women still persist. Currently, incidents of abuse and murder of women are frequently reported in the media. The current study aims to delve into the issue of how, despite the presence of progressive legislation addressing domestic violence, judicial passivity hinders creating a safe environment for women. In this qualitative study, the investigation centers on judicial passivity. The analysis involves over thirty domestic violence cases, with a primary reliance on publicly available resources, particularly reports and investigations carried out by independent international agencies. The study examines the factors of patriarchal perspectives, bureaucratic inefficiencies, and legal negligence that contribute to judicial inaction. The findings suggest that these factors collectively contribute to judicial inactivity, ultimately limiting the impact of legal measures. The study highlights how social and institutional perspectives that view women as part of the family rather than as individuals create barriers and foster a patriarchal perspective. This exacerbates the problem as it requires open-minded individuals to overcome bureaucratic obstacles and neglect. Beyond concentrating solely on domestic violence statistics, this study highlights the importance of scrutinizing actions beyond words, aiming to serve as a model for future domestic violence research. The study findings emphasize the importance of addressing the passivity of the judiciary and suggest that future research should focus on comprehensive data collection on judicial actions and decisions to fully capture the situation. This, in turn, should facilitate the establishment of accountability and training mechanisms for judicial officers dealing with domestic violence cases.

Keywords: Domestic violence, patriarchy, protective measures, preventive measures

Introduction

Despite Turkish women gaining the right to vote in 1934, placing them among the first in Europe, the country still faces significant challenges in women’s empowerment and ensuring freedom from violence. While Turkey has established a strong legal framework, such as the Law to Protect Family and Prevent Violence against Women (Law No. 6284), the prevailing statistics on domestic violence highlight the ongoing challenge. According to the latest available Organisation for Economic Co-operation and Development (“OECD”) indicator, Turkish women report experiencing physical or sexual violence from their partners at the highest rate among OECD countries, at 38%¹. In 2020, 300 women lost their lives due to violence perpetrated by men, with 90% of the victims being killed by their husbands or male relatives, leading us to the problem of domestic violence².

This intimate nature of violence against women in Turkey is partly due to women’s position in Turkish society and law. In Turkey, women are predominantly positioned as caregivers rather than income earners. According to OECD reports, Turkey exhibits a serious gender disparity in the distribution of domestic work and has the largest gap between paid and unpaid work between genders among OECD countries³. Reflecting these disparities, Turkey’s labor force participation stands at 32% for women and 68% for men, as reported by TurkStat Labor Statistics for 2020⁴. Consequently, a significant proportion of women in Turkey lack individual income and are increasingly dependent on their male partners. Economic vulnerability is further heightened by limited control over family assets, inadequate education, and the devaluation of their contributions to the labor force. These factors compound the cycle of poverty and contribute to the high prevalence of violence against women.

Among the various forms of violence experienced by those who reach out to the Violence Prevention and Monitoring Centers, physical violence is the most prevalent, accounting for 30% of cases. Psychological violence follows at 28%, while economic exploitation and verbal violence account for 18% and 17%, respectively. Sexual violence is reported in 7% of cases⁵. It’s important to note that many women experiencing domestic violence often suffer in silence, reluctant to seek help from health institutions, law enforcement agencies, or support services. The report by the independent international organization Group of Experts on Action against Violence against Women (“GREVIO”) reveals that a majority, 89%, of women who have experienced physical and/or sexual violence from their spouses or intimate partners refrain from reporting these incidents. Reasons ranged from not perceiving violence as a serious problem and concerns about the welfare of their children to fear of damaging the family’s reputation, hopes that their partner will change, uncertainty about where to seek help, and concerns about the consequences of seeking help from public institutions⁶. It was also determined that 40% of women subjected to domestic violence in Turkey believe they deserve such treatment if they neglect their children’s care or respond to their husbands⁵’⁷.  

The issue of domestic violence, confined within the norms of patriarchal family dynamics as a private matter, began to face challenges with the emergence of the women’s movement in the 1970s⁸. In the 1980s, the women’s movement underwent a significant transformation into a major campaign against domestic violence. This change was catalyzed in 1985 by a pivotal event in which a judge denied a divorce request of a pregnant victim of domestic violence. The judge’s decision was accompanied by a sexist public statement that “no woman should live without a child in her belly and a stick on her back.” This statement served as a catalyst for the launch of an important campaign that marked the country’s first large-scale effort against domestic violence⁹. This campaign raised awareness of the issue and paved the way for many institutional developments. In 1990, the first women’s shelter, known as Mor Cati Women’s Shelter Foundation, was established in Istanbul. 

The women’s movement’s efforts to address legal inequalities opened the way for the establishment of laws specifically aimed at preventing violence against women. The women’s movement achieved its first legal triumph post-1980 by abolishing Article 438 of the Penal Code, which allowed reduced sentences for perpetrators who assaulted sex workers. In January 1998, the Turkish Grand National Assembly passed Law No. 4320 on the Protection of the Family, responding to women’s activism against violence targeting women¹⁰. This legislation, as its name stands for, aimed to protect families from violence, viewing women as integral parts of the family concept rather than separate individuals. 

In the 2000s, Turkey began to start extensive legal reforms on gender equality, including constitutional amendments and revisions to key laws such as the Turkish Penal Code, Civil Code, and Labor Law. For example, the abolition of the concept of “head of the family” in the Civil Code recognized women as equal partners in marriage¹¹. The Turkish Penal Code underwent revisions to criminalize marital rape and impose stricter penalties for sexual offenses. These amendments also included the abolition of reduced sentences for “honor” crimes and the elimination of provisions that allowed rape to be condoned if the perpetrator married the victim¹².

