PARTLY DISSENTING OPINION OF JUDGE SPANO

I. Preliminary remarks

1. The law has its limits, even human rights law. When a claim is made that the State did not take reasonable steps to prevent the taking of life by another individual, tensions arise between the demands of justice for the relatives of victims and the imposition of unrealistic burdens on law enforcement agents governed by the rule of law. The judicial resolution of such disputes, arising as they do from tragic events, thus requires that a delicate balance be struck between these two conflicting interests based on the objective and dispassionate application of clear and foreseeable legal standards. As the Court ’ s application of the settled principles under Article 2 of the Convention to the facts of the present case unduly strikes the balance in favour of the former, without adequately taking account of the latter, I respectfully dissent from the majority ’ s finding of a violation of Article 2, as I will explain in more detail in Part II of this opinion. Also, and for the reasons elaborated in Part III below, I disagree with the Court ’ s finding of a violation of Article 14 taken in conjunction with Articles 2 and 3 of the Convention.

II. The State ’ s preventive obligation to protect life under Article 2 of the Convention – the Osman test and domestic violence

2. In the Court ’ s case-law on domestic violence, notably the landmark Opuz v. Turkey judgment, the Court established that the positive obligation to protect the right to life under Article 2 of the Convention requires domestic authorities to display due diligence, for instance by taking preventive operational measures, in protecting an individual whose life is at risk. In Osman v. the United Kingdom and subsequently in Opuz v. Turkey the Court held that “where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above-mentioned duty to prevent and suppress offences against the person, it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably , might have been expected to avoid that risk” (see Osman , § 116, and Opuz , § 130; my emphasis).

3. It follows that in order for a finding of a violation of Article 2 to be properly substantiated in the present case, the Osman test must therefore be met. This begs the following question: did the national authorities know, or ought they to have known, that the lives of the applicant and her son were at real and imme ­ diate risk on 25 November 2013? The answer to this question requires a fact-sensitive analysis of the two prongs of the Osman test , i.e. the imminence and reality of the risk as reasonably foreseen by agents of the State, as I will now explain.

4. On 2 June 2012, the police intervened on the applicant ’ s request after she complained that her husband, A.T. had hit her and her daughter. On 19 August 2012, the applicant again sought police assistance after being physically assaulted by her husband. The applicant lodged a complaint against A.T. on 5 September 2012 for bodily harm, domestic abuse and threats. The final event, the fatal attack, then took place on 25 November 2013. On the evening in question, the police were called to the house by the applicant. Upon arrival, they noted a broken door and bottles on the floor. There were no signs of violence on either the applicant or her son, nor were such allegations made. Although the applicant mentioned that she had previously filed a complaint against her husband, she explained that she had subsequently modified her accusations and that she had sought help that evening believing that her husband ’ s drunken state necessitated medical attention. The police duly took A.T. to a hospital, which he left the same evening. When he was stopped in the street by the police later that night, he made no threats of violence. Returning to the family home in the early hours of the morning, he carried out his fatal attack.

5. In determining the immediacy of the risk , it is crucial to note the lapses of time between the initial police intervention in June 2012, the August 2012 incident and the lodging of the complaint in September 2012, and between that time and the tragic events of 25 November 2013, a time lapse of over fourteen months. When contrasted with the close nexus in time and regularity of the violent acts in Opuz v. Turkey , which gave rise to the Court ’ s finding of constructive knowledge , namely that the authorities ought to have known of a real and immediate risk under the Osman test, it is plain that the requisite timeframe allowing for a conclusion of immediacy is lacking in the present case. Bljakaj and Others v. Croatia presents a similar stark contrast and demonstrates the required extent of immediacy, with the perpetrator in that case making threats on the day before, morning of, and hour prior to, the fatal incident. It is worth noting that the Court ’ s case-law in this regard falls in line with the requirements of the Istanbul Convention, [2] the Explanatory Report to which establishes that the term “immediate danger” refers to any situations of domestic violence in which harm is imminent or has already materialised and is likely to happen again. [3] The highlighted time lapses clearly challenge the possibilities of imminence of risk in this case.

