CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 4 juillet 2019

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AUSTRIA     (Application no. 62903/15)             JUDGMENT     STRASBOURG   4 July 2019       THIS CASE WAS REFERRED TO THE GRAND CHAMBER WHICH DELIVERED JUDGMENT IN THE CASE ON 15/06/2021       This judgment may be subject to editorial revision.   In the case of Kurt v. Austria, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Angelika Nußberger, President,   Yonko Grozev,   André Potocki,   Mārtiņš Mits,   Gabriele Kucsko-Stadlmayer,   Lәtif Hüseynov,   Lado Chanturia, judges, and Claudia Westerdiek, Section Registrar, Having deliberated in private on 28 May 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 62903/15) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Austrian national, Ms Senay Kurt (“the applicant”), on 16 December 2015. 2.     The applicant was represented by Mrs C. Kolbitsch, a lawyer practising in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Mr H. Tichy, Head of the International Law Department at the Austrian Ministry for Europe, Integration and Foreign Affairs. 3.     The applicant alleged that the Austrian authorities had failed to protect her and her children from her violent husband, which had resulted in him murdering their son. 4.     On 30 March 2017 notice of the complaints concerning Articles 2, 3 and 8 of the Convention was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1978 and lives in Unterwagram. 6.     She married E. in 2003. They had two children, A., born in 2004, and B., born in 2005. 7.     On 10 July 2010 the applicant called the police because her husband had beaten her. In her statement to the police she alleged that she had problems with her husband and that he had been beating her for years. Recently the situation had worsened because he had a gambling addiction, was heavily in debt and had lost his job. She stated that she had always supported him financially, but had also lost her job and therefore could no longer pay his debts. The police noted that the applicant showed signs of injuries, namely haematoma on her elbow and upper arm, which she stated she had sustained through beatings by her husband. 8 .     Pursuant to section 38a of the Security Police Act ( Sicherheitspolizeigesetz ), the police handed the applicant a leaflet informing her, among other things, of the possibility of seeking a temporary restraining order ( einstweilige Verfügung ) against her husband under sections 382b and 382e of the Enforcement Act (see paragraphs 33, 37 and   39 below). 9.     When confronted with the allegations by the police, E. stated that he did not have any problems with his wife, but that he had had a fight with his brother the night before and had sustained injuries to his face. There were no indications that E. was in possession of a weapon. A barring order ( Betretungsverbot und Wegweisung zum Schutz vor Gewalt ) in accordance with section 38a of the Security Police Act was issued against E. This order obliged him to stay away from their common apartment as well as from the applicant’s parents’ apartment and the surrounding areas for fourteen days. It appears that E. complied with the order. The police submitted a report to the public prosecutor’s office ( Staatsanwaltschaft ), which brought criminal charges against E. on 20 December 2010. 10.     On 10 January 2011 the Graz Regional Criminal Court ( Landesgericht für Strafsachen ) convicted E. of bodily harm and dangerous threatening behaviour and sentenced him to three months’ imprisonment, suspended for three years with probation. The applicant refused to testify against E. He was nonetheless found guilty of pushing her against a wall and slapping her, and of threatening his brother and his nephew. 11.     On Tuesday 22 May 2012 the applicant, accompanied by her counsellor from the Centre for Protection from Violence ( Gewaltschutzzentrum ) went to the St. Pölten District Court ( Bezirksgericht ) and filed for divorce. In her oral hearing before the judge, which was held at 11.20 a.m., she explained that the reasons for the breakdown of the marriage were her husband’s continuous threats and violence against her throughout their marriage. She indicated that on the preceding Saturday the situation had escalated and she had suffered injuries. She added that she was planning to report him to the police and that she hoped a barring order would be issued against him. 12.     On the same day at 1.05 p.m., the applicant reported her husband to the police for rape and making dangerous threats. She was interviewed by a female police officer and described the following events in detail. 13 .     According to the applicant, on Saturday 19   May 2012 at 3 p.m., when the issue of a possible separation came up, the situation escalated. In the course of the ensuing argument E. repeatedly stated that he could not live without her and the children, and that he would take the children to Turkey. In the course of their dispute he choked her and pushed her onto the couch. He told her that he was a man and she was a woman, so she was obliged to have sex with him. The applicant told him to stop, but he removed the clothes from the lower part of her body and raped her. She said he did not hold her tightly, but she did not resist out of fear of being beaten if she did. After the incident she took a shower, put on her clothes and went to the pharmacy to obtain a contraceptive pill because she was afraid of getting pregnant. 14 .     