This blog contains descriptions of violence, (sexual) abuse, and murder.

This month the European Court of Human Rights(ECtHR) released a judgement for a case that dealt with the Right to Life (protected under Article 2 of the European Convention on Human Rights and is integrated into UK law by the Human Rights Act) in the context of domestic abuse.

 

What was the Case about?

On 10 July 2010 Ms. Kurt, a woman from Austria, reported to the police that her husband E had been violent toward her for years but recently it had got much worse. A barring and protection order was issued against E, this meant that he had to stay away from Ms. Kurt’s apartment as well as from her parents’ apartment and the surrounding areas for 14 days.

On 10 January 2011, E was convicted of bodily harm and making dangerous threats. At the time of this conviction, E and Ms. Kurt had reconciled, as E had promised he had changed, and the couple were living together again.

On 22 May 2012, Ms. Kurt filed for divorce. She explained that the reasons for the breakdown of the marriage were E’s continuous threats and violence against her throughout their marriage. On the same day as she filed for divorce, Ms. Kurt, reported her husband to the police for rape and making dangerous threats.

The police officers then spoke Ms. Kurt’s children, who confirmed that their father beat their mother and had also regularly slapped them. E. was questioned by the police and denied the allegations of violence, rape and threatening behaviour. He admitted that he had had sexual intercourse with his wife but said it had been consensual. He explained that he had beaten his wife in the past but hadn’t done this for 3 years.

On the same day (22 May 2012), the police officers issued a barring and protection order against E. This meant that E had to leave the family home for two weeks and prohibited him from returning to it or the surrounding areas; it also barred him from the applicant’s parents’ apartment and its surrounding areas. His keys to the family home were taken from him.

Three days later, on 25 May 2012, E went to his children’s school. He asked his son’s teacher if he could speak briefly to his son in private, because he wanted to give him money. The teacher, who had been aware that money had to be paid for some school events and had not been informed of the family situation, agreed. When the son did not return to class, she started looking for him. She found him in the school’s basement, having been shot in the head.  E was found dead later in his car, he had shot himself. 

 

The Right to Life

The judgment looks mainly at Article 2 – the Right to Life. The Right to Life means that the State has a 3-part duty:

  1. A duty not to take away anyone’s life (apart from in certain limited circumstances).
  2. A positive duty to take reasonable steps to protect life.
  3. A procedural duty to investigate deaths where the state may be implicated/involved.

For number 2, the positive duty to take reasonable steps to protect life 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
  • failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (this is called the Osman test and was set out in the case of Osman v UK).

 

The Right to Life in situations of Domestic Abuse

In this case, the ECtHR points out that the existence of a real and immediate risk to life must be assessed taking into account the particular context of domestic violence.

The Court says that when dealing with allegations of domestic violence, two things are required of the authorities;

  • an immediate response to allegations of domestic violence (see Talpis Italy)
  • special diligence (extra care, caution and attention) are required when dealing with cases of domestic violence.

The Court notes that in order to be in a position to know whether there is a real and immediate risk to the life of a victim of domestic violence the authorities are under a duty to carry out a lethality risk assessment which is autonomous,

  • “autonomous” and “proactive” mean that the authorities cannot rely solely on the victim’s perception of the risk, but to must also make their own assessment. The Court notes that due to the exceptional psychological situation in which victims of domestic violence find themselves, there is a duty on the part of the authorities examining the case to ask relevant questions in order to get all the relevant information, including from other State agencies, rather than relying on the victim to give all the relevant details.

If the authorities have established that there is a real and immediate risk to the life of one or more identified individuals, their positive obligation to take reasonable steps to protect life is triggered.

So, when looking at whether there has been a breach of Article 2 in the context of domestic violence the ECtHR must look at:

  1. Whether the authorities reacted immediately to the allegations of domestic violence
  2. If a quality risk assessment has taken place
  3. Whether the authorities knew or ought to have known that there was a real and immediate risk to life

 

What did the ECtHR find in this case?

The Court found that in this case,

  • the authorities displayed the required special diligence in responding swiftly to the applicant’s allegations of domestic violence
  • they took into account the specific domestic violence context of the case
  • they conducted an autonomous, proactive and comprehensive risk assessment, the result of which led them to issue a barring and protection order.

However, the risk assessment did not indicate a real and immediate lethality risk to the applicant’s son. Therefore, no obligation was triggered to take preventive operational measures in that regard.

Therefore, they found no violation of Article 2.

 

Criticism of the findings in this case

This case confirms that, because of the right to life (protected by Art 2 of the ECHR and the HRA) state authorities such as the police and court systems, have special duties when it comes to the protection of people who have experienced domestic violence.

However, this case has been criticised, some, including some of the judges at the EtCHR have raised that the risk assessment done in this case by the Austrian authorities was not of good enough quality.  

Some of the judges published a “dissenting opinion”. A dissenting opinion is an opinion that is attached to the main Court judgement when one or more of the judges disagree with some parts (or all of) the judgement. There are two dissenting opinions of this case, where they disagreed with the finding of no violation of the Right to Life.

They say that the risk to the children was underestimated and that the authorities did not display the required diligence in the face of the applicant’s allegations of escalating domestic violence. They did not conduct a specialised lethality risk assessment targeting specifically the context of domestic violence, and in particular the situation of the applicant’s children. Had these risk assessments been adequately targeted and performed, a real and immediate risk to the life of the applicant’s son should have been discernible to the authorities. This means, in their opinion, the Austrian authorities should have taken preventive measures to protect life.

The dissenting judges said that, the one and only measure adopted by the Austrian authorities to protect the applicant and her children – a barring and protection order that left them entirely unprotected outside their apartment – was insufficient and inadequate to prevent further violence including a lethal attack. They said that a number of other alternative measures widely used in the domestic violence context were, or ought to have been, available to the authorities that would have had a real prospect of preventing the tragic outcome. Therefore, these judges disagreed with the majority funding, and believed there was a violation of the right to life (Article 2).

 

What does this mean for everyday life?

This case is really important for us every day, as the ECtHR confirms that public authorities need to take certain steps where there has been an allegation of domestic abuse in order to protect the Right to Life.

Public authorities must:

  • Take into account the particular context of domestic violence.
  • Respond immediately to allegations of domestic violence.
  • Be especially diligent when dealing with cases of domestic violence.
  • Carry out a risk to life risk assessment.
  • If there is a real and immediate risk to life, the authorities must take steps to protect life.

The Human Rights Act, says that public authorities such as the police, the NHS, social service etc. have a legal duty to protect your human rights, including the Right to Life. This means that if you, or someone you support, has reported domestic abuse to a public authority and you feel like these steps are not being met you can use the language of human rights.

You can say that they have a legal duty (under the Human Rights Act) to protect the Right to Life and that they are not doing enough to protect this right, putting your life at risk.

You can find out more about how human rights can be used by survivors of domestic abuse when rebuilding their life on our website: Know you Human Rights for Survivors of Domestic Abuse.