Communicated on 30 March 2017

FOURTH SECTION

Application no. 62903/15 Senay KURT against Austria lodged on 16 December 2015

STATEMENT OF FACTS

The applicant, Mrs Senay Kurt, is an Austrian national, who was born in 1978 and lives in Unterwagram . She was represented before the Court by Mrs C. Kolbitsch , a lawyer practising in Wien.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant married E. in 2003. Together, they had two children, A., born in 2004, and B., born in 2005.

On 10 July 2010 the applicant called the police because her husband had beaten her. In her statement to the police, she alleged that she had problems with her husband and that he had been beating her for years already. Recently the situation had gotten worse, because he had a gambling addiction, was heavily in debt and had lost his job. She stated that she had always supported him financially, but had also lost her job and therefore could not pay his debts anymore. The police noted that the applicant had injuries which she stated she had sustained through beatings by her husband. Her mental state was described by the police as “tearful and intimidated, with panic-like fear of encountering her husband”. The police then went to speak to E., whom they described as “inwardly boiling with anger but composed [on the outside] – agitated towards his wife”. E. stated that he did not have any problems with his wife, but that he had had a fight with his brother the night before and got injured in his face. The police issued a ban and expulsion from home ( Betretungsverbot ) in accordance with section 38a of the Security Police Act ( Sicherheitspolizeigesetz ) against the E., which obliged him to stay away from their common apartment for 14 days. It appears that E. complied with the order. The police filed a report with the public prosecutor ’ s office.

On 10 January 2011 the Graz Regional Criminal Court ( Landesgericht für Strafsachen ) convicted E. of bodily harm and dangerous threat and sentenced to three months ’ imprisonment, which was suspended on a probationary period of three years. The applicant was found guilty of pushing his wife against a wall and slapping her with his hand, as well as threatening his brother and his brother ’ s son, among other things with the words “Prepare your grave, look who will save you from me”.

On 22 May 2012 the applicant went to the St. Pölten District Court ( Bezirksgericht ) and filed for a divorce.

On the same day, the applicant reported her husband to the police. She stated that he had behaved violently against her from the very beginning of their marriage, and that already in 2010 he had been issued with a ban and expulsion from home because he had injured her. From that time, the applicant stated that she had been in regular contact with the local centre for the protection from violence ( Gewaltschutzzentrum ). Because her husband went to hospital after the incident of 2010 out of his own motion to be treated for his gambling addiction and mental problems, the applicant gave him a second chance. However, the situation had gotten worse again since February 2012, when E. ’ s gambling addiction resurged. Since the beginning of March 2012, he had been threatening her on a daily basis with phrases like “I will kill you”, “I will kill our children in front of you”, “I will harm you so badly until you will beg me to kill you”, “I will hurt your brother ’ s children if I am expelled to Turkey”, and “I will hang myself in front of your parents ’ door”. She said that she never reported these threats until now, because she feared that he would act upon his threats if she did. Also, she stated that her husband was beating her regularly, and was even beating the children. Her son and daughter A. and B. confirmed this in their interviews before the police.

The applicant alleged that on 19 May 2012, when she had confronted her husband that she would divorce him, E. got very angry and choked her. She further alleged that he subsequently raped her and again threatened to kill her and the children if she left him. The applicant gave a detailed statement relating to these events, in particular that E. had forced her to have sexual intercourse with him against her will. She had clearly told him that she did not want to have intercourse, but did not resist, out of fear of being beaten if she did. After the assault, she went to see her counsellor at the centre for the protection from violence because she could not bear the situation anymore. The police took pictures of the injuries the applicant had sustained (haematomas on her neck and chin). No injuries typically caused by rape could be detected.

On 22 May 2012, the same day the applicant had reported her ill-treatment, the police went to confront E. with the allegations against him. The police in their report described him as “mildly agitated” and “cooperative”. E. vehemently denied any allegations of violent behaviour, threat or rape. He conceded that he had been beating his wife until three years ago, but not since, and that he had never beaten his children. The police issued a ban and expulsion from home against E., prohibiting him to return to the applicant ’ s apartment and also to stay away from her parents ’ apartment. In a note to the file, the St. Pölten Federal Police Department ( Bundespolizeidirektion ) held that the issuance of the ban had been lawful, and that it would remain in force until further notice. It was noted that the witnesses, namely the children A. and B., had confirmed that the applicant and her children had been victims of physical assaults by E. since many years.

On 24 May 2012 E. went back to the police because he wanted to see his children. On that occasion, he was confronted with A. and B. ’ s statements that he had beaten them. E. confessed that he beat his children “every now and then”, but “only as an educational measure”.

The public prosecutor ’ s office ( Staatsanwaltschaft ) instituted proceedings against E., but did not order a warrant of arrest or pre-trial detention.

