CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 15 juin 2021

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sB65B7852 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; border:0.75pt solid #000000; padding:1pt 4pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .s58699FB5 { margin-top:14pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s590A3EF4 { margin-top:12pt; margin-left:19.85pt; margin-bottom:0pt; text-indent:-19.85pt } .s7C58004A { width:243.83pt; text-indent:0pt; display:inline-block } .s1F7F12F1 { margin-top:0pt; margin-left:19.85pt; margin-bottom:0pt; text-indent:-19.85pt } .sE9B40630 { width:19.85pt; text-indent:0pt; display:inline-block } .s2E3BD715 { width:11.51pt; text-indent:0pt; display:inline-block } .s61E420C2 { font-family:Arial; font-variant:small-caps } .s589F1A46 { width:25.5pt; text-indent:0pt; display:inline-block } .sBAC64444 { width:0.36pt; text-indent:0pt; display:inline-block } .sDD35F56 { width:9.5pt; text-indent:0pt; display:inline-block } .sCB9899D3 { width:83.09pt; text-indent:0pt; display:inline-block } .s2960335C { width:46.45pt; text-indent:0pt; display:inline-block } .s98FBE5B1 { width:3.85pt; text-indent:0pt; display:inline-block } .sFCD51767 { width:172.11pt; text-indent:0pt; display:inline-block } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s6B505E72 { margin:0pt; padding-left:0pt } .s586AA269 { margin-top:14pt; margin-left:11.67pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:8.18pt; font-family:Arial; text-transform:uppercase } .s743F3A55 { margin-right:0pt; margin-left:0pt; padding-left:0pt } .s8C49A017 { margin-left:5.65pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-weight:bold; text-transform:none } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .s434D37A9 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s9CB19847 { margin-top:6pt; margin-left:28.35pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sCD7D0356 { margin-top:14pt; margin-left:15pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:4.85pt; font-family:Arial; text-transform:uppercase } .sC47DA4E2 { margin-top:14pt; margin-left:18.34pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.51pt; font-family:Arial; text-transform:uppercase } .sB9541D82 { font-family:Arial; color:#212121 } .sDEE3F85D { margin-left:11.67pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:8.18pt; font-family:Arial } .s58BC62F { margin-left:5.65pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-weight:bold } .s2044A09A { margin-left:6.51pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-weight:normal; font-style:italic } .s2A91C753 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-after:avoid } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sAE6FB95D { margin-top:14pt; margin-left:32.01pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-family:Arial; font-style:italic } .s2D6F22DF { margin-top:6pt; margin-left:49.65pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sB25A0399 { margin-top:14pt; margin-left:24.84pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.66pt; font-family:Arial; font-weight:bold } .sFBC99493 { font-style:italic } .sA2548810 { margin-top:14pt; margin-bottom:0pt; text-align:center; page-break-after:avoid; font-size:10pt } .s718D1C37 { margin-top:0pt; margin-bottom:6pt; text-align:center; page-break-after:avoid; font-size:10pt } .s3A692EA6 { margin-top:14pt; margin-bottom:6pt; text-align:center; page-break-after:avoid; font-size:10pt } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s7CAC83C { margin-top:14pt; margin-left:19.67pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.18pt; font-family:Arial; text-transform:uppercase } .sF54F3725 { margin-top:0pt; margin-left:42.55pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sDBC81028 { width:4.83pt; font:7pt 'Times New Roman'; display:inline-block } .s65DDED6B { margin-top:14pt; margin-left:42.55pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s7AE800C3 { width:4.28pt; font:7pt 'Times New Roman'; display:inline-block } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s8BF9F9FB { width:7.06pt; font:7pt 'Times New Roman'; display:inline-block } .s55F67FD3 { margin-top:0pt; margin-left:51.05pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; line-height:113%; font-size:10pt } .s3970C00F { width:8.17pt; font:7pt 'Times New Roman'; display:inline-block } .sCD82236A { margin-top:14pt; margin-left:51.05pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; line-height:113%; font-size:10pt } .s320E5A8E { width:5.95pt; font:7pt 'Times New Roman'; display:inline-block } .sD051EF8 { width:3.72pt; font:7pt 'Times New Roman'; display:inline-block } .s4196892D { width:3.17pt; font:7pt 'Times New Roman'; display:inline-block } .sBD165FDE { width:5.39pt; font:7pt 'Times New Roman'; display:inline-block } .s6430D388 { margin-top:14pt; margin-left:15pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:4.85pt; font-family:Arial } .sD58C010 { margin-top:14pt; margin-left:15.01pt; margin-bottom:3pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-family:Arial } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sF920FE69 { font-family:Arial; color:#f8f8f8 } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sBAD0D18F { width:1.87pt; display:inline-block } .s3E3166BC { width:200.1pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .s1721E4C5 { margin-top:14pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .s8B983D37 { text-transform:none } .s66E9FC38 { font-family:Arial; font-size:8pt; vertical-align:super; color:#000000 } .sB343B0AA { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#000000 } .s715E7C6D { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .sA89582B { font-family:Arial; font-size:10pt; color:#0069d6 } .s4B8D41EE { font-family:Arial; font-size:10pt } .s2CE7C1B9 { font-family:Arial; font-size:10pt; font-style:italic } .sB6D33163 { font-family:Arial; font-size:10pt; text-decoration:underline; color:#0069d6 } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .s3133A7C8 { font-family:Arial; color:#0069d6 } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt }     GRAND CHAMBER CASE OF KURT v. AUSTRIA (Application no. 62903/15)     JUDGMENT   Art 2 (substantive) • Positive obligations • Adequate protective measures in absence of discernible real and immediate risk of child’s murder by father accused of domestic violence and barred from home • Assessment of nature and level of risk an integral part of Osman positive obligation to take preventive operational measures • Requirement of autonomous, proactive and comprehensive assessment of reality and immediacy of risk, taking due account of particular domestic violence context • Operational measures to be adequate and proportionate to level of risk assessed • Domestic authorities’ response displaying special diligence and compliant with above requirements STRASBOURG 15 June 2021     This judgment is final but it may be subject to editorial revision.   In the case of Kurt v. Austria, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Robert Spano, President ,   Jon Fridrik Kjølbro,   Ksenija Turković,   Paul Lemmens,   Branko Lubarda,   Armen Harutyunyan,   Georges Ravarani,   Gabriele Kucsko-Stadlmayer,   Alena Poláčková,   Pauliine Koskelo,   Jovan Ilievski,   María Elósegui,   Gilberto Felici,   Darian Pavli,   Erik Wennerström,   Raffaele Sabato,   Saadet Yüksel, judges , and Marialena Tsirli, Registrar , Having deliberated in private on 17 June 2020 and 24 March 2021, Delivers the following judgment, which was adopted on the last ‑ mentioned 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 Ms K. Kolbitsch and Ms S. Aziz, lawyers practising in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs. 3.     The applicant alleged, in particular, that the Austrian authorities had failed to protect her and her children from her violent husband, and that this had resulted in him murdering their son. 4.     On 30 March 2017 the Government were given notice of the complaints concerning Articles 2, 3 and 8 of the Convention, and the remainder of the application was declared inadmissible pursuant to Rule   54 §   3 of the Rules of Court. 5.     The application was allocated to the Fifth Section of the Court (Rule   52 § 1). On 4 July 2019 a Chamber of that Section composed of Angelika Nußberger, President, Yonko Grozev, André Potocki, Mārtiņš Mits, Gabriele Kucsko-Stadlmayer, Lәtif Hüseynov and Lado Chanturia, judges, and also of Claudia Westerdiek, Section Registrar, gave judgment. The Chamber unanimously declared the complaints under Article 2 of the Convention admissible and held that there had been no violation of Article   2 in its substantive limb. The concurring opinion of Judge Hüseynov was annexed to the judgment. 6.     On 27 September 2019 the applicant requested the referral of the case to the Grand Chamber in accordance with Article 43 of the Convention. On 4   November 2019 the panel of the Grand Chamber accepted that request. 7.     The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24. 8.     The applicant and the Government each filed further written observations (Rule 59 § 1) on the merits of the case. In addition, third-party comments were received from the Council of Europe Group of Experts on Action against Violence against Women and Domestic Violence (GREVIO), Women Against Violence Europe (WAVE), Women’s Network against Violence (Donne in Rete Contro la Violenza – D.i.Re), the Association of Autonomous Austrian Women’s Shelters (Verein Autonome Österreichische Frauenhäuser – AÖF), the European Human Rights Advocacy Centre (EHRAC) and Equality Now (jointly), the Federal Association of Austrian Centres for Protection from Violence (Bundesverband der Gewaltschutzzentren Österreichs), and Women’s Popular Initiative 2.0 (Frauenvolksbegehren 2.0). 9.     A hearing took place by videoconference in the Human Rights Building, Strasbourg, on 17 June 2020. There appeared before the Court: (a)     for the Government     Mr   H. Tichy , Ambassador,     Federal Ministry for European and International Affairs,   Agent , Ms   B. Ohms, Federal Chancellery,   Deputy Agent ,   Mr   K. Famira ,   Federal Ministry for European and International Affairs, Ms   E. Samoilova , Federal Chancellery, Mr   U. Pesendorfer , Federal Ministry of Justice, Ms   A. Rohner , Federal Ministry of Justice, Mr   P. Andre , Federal Ministry of the Interior, Mr   W. Dillinger , Federal Ministry of the Interior,   Advisers ; (b)     for the applicant Ms   S. Aziz , Lawyer, Ms   C. Kolbitsch , Lawyer,   Counsel .   The Court heard addresses by Mr Tichy and Ms Aziz, and also replies by Mr Tichy, Mr Pesendorfer, Mr Andre and Ms Aziz to questions from judges. THE FACTS 10.     The applicant was born in 1978 and lives in Unterwagram. 11.     She married E. in 2003. They had two children, A., born in 2004, and B., born in 2005. events leading up to the fatal shooting of the applicant’s son First barring and protection order issued against E. and the ensuing proceedings 12 .     