The applicant stated further that E. had behaved violently towards her from the very beginning of their marriage, and that in 2010 he had been issued with a barring order of two weeks because he had injured her. In relation to another incident at that time, which had concerned his brother and nephew in Graz, E. had been convicted of bodily harm and making dangerous threats. The applicant explained that since 2010 she had been in regular contact with the local Centre for Protection from Violence. Because her husband had subsequently gone to hospital of his own accord to be treated for his gambling addiction and mental problems, she had forgiven him, refused to testify in the criminal proceedings against him and decided to give him another chance. However, the situation had worsened in February 2012, when E.’s gambling resumed. The applicant stated that since the beginning of March 2012 he had been threatening her on a daily basis, always with the same phrases: “I will kill you”, “I will kill our children in front of you”, “I will hurt you so badly that you will beg me to kill you”, “I will hurt your brother’s children if I am expelled to Turkey” (the applicant’s brother lives in Turkey), and “I will hang myself in front of your parents’ door”. She said that she had not reported these threats until now, because she feared that he would act upon them if she did. 15 .     The applicant stated that her husband had been beating her regularly, and sometimes slapped the children as well. The applicant repeated that she was in great fear of her husband and that she was reporting all this to the police now because she wanted to protect herself and her children. She added that he always took her mobile phone away from her and sometimes locked her in their apartment so that she could not leave. 16 .     The police took pictures of the injuries the applicant had sustained (haematoma on her neck and scratches on her chin). A medical examination did not however detect any injuries typically caused by rape. The public prosecutor ordered E.’s immediate questioning. 17 .     After the applicant’s report to the police, at 5 p.m. a female police officer accompanied her to the marital home. The officer questioned E., who contested the allegations of violence. She then interviewed the children, who confirmed that their father beat their mother and for some time had also been regularly slapping them. Based on those facts and section 38a of the Security Police Act, the police officer issued a barring order against E. This order obliged him to leave the marital home and prohibited him from returning to it or the surrounding areas, as well as barring him from the applicant’s parents’ apartment and its surrounding areas. His keys to the marital home were taken from him. The applicant was handed a “leaflet for victims of violence”, informing her, among other things, of the possibility of extending the scope of the barring order in time and place by seeking a temporary restraining order ( einstweilige Verfügung ) against her husband under sections 382b and 382e of the Enforcement Act (see paragraphs 33, 37 and 39 below). The police report described the applicant as “tearful and very scared”. 18 .     In the same police report E. was described as “mildly agitated” and “cooperative”. He accompanied the police officer voluntarily, at 6.10 p.m., to the police station. While there, the content of the barring order was explained to him. Subsequently, he was questioned by a prosecutor who confronted him with the allegations against him. E. denied the allegations of violence, rape and threatening behaviour. He admitted that he had had sexual intercourse with his wife on 19 May 2012. However, he contended that sexual contact with his wife had always taken place in such a way that his wife had first refused, but then allowed herself to be convinced. 19.     On the same day, after E.’s questioning, still on 22 May 2012, the public prosecutor’s office instituted criminal proceedings against E on the basis of the suspicion of rape, bodily harm and dangerous threat. It ordered, as a further step of investigation, that the children be interviewed. The interview of the children also took place on the same day, by a specially trained female police officer. The children said that their father had beaten their mother, as well as them, including blows to the face. 20 .     On 23 May 2012 the St. Pölten Federal Police Department ( Bundespolizeidirektion ) assessed the lawfulness of the issuance of the barring order against E. (under section 38a(6) of the Security Police Act, see paragraph 33 below). It found that the evidence coherently and conclusively showed that E. had used violence against his family, and that the barring order was therefore lawful. 21 .     On 24 May 2012 at 9 a.m. E. went to the police station on his own initiative to inquire whether it would be possible for him to contact his children. The police took the opportunity to question him and to confront him with his children’s statements that he had beaten them. E. confessed that he beat them “every now and then”, but “only as an educational measure”, “not about the face” and “never aggressively”. His wife also slapped them from time to time. He added that his children were his everything, and that he did not have anyone else but his children. He stated that the day before he had had a telephone conversation with his daughter and she wanted to see him. He admitted that he had problems with his wife and that he no longer shared the marital bed, but slept on a couch in the living room, because she was “such a cold woman”. He stated that he had not beaten her in the past three years. 22.     