Kurt v Austria: the Osman test applied to domestic violence

On 15 June 2021, the Grand Chamber of the European Court of Human Rights handed down its judgment in Kurt v Austria (App. No. 62903/15).  The judgment is a significant authority on the State’s – in particular police forces’ – positive obligation in the context of domestic violence.  The judgment explains how the Osman test is to be applied to domestic violence situations, and offers guidance to police forces on how to comply with the State’s positive obligation under Article 2 of the European Convention on Human Rights (the right to life).

The facts of Kurt v Austria

The applicant (Ms Kurt) called the police to report that her husband had beaten her.  Her subsequent statement to the police alleged that her husband had beaten her for years.  A barring and protection order – broadly equivalent to a UK domestic violence protection order – was issued against the husband.  The husband was subsequently convicted of causing bodily harm and making dangerous threats to Ms Kurt.  Two years later, Ms Kurt filed for divorce.  The husband’s violence against her escalated.  She made a report to the police that her husband had raped her and threatened violence, and that her husband had indicated that he could not live without her or their two children and that he would take the children to Turkey.  A second barring and protection order was issued against the husband.  As part of standard procedure, the firearms registry was checked, which returned a negative result for the husband.  A criminal law process was also initiated concerning the rape allegation.  When the husband attended the police station, he indicated that he wished to see his children.  He also admitted that he beat his children every now and then as a disciplinary measure.  Three days after Ms Kurt’s report of rape, the husband attended the children’s school.  He shot and killed their son in front of their daughter who was not injured.  He then fled.  On the same day, he was found dead in his car, having shot himself.  With him was found a note stating that he could not live without his wife and their children and that he had also planned to kill their daughter.

The legal issue: violation of Article 2

The question for the Grand Chamber was whether Austria – by the alleged (in)action of the police – had failed to fulfil its positive obligation under Article 2.  Prior to Kurt v Austria, the Grand Chamber had not considered that positive obligation in the context of domestic violence.  The Article 2 right in question was that of the murdered son, although the applicant’s case alleged failures to protect her and her children, which culminated in the murder.   The Grand Chamber held – by 10 votes to seven – that there had been no violation of Article 2.  Nonetheless, the judgment is significant for its detailed guidance on the State’s positive obligation under Article 2 by its application of the Osman test to domestic violence situations.

Osman applied to domestic violence

The Grand Chamber provided the following guidance:

1. An immediate response to allegations of domestic violence is required from the authorities (paragraph 165).
2. 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 (paragraphs 168 to 170).
3. The reality and immediacy of the risk must be assessed taking due account of the particular context of domestic violence cases (paragraph 164).
4. The term “immediate” in the Osman test in this context should consider the specific features of domestic violence cases, which differ from incident-based situations such as that in Osman.  Domestic violence may involve consecutive cycles with an increase in frequency, intensity and danger over time (paragraph 175).
5. 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 (paragraphs 177 onwards).

The positive obligation to take operational measures are intended to avoid a dangerous situation, and must be put in place as quickly as possible.  That means both that the legal framework must provide an adequate ‘toolbox’ to protect, and that the authorities use the appropriate preventive ‘tools’ for the situation (paragraphs 178 to 183).  What is appropriate will require the authorities to balance the rights of the perpetrator, in particular his Article 5 rights (rights to liberty and security), against the harm that may result to the those at risk (paragraphs 184 to 189).

The positive obligation to take operational measures is one of adequacy, not result.  The occurrence of death (or violence) does not necessarily equate to a breach of Article 2 (or by implication Article 3 (prohibition of inhuman or degrading treatment)).  The State’s compliance is to be assessed on a two-limbed approach:

(1) the adequacy of the assessment of risk, and

(2) where a relevant risk is triggered, the adequacy and proportionality of the preventive measures taken.

Breach will occur when the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they had or ought to have had knowledge (paragraphs 159 to 160).

In Kurt v Austria, the Grand Chamber found no breach of Article 2 on the facts, as no real and immediate risk of an attack on the son was discernible under the Osman test, and thus no obligation to take preventive measures had arisen (paragraph 209).

Applying Kurt v Austria

In the UK, the judgment in Kurt v Austria has application, inter alia, to the way in which police forces approach domestic violence protection notices (DVPNs), with such a notice being the precondition for a court-issued domestic violence protection order (DVPO).  (Other tools include bail conditions and working with other agencies to safeguard victims.)

Focusing on DVPN/DVPOs, which are available to police forces under the Crime and Security Act 2010:

1. The assessment as to whether to issue a DVPN must be “autonomous” and “proactive”:

• These terms refer to the requirement not to rely solely on the victim’s perception of the risk.  Owing 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 obtain all the relevant information, including from other State agencies, rather than relying on the victim to give all the relevant details (Kurt v Austria, paragraph 169).

2. The assessment must be “comprehensive”:

• This requires that the officer making the decision is to be well-trained (paragraph 171).
• The use of standardised checklists, which indicate specific risk factors and have been developed on the basis of sound criminological research and best practices in domestic violence cases, can contribute to the comprehensiveness of the authorities’ risk assessment (paragraph 171).
• Where several persons are affected by domestic violence, be it directly or indirectly, any risk assessment must be apt systematically to identify and address all the potential victims and  keep in mind the possibility that the outcome could be a different level of risk for each of them (paragraph 173).

3. “Immediacy” must be assessed:

• The officer should enquire about the history of domestic violence and consider whether there is a trajectory of escalation, although the burden to do so is one of proportionality (paragraph 176).

A police force’s failure to have in place preventive operational measures leaves it open to a civil claim under the Human Rights Act 1998 if death occurs after a real and immediate risk to life was known to the police force or it ought to have had knowledge.

Conclusions

Kurt v Austria provides a useful summary of the law on the positive obligation under Article 2 in the context of domestic violence.  It also demonstrates that not all deaths arising from domestic violence will breach Article 2.  Whether there is a breach will be answered in the light of all the circumstances of any particular case, and, thankfully, without applying the wisdom of hindsight (paragraph 160).

The key point from this judgment is that police forces must have in place – and be able to demonstrate to the court – adequate operational measures to protect victims of domestic violence, the appropriate use of which should flow from having in place robust policies on responding to domestic violence and officers being well trained in how to use them.

---

Authors

Peter Laverack

Call 2015

Related areas

Police Law

---