Information Note on the Court’s case-law 231

July 2019

Kurt v. Austria - 62903/15

Judgment 4.7.2019 [Section V]

Article 2

Positive obligations

Sufficiency of preventive measures in light of no discernible risk of child’s murder at school by father accused of  domestic violence and barred from home : no violation

[This case was referred to Grand Chamber on 4 November 2019]

Facts – In 2010 the appl icant’s husband was convicted of causing bodily harm to her and making dangerous threats towards his relatives. A barring order, with which he complied, obliged him to stay away from their apartment, as well as from the applicant’s parents’ apartment and t he surrounding areas for fourteen days. In the following two years the applicant did not report any incidents to the police. In 2012 the applicant filed for divorce and reported her husband to the police for rape, domestic violence and for making dangerous threats on a daily basis in the preceding two months. When interviewed, their minor son and daughter stated that their father had beaten their mother, as well as them. On the same day, criminal proceedings were opened and a new barring order was issued ag ainst the applicant’s husband, prohibiting him from returning to their marital home, the applicant’s parents’ apartment and the surrounding areas. His keys were seized. Three days later, he shot their son dead at school and committed suicide by shooting hi mself. The applicant unsuccessfully brought official liability proceedings, claiming that her husband should have been held in pre-trial detention.

Law – Article 2 ( substantive aspect )

(i) The positive obligation to take preventive operational measures – The question to be answered was whether, on the basis of the information available at the time, the authorities could or should have known that the applicant’s husband had posed a real and immediate risk to his son’s life outside the places in respect of w hich the barring order had been issued, which could only have been averted by taking him into detention.

After the murder, the domestic authorities had conducted a comprehensive investigation. The domestic courts’ assessment of the facts had been comprehen sive, relevant, persuasive and in line with the Court’s case-law. The courts had balanced the applicant’s rights under Articles 2 and 3 of the Convention on the one hand and her husband’s rights under Article 5 on the other and found that it would have bee n disproportionate to remand him in custody.

The authorities had known that the applicant’s husband had been convicted once for bodily harm against the applicant and for dangerous threatening behaviour and there was strong evidence that he had committed th e very same offences again. However, before reporting the alleged rape, the applicant had spent three more days in the apartment she had shared with him. His violent outbreaks had previously been limited to the vicinity of the home, which a barring order h ad been capable of preventing, especially since he had fully complied with such a measure in 2010 and the authorities had not been made aware of any further violent acts until 2012. Even though there were indications of a certain escalation of violence bec ause of the pending divorce proceedings, this did not lead to the conclusion that there had been a danger to the children’s lives in a public place. While the applicant’s husband had started threatening her and their children two months before the murder o f his son, those threats had been partly inconsistent (for example, on the one hand he had threatened to kill his children in front of the applicant, on the other he had threatened to take them to Turkey, but he had also threatened to commit suicide) and h ad been issued on a daily basis over a period of two months without being acted upon. Therefore, those threats had not indicated an immediate risk for the children’s lives outside the residential premises. Their father had never acted aggressively in publi c before. When confronted by police officers, he had remained calm and cooperative and had not given the appearance of posing an immediate threat to anyone. Moreover, there were no indications that he had had a gun or any other weapon, or that he had tried to get one.

In those circumstances, the real and immediate risk of a planned murder by the applicant’s husband obtaining a gun and shooting his son at school had not been detectable. On the basis of the above factors, when looked at cumulatively, the dom estic authorities had been entitled to conclude that the barring order combined with a seizure of the keys would be sufficient for the protection of the applicant’s life, as well as those of her children, and that a more serious measure such as pre-trial d etention had not been warranted.

(ii) The positive obligation to put in place a regulatory framework – In the aftermath of her husband’s violent outbreak, t he applicant had not lodged a request for a temporary restraining order from the competent district court, which could have banned him from public places beyond the residential premises. That fact showed that she herself had not seen an imminent need for s uch a measure. Moreover, she had remained in the marital home for three days after that incident before going to the authorities, and there were no indications that she had been unable to seek police protection earlier. Also, after the barring order had be en issued, the applicant had told her children that they could see their father whenever they wanted to. Those considerations did not imply any criticism towards the applicant, but showed that, although a legal framework for the applicant’s and her childre n’s protection existed, full use of it had not been made because, tragically, a real and immediate risk for her son’s life at school had not been discernible at that time. While certain improvements had been made to the relevant law after those events, tha t fact could not be interpreted as recognition of a previous deficiency.

In those circumstances, the competent authorities had not failed to comply with their positive obligations to the life of the applicant’s son.

Conclusion : no violation (unanimously).

(See also Osman v. the United Kingdom , 23452/94 , 28 October 1998; Kontrová v. Slovakia , 7510/04, 31 May 2007, Information Note 97 ; Opuz v. T urkey , 33401/02, 9 June 2009, Information Note 120 ; Talpis v. Italy , 41237/14, 2 March 2017, Information Note 205 ; and the Factsheet on Protection of minors )

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

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