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, because he wanted to give him money. The teacher, who later stated that she had been aware that money had to be paid for some school events but 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, having been shot in the head. His sister B., who had witnessed her brother being shot, was not injured. E. had gone. An arrest warrant was issued against him immediately. A. was taken to the intensive care unit of the city hospital. 23 .     The police questioned several witnesses including the applicant and her daughter. The applicant stated that E. had always presented “extremely different faces” – towards strangers he had always appeared friendly, but only she had known his “true face”. After the barring order had been issued he had been calling her several times each day. He had wanted to see her and the children together. She had answered that he could, of course, see the children in the presence of her father. She had also told her children that they could see their father whenever they wanted. She had only preferred to avoid meeting her husband alone with the children, because she was afraid that he would kill the children in front of her. The applicant stated that she had seen her husband in front of the school with his car in the morning, before the shooting. She had planned to inform the teacher of her family problems, but on the following day, 26 May. 24. The applicant’s counsellor from the Centre for Protection from Violence stated that she had never thought that E. would commit such a crime. A.’s teacher said that she had never noticed any injuries on the boy or any other indications that he could have been a victim of domestic violence. She had never heard of any threats made against the children. The mother of one of A.’s schoolmates, a nurse, described E. as a “friendly and courteous person”. She had met him an hour before the event in front of the school, and he had greeted her and shaken her hand. A father of another schoolmate also met E. that morning and described him as “calm and polite”. 25 .     On the same day, at 10.15 a.m., E. was found dead in his car. He had committed suicide by shooting himself. From his suicide note dated 24   May 2012, which was found in the car, it became apparent that E. had actually planned to kill both of the children as well as himself. He wrote that he loved his wife and children and could not live without them. 26.     On 27 May 2012 A. succumbed to his injuries and died. 27 .     On 11 February 2014 the applicant instituted official liability proceedings. She claimed that the public prosecutor’s office should have requested that E. be held in pre-trial detention on 22 May 2012, after she had reported him to the police. There had been a real and immediate risk that he would reoffend against his family. It should have been clear to the authorities that the barring order had not offered sufficient protection, particularly as the police had known that it could not be extended to cover the children’s school. The applicant claimed 37,000 euros (EUR) in compensation for non-pecuniary damage. She also applied to the court for a declaratory judgment ( Feststellungsbegehren ) that the Republic of Austria was liable for any possible future damage (such as mental and physical problems experienced by the applicant) caused by the murder of her son, which she assessed at EUR   5,000. 28 .     On 14 November 2014 the St. Pölten Regional Court ( Landesgericht ) dismissed the applicant’s claim. It held that, taking into account the information the authorities had had to hand at the relevant time, there had not been an immediate risk to A.’s life. A barring order had been issued against E., which had required him to stay away from the marital home and the applicant’s parents’ apartment, as well as the surrounding areas. E. had never acted aggressively in public before. Even though he had allegedly been issuing threats against his family for years, he had never acted upon them. He had complied with the barring order issued in 2010, and no further misconduct had been reported to the authorities after the incident in 2010 until the applicant had reported him to the police on 22   May 2012. There had not been any indications that E. had had a gun in his possession, or that he had tried to get one. Moreover, after the issuance of the barring order, E. had cooperated with the police and had not demonstrated any aggressive behaviour, so the authorities had been able to assume that there would be a reduction in tension. The court weighed the applicant’s and her children’s right to be protected against the rights of E. under Article   5 of the Convention, and held that pre-trial detention should only be the ultima ratio . A less intrusive measure had been issued instead, namely the barring order with respect to both the residential premises. The court concluded that the public prosecutor’s office had therefore not acted unlawfully or culpably by not taking E. into pre-trial detention. 29.     The applicant appealed, repeating that the public prosecutor’s office should have been aware that there had been an increased threat of further violent acts by E. since she had filed for divorce. She presented statistics showing that the number of homicides committed between partners was significantly raised during the separation phase of a couple, the phase in which the applicant and E. had found themselves. The applicant asserted that the authorities had been aware that E.’s violence against her had increased since February 2012. In fact, he had specifically threatened that he would kill the children in front of the applicant, and that he would kill her or himself. The applicant also argued that the domestic authorities were under a positive obligation under Article 2 of the Convention to protect her and her children’s lives by making use of criminal law provisions and the respective measures therein, which, in her specific situation, could only have meant detention. The temporary restraining order as a “less intrusive measure” had not been sufficient as the police could not extend it to cover the children’s school. 