These legal improvements represented significant progress in changing the perception of domestic violence in Turkey from a private family matter to a public concern requiring legal intervention. However, the rising incidents of violence against women and femicide highlighted the need for a new law to address existing shortcomings. Law 4320 went back to the drawing board in 2011 to update the conservative language of violence against women, which only included them as units of the family and not individuals. Recognizing the limitations of the previous law, the Law on the Protection of Women and Prevention of Violence against Women, Law No. 6284, was enacted on March 8, 2012, on Women’s Day.  Law No. 6284 integrated many elements of the Council of Europe Convention on Preventing and Combatting Violence against Women and Domestic Violence (referred to as the Istanbul Convention) and remains in force despite Turkey’s withdrawal from the Convention in 2021¹³. Unlike the concise and limited scope of Law No. 4320, Law No. 6284 significantly broadens its protection to encompass women, children, family members, and stalking victims rather than just legally bound parties. It addresses various forms of violence—physical, verbal, sexual, economic, and psychological—providing comprehensive guidelines for preventive and protective actions. This empowers authorities, such as family court judges, civil authorities, and law enforcement, to execute these strategies effectively. Penalties are imposed for breaching these measures, and Violence Prevention and Monitoring Centers ensure support and oversight. Special courts were also established in 2019 to expedite decisions on cases related to Law No. 6284¹⁴.

Despite all these improvements, Turkey continues to struggle with domestic violence, primarily due to the persistent patriarchal mindset that struggles to fully embrace gender equality. Since the ratification of the Istanbul Convention, the group holding this discriminatory mindset has sought to undermine it by asserting that the Convention negatively affects family unity and encourages divorce. Additionally, they claim that its equality provisions have been exploited by the LGBT community to gain broader societal acceptance. On 20 March 2021, the President of Turkey announced the country’s withdrawal from the Istanbul Convention in a Presidential Decree, which has been criticized as an overstep of executive power over legislative authority¹¹. While Turkey’s Law No. 6284 encompasses significant aspects of the Convention, the withdrawal’s message to the discriminatory mindset could substantially influence implementation, especially considering that the country was already facing challenges in this regard.

Turkey’s Approach to Violence Against Women

The withdrawal from the Istanbul Convention is a reflection of Turkey’s approach to violence against women, which predominantly perceives women as integral to the family rather than as individuals. Turkey’s Fifth 5-Year Development Plan from 1985-1990 was the first to address women’s issues and develop policies for gender equality. It has been noted that the Tenth 5-Year Development Plan 2014-2018, while incorporating the terms “gender equality”, specifically discussed gender within a section dedicated to “family and women.”¹⁵. This position became apparent when the Ministry of Women and Family was replaced in 2011 with the Ministry of Family and Social Policies. During the discussions surrounding Law No. 6284, an attempt was made to associate “family” and “motherhood” with the term “woman” instead of prioritizing the fight against violence against women from a perspective of “equality and freedom” rooted in rights. Thus, women are legally valued within the context of a family unit instead of as individuals, creating a jurisprudence that always factors in the family when women are violated¹⁶. 

Despite the presence of provisions for gender equality and women’s empowerment in subsequent plans, such as the latest Eleventh Development Plan (2019–2023), the Committee on the Elimination of All Forms of Discrimination Against Women (“CEDAW”) continued to express concerns in their latest report from July 2022. They highlighted the persistence of deeply ingrained discriminatory stereotypes and official statements on gender roles, especially within the family and society. These statements tend to reinforce the traditional expectations of women as mothers and wives, consequently eroding their social position and contributing to the root factors of gender-based violence. The Committee remarked that patriarchal attitudes endure both within state institutions and throughout society, and there is an observed trend wherein the principle of gender equality is gradually being substituted by a vaguely defined notion termed “gender justice”¹⁷.

Legal Steps for Victims

Under Turkey’s Law No. 6284, victims of domestic violence can seek preventive measures against harassment and mistreatment. These measures, such as restraining orders, can be requested from law enforcement or the public prosecutor. Protective orders, Articles 3 and 4 of Law No. 6284, issued by police, district governor’s offices, or courts, prioritize victim safety. Law enforcement offers immediate protection, shelter, and temporary financial aid. Courts review cases and can grant additional protections, even concealing the victim’s identity. Article 5 of Law No. 6284 enables court-issued preventive measures against perpetrators, prohibiting contact with the victim for up to six months. Domestic violence is also addressed in the Criminal Code as a criminal offense, requiring legal complaints for prosecution and penalties¹⁸. 

The Violence Prevention and Monitoring Centers, under the Ministry of Family and Social Services, aim to play a crucial role in tackling domestic violence. These centers are established to monitor protective orders, enhance collaboration between courts, police, and social services, and provide services like shelter placement, risk assessment, and ongoing victim support¹⁹.

Challenges in the Implementation of Law No.6284

Although Law No. 6284 has introduced the necessary legal mechanisms to support women, there are serious challenges in the implementation. Courts may issue cautionary orders for short durations, and effective risk assessments and monitoring are lacking. Perpetrators who violate the orders may not face adequate penalties. In severe cases, women have been killed despite known risks, and the protective measures provided have proven ineffective.

The Ministry of Justice supplied data regarding the quantity of preventive and protective orders issued over the years. The number of individuals granted preventive orders increased from 139 thousand in 2016 to 272 thousand in 2021, while the number of individuals receiving protective orders surged from 1.8 thousand to 10.4 thousand within the same timeframe¹⁹. Nonetheless, the issuance of orders does not truly serve as an effective gauge of the system’s efficiency, as numerous women still experience domestic violence even when under preventive and protective orders.

