Published: 2 Oct 2019 | By Anida Zuko
Kurt v Austria
Case No.: 62903/15
Judgment date: 4 July 2019
In July 2010 the applicant called the police alleging that her husband (“E”) had beaten her, as he had been for years. A barring order was issued. On 10.1.11, E was convicted of bodily harm and dangerous threatening behaviour against the applicant for the July 2010 incident and sentenced to three months’ imprisonment, suspended for three years. On 22.5.12 the applicant filed for divorce and reported E. to the police for rape, beating her and their children and making daily threats to kill her and their children. Another restraining order was issued, barring E from the marital home, as well as the applicant’s parents’ apartment. The public prosecutor instituted criminal proceedings against E for rape, bodily harm and dangerous threats, and interviewed the children who confirmed that he beat them. On 24.5.12, E was questioned and shown the children’s statements. On 25.5.12, E. visited his children’s school, took his son (‘A’) to a basement and shot him , and committed suicide. Two days later, the applicant’s son died from his injuries.
The applicant instituted official liability proceedings, arguing that E should have been held in pre-trial detention following her report of 22.5.12 as there had been a real and immediate risk that he would reoffend against his family and that a barring order was insufficient. The St. Pölten Regional Court dismissed the applicant’s claim on 14.11.14, holding that there had not been an immediate risk to A’s life. On 30.1.15, the Vienna Court of Appeal dismissed the applicant’s appeal. On 23.4.15, the Supreme Court rejected an extraordinary appeal by the applicant on points of law.
Finding no violation, the Court reiterated that Art. 2 included a two-part positive obligation: (1) to take preventive operational measures to protect an individual whose life the authorities knew or ought to have known was at risk from the criminal acts of another (Osman v. the United Kingdom, No. 23452/94, 28.10.1998, para. 115) and (2) to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right of life (Talpis v Italy, No. 41237/14, 2.3.17, para. 100).
Regarding the first obligation, the Court found that the domestic authorities were entitled to conclude that there was no discernible real and immediate risk to the children’s lives. The Court took into account the fact that E had complied with the 2010 order, no incident was reported for two years, the 2012 barring order prevented access to the applicant’s and her parents’ homes, E.’s keys were seized, there were no indications that E had a weapon or of an escalation of the situation, and the daily threats were “partly ambiguous”, had not been acted on for two months and did not indicate a threat outside the home. It therefore held that the authorities were entitled to conclude that a more restrictive measure such as taking E into pre-trial detention was not warranted.
Regarding the second obligation, the Court held that although a legal framework for the applicant’s and her children’s protection existed (temporary restraining order, banning order), full use of it was not made because an immediate risk to the children’s life (at school) was not perceived at the time.
This judgment by the Fifth Section appears to be in stark contrast to the Volodina v. Russia, No. 41261/17, 9.7.19 judgment delivered five days later by the Third Section which, unlike Kurt, demonstrates a progressive and gender-sensitive approach to domestic violence and its protection. For analysis of the different approaches taken in the two judgments see this Strasbourg Observers Blog.
Notably Judge Hüseynov in his concurring opinion in Kurt raises concerns over the Court’s approach, arguing that the application of the Osman test was questionable given the peculiarity of domestic violence, which was characterised by continuous intimidation and abuse rather than a single incident. He shared the views of Judge Pinto De Albuquerque 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” (Valiuliene v. Lithuania, No. 33234/07, 26.03.13, see also Judge Pinto de Alburquerque’s separate opinion in Volodina). Judge Hüseynov therefore held that “seeking to prove the immediacy of the risk to life in domestic violence cases … would not be consonant with the scope of the due-diligence obligations of States in the field of preventing and combating domestic violence”.
The judgment in Kurt is therefore a retrograde step in the protection of women and children from domestic violence, where violence recurs and escalates over time. Here, the Court appears to fail to take into account a number of highly relevant factors, including the escalation of violence, the applicant’s recent petition for divorce, and the fact that the applicant alleged that E had committed further offences against her and their children during the period of his suspended prison sentence.