6. Turning to the reality of the risk , besides their close nexus in time, the scale and regularity of the violent acts and the authorities ’ direct knowledge of them also formed the basis for the Opuz Court ’ s finding of the existence of constructive knowledge under Osman . It goes without saying that the attacks of June and August 2012 and their impact on the applicant should in no way be underestimated, the Italian courts eventually convicting A.T. of the violence carried out on those occasions. Nonetheless, when contrasted with the gravity of the eight prior attacks identified in Opuz , involving repeated death threats and resulting in life-threatening injuries on several occasions, the constructive knowledge inevitably arising from such a course of events cannot be imputed to the authorities in the present case, who did not possess information on attacks and death threats on this scale. Similarly, in finding an Article 2 violation in Kontrová v. Slovakia , the Court highlighted the lack of action taken in respect of allegations that the applicant ’ s husband had a shotgun and had made violent threats with it.

7. The majority argues that the authorities failed to carry out an adequate risk assessment both on the night in question and during the preceding months, whereby the context of impunity eventually culminated in the fatal attack ( see paragraphs 118-119) . Having dealt with the former issue, the question in respect of the latter then arises: can investigative passivity give rise to constructive knowledge?

8. In Opuz v. Turkey , the Government had argued that there was no tangible evidence that the applicant ’ s mother ’ s life was in imminent danger. However, the Court found that it was not apparent that the authorities had assessed the threat posed by the perpetrator and only then concluded that his detention was a disproportionate step in the circumstances; rather, the authorities failed to address the issues at all (see Opuz , § 147). Despite the victim ’ s complaint that the perpetrator had been harassing her, wandering around her property and carrying knives and guns, the police and prosecuting authorities failed either to place him in detention or to take other appropriate action in respect of the allegation that he had a shotgun and had made violent threats with it. Thus inactivity of the sort demon ­ strated in the present case, and the results thereof, do not of themselves create constructive knowledge such as to trigger an obligation under Article 2 (although it will usually, and in the present case does, give rise to an Article 3 violation in the domestic violence context). What is ultimately required is a set of facts rendering untenable the claim that the authorities did not know, or could not have known, of a real and immediate risk to life.

9. Consequently, although the majority finds that the nature of the act in August 2012 and the pending status of its inquiry in November 2013, along with the facts during the tragic evening, are sufficient to establish constructive knowledge of a real and immediate risk to the lives of the applicant and her son, the Osman test, as applied on the facts, the crux of the Article 2 substantive claim, is not made out. Regardless of how the judgment frames it, the Osman test continues to apply in the same way here as in other contexts triggering the State ’ s Article 2 preventive obligation; the Court ’ s domestic violence case-law has continued to apply a strict Osman test without any alterations. Diluting the Osman standard, to take account of the nature of different types of fatal criminal offences between individuals, will simply impose an unrealistic burden on law enforcement authorities. Again, the law, even human rights law, has its limits.

10. Furthermore, and importantly, the applicable principles, as summarised at §§ 129-130 of Opuz v. Turkey , are not fully reflected in the majority ’ s judgment which, in particular, fails to take account of the difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, the Court being required to interpret the scope of the Article 2 positive obligation in a way which does not impose an impossible or disproportionate burden on the authorities. Indeed, “ the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice, including the guarantees contained in Articles 5 and 8 of the Convention”, is a particularly relevant consideration in cases such as these (see Opuz , § 129).

11. It is unclear what Convention-compliant measures the police could have taken on the night in question to avoid the ultimate tragic outcome. Despite finding, in paragraph 122 of the judgment, that possible measures were in existence at the relevant time, the majority fails both to specify the minutiae as well as to explain the feasibility of maintaining adherence to due process and Convention guarantees in the deployment of such measures. In the absence of any evidence or allegations of violence, the police lacked sufficient grounds to detain A.T. His lethal attack that evening, predicated as it was on volatile and unpredictable human behaviour rather than ongoing and repeated direct or indirect threats to life, could not in my view have been reasonably foreseen by the police.

12. Judge Eicke argues in his partly concurring, partly dissenting opinion, that there seems to be no obvious reason why any short-term preventative intervention by the police authorities, whether in the form of an enforced return to hospital or otherwise, until (and only until) the applicant ’ s husband was sober would have been inconsistent with his rights either under Article 5 or Article 8 of the Convention. However, in my view the Court should be very careful in making findings on the possible legality of hypothetical police measures under Article 5 when such arguments have neither been raised before it nor the domestic courts.