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. In the preceding months 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 haematomas on her elbow and upper arm, which she stated she had sustained through beatings by her husband. 13.     Pursuant to section 38a of the Security Police Act ( Sicherheitspolizeigesetz – see paragraph 48 below), 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 54 et seq. below). 14.     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 and protection 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. 15 .     On 10 January 2011 the Graz Regional Criminal Court ( Landesgericht für Strafsachen ) convicted E. of bodily harm and making dangerous threats, 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. Second barring and protection order issued against E. and the ensuing proceedings 16 .     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 that a barring and protection order would be issued against him. 17 .     On the same day at 1.05 p.m. the applicant, assisted by her counsellor from the Centre for Protection from Violence, reported her husband to the police for rape and making dangerous threats. She was interviewed by a female police officer who was experienced in handling cases of domestic violence. In her witness statement, the applicant described the following events in detail. 18 .     According to the applicant, on Saturday 19 May 2012, when the issue of a possible separation came up, the situation with her husband escalated. She arrived home from work that day at around 3 p.m. Her husband sent the children outside to play, because he said that he wanted to talk to her. He asked her what she was going to do, meaning now that he was gambling again. He thought that it was all her fault. He called her a whore and accused her of seeing other men, since she had not slept with him since February 2012. 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. He started choking her and, with his hand still on her throat, 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 that he did not hold her tightly during the rape, 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. 19 .     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 and protection order for two weeks because he had injured her. E. had been convicted of bodily harm in relation to that incident, and of making dangerous threats against his brother and nephew. 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 addiction had resumed. The applicant explained that after his stay in hospital in 2010 her husband had told her that if he started to gamble again she could leave him. That was why he had been even more aggressive since February 2012 – he feared that she would take him up on his promise. 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 took these threats very seriously, but that she had not previously reported them because she feared that he would act upon them if she did. 20 .     The applicant stated that her husband had been beating her regularly, and sometimes slapped the children as well, especially when he came back from the betting shop. For the most part, the children had not sustained any injuries from the slaps in the face; on just one occasion A. had sustained a haematoma on his cheek. She stated that the children were scared of her husband too. She had been thinking about getting a divorce for several months, but she had feared that he would harm her or her children if she did. The applicant added that her husband sometimes took her mobile telephone away from her and locked her in their apartment so that she could not leave. She reiterated that she was in great fear of her husband and that she was reporting all this to the police at that stage because she wanted to protect herself and her children. 21 .     The police took pictures of the injuries the applicant had sustained (haematomas on her throat and scratches on her chin). A medical examination did not detect injuries in her genital area (see paragraph 28 below). 22 .     In accordance with a standard procedure, an online search concerning E. was made by the police in a central electronic database containing the personal data of offenders, including the reasons for and scope of previous barring and protection orders, temporary restraining orders and temporary injunctions. The police also checked the firearms registry to ascertain whether the husband had a gun at his disposal, and the result was negative. 23.     After the applicant had reported the matter to the police, two police officers (one male and one female) took her to the family home, where E. and the children were present. The police officers also spoke to the children, who confirmed that their father beat their mother and had also regularly slapped them. 24.     E. accompanied the police officers voluntarily to the police station. Subsequently, at 4 p.m., he was questioned by the police. 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 followed a pattern whereby his wife initially refused but then allowed herself to be persuaded. He explained that he had beaten his wife in the past but had ceased doing so three years earlier. 25 .     On the basis of the reported facts and section 38a of the Security Police Act, the police officers issued a barring and protection order against E. at 5.15 p.m. This order obliged him 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. 26 .     