30.     On 30 January 2015 the Vienna Court of Appeal ( Oberlandesgericht ) dismissed the applicant’s appeal. It held that the public prosecutor’s office had some discretion when deciding on whether to take a person into pre-trial detention. Official civil liability could only be established if the decision had not been justified under the particular circumstances. The starting point for the evaluation of such a decision was the specific information the authorities had to hand at the time the decision was taken. The public prosecutor’s office had to decide on the basis of the specific information available and the facts of the case before it. In the absence of such information, any general knowledge concerning increased levels of homicides during divorce proceedings was not decisive. What mattered was the question whether at the pertinent time there had been serious reasons to suggest that there was a real and individual risk that E. would commit further serious offences against the applicant and her children. According to the information available to the public prosecutor’s office at the time, and considering that a barring order had already been issued, there had not been sufficiently specific grounds to assume the existence of such a risk, in particular in the public area, for the reasons already set out by the St. Pölten Regional Court. 31.     On 23 April 2015 the Supreme Court rejected an extraordinary appeal by the applicant on points of law. The decision was served on the applicant’s counsel on 16 June 2015. II.     RELEVANT LAW AND PRACTICE A.     Domestic law and practice 32.     Section 22(2) of the Security Police Act (entitled “Preventive protection of legally protected interests”) as in force at the relevant time, read as follows: “The security authorities have to prevent dangerous attacks on life, health, freedom, morality, property or environment, if such attacks are likely.” 33 .     The relevant parts of section 38a of the Security Police Act (titled “Barring order for protection against violence” ( Betretungsverbot und Wegweisung zum Schutz vor Gewalt )) as in force at the relevant time read as follows: “(1) If, on the basis of specific facts, in particular because of a previous dangerous attack, it must be assumed that a dangerous attack on life, health or freedom is imminent, the members of the police force are authorised to ban a person who poses a threat from the home in which an endangered person lives, as well as its immediate surroundings. [The police] have to inform [the person who poses a threat] of the premises to which the ban applies; this area shall be determined in accordance with the requirements of effective preventive protection. (2) Under the conditions laid down in paragraph 1, the public security authorities are authorised to issue a barring order, which is to be defined in accordance with paragraph 1; however, the exercise of force to enforce this prohibition is not permitted. In the case of a ban from returning to one’s own home, particular attention must be paid to the question whether this interference with that person’s private life is proportionate. The members of the police force ... are obliged to give [the person posing a threat] the opportunity ... to inform him/herself where he/she can find shelter ... (4) The members of the police force are ... obliged to inform the endangered person of the opportunity to seek a temporary restraining order under sections 382b and 382e of the Enforcement Act and of suitable victim protection institutions ... (6) The security authorities must be notified immediately of the issuance of a barring order and must review it [as to its legality] within 48 hours ... (7) The observance of a barring order must be verified by the public security authorities at least once within the first three days of its entry into force. The barring order ends two weeks after its issuance, unless a request for a temporary restraining order pursuant to sections 382b and 382e of the Enforcement Act ( Exekutionsordnung ) is submitted within [these two weeks] to the competent court ...” 34.     According to statistics published by the Austrian Ministry of the Interior ( Innenministerium ), in 2012 the police issued 7,647 barring orders under section 38a of the Security Police Act. 35 .     The relevant parts of section 38a of the Security Police Act, as amended as a result of the events in question with effect from 1   September 2013, read as follows: “(1) If there is evidence, in particular because of a previous dangerous attack, leading to the necessary assumption that a dangerous attack on life, health or freedom is imminent, the members of the police force are authorised to prohibit a person who poses a threat from entering 1. the home where an endangered person lives, as well as its immediate surroundings; 2. and, if the endangered person is under the age of 14, furthermore from entering a) a school that the endangered minor attends to fulfil the requirements of compulsory education ... or b) an institutional childcare facility he or she attends, or c) a day nursery he or she attends including an area within a radius of fifty metres. (2) ... In the event of a barring order prohibiting a return to one’s own home, it must be ensured particularly that this interference with the private life of the person affected is proportionate. ... (4) The members of the police force are further obliged to inform 1. the endangered person about the possibility of obtaining a temporary restraining order under sections 382b and 382e of the Enforcement Act and of appropriate victim protection facilities ... and 2. if persons under the age of 14 are endangered, immediately a) the locally responsible child and youth welfare office pursuant to section ... and b) the head of an institution pursuant to § 1 (2) for which the ban has been imposed. ...” 