13. Importantly, it has in no way been demonstrated before this Court that the arrest or detention of A.T. on 25 November 2013 could have been lawful under Article 5 § 1 (c), since, in the terms of that provision, there was no reasonable suspicion of him having committed an offence. Nor could his arrest or detention have been reasonably considered necessary to prevent his committing an offence, since, as was apparent both from the situation as seen by the police and from the exchanges with the applicant and her son, no threats had been made and no actual violence had occurred. On what basis, then, could he have been detained, arrested or held at a hospital against his will, bearing in mind that having a “reasonable suspicion” presupposes the existence of facts or information which would satisfy an objective observer that he may have committed an offence and that there can clearly not be a “reasonable suspicion” if the acts or facts held against him, such as being drunk at home, did not constitute a crime at the time when they occurred?

14. The fact remains that, tragically, on 25 November 2013 the police did all they could by physically removing him from the premises in taking him to hospital, but they could not have kept him there by force. Furthermore, unlike Judge Eicke, I am unable to accept that the facts surrounding the police intervention on the street at 2.25 am on the night in question provided the police with any actionable information, even when reasonably viewed in context with other available information, about a real and immediate risk to the lives of the applicant and her children. In fact, with the exception of the drunken state of the applicant ’ s husband, which alone does not suffice for these purposes, there were no comments, threats or other behavioural signs that could have justified the deployment by the police of operational measures of arrest or detention at that point.

15. In short, t he doctrine of positive obligations cannot remedy all human rights violations occurring in the private sphere if due process considerations, also worthy of Convention protection, are not to be rendered obsolete. In other words, it is true that the States are under a Convention-based positive obligation effectively to combat domestic violence. But that fight, like any other campaign by Government to safeguard the lives and protect the physical integrity of its citizens, must be fought within the boundaries of the law, not outside them.

16 . Finally, it is all too easy to review tragic circumstances with the benefit of hindsight and impute responsibility where, on an objective and dispassionate analysis, there can be none. There is a limit on how far positive obligations under Article 2 can extend to shield victims from unforeseen attacks without imposing unrealistic obligations on the police accurately to forecast human behaviour and to act on those prognostications by unduly restricting other Convention rights. Alt hough it may be tempting to dilu te legal concepts such as the Osman test when faced with heart-rending facts and give solace to individuals in situations such as that of the applicant, there are reasons why the threshold under the Convention is set high, and, in my view, why it must continue to remain so. Even in the field of domestic violence the ends cannot justify the means in a democratic society governed by the rule of law.

III. Systemic gender discrimination under Article 14 of the Convention

17. Judge Eicke and I are in agreement that a case for a violation of Article 14 of the Convention, taken in conjunction with Article 2 and 3, has not been made out on the facts and the materials before the Court and I largely agree with his reasoning in his separate opinion. I would only like to highlight the following elements.

18. The Court has previously concluded, in the landmark Opuz judgment, that general discriminatory judicial passivity creating a climate conducive to domestic violence entails a violation of Article 14 of the Convention, read in conjunction with Articles 2 and 3 (see Opuz , §§ 198 and 202). It has further stated that this conclusion will be reached where the actions of the authorities are not a simple failure or delay in dealing with violence, but amount to repeatedly condoning such violence and reflect a discriminatory attitude towards an applicant as a woman (see Eremia v. the Republic of Moldova , § 89). Having regard to this high threshold and the previous findings made under this provision with respect to Italy in the case of Rumor v. Italy , I cannot subscribe to the majority ’ s findings that the inaction of the authorities, as manifested in the present case, reflects systemic gender-based discrimination, since there is insufficient evidence to show general and discriminatory passivity of the kind previously established in the Court ’ s case-law.