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 and protection 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 54 et seq. below). The applicant was informed in the leaflet that she could turn to the competent District Court for further information on the court proceedings. Moreover, the leaflet stated that a barring order was binding not only for the person posing a threat, but also for the victim, who must not let the person posing a threat back into the apartment, and that the police would check on the observance of the barring order. Lastly, the applicant was informed that her data would be transferred to a Centre for Protection from Violence, and she was provided with contact details of institutions providing counselling for victims of violence. 27 .     The police report concerning the barring and protection order described the applicant as “tearful and very scared”. E. was described as “mildly agitated” and “cooperative”. Under the heading “indications of an imminent dangerous attack” ( Merkmale für einen bevorstehenden gefährlichen Angriff ), it stated that a rape had been reported, that there was evidence of violence in the form of haematomas, that there had been continuous threats, and that the children had been slapped regularly. Under the heading “indications of an increased risk from the person posing a threat” ( Merkmale für eine erhöhte Gefährlichkeit des Gefährders ), the police noted: (a)     known reported/unreported violent acts (not only currently, but also previous incidents); (b)     escalation (increase in the occurrence and seriousness of violence); (c)     current stress factors (such as unemployment, divorce, separation from partner/children, and so on); and (d)     a strong tendency to trivialise/deny violence (violence seen as a legitimate means). 28 .     In the evening of 22 May 2012, at 6.10 p.m., the police informed the public prosecutor on duty ( Journalstaatsanwalt ) of the situation in a phone call. In a note added to the file, the public prosecutor wrote the following: “The accused is suspected of raping his wife on 19 May 2012, threatening her repeatedly during the marriage and beating her and the children. The wife has pressed charges with the aid of a representative of the Centre for Protection from Violence and a divorce is apparently pending. The accused admits having had sexual relations with his wife, but denies the subjective element of the crime. Sexual relations during the marriage [according to him] took place in such a way that his wife repeatedly ‘played hard to get’. He would then keep touching her until he managed to persuade her to have sexual relations. According to him, this was typical behaviour for Turkish women. She had allegedly been saying for ten years that she did not want to have sex with him, but then had sex nonetheless. Concerning the injuries, the police officer stated that the woman did not have injuries in her genital area, but had abrasions on her chin. The wife stated that when she had told [the accused] that she did not want to have sexual relations, he had choked her. Finally she had ceased her resistance and allowed intercourse to take place. He did not hold her down and did not use violence during the act, and she did not scream. Since March 2012 he had allegedly been threatening on a daily basis to kill her. [The person posing a threat] was issued with a barring and protection order by the police. I order that the children be questioned, that reports on the findings of the investigations so far be transmitted, and that [the person posing a threat] be charged while remaining at liberty ( auf freiem Fuß angezeigt ).” On the same day, the public prosecutor’s office instituted criminal proceedings against E. on suspicion of rape, bodily harm and making dangerous threats. 29.     From 6.50 p.m. until 7.25 p.m. the children A. and B. were questioned in detail at their grandparents’ home by the police concerning the violence they had been subjected to by their father. A transcript of the questioning was drawn up by the police. The children both confirmed their earlier statements to the effect that E. often slapped and screamed at them and behaved in the same way towards their mother. 30 .     At 11.20 p.m. the competent police officer emailed a report on the findings of the criminal investigations concerning the applicant’s husband to the public prosecutor, together with transcripts of the applicant’s, her children’s and E.’s questioning. The report mentioned that a barring and protection order had been issued and, among other things, listed the offences of which E. was suspected (rape, making dangerous threats, and torment or neglect of under-age, young or defenceless persons). Under the heading “Facts”, the situation was described as follows: “The suspect has been beating his children and his wife for several years already. On 19 May 2012 the suspect choked his wife, as a result of which she suffered haematomas on her chin and her throat, which have been photographically documented. Then he had intercourse with her, even though she told him repeatedly that she did not want it. Furthermore, for months he has been threatening to kill his wife and their children.” 31.     The police report on the issuance of the barring and protection order containing the list of indications for an elevated risk (see paragraph 27 above) was not sent to the public prosecutor’s office. 32.     