36 .     The relevant parts of section 84 of the Security Police Act as in force at the relevant time read as follows: “(1) A person who ... 2. disregards a barring order pursuant to section 38a paragraph 2 ... commits an administrative offence and shall be punished with a fine of up to 500   euros, or up to two weeks’ imprisonment in case of default of payment.” 37 .     The relevant parts of section 382b of the Enforcement Act (titled “protection from violence in the home”) read as follows: “(1) The court shall, in respect of a person who makes continued cohabitation intolerable for another person through physical attack, threats of such an attack, or behaviour seriously affecting their mental health, upon an application by [the endangered person], 1. order such person to leave the home and its immediate vicinity, and 2. prohibit him or her from returning to the home and its immediate vicinity if the home is the principal and essential residence of the applicant ...” 38 .     The relevant parts of section 382c of the Enforcement Act (titled “procedure and issuance”) as in force at the relevant time read as follows: “(1) If there is an imminent threat of further endangerment by the person posing a threat, [he or she] shall not be heard before the temporary restraining order is issued, in accordance with section 382b paragraph 1. This can become apparent especially from the security authorities’ report, which the court has to acquire of its own motion; the security authorities are obliged to send such reports to the courts immediately. However, [the application] has to be served on the respondent immediately, if the application is submitted without undue delay after a barring order has been issued (section 38a paragraph 7 Security Police Act) ... (3) The following have to be notified immediately about the content of the court order deciding on an application for a temporary restraining order in accordance with section 382b and about a court order lifting the temporary restraining order ... 2. in the event that one of the parties is a minor, the local child and youth welfare authority ...” 39 .     The relevant parts of section 382e of the Enforcement Act (titled “general protection from violence”) read as follows: “(1) The court shall order a person who makes continued cohabitation intolerable for another person through physical attack, threats of such an attack, or behaviour seriously affecting their mental health, upon application by [the endangered person], 1. to stay away from certain designated locations and 2. to avoid meeting or contacting the applicant, unless this runs counter to the essential interests of [the person posing the threat] ...” 40.     A request for a temporary restraining order under the Enforcement Act, by which a police barring order can be issued or extended in time (section 382b) or by which a police barring order can be extended in area (section 382e), can be lodged within two weeks of the applicable police order. Even though not specifically stated in the law, the civil court needs to determine a request under section 382e within four weeks at the latest. 41 .     Article 170 of the Code of Criminal Procedure (listed in the chapter on “arrest”) reads as follows: “(1) Arresting a person suspected of having committed an offence is permitted 1. if the person has been caught in the act of committing an offence or is plausibly suspected of committing the offence, or is caught with items indicating the person’s involvement in the offence, 2. if the person has fled or is in hiding or if there is evidence of a risk that the person will flee or go into hiding, 3. if the person tries to influence witnesses, expert witnesses or co-suspects, remove evidence of the offence, or hinder the establishment of the truth in any other way or if there is specific factual evidence that there is a risk that the person will try do so, 4. if the person is suspected of having committed an offence which is punishable by imprisonment exceeding six months or if there is specific factual evidence leading to an assumption that he or she will commit such an offence, which is directed against the same legally protected interest, or that he or she will carry out the attempted or threatened act (Article 74 § 1 (5) of the Criminal Code). (2) If the offence is punishable by imprisonment of at least ten years, arrest must be ordered, unless it can be assumed, on the basis of factual evidence, that all the grounds for arrest laid down in paragraph 1 (2) to (4) can be excluded. (3) Arrest and detention may not be ordered if they are disproportionate to the significance of the case (Article 5).” 42 .     