Information Note on the Court’s case-law 252

June 2021

Kurt v. Austria [GC] - 62903/15

Judgment 15.6.2021 [GC]

Article 2

Positive obligations

Article 2-1

Life

Adequate protective measures in the absence of a discernible real and immediate risk of child’s murder by father accused of domestic violence and barred from home: no violation

Facts – In June 2010, following a complaint by the applicant to the police of beatings by her husband, E., a barring and protection order was issued against him obliging him to stay away from their apartment, as well as from the applicant’s parents’ apartment and the surrounding areas for fourteen days. It appears he complied with the order. In January 2011 E. was convicted of causing bodily harm to her and making dangerous threats towards his relatives. After this, the applicant did not report any incidents to the police until 22 May 2012, when she filed for divorce and reported E. to the police for rape, choking her and for making dangerous threats on a daily basis in the preceding two months. She also stated that sometimes he had slapped their two children; when interviewed, their minor son and daughter confirmed this as well as that their mother had been beaten. On the same day a new barring and protection order was issued against E., prohibiting him from returning to their apartment, the applicant’s parents’ apartment and the surrounding areas. He was taken for questioning and his keys were seized. The public prosecutor’s office also instituted criminal proceedings against him. Three days later, he shot their son at school and committed suicide by shooting himself. The boy subsequently died of his injuries. The applicant unsuccessfully brought official liability proceedings claiming that E. should have been held in pre-trial detention.

In a judgment of 4 July 2019 (see Legal Summary ), a Chamber of the European Court found unanimously no violation of Article 2 in its substantive limb. The case was referred to the Grand Chamber at the applicants’ request.

Law – Article 2 (substantive aspect)

1. General principles

The duty to take preventive operational measures to protect an individual whose life was at risk from the criminal acts of another individual (see Osman v. the United Kingdom ) was an obligation of means, not of result. Thus, in circumstances where the competent authorities had responded to the identified risk by taking appropriate measures within their powers, the fact that such measures might nonetheless fail to achieve the desired result was not in itself capable of justifying the finding of a violation of the State’s preventive operational obligation under Article 2. A given case in which a real and immediate risk materialised must be assessed from the point of view of what was known to the competent authorities at the relevant time.

On the other hand, in this context, the assessment of the nature and level of risk constituted an integral part of the duty to take preventive operational measures. Thus, an examination of the State’s compliance with this duty under Article 2 had to comprise an analysis of both the adequacy of the assessment of risk conducted by the domestic authorities and the adequacy of the preventive measures taken.

In the context of domestic violence, the obligations incumbent on the State authorities could be summarised as follows:

(i) An immediate response to allegations of domestic violence was required.

(ii) The authorities had to establish whether there existed a real and immediate risk to the life of one or more identified victims of domestic violence by taking due account of the particular context of domestic violence cases. Violence against children belonging to the common household, including deadly violence, could be used by perpetrators as the ultimate form of punishment against their partner.

The authorities were under a duty to carry out an autonomous, proactive and comprehensive risk assessment. The terms “autonomous” and “proactive” referred to the requirement for the authorities to not rely solely on the victim’s perception of the risk, but to complement it by their own assessment, collecting and assessing information on all relevant risk factors and elements of the case. Furthermore, the use of standardised, internationally recognised checklists, which indicated specific risk factors and had been developed on the basis of sound criminological research and best practices in domestic violence cases, could contribute to the “comprehensiveness” of the risk assessment. It was important for the relevant authorities to receive regular training and awareness‑raising, particularly in respect of risk assessment tools, in order to understand the dynamics of domestic violence. Any risk assessment had to be apt to systematically identify and address all the potential – direct or indirect – victims, keeping in mind the possibility that the outcome could be a different level of risk for each of them.

The law-enforcement authorities should share information on risks and coordinate support with any other relevant stakeholders who came into regular contact with persons at risk, including, in the case of children, with teachers. The authorities should inform the victim(s) of the outcome of their risk assessment, and, where necessary, provide advice and guidance on available legal and operational protective measures. Some basic documenting of the conduct of the risk assessment was thus of importance.

Regarding the concept of “immediate risk”, the Court had already applied it in a more flexible manner than in traditional Osman -type incident-based situations, taking into account the common trajectory of escalation in domestic violence cases, even if the exact time and place of an attack could not be predicted in a given case. The perpetrator’s behaviour could become more predictable in situations of a clear escalation of such violence, with an increase in frequency, intensity and danger over time. The Court had observed in numerous other cases that a perpetrator with a record of domestic violence posed a significant risk of further and possibly deadly violence. This general knowledge and the comprehensive research available in that area had to be duly taken into account by the authorities when they assessed the risk of a further escalation of violence, even after the issuance of a barring and protection order. However, an impossible or disproportionate burden must not be imposed on the authorities.