According to data from the Interior Ministry presented to a parliamentary commission on violence against women, approximately 8.5 percent of women killed between 2016 and 2021 had an active protective or preventive order at the time of their murder. In 2021, out of the 307 women killed, 38 were under protection, marking the highest number in the past five years for which records are available¹⁹.

Judicial Passivity and Its Underlying Reasons

As the data indicates, while Law No. 6284 equips victim protection and Violence Prevention and Monitoring Centers serve to protect victims, the effectiveness of this well-structured infrastructure is impeded by judicial inaction during the implementation phase. The research endeavors on domestic violence conducted in Turkey offered an overview of the diverse forms of violence, the possible reasons for violence, and the statistics on the violence cases. The current study, different from the outstanding research, aims to assess the impact of legal reforms in combating domestic violence in the case of judicial passivity while also delving into the root causes of this judicial passivity.  Judicial passivity is an issue diagnosed by independent international organizations such as Human Rights Watch, GREVIO, the European Court of Human Rights (“ECtHR”), and CEDAW. The examination of such passivity will encompass potential causes of excessive bureaucracy, negligence, and the patriarchal perspective upheld by law enforcement authorities.

In this study, “judicial passivity” refers to the legal system’s inactive response to domestic violence issues, which involves reluctance, delays, or insufficient actions by law enforcement, prosecutors, and courts. This may include disregarding complaints, ignoring patterns of violence, and imposing light sentences for perpetrators, with the end result being insufficient protection and justice for the victims. The reports generated by international organizations concerning the issue of domestic violence in Turkey identified the problem of judicial passivity in line with this study. These reports also comment that the reasons for the inadequacy in combatting domestic violence in Turkey do not appear to originate directly from the legislation itself but rather stem from the overall attitude of local authorities. The terms “judicial passivity” and “judicial inaction” are used interchangeably throughout the study^{20,17,21,22,23}.

Excessive bureaucracy in this study refers to a complicated and inefficient administrative process when addressing domestic violence. This complexity can cause confusion both for victims and law enforcement, leading to delayed responses, misdirection, and inefficiencies due to poor coordination among involved institutions. For instance, a woman informed Purple Roof Shelter that when she reported a violation of a restraining order to the police, she was initially directed to the prosecutor’s office, only to be subsequently redirected back to the police station²⁴. In a study conducted through interviews with law enforcement officials, judges and lawyers, this lack of coordination between state institutions was also acknowledged by these legal professionals.  Another instance where bureaucracy takes precedence over the primary objective of protecting the victim is that preventive measures are only implemented upon the applicant’s request. Furthermore, even when requested, evidence is demanded from the victim, which is not mandated by Law No. 6284. This adds additional pressure on the victim and introduces unnecessary bureaucratic complexities, ultimately leading to prolonged processes²¹ Non-profit organizations (“NGOs”), including Women’s Centers and Purple Roof, have also highlighted bureaucratic obstacles, such as the lack of coordination among relevant institutions like family courts and Violence Prevention and Monitoring Centers, as well as the erosion of women’s trust in the justice system due to prolonged investigations¹⁹.

The patriarchal perspective, as defined in this study, refers to the prevailing viewpoint among law enforcement officers that normalizes violence against women and hesitates to intervene in situations they consider as family matters. The discretionary powers of law enforcement officers are often used in favor of perpetrators despite clear evidence. This perspective becomes evident when women face intimidation, discouraging advice, complex processes, skepticism about accusations, and downplayed violence. For example, the Purple Roof Shelter 2022 report presented instances where police officers attempted to persuade victims to reconcile by stating, “Are you certain? You may experience regret later on, once some time has elapsed.” or dissuaded them from reporting complaints, using remarks like, “Are you sure this won’t lead anywhere, there won’t be any result in the end, not worth the effort”²⁴. 

The GREVIO baseline report also highlights law enforcement officers’ tendencies to delay interventions, discourage victim reporting, and disregard signs of violence due to the perception of domestic violence as a private family matter rather than a human rights issue. These victim-blaming attitudes are also apparent in cases of sexual violence, where biased assumptions among legal actors result in inaction²⁰. Terms like “gender bias” and “gendered practices” are also employed to represent patriarchal attitudes throughout the study. 

Negligence within the context of this study refers to instances where improper responses occur due to the inattentiveness and lack of knowledge of law enforcement, Violence Prevention Centers, and prosecution offices. For example, when a woman called the Violence Prevention Center and asked for help in the middle of the night, the male staff member informed her, “It might be difficult for us to accommodate you on the same night; it’s better if you spend the night at the bus station,” and failed to provide her with information about accessing both the shelter and the police for her safety. In a separate incident, a woman seeking a new restraining order after renewed threats, despite having a prior one, was denied by the court. The judge’s reasoning, “I concluded that since nothing has been done for two years, nothing will be done,” ignored numerous police reports regarding restraining order breaches over this period²⁴. 

Interviews with legal actors also unveiled that many court decisions are made with limited understanding and insufficient investigation. In many cases, judges do not personally meet or engage with the applicants. Legal professionals have pointed out the absence of a comprehensive risk assessment criterion in court judgments, as the process mainly involves filling out a standard form at the police station, but this is viewed as a procedural requirement rather than a real assessment of risk levels²¹. GREVIO also emphasized in its Baseline Evaluation Report that a key factor hindering the fight against violence against women is the absence of a systematic and comprehensive risk assessment by legal practitioners²⁰.