The relevant parts of Article 171 of the Code of Criminal Procedure as in force at the relevant time read as follows: “(1) The arrest has to be carried out by the police on the basis of a warrant issued by the public prosecutor’s office which has been approved by a court. (2) The police may arrest a suspect of their own motion 1. in the cases referred to in Article 170 paragraph 1 (1) and 2. in the cases referred to in Article 170 paragraph 1 (2) to (4), if, owing to imminent danger, an order from the public prosecutor’s office cannot be obtained in time. (3) In case of an arrest pursuant to paragraph 1 the suspect must be served with the court approval of the arrest immediately or within twenty-four hours after the arrest; in case of an arrest pursuant to paragraph 2 a written police statement disclosing the strong suspicion of the offence and the ground for the arrest [must be issued to the suspect]. Furthermore the suspect has to be informed at once, or immediately after his or her arrest, that he or she has the right 1. to notify a relative or any other trusted person and defence counsel of his or her arrest, or have them so notified ... 2. to request the appointment of legal-aid defence counsel where applicable, 3. to lodge a complaint or an appeal against his or her arrest and to request his or her release at any time.” 43 .     The relevant parts of Article 173 of the Code of Criminal Procedure (listed in the chapter on “pre-trial detention”) as in force at the relevant time read as follows: “(1) Pre-trial detention may only be ordered and continued upon request by the public prosecutor’s office, and if the suspect is strongly suspected of having committed a specific offence, if he or she has been heard by the competent court concerning the subject of the accusation, and if the grounds for pre-trial detention and one of the grounds for detention laid down in paragraph 2 are met. [Pre-trial detention] may not be ordered or continued if it is disproportionate to the significance of the case or if more lenient measures ( gelindere Mittel ) (paragraph 5) would achieve the same result [as pre-trial detention]. (2) A ground for detention is given if, on the basis of certain facts, there is a risk that at liberty the suspect would 1. flee or go into hiding due to the nature and extent of the expected punishment or for other reasons 2. influence witnesses, expert witnesses or co-suspected persons, remove evidence of the offence, or hinder the establishment of the truth in any other way 3. despite the fact that proceedings concerning an offence punishable by imprisonment exceeding six months have been instituted against [the suspect] a. commit a criminal offence ensuing serious consequences, which is directed against the same legally protected interest as the criminal offence ensuing serious consequences that he or she is suspected of b. commit a criminal offence ensuing not only minor consequences, directed against the same legally protected interest as the offence that he or she is suspected of, if he or she has previously been convicted or is presently suspected of having repeatedly or continually committed such offences c. commit a criminal offence punishable by imprisonment exceeding six months, which is directed against the same legally protected interest as the criminal offence that he or she is suspected of and in which respect he or she has been convicted of twice previously, or d. carry out the attempted or threatened act (Article 74 paragraph 1 (5) of the Austrian Criminal Code) that he or she is suspected of. (3) Risk of flight shall in any case not be assumed if the suspect is suspected of a criminal offence that is not punishable by imprisonment exceeding five years, is in a stable living environment and has a permanent residence in Austria, unless he or she has already made arrangements to flee. When assessing whether the suspect will commit an offence pursuant to paragraph 2 (3) it shall be of particular weight if the suspect poses a threat to life and limb of a person or if a risk of committing crimes in a criminal organisation or terrorist association emanates from the suspect. Apart from this, the assessment of this ground for detention shall take into consideration to what extent such risk has been reduced by the fact that the circumstances have changed under which the offence that he or she is suspected of has been committed. ... (5) More lenient measures include, in particular: 1. the pledge to neither flee nor go into hiding nor leave their place of residence without permission from the public prosecution office until the final conclusion of the criminal proceedings 2. the pledge that he or she will not attempt to hinder the investigations 3. in cases of domestic violence (section 38a Security Police Act), the pledge to refrain from any contact with the victim and to comply with the instruction not to enter a specific home or its immediate surroundings or to comply with an existing barring order pursuant to section 38a paragraph 2 of the Security Police Act or an existing temporary restraining order pursuant to section 382b Enforcement Act; including taking away all keys to the home [from the suspect] 4. the instruction to live at a certain place, with a certain family, to stay away from certain homes, certain places or certain people, to refrain from consuming alcohol or other addictive substances, or to have a steady job 5. the instruction to report every change of residence or to report to the police or another authority at certain intervals ...” 44.     According to the Austrian Ministry of Justice ( Justizministerium ), pre-trial detention was ordered 8,640 times in 2012. Some 470 cases thereof concerned offences against personal freedom, and 389 concerned offences against life and limb. B.     International law and practice 45.     