By Zane Ratniece
On 4 July 2019, a Chamber of the European Court of Human Rights (‘Court’) delivered a judgment in Kurt v. Austria. The case concerned a disturbing situation of domestic violence, which escalated over time and ended with the killing of the applicant’s son by her violent husband. (para. 3) The Chamber found that the Austrian authorities had not breached their obligation under Article 2 (right to life) of the European Convention on Human Rights (‘Convention’) to protect the boy’s life from the criminal acts of his father. (para. 80)
This contribution opines that the reasoning by which the Chamber arrived at those conclusions is worrisome for its silence on the particular context of domestic violence and the vulnerability of the victims. Such approach does not sit well with more recent Court’s case-law which expressly acknowledges the particular context of domestic violence. Hence, Kurt risks questioning the progress made in the Court’s case-law and creating uncertainty as regards the standards to be followed in dealing with the widespread and complex phenomenon of domestic violence, requiring active State involvement.
Firstly, this contribution outlines briefly the situation in Kurt and the standard the Chamber followed under Article 2 of the Convention to assess the risk posed by the perpetrator to his family. It then looks at the developments in the Court’s case-law as regards the standard in domestic violence cases and whether the approach in Kurt is in harmony with those developments. This analysis further scrutinises how the Chamber assessed some specific facts of the case, particularly as regards the victim’s reaction to abuses. Lastly, the discussion is wrapped up with some conclusions.
Preliminary remarks on the situation in Kurt and the standard applied
At the outset, it should be noted that Kurt did not concern a delay or inactivity on part of the national authorities in responding to the applicant’s complaints about domestic violence as seen in some previous cases (for example, Bevacqua and S. v. Bulgaria (2008), Opuz v. Turkey (2009)).
In Kurt, the Austrian authorities took immediate action. In 2010, they convicted the perpetrator for an episode of domestic violence. In 2012, after the applicant again reported him to the police, the national authorities issued an order barring him from their home and instituted criminal proceedings against him. (para. 67) The order, however, did not prevent the perpetrator from committing a crime. Eventually, he killed his son at a school, a place not included in the order.
Against this background, the Chamber had to examine whether the national authorities should have known at the time also of the existence of a risk to the boy’s life from unlawful conduct of the perpetrator and had thus been required to take more serious measures to protect him. (paras 67 in fine, 68)
In relation to the aforementioned question, the Chamber noted that not every claimed risk to life entailed for the authorities a Convention requirement to take operational measures to prevent that risk from materialising.
The Chamber followed the classical Osman test, developed in 1998, which provides, inter alia, that the State’s obligation to act arises where the national authorities knew or ought to have known at the time of the existence of a ‘real and immediate risk’ to a person’s life from the criminal acts of another person. (Kurt, paras 64-65) In his concurring opinion in Kurt, Judge Hüseynov observed that the Chamber applied the classical Osman test “robustly”. (p. 25)
Developments in the Court’s case-law on the standard in domestic violence cases
Already several years ago, in Valiulienė v. Lithuania (2013), Judge Pinto de Albuquerque expressed his criticism as to adequateness of the Osman standard in situations of domestic violence. In such situations, the stage of an ‘immediate risk’ was often too late for a State to intervene. Furthermore, “the recurrence and escalation inherent in most cases of domestic violence [made] it somehow artificial, even deleterious, to require an immediacy of the risk”. In that light, already the presence of the risk triggered the duty for the public authorities to act. (p. 31)
These early concerns set the scene for a slight, but crucial, shift in the Court’s approach to the application of the Osman test in cases of domestic violence four years later. In Talpis v. Italy (2017), in relation to the State’s positive obligations under Article 2 to protect life, the Court, added to the Osman formula that the risk of real and imminent threat had to be assessed “taking due account of the particular context of domestic violence”. Account had to be taken of the “recurrence of successive episodes of violence within the family unit”. (para. 122)
The aforementioned language signalled the Court’s readiness to heighten the Osman standard in cases of domestic violence. Some hailed this judgment as ‘landmark’, and saw it as having challenged indirectly the Osman test.