Research Hypothesis 

In summary, many legal enhancements have been implemented to tackle violence against women in Turkey. However, there remains a disparity between these legal reforms and their practical application, primarily due to the failure of practitioners to fully internalize the law, causing judicial inaction. 

In the current research, we propose that the limited potential of legal infrastructure changes to address domestic violence is linked to the presence of judicial passivity, stemming from excessive bureaucracy, patriarchal motives, and negligence, as depicted in Figure 1.

The research hypothesis asserts that the

Results

In the current study, we conducted qualitative research analyzing over thirty cases using available public resources such as court reports, newspapers, and trusted web resources in order to compare legal responses under two different periods of prevailing laws: the previous domestic violence law, Law No. 4320, and the current law, Law No. 6284. 

While the number of cases may appear limited, it’s essential to emphasize that, to prevent potential selection bias, we specifically selected cases that were documented in reports by reputable international organizations like Human Rights Watch, the European Council, CEDAW, and GREVIO progress reports. Additionally, we incorporated court documents from the ECtHR and reports from Purple Roof, an independent Turkish NGO dedicated to advocating for domestic violence victims.

The overall analysis of 30 distinct cases—eight from Law No. 4320 and the rest from the current law— and a detailed analysis of two cases – one from Law No. 4320 and the rest recent one from the current law- reveals a close correspondence with the research hypothesis. 

This implies that despite the enactment of the progressive Law No. 6284, the persistence of judicial inaction has limited its impact in addressing domestic violence. The detailed results of the chosen cases can be found between parts 1 to 3 in this section.

The study findings support the research hypothesis, underlining the influence of patriarchal attitudes within state institutions, as well as bureaucratic obstacles and the negligence of practitioners, in contributing to a passive judicial environment. Therefore, even if the legal system possesses the required mechanisms to address domestic violence, its successful application depends on the ability to assess risks and take action within a non-patriarchal framework promptly. The research findings are consistent with international reports and research conducted in 2017 through interviews with various legal practitioners²¹. 

Results of the Thirty Different Case Analysis

 It is important to note that all three factors are present in these domestic violence cases. However, in instances of gender-biased attitudes from law enforcement officials, such attitudes also foster negligence and bureaucracy. This is because addressing negligence and bureaucracy primarily depends on motivated parties seeking resolution. Patriarchal motives can, therefore, override technical obstacles, leading to judicial passivity and undermining the efficacy of legal efforts. The summary of these thirty cases is available in Appendix 1. We present the  breakdown of the causes of judicial passivity in the analyzed cases in Table 1 below. The causes of judicial passivity are labeled in line with the clues defined in Figure 4 in the Methods section.

Out of the eight cases during the era of Law No. 4320, five cases were clearly attributed to judicial inaction resulting from gender-discriminatory conduct by law enforcement officials. In the era of Law No. 6284, over half of the cases were identified as having patriarchal motives. In some cases, negligence and bureaucracy jointly account for a significant portion of judicial inaction. Despite the legal reforms introduced by Law No. 6284, it is evident that law enforcement officials either exhibit reluctance or lack the necessary training in their implementation. This results in victims becoming entangled in bureaucracy, facing prolonged legal delays, and being exposed to risks due to limited risk assessment capabilities of officers.

Results of the Opuz Case Analysis – Nahide Opuz – (1995 – 2002)

The Opuz case exposes judicial passivity, where victims could not attain justice despite having a compelling case that documented numerous instances of domestic violence. Nahide Opuz, born 1972, married Huseyin Opuz in 1995. They lived in Diyarbakir, a city in southeastern Turkey, and had three children between 1993 and 1996. In April 1995, Nahide and her mother filed a complaint supported by medical reports, yet the case closed two months later when the complaints were withdrawn. Huseyin was acquitted of death threats six months later due to insufficient evidence. In April 1996, Huseyin severely injured Nahide and was released after a brief period in custody, and then Nahide withdrew her complaint. During the trial, he downplayed his actions as mere slaps and showed remorse, leading the prosecutor to request Hüseyin’s release, citing Nahide’s recovery. In February 1998, despite a knife assault on Nahide’s family, no prosecution ensued due to insufficient evidence. In March 1998, Huseyin injured Nahide and her mother by driving his car into them. The case closed eight months later with the victims’ withdrawal, claiming it was an accident. However, Huseyin was convicted for the serious injuries inflicted on Nahide’s mother, receiving a three-month prison sentence and a minimal fine. In October 2001, Huseyin’s stabbing of Nahide ended in his swift release with a self-defense claim and a nominal fine of USD 600. In November 2001, Nahide’s complaint about Huseyin’s threats led to no prosecution due to lack of evidence. In February 2002, Nahide’s mother’s reporting of the ongoing threats received an inadequate response from the legal system. The public prosecutor requested call records, but the request went unanswered. Tragically, on March 11, 2002, Huseyin fatally shot Nahide’s mother during their move to another city. 

The Diyarbakir Public Prosecutor indicted Hüseyin for intentional murder, where he defended himself based on alleged provocative statements and the claim of the deceased’s immoral life. In March 2008, Huseyin was found guilty of murder, receiving a reduced sentence due to unjust provocation and good behavior during the trial. Consequently, due to pre-trial detention time, Huseyin was released. Following her mother’s tragic murder in March 2002, Nahide’s divorce case, initiated in November 2001, concluded. Despite his release, Huseyin persisted in threatening Nahide via intermediaries. While Nahide sought protective measures through complaints to authorities and the European Court of Human Rights, she remains in hiding. The European Court of Human Rights criticized Turkish authorities for failing to assess risks and take prompt actions, resulting in the victim’s mother’s death. Despite filing numerous complaints and asking for it, Nahide and her mother did not receive protective measures under Law No. 4320, leaving them vulnerable to the perpetrator’s threats²².In the Opuz case, a distinctive pattern of judicial passivity emerges, unveiling the interplay of negligence, bureaucracy, and patriarchal motives within the legal system. Figure 2 below provides a summary of the factors contributing to judicial passivity in this case.