The relevant international law has partly been summarised in Opuz v.   Turkey (no.   33401/02, §   72-90, ECHR   2009). 46.     The United Nations Convention on the Elimination of All Forms of Discrimination against Women (“the CEDAW”) was adopted in 1979 by the United Nations General Assembly. Austria ratified the CEDAW on 31   March 1982 and the Optional Protocol to that Convention on 6   September 2000. 47.     The Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (“the Istanbul Convention”) was signed by Austria on 11   May 2011, ratified on 14   November 2013 (hence after the events in question in the instant case) and entered into force on 1   August 2014. THE LAW ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 48 .     Relying on Articles 2, 3 and 8 of the Convention, the applicant complained that the Austrian authorities had failed to fulfil their positive obligations to protect her and her children from her violent husband. She alleged that the State had failed to protect her son’s physical integrity against E.’s lethal attack by not taking E. into pre-trial detention. She had suffered severe psychological problems because of her son’s death, which were a direct result of the State providing her family with insufficient protection. Furthermore, the applicant complained that the legislative framework which had been in force in 2012 had not allowed the police to extend barring orders to places outside residential premises, such as the children’s school. This was a negligent omission and, as such, a breach of Article   2. In the aftermath of the events, by the amendment made to Article   38a of the Security Police Act, the Austrian state had recognised its failure and nevertheless “evaded” its responsibility in her case. 49.     The Court, being master of the characterisation to be given in law to the facts of the case, considers that these complaints essentially cover the same ground and thus finds it appropriate to examine them under the substantive aspect of Article 2 of the Convention ( see Fernandes de   Oliveira v. Portugal [GC], no.   78103/14, §   81, 31   January 2019). 50.     The relevant parts of Article   2 of the Convention read as follows: “1.     Everyone’s right to life shall be protected by law ...” A.     Admissibility 51.     The Government submitted that the complaint concerning the allegedly incomplete legislative framework was inadmissible for non ‑ exhaustion. While it was true that the barring order issued by the police could not, at the relevant time, be extended to the children’s school, it had been open to the applicant to request temporary restraining orders under sections   382b and 382e of the Enforcement Act before the competent district court (see paragraphs 37 and 39 above). This was the same district court where she had filed for divorce on the morning of 22   May   2012, even before contacting the police. A temporary restraining order under section   382e of the Act could be issued in relation to any place the court deemed appropriate. The police, based on a legal obligation to do so, had informed the applicant of this possibility on two occasions: following the first barring order against her husband in July   2010 and on 22   May 2012 (see paragraphs   8 and 16 above). 52.     The applicant replied that she was aware that district courts were the competent authorities both for divorce proceedings and for temporary restraining orders. However, they had only one dedicated morning per week for applicants who were not represented by lawyers, namely the public court consultation day every Tuesday ( Amtstag ). After the escalation of violence on Saturday 19 May 2012, she had seized the first opportunity to file for divorce on Tuesday, 22   May 2012. On the same day, she had also reported E. to the police and obtained a barring order with respect to the residential premises. The applicant submitted that she had already made an appointment with her counsellor from the Centre for the Protection from Violence for 25 May 2012 in order to make arrangements to apply for a temporary restraining order at the District Court, but had to wait until the following Tuesday to file such an application, which would have been 29   May 2012. Even if she had applied for a temporary restraining order earlier, that is on the same day she had filed for divorce, the court, in the applicant’s view, probably would not have decided on the application within three days, and it was only three days later that her son was killed. In addition, the judge at the court where she had filed for divorce on 22   May 2012 had not informed her that she had that opportunity, despite the allegations she had made about her husband’s violent and threatening behaviour. 53.     The Court notes that the part of the applicant’s complaint that concerns the alleged deficiencies of the legal framework addresses the fact that at the relevant time the police had not had the possibility, under section   38a of the Security Police Act, of extending the barring order beyond the residential premises, in particular to cover the children’s school, where the murder was committed. In this context the applicant submitted that on 22   May 2012 she and her children had been in need of immediate protection from further violence by her husband. The Court agrees with the Government that the applicant could have requested a temporary restraining order under section 382e of the Enforcement Act with respect to premises beyond the residences even as early as on 22 May 2012. She was informed of this possibility and had, according to her own submissions, planned an appointment with her counsellor in order to request such a measure. The Court is however not convinced that, even if the applicant had made the request on 22 May 2012, it would have provided her family with immediate protection. It had to be lodged separately with the District Court, and that court had up to four weeks to issue a temporary restraining order. Although it is not impossible, it is also far from certain that the court would have delivered a decision immediately. The Court is not convinced that such an application would have been an effective remedy against the alleged risk in the instant case. It therefore rejects the Government’s argument. 