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Kadına Karşı Şiddette Arabuluculuk Kurumuna İlişkin Bazı Değerlendirmeler
Anahtar Kelimeler:
Şiddet, Fiziksel Şiddet, Aile İçi Şiddet, Kadı-
na Karşı Şiddet, Arabuluculuk
Abstract:
Article 2 of the Code of Mediation in Legal Disputes
specifically rules that the disputes involving allegations of domes-
tic violence are not mediatable. Therefore, if a woman is exposed
to domestic violence she will not be able to apply for mediation.
However, the term “domestic violence” and the term “violence
against women” must be distinguished from each other. Indeed, in
the Council of Europe Convention on preventing and combating vi-
olence against women and domestic violence, these two concepts
are differentiated from each other and both concepts are defined in
Article 3 of the Convention as follows: “violence against women” is
understood as a violation of human rights and a form of discriminati-
on against women and shall mean all acts of gender-based violence
that result in, or are likely to result in, physical, sexual, psychological
or economic harm or suffering to women, including threats of such
acts, coercion or arbitrary deprivation of liberty, whether occurring
in public or in private life; “domestic violence” shall mean all acts of
physical, sexual, psychological or economic violence that occur wit-
hin the family or domestic unit or between former or current spou-
ses or partners, whether or not the perpetrator shares or has shared
the same residence with the victim. Similarly, the concepts of family
violence (domestic violence) and violence against women are also
assessed separately in the Code on Protection of the Family and Pre-
vention of Violence Against Women (Code No: 6284). Article 48 of
the Convention prohibits mandatory mediation in domestic violence
disputes. From the contrary interpretation of the provision, it can
be concluded that the provision does not prohibit optional media-
tion in the case of the allegation of domestic violence. Recently in
the doctrine, it is argued that the dispute is convenient to mediation
when violence against women does not contain domestic violence.
It is even claimed that regarding the disputes involving allegations
of domestic violence as conducive to mediation in advance in the
Articles 1 and 2 of the Code, is not a proper approach. On the other
hand, part of the doctrine has a perspective that violence is not pos-
sible to mediate in its every form of existence.
Keywords:
Violence, Physical Violence, Domestic Violence, Vio-
lence Against Women, Mediation
Giriş
Hukuk Uyuşmazlıklarında Arabuluculuk Kanunu madde 1/2’de
aile içi şiddet iddiasını içeren uyuşmazlıkların arabuluculuğa elverişli
olmadığı özel olarak hükme bağlanmıştır. Dolayısıyla, kadının aile içi
bir şiddete maruz kalması durumunda arabuluculuk kurumuna baş-
vurulamayacaktır. Ancak, aile içi şiddet ve kadına karşı şiddet kavram-