Negligence in the Opuz Case

In the Opuz case, the judicial system’s passive response was characterized by a range of negligence factors. Disregarding victims’ withdrawal, coerced by coercion, fear, and compelling evidence, formed a central element of this case. The failure to identify an evident pattern of escalating violence, despite subsequent incidents involving life-threatening injuries and ongoing threats by the perpetrator, left Nahide and her family persistently vulnerable. Furthermore, accepting a self-defense argument following the October 2001 incident, despite a history of repeated occurrences, revealed a significant lapse in comprehending the broader context. 

Bureaucracy in the Opuz Case

 The case exposes the lack of an institution tasked with consolidating files for presentation to law enforcement, preventing them from comprehending the bigger picture and resulting in repetitive processes for each incident. Furthermore, the cases took six to eight months to close, which is too long, especially in urgent domestic violence situations. This prolonged closure resulted from excessive bureaucracy, and it has made the victims suffer more while also allowing the perpetrator to be released, showing the high cost of bureaucratic inefficiencies. Another example of the cumbersome bureaucratic obstacles that often impede the path to justice is Nahide’s protracted divorce case against the perpetrator. Additionally, the public prosecutor’s unsuccessful attempt to access phone records right before the murder shows the legal system’s inefficiency, trapped in bureaucratic hurdles. 

Patriarchal Motives in the Opuz Case

 The minimal consequences for Hüseyin’s repetitive and violent acts, as well as his ongoing threats, reveal a systemic bias that extends beyond negligence. Gender bias is evident through the consistent use of “insufficient evidence” as an excuse and the repeated disregard for victims’ withdrawal of their complaints. In April 1996, a notable incident emerged as the public prosecutor justified Hüseyin’s release by citing Nahide’s recovery, revealing a biased approach. This normalization of violence is further emphasized by the repetition of instances that result in minimal fines and, at best,  brief detentions. A climax of the patriarchial motives emerges when, following a string of violent events and murder, the perpetrator’s sentence is diminished by framing the case as a matter of honor, dependent on the victim’s alleged immorality.

Opuz Case Results

The Opuz case, which took place during the period of Law No. 4320, is a tragic illustration of judicial passivity resulting in a murder. Analyzing the case reveals that legal actors followed standardized procedures, overlooking the recurring pattern of violence and the victim’s repeated withdrawals. Bureaucratic obstacles also contributed to delays. Furthermore, the case further supports the research hypothesis, highlighting consistent patriarchal motives through normalized violence, favoring perpetrators through legal gaps, and ultimately releasing an offender even after a murder, all masked by an alleged honor-based defense.

Results of the Arslan Case Analysis – Ayse Tuba Arslan Case – (2019)

Ayse, a mother of two working at a kindergarten, was attacked and killed by her ex-husband Yalcin Özalpay, in 2019. She had filed 23 complaints against Yalcin for insults, threats, and injuries, but these often got dismissed due to “insufficient evidence.” The court also treated Yalcin’s violations of restraining orders leniently. Ayse’s fear and her pleas for help before the fatal attack highlight the system’s shortcomings. Following Ayse’s murder, her family’s lawyers filed a lawsuit against the Ministries of Interior and Family and Social Policies, alleging their failure to protect her. Despite Ayse’s reports of violence, her ex-husband received three restraining orders from the Eskisehir Family Court. The final order expired before the incident, and no new request was made. The Eskisehir Court dismissed the case, accepting the ministries’ claim of no preventive measures during Ayse’s murder, clearing them of negligence. The legal action against the Eskisehir Chief Public Prosecutor’s Office also concluded without further investigation.

In July 2020, Yalcin Özalpay received an aggravated life imprisonment sentence for premeditated brutal intentional killing. However, the Ankara Appeals Court overturned it in June 2021, deeming Ayse Tuba Arslan’s, his ex-wife, text messages to her alleged lover as “unjust provocation.” Despite a witness’s testimony and Yalcin’s contradictory statements, he was sentenced to 24 years, avoiding a premeditated murder charge. Lawyers have appealed the decision following media coverage and objections from women’s associations. In December 2022, the Court overturned the reduced sentence, sentencing Yalcin Özalpay to aggravated life imprisonment.

This case highlights numerous wrongful practices stemming from both negligence and sluggishness of the legal system and the normalization of domestic violence within a male-dominated legal framework. The hints that uncover the judicial passivity, in this case, are presented below in Figure 3.

Negligence in the Arslan Case

Ayse’s struggle against her ex-husband’s violence is a symbol of systemic negligence in the legal system. The dismissal of some of her complaints on the grounds of insufficient evidence showcased a system that often extended the benefit of the doubt to the perpetrator, treating each incident as isolated and failing to recognize the cumulative risk. Violating four restraining orders, the perpetrator received minor fines, and despite the evident threat to Ayse’s life, lenient, often suspended sentences were given without proper protective measures, exposing legal officers’ failure to assess risks. 