54.     The Court notes that the complaints under Article 2 of the Convention are not otherwise manifestly ill-founded within the meaning of Article   35 §   3   (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B.     Merits 1.     The applicant’s arguments 55.     The applicant stated that after she had reported E. to the police on 22   May 2012 it should have been obvious to the authorities that a significant risk of new acts of violence by E. existed. She had referred to several risk factors in the course of filing the report, namely his previous criminal convictions for dangerous threatening behaviour and bodily harm, the latter as a result of domestic violence against her; E.’s long history of violence against the applicant and her children; the evidence of the injuries she had sustained during previous attacks; his relapse into gambling in February 2012 and his resulting increased aggression and financial problems; the continuous and very specific threats he had been issuing since March 2012; his non-acceptance of her wish to get a divorce and her resulting fear that he would act upon his threats; his gross trivialisation and denial of the use of violence; and the predictable escalation of the situation because of the divorce proceedings. E.’s sense of ownership over his family had been threatened by the applicant’s wish for a separation, which she had manifested by filing for divorce and reporting him to the police. In addition, his own children had testified against him. E. had had nothing to lose, and had taken action. 56.     The applicant submitted that the authorities’ evaluation of E.’s statements before the police was bewildering. Contradicting the unanimous statements of all three victims, E. told the police that he had not beaten his wife in the three previous years, and had never beaten his children. However, the authorities had E.’s criminal record before them, which showed that he had been convicted on 10 January 2011 for an act of violence committed on 10 July 2010, hence less than two years before the applicant approached the police on 22 May 2012. In addition, there were obvious contradictions in E.’s different statements. In the light of these inconsistencies, seen in conjunction with the choke marks on the applicant’s neck, the authorities should not have assumed that the intercourse had been consensual. 57.     The applicant emphasised that she had explicitly mentioned in her report to the police that she feared for her children’s lives. Nonetheless, they were not mentioned as endangered persons in the police report. The authorities had all the relevant information at hand to make them aware of the increased risk of further criminal offences by E. against his family, but failed to take effective preventive measures. The applicant maintained that E. should have been taken into pre-trial detention, as the legal grounds for such detention had been satisfied (Article 170 §   1 of the Code of Criminal Procedure, see paragraph 38 above), particularly taking into consideration the risk that E. would reoffend or carry out an offence (Article 170 §   1   (4)). In the alternative, as a more lenient measure, it would have been possible under Article 173 §   5   (4) of the Code of Criminal Procedure for the public prosecutor to order E. to stay away from the children’s school. This was all the more the case as the police barring order could not be extended to cover such premises. However, neither of these measures was employed. This demonstrated the lack of knowledge by the authorities of the dynamics of violence in cases of intimate partner violence and the profiling of perpetrators. Furthermore, the fact that section 38a of the Security Police Act did not allow the extension of barring orders to childcare facilities, indicated a deficiency in the legislation. The applicant concluded that in the light of the above, the authorities had unlawfully and culpably failed to protect A.’s life, in violation of Article 2 of the Convention. 2.     The Government’s submissions 58.     The Government stated that they understood that the applicant had been under serious pressure from her violent husband, that she herself had been very much intimidated and injured and that she was deeply affected by her son’s tragic death. They stressed however that the extent of the State’s positive obligations under Article 2 must be construed in such a way that no impossible or unreasonable burden is imposed on them. Hence, not each and every risk obliged the State to take criminal law measures such as pre-trial detention. It had to be “established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual” (see Osman v. the United Kingdom , 28   October 1998, §   116, Reports of Judgments and Decisions 1998-VIII; Opuz v.   Turkey , no.   33401/02, §§   128-30, ECHR 2009; Talpis v.   Italy , no.   41237/14, §   101, 2 March 2017). 59.     The Government argued that in the circumstances of the insta