{"id":921,"date":"2019-10-02T14:19:51","date_gmt":"2019-10-02T13:19:51","guid":{"rendered":"http:\/\/rcstaging.co.uk\/ehrac\/?post_type=case-studies&p=921"},"modified":"2023-10-31T18:59:02","modified_gmt":"2023-10-31T18:59:02","slug":"kurt-v-austria","status":"publish","type":"case-studies","link":"https:\/\/ehrac.org.uk\/ru\/key-ehrac-cases\/kurt-v-austria\/","title":{"rendered":"\u041a\u0443\u0440\u0442 \u043f\u0440\u043e\u0442\u0438\u0432 \u0410\u0432\u0441\u0442\u0440\u0438\u0438"},"content":{"rendered":"\n\t\t
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Forum:\u00a0<\/strong>ECtHR
\nCase No.:\u00a0<\/strong>62903\/15
\nJudgment date:\u00a0<\/strong>4 July 2019<\/p>\n

Facts<\/strong><\/p>\n

In July 2010 the applicant called the police alleging that her husband (\u201cE\u201d) 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\u2019 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\u2019s parents\u2019 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\u2019s statements. On 25.5.12, E. visited his children\u2019s school, took his son (\u2018A\u2019) to a basement and shot him , and committed suicide. Two days later, the applicant\u2019s son died from his injuries.<\/p>\n

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. P\u00f6lten Regional Court dismissed the applicant\u2019s claim on 14.11.14, holding that there had not been an immediate risk to A\u2019s life. On 30.1.15, the Vienna Court of Appeal dismissed the applicant\u2019s appeal. On 23.4.15, the Supreme Court rejected an extraordinary appeal by the applicant on points of law.<\/p>\n

Judgment<\/strong><\/p>\n

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<\/a>) 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).<\/p>\n

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\u2019s 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\u2019s and her parents\u2019 homes, E.\u2019s keys were seized, there were no indications that E had a weapon or of an escalation of the situation, and the daily threats were \u201cpartly ambiguous\u201d, 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.<\/p>\n

Regarding the second obligation, the Court held that although a legal framework for the applicant\u2019s and her children\u2019s protection existed (temporary restraining order, banning order), full use of it was not made because an immediate risk to the children\u2019s life (at school) was not perceived at the time.<\/p>\n

Comment<\/b><\/p>\n

This judgment by the Fifth Section appears to be in stark contrast to the\u00a0Volodina v. Russia, No. 41261\/17, 9.7.19<\/a>\u00a0judgment 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\u00a0Strasbourg Observers Blog<\/a>.<\/p>\n

Notably Judge H\u00fcseynov in his concurring opinion in Kurt raises concerns over the Court\u2019s 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 \u201c[r]ealistically speaking, at the stage of an \u201cimmediate risk\u201d 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\u201d (Valiuliene v. Lithuania, No. 33234\/07, 26.03.13<\/a>, see also Judge Pinto de Alburquerque\u2019s separate opinion in Volodina). Judge H\u00fcseynov therefore held that \u201cseeking to prove the immediacy of the risk to life in domestic violence cases \u2026 would not be consonant with the scope of the due-diligence obligations of States in the field of preventing and combating domestic violence\u201d.<\/p>\n

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\u2019s 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.<\/p>\n

Read the full judgment on HUDOC.<\/strong><\/a><\/p>\n

Read the case summary in\u00a0Volodina v. Russia,<\/em>\u00a0No. 41261\/17, 9.7.19.<\/strong><\/a><\/p>\n\t<\/div>\r\n<\/div>\r\n\r\n\r\n\r\n\n\t\t\t<\/div> \n\t\t<\/div>\n\t<\/div> \n<\/div><\/div>\n\t\t

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