Bureaucracy in the Arslan Case

It is clear that Ayse was trapped in a sluggish decision-making process, as evidenced by the unresolved cases at the time of her tragic death. The absence of a pending request for a preventive decision at the time of the murder, despite Ayse’s numerous previous complaints, should not be regarded as an excuse for the system. Instead, it highlights the presence of a cumbersome bureaucratic system. Additionally, state institutions failed to establish effective communication. Violence Prevention and Monitoring Centers failed to monitor measures, lacking any records for Ayse. Ministry of Family, Labor, and Social Services lawyers didn’t follow up on the case, thus displaying the existence of communication gaps within a heavy bureaucratic framework. There are even instances where the court failed to serve the notifications of preventive orders. The case of Ayse Tuba Arslan’s murder has demonstrated that preventive and protective measures are not merely bureaucratic paperwork; they are urgent matters that concern the safety and security of individuals. 

Patriarchal Motives in the Arslan Case

The patriarchal lens through which Ayse Tuba Arslan’s case was viewed is evident in the legal proceedings. Despite Law No. 6284 not requiring evidence for preventive orders, the Eskisehir prosecutor’s office rejected ten of Ayse’s complaints due to insufficient evidence. While eleven cases led to prosecution, Yalcin was acquitted in three instances due to a lack of evidence. The male-dominated legal environment favored Yalcin, disregarding the no-evidence rule under Law No. 6284, resulting in lenient sentences and minimal sanctions despite his admission of violations. The Turkish legal system’s family-centric perspective is evident, wrongly referring Ayse to settlement offices despite her status as a domestic violence victim, a contradiction to mediation laws²⁵. The trial itself was also dominated by gender bias, with women lawyers facing biased treatment within the male-dominated legal environment. Despite obstacles, they presented the case but were frustrated by the outcome, a verdict of “unjust provocation reduction” for a brutal axe murder. A lawyer emphasized the significance of this verdict amid the Istanbul Convention termination^{26,27,28,  19}.

Arslan Case Results

The recent tragic Arslan case, which occurred during the period of Law No. 6284, highlights the victim’s desperation due to limited response to her 23 complaints by legal authorities who failed to assess the risk. Bureaucracy and communication gaps between institutions exacerbated the problem. Tragically, even after the victim’s murder, gender-biased decisions led to a reduced sentence for the perpetrator, ex-husband, on the grounds of so-called honor. Although this decision was later overturned, the Arslan case exemplifies judicial passivity throughout, including the lack of legal officers’ accountability when the family sued them.

Discussion

Current research on domestic violence primarily centers on identifying the issue through statistical data and factual information, such as the number of women applying for restraining orders and the count of women under protection, rather than delving into the underlying causes. While some qualitative studies involve discourse analysis of government officials’ statements, these studies also aim to unveil the state’s stance on the issue^11,29.

In this study, we present a comprehensive analytical approach to scrutinize judicial passivity and its underlying reasons when responding to domestic violence cases. To assess the impact of legal improvements in the context of judicial passivity, we examine 30 cases spanning over a ten-year period. Since the literature falls short in examining the underlying causes, we utilize investigation and progress reports from international independent agencies for our case analysis. We analyze these cases to understand how this passivity leads to secondary victimization for victims through bureaucratic processes, negligent legal actors who fail to assess the full risk, and a gender-biased approach resulting in unfair decisions. The research findings indicate that the effectiveness of legal reforms may be constrained in cases of judicial inaction regarding domestic violence. The study findings are also consistent with reports from international agencies and a qualitative study conducted through interviews with Turkish judicial actors, including police officers, judges, and lawyers ²¹. Furthermore, the hypothesized underlying causes of judicial inaction, bureaucracy, negligence, and patriarchal motives are supported through the case analyses. 

These three factors highlight the significant responsibility that legal officers bear in addressing these obstacles. If we must prioritize one of the three factors to achieve a responsive judicial system, it should be the patriarchal perspective, as addressing bureaucracy and negligence requires committed and open-minded legal professionals. The patriarchal approach of state institutions was further underlined by the ECtHR ruling on the Opuz case. The Court referenced reports from non-governmental organizations, highlighting authorities’ tolerance of domestic violence against women. In conclusion, the ECtHR’s judgement pointed out the undeniable conclusion that the pervasive atmosphere of discriminatory judicial inaction in Turkey creates an environment suitable to domestic violence, which is in line with the current study’s findings¹².

Based on the findings of the current research regarding the underlying reasons for judicial inaction, bureaucracy, negligence, and patriarchal motives, we recommend the following steps: first, the establishment of a data collection system, and then the utilization of this data to pave the way toward a competent and accountable justice system. This path involves two primary areas: training and ensuring the accountability of legal actors. The initial step in this process is to establish a data collection system to identify systematic barriers, enabling the customization of necessary measures for training and accountability mechanisms. The issue of lack of reliable data has been pointed out over the reports of international agencies. For example, in its report, GREVIO highlighted that the extent to which the principle of accountability is upheld in practice cannot be verified due to the absence of data on the outcomes of the proceedings against officials who fail to abide by their duties¹². Hence, it is essential for the authorities to enhance data collection as the primary method for evaluating the impact of their initiatives aimed at improving the effectiveness of judicial responses to violence against women. The main difficulty in this scenario lies in the position of the state, as some state actors are reluctant to be held accountable for their actions. The fact that the state is at the center of the emergence of the problem and the cooperation required for its resolution creates a vicious circle that makes it difficult to address the problem. Non-governmental organizations (NGOs) and bar associations could play a significant role in leading a data collection system to improve the evidence base and thus prove the need for training and accountability mechanisms.