(iii) If the outcome of this assessment was the existence of such a risk, the authorities’ obligation to take preventive operational measures was triggered. Such measures had to be adequate and proportionate to the level of the risk assessed.

Whether sufficient operational measures were available in law and in practice at the critical moment was closely related to the question of the adequacy of the legal framework (the “measures within the scope of their powers” aspect of the Osman test). A proper preventive response often required coordination among multiple authorities, including the rapid sharing of information. If children were involved or found to be at risk, the child protection authorities should be informed as soon as possible, as well as schools and/or other childcare facilities. Risk management plans and coordinated support services for victims proved valuable in practice. Treatment programmes for perpetrators were desirable.

The choice of an operational measure inevitably required, at both general policy and individual level, a careful weighing of the competing rights at stake and other relevant constraints. On the one hand, any such measures had to offer an adequate and effective response to the risk to life as identified. On the other hand, and to the extent that they had an impact on the alleged perpetrator, any measures taken had to remain in compliance with the States’ other obligations under the Convention, including the need to ensure that the police exercised their powers in a manner which fully respected due process and other safeguards, including the guarantees contained in Articles 5 and 8. The nature and severity of the assessed risk would always be an important factor with regard to the proportionality of any protective and preventive measures to be taken.

Regarding a deprivation of liberty in this context, the positive obligation to protect life arising under Article 2 might entail certain requirements for the domestic legal framework in terms of enabling necessary measures to be taken where specific circumstances so required. At the same time, however, any measure entailing a deprivation of liberty will have to fulfil the requirements of the relevant domestic law as well as the specific conditions set out in Article 5 and the Court’s case-law pertaining to it.

2. Application to the instant case

(a) Whether the authorities reacted immediately to the domestic violence allegations – The applicant’s complaint was only about the choice of the measures taken by the domestic authorities. Indeed, in the instant case, unlike in many other cases of domestic or gender-based violence before the Court, the authorities, both in 2010 and 2012, had responded immediately to the applicant’s domestic violence allegations, had taken evidence and issued barring and protection orders; there had been no delays or inactivity. The police had also had a checklist of specific risk factors to consider in the event of an intervention under the relevant domestic law. The Grand Chamber thus endorsed the Chamber’s findings in this regard. Moreover, the police had accompanied the applicant to the family home after she had made her report, ensuring thus that she would not have to encounter E. alone and had informed her, via a leaflet, about the possibility of applying for a temporary restraining order in order to be protected from him. The officers had taken E. to the police station for questioning and confiscated his keys to the family home. One of the officers who had responded to the applicant’s allegations of violence had been specially trained and experienced in handling domestic violence cases. The above measures, thus, demonstrated that the authorities had displayed the required special diligence in their immediate response to the applicant’s allegations.

(b) The quality of the risk assessment – At the outset the Court reiterated that it had to look at the facts strictly as they had been known to the authorities at the material time, and not with the benefit of hindsight. It then found that the authorities’ risk assessment, while not following any standardised risk assessment procedure, fulfilled the requirements of being autonomous, proactive and comprehensive. In particular:

First, the police’s assessment had not just been on the basis of the factual account given by the applicant, who had been accompanied by her long‑standing expert counsellor from the Centre for Protection from Violence, but also on several other factors and items of evidence. On the very day of the applicant’s report, the police had questioned all the persons directly involved, drawn up detailed records of their statements and taken pictures of her visible injuries. The applicant had also undergone a medical examination. Further, they had carried out an online search of the records regarding the previous barring and protection orders and temporary restraining orders and injunctions issued against E. They had been aware of his previous conviction for domestic violence and dangerous threatening behaviour, and that he had been issued with a barring and protection order some two years earlier. Moreover, and importantly in the context, they had checked whether any weapons had been registered in E’s name; this had produced a negative result.

Secondly, as could be seen from the police report, the risk assessment had identified and duly considered major known risk factors in the domestic violence context of the case. In particular, the police took into account the circumstances that a rape had been reported, the visible signs of violence in the form of haematomas on the applicant, her tearful and very scared state, that she had been subjected to threats and the children to violence, the known reported and unreported previous acts of violence, escalation, current stress factors such as unemployment, divorce and/or separation, E’s strong tendency to trivialise violence, his behaviour when he had accompanied the officers to the station, and the fact that he had no firearms registered his name.

Thirdly, the death threats uttered by E. had all been targeted at the applicant, be it directly, or indirectly by threatening to hurt or kill her, those closest to her or himself. In that context such threats had to be taken seriously and assessed as to their credibility. It transpired from the police report sent to the public prosecutor’s office that these threats and the fact that E. had choked the applicant had not been overlooked. The public prosecutor on duty had also had at his disposal the most relevant facts when deciding on the next steps to take: he had been informed by phone on the very same day of the allegations against E., the circumstances of the issuance of the barring and protection order immediately after it had been issued and had received the reports requested on the same evening. In his note for the file, he had summarised the main elements of the case, ordered further investigative steps (questioning of the children, submission of the reports on the investigations) and instituted criminal proceedings against E. for the crimes of which he had been suspected.