On 23 May 2012 the St Pölten Federal Police Department ( Bundespolizeidirektion ) assessed the lawfulness of the issuance of the barring and protection order against E. (under section 38a(6) of the Security Police Act). It found that the evidence showed “coherently and conclusively” ( klar widerspruchsfrei und schlüssig ) that E. had used violence against his family, and that the barring and protection order was therefore lawful. 33.     On 24 May 2012 at 9 a.m. E. went to the police station on his own initiative to enquire 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 everything to him, 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 had 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. The police noted in their report that E. did not exhibit any signs of potential for aggression while in the presence of the authorities. 34.     As a consequence of the above-mentioned questioning, additional charges were brought against E. for torment or neglect of under ‑ age, young or defenceless persons, under Article 92 of the Criminal Code. On 24   May 2012 the public prosecutor requested the St Pölten Regional Court to cross-examine ( kontradiktorische Vernehmung ) the applicant and her children, and requested that an expert in child psychology be involved. fatal shooting of the applicant’s son 35.     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 in respect of him immediately. A. was taken to the intensive care unit of the city hospital. 36.     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 and protection order was issued he had called 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, but only in the presence of their grandfather. 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 been planning to inform the teacher the following day, 26 May 2012, of her family problems. 37 .     The applicant’s counsellor from the Centre for Protection from Violence (see paragraphs 46 and 71 below) 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 being 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 had also met E. that morning and described him as “calm and polite”. 38 .     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. 39.     On 27 May 2012 A. succumbed to his injuries and died. official liability proceedings 40.     On 11 February 2014 the applicant instituted official liability proceedings. She contended 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 and protection 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. 41.     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 and protection order had been issued against E., which had required him to stay away from the family 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 and protection 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 obtain one. Moreover, after the issuance of the barring and protection 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 Regional Court considered it relevant that, a t the hearing, the applicant had herself admitted that the police might have had the impression that E. was cooperative and not aggressive. She told the court that her husband had been a good actor and could present himself well. To others he had always been very friendly and kind. She herself had always given him another chance when he showed remorse for his behaviour and promised to do better. 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 used as the ultima ratio . A less intrusive measure had been issued instead, namely the barring and protection order with respect to the applicant’s and her parents’ 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. 42.     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 higher 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 relevant measures under criminal law, which, in her specific situation, could only have meant detention. The barring and protection order as a “less intrusive measure” had not been sufficient as the police could not have extended it to cover the children’s school. 43.     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 homicide during divorce proceedings was not decisive. What mattered was whether at the relevant 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 and protection 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. 44 .     On 23 April 2015 the Supreme Court rejected an extraordinary appeal on points of law by the applicant. Its decision was served on the applicant’s counsel on 16 June 2015. RELEVANT LEGAL FRAMEWORK AND PRACTICE DOMESTIC LAW Barring and protection orders Provisions in force at the relevant time 45 .     Section 22(2) of the Security Police Act (entitled “Preventive protection of legally protected interests”), as in force at the relevant time, stated that “[t]he security authorities [had] to prevent dangerous attacks on life, health, freedom, morality, property or environment, if such attacks [were] likely.” In such cases, the police had an obligation to take appropriate and proportionate protective measures of their own motion if the persons who were attacked or otherwise endangered could not protect themselves. Section 22(3) of the Security Police Act provided that after a dangerous attack, the security authorities had to identify the relevant circumstances. As soon as a particular person was identified as a suspect, they had to act in the interests of the criminal justice system and apply the provisions of the Code of Criminal Procedure (see also Article 18 of the Code of Criminal Procedure). 46 .     