During the analysis of cases for this research, we noted that Turkey faces significant challenges regarding the accountability of authorities in domestic violence cases. Turkey falls significantly short of achieving targets in the categories of rule of law and accountable institutions³⁰. The possibility of gender bias in judicial decisions is not specific to Turkey. For example, just last year, the United States Department of Justice highlighted the possibility of gender bias among law enforcement officers³¹. However, the main difference is the level of accountability of officers, which appears to be less deterrent in Turkey. Human Rights Watch, while examining domestic violence cases, posed questions to the ministers responsible for interior, justice, and family and social services about the measures taken to investigate whether the authorities had fulfilled their duty to protect the victims adequately. In some instances, they received no response, while in others, they were informed that after an inquiry, it was determined that there was no need for further investigation¹⁹.

The current research reveals that authorities often lack proper training in handling the domestic violence cases, leading to their negligent actions. This negligence can result in victims being drawn into bureaucratic procedures without a thorough evaluation of the risks involved, ultimately costing the lives of many victims in numerous cases. Domestic violence is a delicate issue and women may hesitate to report violence and demand respect for their rights or they may withdraw their complaints in case of threats or social pressure. It is essential to ensure the immediate and swift response of first responders to incidents of violence against women. This can be accomplished by providing training for all the legal officers that may come into contact with victims in conducting continuous risk assessments. This training should include clear guidelines governing their actions in sensitive situations, which encompass informing the victims of their rights and considering the victims’ psychology and safety at every step. The expertise of NGOs supporting domestic violence victims should be engaged in designing these trainings and also in monitoring the outcomes of these training programs.

As a result, based on the findings of current research, we propose a data-driven model to support training and accountability mechanisms for legal authorities and legal aid lawyers involved. The current research had the limitation of acquiring firsthand information through interviews since domestic violence victims are challenging to reach due to their safety concerns. As a result, based on the findings of current research, we propose a data-driven model to support training and accountability mechanisms for legal authorities and legal aid lawyers involved. The current research had the limitation of acquiring firsthand information through interviews since domestic violence victims are challenging to reach due to their safety concerns. Future research may focus on providing evidence of the need and necessary content of training programs. Accountability mechanisms also stand as an important avenue for future research, which requires collaboration with state institutions to determine the outcomes of cases involving officers’ wrongdoings and negligence.

In conclusion, legal and institutional advancements to combat violence against women, does not ensure their effective implementation. This issue, as defined under the concept of judicial passivity throughout this study, has led to the secondary victimization of women who have experienced domestic violence. The current research not only enables us to understand the dynamics of the Turkish judicial system’s response to domestic violence but also provides a valuable framework for other cultures to assess their stance on judicial actions in domestic violence cases. To address this problem, it is essential to overcome judicial passivity, which primarily arises from three key factors: patriarchal motives, negligent behaviors of judicial officers, and the complexities of the bureaucratic system. We recommend that future research concentrate on collecting judicial data through collaborative efforts with state authorities and NGOs. Improving data collection, holding legal officers accountable by law for their actions, and providing training for legal professionals handling domestic violence cases are crucial measures to establish a responsive judicial system capable of effectively combating violence against women.

Methods

Initially, the study aims to identify and categorize three contributing factors—excessive bureaucracy, negligence, and patriarchal perspective—that lead to judicial passivity across the selected cases. To achieve this, various indicators such as clues, words, phrases, and actions are discerned and grouped, as presented in Figure 4  below.

Various underlying causes may be present in the cases under examination. In this case, the primary factor falls within the three identified categories, and if multiple dominant reasons arise, all pertinent categories are appropriately labeled. Each case was meticulously examined, and the indicators from Figure 4 were highlighted to facilitate grouping.

It’s important to acknowledge that obtaining comprehensive information on domestic violence cases is quite difficult, and even media coverage of these cases can be biased, often framing them as unfortunate family issues. In many cases, it is not possible to directly reach out to victims and gather detailed accounts of their experiences. Therefore, we aimed to utilize a wide range of information sources, including victims’ statements, court reports from the ECtHR, investigations conducted by international organizations, and factual data related to legal actions, in this qualitative analysis. This approach allows us to better comprehend the underlying reasons for judicial inaction in domestic violence cases.

This study will concentrate on two well-documented cases that offer substantial information for analysis. Specifically, we scrutinize the Opuz case, which occurred during the period of Law 4320 enforcement, and we analyze it through detailed court documents from the European Court of Human Rights. We also analyze the Arslan case, a widely publicized incident that occurred concurrently with the implementation of Law 6284 and underwent investigation by Human Rights Watch. Furthermore, select excerpts or incidents from thirty different cases gathered from diverse independent sources are analyzed and categorized into three identified categories to reinforce the research framework on judicial passivity and its underlying factors. 

Steps in Analyzing the Cases

The judicial inaction in response to domestic violence cases in Turkey has been pointed out by many trusted international resources^32,20,33.

Analyzing the discourse of judicial inaction in domestic violence cases involves examining the actions, attitudes, language, and decisions of various stakeholders, including victims and legal actors, through reports by independent international organizations. The steps involved in the analysis of the cases conducted in this study are as follows:

Step 1: Collecting Documentation: Since domestic violence is a delicate issue, it is hard to reach the victims as an independent researcher; therefore, outside resources have been utilized, and the documentation for review is determined based on the following criteria:

• Reports of international agencies such as Human Rights Watch, reports supported by the European Council, Progress reports issued by CEDAW and GREVIO,
• Court documents of the European Court of Human Rights,
• Reports issued by Purple Roof, a Turkish independent NGO supporting domestic violence victims, 
• Media coverage to include narratives from victims or their relatives

The detailed report on domestic violence cases in Turkey by Human Rights Watch highlights the problem of judicial inaction and the lack of response from the authorities to their inquiries on this issue. This approach highlights that reports issued directly by Turkish authorities may fail to address the extent of the problem adequately. In order to eliminate any probability of selection bias, the cases selected are determined based on the availability of their coverage in international and independent sources spanning over a period of more than ten years.

