Kurt v Austria

Grand Chamber, European Court of Human Rights, 15 June 2021 (Application no. 62903/15)

A perpetrator of domestic violence kills his child at school, despite a protection order being in place to keep the perpetrator away from the family home: did the state fulfil its obligation to protect life?

What happened?

The applicant and her children had been victims of domestic violence for several years. Eventually the situation came to a crisis point in 2010 because both the applicant and her husband E lost their jobs and were therefore unable to fund his gambling addiction. He was prosecuted and convicted of causing bodily harm and making threats, suspended for three years with probation.

In 2012, the applicant applied for a divorce, citing E’s ongoing violence, which had escalated a few days before. When she told him she was taking steps to end their marriage, he raped her, choking her and slapping her. She was supported by a civil society organization which assists victims of violence, and with their help, she applied to the court for a barring order. E had been consistently using violence against her and the children, and making threats to harm, even kill them: these were threats she took seriously; however, she had been afraid of reporting him in case he acted on these threats. When the barring order was issued, the police made a search of the records to ascertain whether he had a gun – the records showed that he did not. The police spoke with the applicant and her husband; it was noted that the situation involved (paragraph 27)

(a) known reported/unreported violent acts (not only currently, but also previous incidents).

(b) escalation (increase in the occurrence and seriousness of violence).

(d) a strong tendency to trivialise/deny violence (violence seen as a legitimate means).”

The day after the protection order was officially confirmed, the perpetrator E went to the police station to ask if he could see his children. The police asked about the allegations that he had committed violence against them, he said that his children were everything to him, and although “he beat them ‘every now and then’, it was ‘only as an educational measure’, ‘not about the face’ and ‘never aggressively’.” The police noted that E “did not exhibit any signs of potential for aggression while in the presence of the authorities.” (paragraph 33)

The following day, E went to the children’s school and asked to see them in private, to give them some money. He took them to a basement in the school and shot his son in the head but did not hurt his daughter. E was found dead in his car later that day, he had shot himself. A few days later, the son died.

The applicant Ms Kurt brought legal proceedings against the authorities, claiming that E should have been detained pre-emptively to stop him from causing harm to her son. The Austrian authorities opposed this, saying that a protection order was sufficient, that E had seemed calm and cooperative, there was no reason to foresee that he would commit any act of violence. Ms Kurt said that given the threats that he had made against her and her children, and his threats to kill himself, the authorities should have taken him into custody. She also cited the fact that she and her husband were in the process of divorcing – a situation well known as posing a risk of escalating violence.

As a result of this case, Austria’s protection order law was amended so that children’s schools and day-care centres could be included in a protection order; further amendments were made so that the protection order could be applied to wherever the protected person or persons were, that perpetrators should not come within 100m of them.

Austrian law also mandated a succession of practices to investigate the level of risk to a woman from a perpetrator. Multi-agency assessments proved to be less effective, so the practice was changed so that an expert civil society organization assessed the risk factors directly with the woman in danger. Pre-emptive detention was possible when a risk of further domestic violence was present, however, ‘the factual assumptions regarding a ground for detention must be based on “specific facts” which must result from the individual case. General experience is not sufficient.” (paragraph 68) Civil society organizations services known as the Centres for Protection from Violence/Intervention Centre offer various services to women at risk, including: “assistance with a view to increasing the protection and safety of women and their children, implementation of security measures and risk assessments; information and support, especially after a police intervention; assistance in formulating and submitting applications to the court as well as in contacts with the authorities; accompaniment to police hearings and court hearings; psychosocial and legal process support; if necessary, referral to other facilities (women’s shelters, women’s and family counselling centres, child protection centres, psychotherapists, and so on); counselling in the person’s mother tongue as needed or involvement of interpreters.” (paragraph 72)

What was the decision?

In the original case in the ECHR, the chamber held that with all the information before the state party at the time of the murder, it was not foreseeable that it would occur. In her appeal to the Grand Chamber of the ECHR, the applicant Ms Kurt said that she had mentioned many of the details underlying her concerns – her rape, the escalation of violence, the threats to kill her, her children, and E himself, if she took steps to seek a divorce. She also said that while the police had run a search to establish whether he had a firearm, they had not mentioned the risks of firearms to her – she would have said that he often boasted that he could get hold of a gun very easily. She also said (paragraph 119):

“that the authorities had failed to consider the specific context of domestic violence, as would have been required under the Court’s line of case-law starting with Talpis [Talpis v. Italy (no. 41237/14, 2 March 2017]. They had attributed considerable weight to the fact that she had only reported the rape three days after it had happened, taking this as a factor mitigating the risk. However, owing to years of domestic abuse the applicant had been very fearful of acting decisively. It was precisely the context of domestic violence that made it unacceptable to blame the victim for hesitating to take action. Women in violent relationships often showed ambivalent behaviour towards the offender. Emotional attachment, the hope for change, but particularly the ongoing fear could all be reasons for this ambivalence, which had an effect on women’s attitudes concerning the criminal prosecution of the offender. Being late in filing a report was one possible consequence. This, in turn, meant that special requirements were imposed on the law-enforcement authorities when dealing with victims of domestic violence. Thus, the responsibility for taking the appropriate operational measures should not be shifted from the authorities to the victim.”