19. The Court in Opuz made clear the elements tending to show an Article 14 violation in this sphere. It made reference to the overall unresponsiveness of the judicial system and the impunity enjoyed by aggressors. In particular, it noted the manner in which female victims were treated at police stations, with reports indicating that when they reported domestic violence, police officers tried to persuade them to return home and drop their complaint, seeing the problem as a family matter with which they could not interfere. The perpetrators of domestic violence did not seem to receive dissuasive punishments, with the courts mitigating sentences on the grounds of custom, tradition or “honour”. These findings were confirmed in Halime Kılıç v. Turkey , the Court highlighting the wilful refusal of the authorities to accept the seriousness of the incidents of domestic violence. In regularly turning a blind eye to the repeated acts of violence and death threats, the authorities had created a climate that was conducive to domestic violence. In both cases, the Court found that the inactivity, delays and, in particular, attempts to dissuade women from lodging complaints that characterised the treatment of domestic violence claims in Turkey stemmed directly from the discriminatory attitudes of the authorities.

20. In contrast, and more in line with the facts of the present case, in A. v. Croatia , no. 55164/08, § 97, 14 October 2010 , the Court concluded that there was insufficient statistical or other information disclosing an appearance of discriminatory treatment of female victims of domestic violence on the part of authorities such as the police, law enforcement or healthcare personnel, social services, prosecutors or judges. The applicant did not allege that any officials had tried to dissuade her from pursuing the prosecution of the aggressor or giving evidence against him, or that they had tried in any other manner to hamper her efforts to seek protection against his violence. T he Court thus declared the applicant ’ s complaint under Article 14 inadmissible, since she had failed to provide sufficient evidence that the practices adopted in Croatia as regards domestic violence were discriminatory.

21. Importantly, the Court has previously found that where the legislative framework cannot be said to be discriminatory, even if not all the sanctions and measures ordered or recommended are in fact complied with, this failure “does not in itself disclose an appearance of discrimination or discriminatory intent on the basis of gender” (see A. v. Croatia , § 101) . Thus societal discrimination and high levels of domestic violence, as referenced by the judgment at paragraph 146, are not, in and of themselves, enough to ground a finding of an Article 14 violation; it is the legislative framework and its application by the national authorities that falls to be considered. In this regard, both in its substantive consideration of Articles 2 and 3 as well as in the Article 14 context, the judgment fails to take proper account of the Court ’ s finding in Rumor v. Italy , in the context of Article 3, that “ the authorities had put in place a legislative framework allowing them to take measures against persons accused of domestic violence and that that framework was effective in punishing the perpetrator of the crime of which the applicant was victim and preventing the recurrence of violent attacks against her physical integrity” (see Rumor v. Italy , § 76). Although, as the judgment notes, that case may have concerned a different set of facts, the system at issue is the same. Since the impugned failings were not rooted in the discriminatory intent of the authorities but rather in pure passivity, they do not provide grounds for departure from the Article 14 conclusions previously drawn in respect of Italy.

22. The international materials on which the majority relies in its finding of an Article 14 violation also fail to point to a discriminatory failing in the system. Although the 2010 CEDAW Concluding Observations (see paragraph 57 of the judgment ) noted that the increasing rate of femicides may lead one to think that the Italian authorities are not sufficiently protecting women, the UN Special Rapporteur concluded in 2012 that the legal framework in Italy “largely provides for sufficient protection for violence against women” (see paragraph 68 of the report cited by the majority at paragraph 59 of the judgment). Where the Court has previously relied on international reports in this sphere, the criticisms therein have undoubtedly been more unequivocal. For instance, in Mudric v. the Republic of Moldova , the Court was of the view that the findings of the Special Rapporteur supported “the impression that the authorities do not fully appreciate the seriousness and extent of the problem of domestic violence and its discriminatory effect on women” (see Mudric , § 63).

23. Ultimately, the finding in Rumor combined with the Opuz threshold makes it clear that there is insufficient evidence of institutional discrimination in Italy to ground a finding of an Article 14 violation. The relevant framework is still one that is effective, regardless of whether all the measures it provides for were, in the instant case, deployed (see A. v. Croatia , § 101).

[1] Rectified on 21 March 2017: the text read as follows: “ The applicant was represented by M s S. Menichetti , a lawyer practising in Rome.”

[2] Council of Europe Convention on preventing and combating violence against women and domestic violence.

[3] Explanatory Report to the Council of Europe Convention on preventing and combating violence against women and domestic violence , para . 265.