Step 2: Identifying the Primary Causes of the Issue: The reasons for judicial inaction were identified after going through the documentation. Many victims shared anecdotes of legal actors displaying judgmental behavior, not listening to their concerns, and even disregarding medical reports. This behavior is often seen as an extension of the prevailing patriarchal attitude. In numerous cases, the lengthy duration of legal proceedings, some of which conclude only after the victim’s death, highlights the heavy bureaucracy within the system. Additionally, there are instances where legal actors focus solely on the immediate situation, neglecting proper risk analysis and acting negligently. While other factors may contribute to judicial inaction, the reviewed documentation underscores the importance of addressing these three primary issues.

Step 3: Coding – Identify Key Themes and Patterns: Language, narratives, attitudes, and actions of the legal actors and victims, together with the facts such as duration of legal proceedings and number of violations of preventive orders, are scrutinized to identify the key themes and patterns underlying the judicial inaction. Every possible clue, spoken or unspoken that would help us to identify the problem was included in the analysis. The critics of the international documentation on the issue have acted as a starting point in identifying the clues. 

It is important to note that in qualitative analysis, the researchers themselves are the primary analytical tools. They examine and question events, such as why the perpetrator was not taken into custody despite repeatedly violating the court order, through the lens of the knowledge and insight they have gained throughout their research. After extensive exposure to the documentation, the researchers formulate a coding strategy based on the frequency and significance of the identified codes³⁴.

Step 4: Categorizing Cases Through Coding: First, the codes identified in Step 3 are associated with each specific primary cause determined in Step 2. Subsequently, the cases are reassessed to categorize them under the primary cause or causes identified in Step 2.

Reliability, Validity and Generalizability

According to the World Health Organization, 1 in 3 women experience domestic violence globally, thus eliciting various responses around the world³⁵. While these responses to domestic violence vary from country to country, this paper can be employed for those analyzing legal responses to violence against women. This is to say that although this work is situated in the Turkish context, similar countries that address violence against women through the law may encounter a similar judicial passivity, which this paper explicates.

GREVIO, in its report covering the domestic violence problem across Europe, points out the insufficiency of the implementation and monitoring of protection orders due to a lack of awareness among law enforcement and judicial authorities³⁶. In its second general report, GREVIO provided examples of ECtHR court cases from Romania, Italy, Malta, and Albania and highlighted the problem of ineffective and delayed responses by authorities, as well as the lack of training for the judiciary in handling domestic violence cases. GREVIO criticizes the authorities for their “insensitive” responses to victims, which result in repeated victimization and low rates of prosecutions and convictions. Furthermore, the baseline evaluation reports for Italy, Portugal, and Turkey underline the need for training to address professional biases and stereotypes that hinder the effective support and protection of women who are victims of violence³⁷. 

One consistent and critical shortcoming highlighted in GREVIO’s baseline evaluation reports is the lack of data harmonization across the criminal justice sector in the assessed countries. GREVIO comments that the absence of comprehensive data hinders the ability to conduct a thorough analysis of how the judicial system administers justice for women victims of gender-based violence.

Qualitative researchers face a challenge primarily because there is no universally agreed-upon standard against which to evaluate such research. While the tests used to measure the validity and reliability of quantitative research cannot be directly applied to qualitative research, ongoing debates revolve around whether terms such as validity, reliability, and generalizability are suitable for evaluating qualitative research. These terms, even with their distinct approaches to evaluation, may still be applicable in the context of qualitative research.

In quantitative research, generalizability refers to the transferability of findings to other settings. In qualitative research, the term used is “applicability,” which involves considering whether findings can be applied to other settings. The findings in the current study are clear and consistent with the findings of international courts and reports on Turkey’s passivity in judicial actions against domestic violence. Based on the reports from international organizations, it becomes evident that many other countries confront similar challenges when responding to domestic violence cases and collecting data related to domestic violence. Therefore, the decision trail in this study and the corresponding findings can be applied to other settings.

In contrast to quantitative research, where validity is precisely calculated to measure the extent to which findings accurately reflect the data, in qualitative research, the term “truth value” is employed, acknowledging the existence of multiple realities. This requires qualitative researchers to present their personal experiences and viewpoints, acknowledging the potential for methodological bias. The current study is based on factual information, such as the duration of the lawsuits, and the number of preventive orders or reduced sentences, as its basis therefore, while the reasons for judicial passivity may involve some categorization influenced by the researcher, there is a clear and recognized link to international documentation. Though there may be some overlap between categories, it does not significantly affect the overall findings.

In quantitative research, reliability relates to the consistency of analytical procedures. In qualitative analysis, the term used is “consistency” rather than reliability, which is associated with the “trustworthiness” of the methods undertaken. Trustworthiness relies on the researcher maintaining a transparent “decision process,” demonstrating that the researcher’s choices are clear and allowing an independent researcher to reach similar or comparable findings. The methodology section of the current study clearly defines the researcher’s path, ensuring both consistency and transparency, enabling another researcher to follow the same path and arrive at the same conclusions. As a result, the current study achieves neutrality, which is attainable when truth value, consistency, and applicability have been addressed. In the nature of any qualitative research, the methods employed and the findings are inherently linked to the researcher’s philosophical position, experiences, and perspectives. However, by covering a period of more than 10 years and focusing on verified cases that have undergone examination by international experts, the current study minimizes the risk of being influenced by the researcher’s position^38,34,39.

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