On 25 May 2012 E. went to A. and B. ’ s school and asked A ’ s teacher if he could speak to his son in private. The teacher, who had not been informed by anyone of the family situation, agreed. When A. did not return to class, the teacher started looking for him. She found him shot in the head in the school ’ s basement. His sister B. was also present at the scene but was not injured. E. was gone. An arrest warrant against him was issued immediately, but he was found dead in his car on the same day. He had committed suicide by shooting himself. In a letter which was found in the car, E. wrote that his family had forced him to take this step.

On 11 February 2014 the applicant instituted official liability proceedings. She claimed that the public prosecutor ’ s office should have had requested pre-trial detention against E. on 22 May 2012, when she had reported him to the police. There had been a clear threat that he would reoffend against his family. Also, the restraining order not to return to the applicant ’ s apartment should have also included the school area.

On 14 November 2014 the St. Pölten Regional Court ( Landesgericht ) dismissed the applicant ’ s claim. It held that, taking into account the information the authorities had at hand at the relevant time, there had not been an immediate risk to A. ’ s life. E. had never acted aggressively in public before. Even though he had repeatedly issued threats against his wife and children, he had never acted upon them. There had not been any indications that E. had a gun in his possession. Moreover, E. had cooperated with the police and had not demonstrated any aggressive behaviour between 22 and 24 May 2012. The court weighed the applicant and her children ’ s right to be protected against the rights of E. under Article 5 of the Convention and held that pre-trial detention should only be the ultima ratio . A less intrusive measure, namely the ban and expulsion from home which required E. to stay away from the applicant ’ s and her parents ’ apartment, had already been issued. The court concluded that the public prosecutor ’ s office therefore had not acted culpably by not taking E. into pre-trial detention.

The applicant appealed, arguing that the public prosecutor ’ s office should have been aware that there had been an increased threat of further violent acts by E., since the applicant had filed for a divorce. She alleged that the statistics show that the number of homicides committed between partners is significantly raised during the separation phase of a couple, which the applicant and E. found themselves in. The authorities were aware that E. ’ s violence against the applicant had increased since February 2012. In fact, the threats had been very concrete, namely that he would kill the applicant, their children and himself if the applicant left him. The applicant reiterated that the domestic authorities were under a positive obligation under Article 2 of the Convention to protect her and her children ’ s lives. The restraining order as a “less intrusive measure” had not been sufficient, as it had not included the children ’ s school.

On 30 January 2015 the Vienna Court of Appeal ( Oberlandesgericht ) dismissed the applicant ’ s appeal. It held that the public prosecutor ’ s office had a certain margin of discretion when deciding whether to take a person into pre-trial detention. Official liability could only be established if the public prosecutor ’ s office had abused its margin of discretion, or if the decision had not been justified under the specific circumstances. Starting point for the evaluation of such a decision is the concrete information the authorities hat at hand at the time of taking the decision. The public prosecutor had to decide on the basis of the specific facts of the concrete case, not because of abstract statistics such as increased levels of homicides during divorce proceedings. What mattered was the question whether there had been a real and individual risk that E. would commit further offences against the applicant and her children. According to the information available to the public prosecutor ’ s office at the time, such a risk had not been given, for the reasons already set out by the St. Pölten Regional Court.

On 23 April 2015 the Supreme Court rejected the applicant ’ s extraordinary appeal on points of law. The decision was served on the applicant ’ s counsel on 16 June 2015.

B. Relevant domestic law

Section 38a of the Security Police Act (titled “Expulsion and ban in case of violence at home” – Wegweisung und Betretungsverbot bei Gewalt in Wohnungen ) as in force at the relevant time read as follows in its relevant parts:

“ (1) If, based on certain facts, in particular because of a previous dangerous attack, it is to be assumed that a dangerous attack on life, health or freedom is imminent, the members of the police force are authorised to prohibit a person who poses a danger from returning to an apartment, in which an endangered person lives, as well as its immediate surroundings. [The police] have to inform [the person who poses a danger] of the premises to which the ban refers; this area shall be determined in accordance with the requirements of effective preventive protection.

(2) Under the conditions laid down in paragraph 1, the public security authorities are authorized to prohibit a person from entering an area ( Betretungsverbot ) to be defined in accordance with paragraph 1; however, the exercise of force to enforce this prohibition is prohibited. In the case of a removal order from one ’ s own home, particular attention must be paid to the fact that this interference with that person ’ s private life is proportionate ...

...

(6) The security authority is to be notified immediately of the issuance of a removal order and must be reviewed within 48 hours. ...

...

