State’s obligation under Article 2 to protect the life of family members against violent father

In the case of Kurt v. Austria (application no. 62903/15, 15.06.2021) the Grand Chamber  of the European Court of Human Rights held that there had been no violation of Article 2 (right to life) of the European Convention on Human Rights. 

The case concerned the murder of the applicant’s son by his father after previous allegations of domestic violence by the applicant against the father. The applicant, Senay Kurt, is an Austrian national who was married to E. They had two children, A., born in 2004, and B., born in 2005.

On 25 May 2012 E. went to A. and B.’s school. He asked A.’s teacher if he could speak briefly to his son in private. The teacher, who later stated that she had not been informed of the problems in the family, agreed. When A. did not return to class, she started looking for him. She found him in the school’s basement, where he had been shot in the head. His sister B., who had witnessed her brother being shot, was not injured. A warrant for E.’s arrest was issued immediately and the police started investigations, but E. was found dead in his car that day, having shot himself.

The application was lodged with the European Court of Human Rights on 16 December 2015. The Court delivered its judgment on 4 July 2019, finding unanimously that there had been no violation of the substantive aspect of Article 2 of the Convention. On 27 September 2019 the applicant requested the referral of the case to the Grand Chamber under Article 43 of the Convention (referral to the Grand Chamber). On 4 November 2019 the Grand Chamber panel accepted the applicant’s request. A hearing was held by videoconference in the Human Rights Building, Strasbourg, on 17 June 2020.

The Court stated that was no real and immediate risk of an attack on the children’s lives had been discernible. Therefore, there had been no obligation incumbent on the authorities to take further preventive operational measures specifically with regard to the applicant’s children, whether in private or public spaces, such as issuing a barring order in respect of the children’s school. 

Taking into account the requirements of Austrian criminal law and those flowing from Article 5 of the Convention safeguarding the rights of the accused, the Court found no reason to question the findings of the Austrian courts, which had decided not to order E.’s pre-trial detention. In that connection the Court reiterated that under Article 5 no detention was permissible unless it was in compliance with domestic law. The authorities had displayed the required special diligence in responding swiftly to the applicant’s allegations of domestic violence and in taking due account of the specific domestic violence context of the case. They had conducted an autonomous, proactive and comprehensive risk assessment and had issued a barring and protection order. That risk assessment had not indicated a real and immediate lethality risk to the applicant’s son. Consequently, no obligation had been triggered for the authorities to take preventive operational measures in that regard.

References from the official website of the European Court of Human Rights