(c) Whether the authorities knew or ought to have known that there was a real and immediate risk to the life of the applicant’s son – The authorities, on the basis of the evidence that had been available to them at the material time, had concluded that the applicant had been at risk of further violence and had issued a barring and protection order against E. Police officers with significant relevant experience and training had been involved in making this assessment, which the Court had to be careful not to question in a facile manner with the benefit of hindsight. Although no separate risk assessment had been explicitly carried out as to the children, this would not have changed the situation for the following reasons:

– While the fact that the children had been subjected to slaps by their father and to the mental strain of having to witness violence against their mother could in no way be underestimated, given the information the authorities had had, the children had not been the main target of E.’s violence or threats. The primary target had been the applicant, be it directly or indirectly.

– The predominant reason for the applicant’s report to the police had been the alleged rape and choking the weekend before and the ongoing domestic violence and threats against her.

– Although the police report on the issuance of the barring and protection order had not explicitly listed the children as endangered persons, they had been explicitly mentioned as “victims” of the indicated crimes in the criminal investigation report forwarded to the prosecutor on the same day with their witness statements attached thereto.

– The authorities had legitimately assumed that the children had been protected in the domestic sphere from potential non-lethal forms of violence and harassment by their father to the same extent as the applicant, through the barring and protection order. There had been no indication of a risk to the children at their school, and more specifically, a real and immediate risk of further violence against the applicant’s son outside the areas for which a barring order had been issued, let alone a lethality risk.

– It also appeared – albeit not in itself decisive – that the applicant and her counsellor from the Centre for Protection from Violence had not themselves considered that the level of threat justified requesting a complete ban on contact between the father and the children.

– E.’s threats had not been deemed sufficiently serious or credible by the authorities to point to a lethality risk that would have justified pre-trial detention or other more stringent preventive measures than the barring and protection order. There was no reason to call into question the authorities’ assessment that, on the basis of the information available to them at the time, it had not appeared likely that E. would obtain a firearm, go to his children’s school and take his own son’s life in such a rapid escalation of events.

– Although the authorities appeared to have placed some emphasis on E.’s calm demeanour towards the police - something potentially misleading in a domestic violence context and that should not be decisive in a risk assessment - this element was not sufficient to cast doubt on the conclusion that no lethality risk to the children had been discernible at the time. Similarly, while in retrospect providing speedy information to the children’s school or the child protection authorities would have been desirable, it had not been foreseeable that such a measure had been required to prevent a lethal attack on the applicant’s son. Thus the omission to share this information, which had not been provided for under domestic law at the time of the events, could not be regarded as a breach of their duty of special diligence in the context of the authorities’ positive obligations under the Osman test.

Lastly, taking into account the requirements of the domestic criminal law and those flowing from Article 5 of the Convention safeguarding the rights of the accused, there was no reason to question the finding of the domestic courts that the authorities had acted lawfully in not taking E. into pre-trial detention. Under Article 5 no detention was permissible unless it was in compliance with domestic law and the applicant had raised no complaint regarding the domestic legal framework concerning grounds for detention in relation to the positive obligations under Article 2.

In view of the above, the measures ordered appeared, in the light of the risk assessment’s result, to have been adequate to contain any risk of further violence against the children. The authorities had displayed the required special diligence in responding swiftly to the applicant’s allegations of domestic violence and had duly taken into account the specific domestic violence context of the case. They had been thorough and conscientious in taking all necessary protective measures. They had conducted an autonomous, proactive and comprehensive risk assessment, the result of which had led them to issue a barring and protection order; from this assessment, no real and immediate risk of an attack on the children’s lives had been discernible under the Osman test as applied in the context of domestic violence. Consequently, there had been no obligation incumbent on the authorities to take further preventive operational measures specifically with regard to the applicant’s children, whether in private or public spaces, such as issuing a barring order for the children’s school.

Conclusion : no violation (ten votes to seven).

(See Osman v. the United Kingdom , 28 October 1998, Legal Summary ; see also Bubbins v. the United Kingdom , 50196/99, 17 March 2005, Legal Summary ; Kontrová v. Slovakia , 7510/04, 31 May 2007, Legal Summary ; Branko Tomašić and Others v. Croatia , 46598/06, 15 January 2009, Legal Summary ; Opuz v. Turkey , 33401/02, 9 June 2009, Legal Summary ; and Talpis v. Italy , 41237/14, 2 March 2017, Legal Summary )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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