(7) The observance of a prohibition to enter a certain area must be reviewed at least once within the first three days of its entry into force by the public security authorities. The entry ban ends two weeks after its issuance, unless a request for a restraining order is filed within [these two weeks] with the competent court pursuant to sections 382b and 382e of the Execution of Judgments Act ( Exekutionsordnung ) ... ”

Section 38a of the Security Police Act (titled “Ban and expulsion from home for protection against violence” – Betretungsverbot und Wegweisung zum Schutz vor Gewalt ) as amended with effect of 1 September 2013 as a result of the events in question read as follows (however, it is noted that this provision has been amended again in the meantime):

“ (1) If, based on certain facts, in particular because of a previous dangerous attack, it is to be assumed that a dangerous attack on life, health or freedom is imminent, the members of the police force are authorised to prohibit a person who poses a danger ( endangerer ) from entering

1. a dwelling where an endangered person lives as well as its immediate surroundings;

2. and , if the endangered person is under the age of 14, furthermore from entering

a) a school that the endangered person under the age of 14 attends to fulfil the requirements of compulsory education as provided in the Compulsory Education Act, Federal Law Gazette No. 76/1985, or

b) an institutional childcare facility he/she attends, or

c) a day nursery he/she attends including an area within a radius of fifty meters.

(2) When the ban from home is placed, the members of the police force must

1. inform the endangerer of the premises to which the ban applies; the scope of the ban under § 1 (1) shall be laid down in accordance with the requirements of an effective preventive protection;

2. expel him in case he refuses to leave the area included in the ban under § 1,

3. remove all keys to the dwelling under § 1 (1) from the endangerer he has in his possession,

4. give him the opportunity to take with him urgently required personal items and inform him of options to find accommodation.

In the event of a ban to return to one ’ s own dwelling, it is to be ensured in particular that this interference with the private life of the person affected is proportionate ...

...

(4) The members of the police force are further obliged to inform

1. the endangered person about the possibility of obtaining a restraining order under sections 382b and 382e of the Execution of Judgments Act and about appropriate victim protection facilities ... and,

2. if persons under the age of 14 are endangered, immediately

a. the locally responsible child and youth welfare office pursuant to section 37 of the Federal Act on Child and Youth Services 2013 (B-KJHG 2013), Federal Law Gazette I ( Bundesgesetzblatt )No. 69, and

b . the head of an institution pursuant to § 1 (2) for which the ban has been imposed.

...

(6) The security authority shall immediately be informed of the placing of a ban from home and review it within 48 hours. ...

...

(8) Members of the police force shall check the compliance of the ban from home at least once during the first three days of its validity. The ban from home shall end two weeks after having been placed. If the ordinary court informs the security authority of the filing of an application to issue a restraining order under sections 382b and 382e of the Execution of Judgments Act within this period, the ban from home shall be extended until the date of service of the ordinary court ’ s decision to the opponent, but no later than four weeks from the date of the placing of the ban.

... ”

COMPLAINTS

The applicant complains under Articles 2, 3, and 8 of the Convention that the Austrian authorities had failed to fulfil their positive obligations to protect her and her children ’ s interests. It should have been obvious to the authorities that a significant risk of new acts of violence of E. existed because of his long history of violence against the applicant, the continuous threats against her and her children, the evidence of the injuries she had sustained during previous attacks, E ’ s growing aggressiveness and his previous criminal conviction for bodily harm, as well as the predictable escalation of the situation because of the divorce proceedings. The Austrian authorities therefore should have foreseen that E. would commit further criminal offences, which could have been prevented if he had been taken into pre-trial detention.

In particular, the applicant complains under Article 2 of the Convention that the police did not have a legal instrument at hand for extending the ban and expulsion from home against E. to the c hildren’s school. Under section 38a of the Security Police Act, as in force at the relevant time, it had not been possible to extend the ban to public places like schools, where minors are potentially at risk. The legislator only adapted that provision after the incident in question.

Under Article 3 of the Convention, the applicant complains that she has suffered severe psychological problems because of her son ’ s death, which were a direct result of the State ’ s insufficient protection from her violent husband.

Under Article 8 of the Convention, the applicant complains that the State has failed to protect her and her son ’ s physical integrity against E. ’ s lethal attack.

QUESTIONS TO THE PARTIES

1. Has the applicant ’ s son ’ s right to life, ensured by Article 2 of the Convention, been violated in the present case? In particular, having regard to the procedural protection of the right to life (see, among many other authorities, Opuz v. Turkey , no. 33401/02, §§ 128-130, ECHR 2009, and most recently Talpis v. Italy, no. 41237/14, 2 March 2017 [note that the latter judgment will become final in the circ umstances set out in Article 44 § 2 of the Convention]), could or should the authorities have foreseen – having regard to what was known to them at the relevant time – that the applicant ’ s husband would carry out a lethal attack on one of the family members? Have there been sufficient indications of a real and immediate risk in that respect?

2. Has the legal framework for the protection from violence as in force at the time of the events in question been sufficient, in particular regarding the lack of the possibility at the material time to extend a ban under section 38a of the Security Police Act to the children ’ s school?

3. Has the applicant been subjected to inhuman or degrading treatment because of the alleged failure of the Austrian authorities to protect her son ’ s life, in breach of Article 3 of the Convention?

4. Have the applicant and her son suffered a violation of their rights under Article 8 of the Convention, notably because the State did not protect them from the lethal attack by E.?