CONCURRING OPINION OF JUDGE HÃœSEYNOV

1. I agree that in the particular circumstances of this case it would be difficult to conclude that there was a violation of Article 2 of the Convention and that the Austrian authorities failed to comply with their positive obligation to protect the applicant’s son. What has nonetheless prompted me to write a separate opinion is that in its judgment the Court has robustly applied the so-called Osman test to a domestic violence case. Having done so, the Court has overlooked the peculiarity of domestic violence as a distinctive social phenomenon.

2. The Osman test as developed by the Court in the case of Osman v. the United Kingdom (28 October 1998, § 116, Reports of Judgments and Decisions 1998-VIII), implies that the right to life is violated if the authorities knew or ought to have known at the time of the existence of a real and immediate risk to an identified individual or individuals from the criminal acts of a third party, and they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.

3. Since then the Court has invariably employed the Osman test when deciding on whether the respondent State has complied with its positive obligation to protect an individual whose life is at risk from the criminal acts of another individual. However, in my view, the relevance of this test is questionable in the particular context of domestic violence, that is to say, in cases where domestic violence has fatal results.

4. It is widely recognised that domestic violence often constitutes not just an isolated incident, but rather a continuous practice of intimidation and abuse. Therefore the State authorities should react, with due diligence, to each and every act of domestic violence and take all necessary measures to make sure that such acts do not lead to more serious consequences. It follows that the duty to prevent and protect comes into play when the risk to life is present, even if it is not imminent. In other words, in a domestic violence case, the positive obligation to protect life can be violated even where the risk to life is not immediate. I fully share the view of my learned colleague Judge Pinto De Albuquerque expressed several years ago in his concurring opinion in the case of Valiuliene v. Lithuania (see Valiuliene v. Lithuania , no. 33234/07, 26 March 2013) that “[r]ealistically speaking, at the stage of an “immediate risk” to the victim it is often too late for the State to intervene. In addition, the recurrence and escalation inherent in most cases of domestic violence makes it somehow artificial, even deleterious, to require an immediacy of the risk”. I am of the opinion that seeking to prove the immediacy of the risk to life in domestic violence cases in order to establish a violation of Article 2 would not be consonant with the scope of the due-diligence obligations of States in the field of preventing and combating domestic violence, particularly in the light of the Council of Europe’s Convention on Preventing and Combating Violence against Women and Domestic Violence (the Istanbul Convention).

5. The recent Talpis judgment ( Talpis v. Italy , no. 41237/14, 2 March 2017) gave hope that the Court was ready to deviate from an incident-based understanding of domestic violence and reconsider the application of the Osman test to the particular situation of domestic violence, or at least to interpret the concept of immediate risk flexibly. I believe that in the present judgment the Court could have followed the emerging positive trend, even without finding a violation of Article 2.