Even more recently, and only five days after the judgment in Kurt, a different Chamber delivered its ruling in Volodina v. Russia (2019). In relation to the State’s obligation under Article 3 of the Convention to prevent the known risk of ill-treatment, the Chamber endorsed the above approach in Talpis. It declared, in clear terms, that “the risk of real and immediate threat must be assessed, taking due account of the particular context of domestic violence”. It further stated that, “above all”, it was an obligation “to take account of the recurrence of successive episodes of violence within a family”. (para. 86)
Insensitive assessment of the domestic violence situation in Kurt
Only five days apart from the judgment in Volodina, the judgment in Kurt is completely silent, in relation to the Osman test, on the need to apply the risk of ‘real and immediate threat’ in the particular context of domestic violence, as recognised earlier in Talpis. Not only does such silence question the development made in Talpis, it also creates an uncertainty as to what standard the Court applies in situations of domestic violence to conduct its assessment under Article 2, and by what standard the national authorities should be guided in that regard. It is noteworthy that, in relation to the Chamber’s approach in Kurt, Judge Hüseynov also opined that it had overlooked the peculiarity of domestic violence. (p. 25)
The above concern emerges also from the Chamber’s context-insensitive approach to some facts of the case, further neglecting the particular situation of domestic violence and the resulting vulnerability of the victims.
It appears that the Chamber did not fully appreciate the overall escalation of violence within the family, a frequent feature of ongoing domestic abuse.
In particular, in relation to the offences of 2012, the Chamber stated that those were “the very same offences” that the perpetrator had committed in 2010. (para. 70) However, in 2010, he had been convicted for having pushed his wife against a wall and slapping her. (para. 10) On the other hand, in 2012, the national authorities had instituted criminal proceedings against him for rape, bodily harm and dangerous threat. (para. 19) The suspicion of rape in particular was a clear indication that the level of violence by the perpetrator had significantly increased, despite the measures taken against him in 2010, namely the barring order and his conviction.
In addition, unlike before, in 2012 there was evidence that the perpetrator had beaten their two minor children and taken the applicant’s mobile phone away from her, and locked her in their apartment so that she could not leave. (paras 15, 17, 21) Furthermore, he had started to make serious death threats. (para. 14)
Lastly, the applicant had filed for divorce (para. 11), and the two minor children had provided evidence against the perpetrator. (paras 11, 19) These actions signalled that the perpetrator had, to some extent, lost control over his family members, and the situation had thus become serious (as regards the use of domestic violence to assert control and power, see Volodina, para. 55). Moreover, the police had confronted the perpetrator with the incriminating statements of his children. (para. 21)
The aforementioned observations on deterioration of situation by 2012, put in question the Chamber’s further suggestion that, because the perpetrator had complied with the barring order in 2010, it had been reasonable to assume that he would comply with a similar order in 2012 as well. (para. 70 in fine)
Lastly, particularly alarming is the manner in which the Chamber approached the fact that, after the alleged rape in 2012, the applicant had stayed with the perpetrator for three days before reporting him to the police. The Chamber used this fact to minimise the seriousness of the situation. (para. 70, and again in para. 79)
Such simplistic approach to the facts of the case disregards the dramatic impact which years of domestic abuse has on a victim’s ability to protect her rights and those of her children. It could not be excluded that years of domestic violence, which the applicant had experienced, had led to the feelings of fear and anxiety, hindering her ability to take an immediate action.
It emerged from the facts of the case that the applicant had suffered from regular beatings since their marriage in 2003. (paras 6-7, 14) In relation to the offences in 2010, she had refused to testify against the perpetrator. (para. 10) She had not resisted rape in 2012 “out of fear of being beaten if she did”. (para. 13) She had not turned to the police out of fear that the perpetrator would act upon his death threats in case she did. (para. 14) She had been “in great fear of her husband” and “wanted to protect herself and her children”. (para. 15)
The foregoing revealed the applicant’s vulnerability, as well as of her children due to domestic abuse they had endured. Had the Chamber fully appreciated this, it is doubtful it would have attributed the meaning which it did to the applicant’s delay in responding to the abuses.
The Court’s rulings have a major role in shaping the Convention standards and guiding the national authorities in their efforts to ensure the Convention rights. The Court should, at all times, remain cognisant of its authority and should approach each case with great care. Unfortunately, the reasoning in Kurt missed the opportunity to reinforce the requisite degree of diligence towards the complex situation of domestic violence and the vulnerability of the victims. In this manner, it also created uncertainty as to whether the national authorities should take into account the recent shift in application of the Osman standard as seen in Talpis and, while not yet final, endorsed in Volodina. It remains to be seen whether the future Court’s case-law will clarify this and take a strong stance on the standard to be followed in domestic violence cases.
Zane Ratniece (LLM, University of Amsterdam) is an international lawyer working in The Hague. She previously worked as a lawyer at the Registry of the European Court of Human Rights, and a legal officer with the European Union rule of law mission in Kosovo, assisting international judges in pre-trial, trial and appeal phases of criminal proceedings. She has also practiced for several years at a law firm in Riga. She has presented and published on issues of international and European human rights law, and is affiliated with the Riga Graduate School of Law.