Section 25 of the Security Police Act provides, under the title “Security Police advice”, that the authorities have a duty to prevent dangerous attacks on life, limb and property by various means and to promote projects which serve to prevent such attacks. Pursuant to section   25(3) of the Security Police Act, as in force at the relevant time, the Federal Minister of the Interior is authorised to contractually commission proven and suitable victim protection institutions to provide advice to victims of domestic violence. At the relevant time and in the case of the applicant, this task was fulfilled by the Centres for Protection from Violence (see paragraphs 16, 17 and 37 above and 71 below). 47.     Under section 38a of the Security Police Act (entitled “Barring and protection order” – Betretungsverbot und Wegweisung zum Schutz vor Gewalt ), as in force at the relevant time, the police were authorised to issue a barring and protection order against an alleged perpetrator of domestic violence, if it was to be expected that further violent acts might be committed by him or her. At the time of the material events, such barring and protection orders were limited to the home of the victim and the immediate vicinity, as well as other private places where the victim might regularly be, such as his or her parents’ home. 48 .     The relevant parts of section 38a of the Security Police Act, 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 is to be assumed that a dangerous attack on life, health or freedom is imminent, 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 subsection (1), the public security authorities are authorised to issue a barring and protection order, which is to be defined in accordance with subsection (1); however, the use of force to enforce this prohibition is not permitted. In the case of a ban prohibiting a person from returning to his or her own home, particular attention must be paid to whether such interference with that person’s private life is proportionate. Members of the police force ... are obliged to give [the person posing a threat] the opportunity ... to inform him or herself about where he or she can find alternative accommodation ... ... (4)     Members of the police force are ... obliged to inform the endangered person of the possibility of seeking 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 and protection order and must review it [as to its legality] within 48 hours ... (7)     The observance of a barring and protection order must be verified by the public security authorities at least once within the first three days of its entry into force. The barring and protection order shall end 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 ...” 49 .     When deciding on whether to issue a barring and protection order, the police carry out a danger assessment on the spot. 50.     According to statistics published by the Austrian Ministry of the Interior ( Innenministerium ), in 2012 the police issued 7,647 barring and protection orders under section 38a of the Security Police Act. 51.     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 and protection order issued under section 38a, subsection 2 ... shall be found to have committed an administrative offence and shall be punished by a fine of up to 500   euros, or up to two weeks’ imprisonment in the event of failure to pay.” Subsequent amendments in law and practice 52.     As a consequence of the instant case, section 38a of the Security Police Act was amended. From 1 September 2013, the police could also issue barring and protection orders in respect of schools and other childcare facilities attended by endangered children under the age of 14. The relevant parts of section 38a of the Security Police Act, as amended, 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, 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 also, if the endangered person is under the age of 14, 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 and protection order prohibiting a person from returning to his or her own home, it must be ensured in particular that such interference with the private life of the person affected is proportionate. ... ... (4)     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 [inform] (a)     the locally responsible child and youth welfare office for the purposes of section ... and (b)     the head of any institution for the purposes of subsection 1(2) above for which the ban has been imposed. ...” 53.     On 1 January 2020 section 38a of the Security Police Act was again amended. Barring and protection orders were supplemented by “no-contact orders” ( Annäherungsverbot ), which prohibit an alleged perpetrator of violence from approaching the endangered person(s) within a radius of 100   metres. Schools and other childcare facilities are no longer specifically mentioned, since the person posing a threat is in any event obliged to stay 100 metres away from an endangered child. Temporary restraining orders 54 .     Victims of violence also had the possibility of requesting the competent district court to issue temporary restraining orders under sections   382b and/or 382e of the Enforcement Act, with a maximum duration of six months and one year respectively. Such orders could be issued for any places deemed necessary in order to protect the victim from the alleged perpetrator – hence not only the home of the endangered person but also schools, workplaces and so on. 55 .     The relevant parts of section 382b of the Enforcement Act (entitled “Protection from violence in the home” – Schutz vor Gewalt in Wohnungen ) read as follows: “(1)     The c