“120. The applicant submitted that neither the police officers nor the public prosecutor who had decided on the measures to take had made use of a specific risk assessment tool designed for domestic violence cases, despite the first such test having been developed by Jacquelyn Campbell in 1986 and danger assessment tools having been widely used by law‑enforcement officials, advocates and health professionals for the past twenty-five years. While the police report on the barring and protection order of 22 May 2012 had listed a few risk factors, they were not part of a specific system, and there were no guidelines as to how to weigh them in the final decision on a barring and protection order. Public prosecutors likewise did not use any risk assessment tools or other established procedures when deciding whether or not a person posing a risk to another person should be taken into pre-trial detention.”

Various civil society organizations, as well as the GREVIO Committee, made representations to the Grand Chamber about the detail of warning signs that authorities should be aware of when making an assessment of the dangers posed to victims of domestic violence, including children.

However, as regards this case, the Grand Chamber said:

“158. Bearing in mind 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 scope of the positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Not every claimed risk to life, therefore, can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. For this positive obligation to arise, it must be established that the authorities knew or ought to have known at the relevant time of the existence of a real and immediate risk to the life of an identified individual 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 (the so-called “Osman test” – see Osman v. the United Kingdom (28 October 1998 paragraph116).

159. The Court notes that the duty to take preventive operational measures under Article 2 is an obligation of means, not of result. Thus, in circumstances where the competent authorities have become aware of a real and immediate risk to life triggering their duty to act, and have responded to the identified risk by taking appropriate measures within their powers in order to prevent that risk from materialising, the fact that such measures may nonetheless fail to achieve the desired result is not in itself capable of justifying the finding of a violation of the State’s preventive operational obligation under Article 2.”

[….]

190. To summarise, the Court reiterates that an immediate response to allegations of domestic violence is required from the authorities (see paragraph 165 above). The authorities must establish whether there exists a real and immediate risk to the life of one or more identified victims of domestic violence by carrying out an autonomous, proactive and comprehensive risk assessment (see paragraphs 168 et seq. above). The reality and immediacy of the risk must be assessed taking due account of the particular context of domestic violence cases (see paragraph 164 above). If the outcome of the risk assessment is that there is a real and immediate risk to life, the authorities’ obligation to take preventive operational measures is triggered. Such measures must be adequate and proportionate to the level of the risk assessed.”

In this case, the Grand Chamber found that the response had been immediate, the quality of the risk assessment had been good. The Grand Chamber emphasised that the obligation on states is a procedural one – to make the immediate and appropriate risk assessment and act on it – not an obligation of result, that is, it is not appropriate to hold the authorities responsible for every crime that takes place. With the benefit of hindsight, the aspects that might have made a difference to this case were not foreseeable – neither Ms Kurt, nor her civil society advisor, had expressed concerns about the risk to the children at school, nor had they told the school about the situation.

Learning from other institutions

The Grand Chamber of the European Court of Human Rights made comprehensive use of the provisions of the Council of Europe Convention on preventing and combating violence against women and domestic violence, known as “the Istanbul Convention ”, specifically general obligations on protection (Article 18) investigations (Article 49) immediate response (Article 50) risk assessments (Article 51) and barring orders (Article 52).

In the review of Austrian law and practice, the GREVIO (the committee monitoring the implementation of the Istanbul Convention, said:

“Linking protection to places rather than people bears the risk of gaps inherent to any enumerative approach. Such gaps have led to tragic cases in the past, inspiring the legislators to include (in addition to the home) educational institutions and child-care facilities in the list of places in respect of which a ban may be issued. While GREVIO welcomes the political will to close existing gaps, it considers that general no-contact orders are the better approach.” (paragraph 17).

Relevance

While Ms Kurt ultimately lost the case in the Grand Chamber, the case is significant in emphasising the detail of what kind of risk assessment should be made, and the need for training of officials about the realities of gender-based violence and domestic violence against children, and how the authorities should respond.