Duty to Deter Unlawful Killing
States must put in place arrangements to deter unlawful killing. In Kilic v Turkey the applicant’s siblings had disappeared and it was alleged that members of the security forces had been involved or were complicit. The European Court held that civilians associated with Kurdish separatism had been subject to serious attacks and threats including possibly from members of the security force.
Emergency laws had cut across the framework of criminal laws et cetera. Powers had been delegated and there was a lack of accountability of members of the security forces. The state had failed to put in place effective measures to deter against unlawful killings.
In Osman v UK the applicant’s family had been targeted by a dangerous stalker who ultimately killed a family member. The state had a duty to police and if it had known of the existence of a real and immediate threat it would have been obliged to take measures within its powers to obviate the risk. This was not the case in the particular circumstances.
Domestic Violence I
In Opuz v Turkey the applicant’s mother had not been protected by the Turkish authorities from a known and immediate risk from domestic violence. The murder victim had given specific notice to the police of an immediate danger to her life. Some general policing steps were taken but nothing was done to avert the immediate threat to her life. The court indicated that once the situation has been brought to their attention the national authorities cannot rely on the victim’s apparently quiescent attitude as an excuse for failing to take adequate measures which could prevent the likelihood of an aggressor carrying out his threats against the physical integrity of the victim.
In Branko v Croatia the state was responsible where a dangerous prisoner who specifically threatened members of his family was released prematurely. There was no proper or adequate psychiatric assessment of the risk in circumstances where he had specifically and repeatedly threatened to kill himself, his spouse and children.
Kurt v. Austria 2021 (Grand Chamber) concerned the applicant’s complaint that the Austrian authorities had failed to protect her and her children from her violent husband, which had resulted in his murdering their son. The Court held that there had been no violation of Article 2 (right to life) of the Convention in the present case. It found that the Austrian authorities had displayed the required special diligence in responding swiftly to the applicant’s allegations of domestic violence and in taking due account of the specific domestic violence context of the case.
Y and Others v. Bulgaria 2022 The applicants in this case were the mother and daughters of a woman who was shot dead in a café in Sofia by her husband just after leaving the district prosecutor’s office to complain that he owned a handgun and she feared for her life. She had made several similar complaints in the years and months leading up to the killing concerning her husband’s angry, violent and obsessive attitude towards her. The Court held that there had been a violation of Article 2 (right to life) of the Convention. It found, in particular, that the authorities had failed to respond promptly to the credible complaints of the applicants’ close relative and to carry out a proper assessment of the risk to her in view of the specific context and dynamics of domestic violence.
Domestic Violence II
Civek v. Turkey 2016 case concerned the murder of the applicants’ mother by their father. The applicants complained in particular that the Turkish authorities had failed in their obligation to protect their mother’s life. The Court held that there had been a violation of Article 2 (right to life) of the Convention. It found, in particular, that even though the Turkish authorities had been informed of the genuine and serious threat to the applicants’ mother’s life and despite her continued complaints of threats and harassment, they had failed to take the measures reasonably available to them in order to prevent her being murdered by her husband.
Talpis v. Italy concerned the conjugal violence suffered by the applicant, which resulted in the murder of her son and her own attempted murder.
The Court held that there had been a violation of Article 2 (right to life) of the Convention on account of the murder of the applicant’s son and her own attempted murder. It found, in particular, that by failing to take prompt action on the complaint lodged by the applicant, the Italian authorities had deprived that complaint of any effect, creating a situation of impunity conducive to the recurrence of the acts of violence, which had then led to the attempted murder of the applicant and the death of her son. The authorities had therefore failed in their obligation to protect the lives of the persons concerned. The Court also held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention on account of the failure of the authorities in their obligation to protect the applicant against acts of domestic violence.
Tërshana v. Albania concerned an acid attack on the applicant in 2009. The applicant suspected that her former husband, whom she accused of domestic violence, was behind the attack The Court held that there had been no violation of Article 2 (right to life) of the Convention in its substantial aspect, finding that the Albanian State could not be held responsible for the attack. It noted in particular that, if the State had been aware of a risk to the applicant, it would have been its duty to take preventive measures.
In Keenan v UK, the European Court held that the police and prison authorities owe a duty to vulnerable persons in custody who have a real and immediate risk of committing suicide. In the circumstances, the authorities had acted reasonably.
The police and security authorities owe duties to persons in custody, in particular those who need medical attention or have particular needs. In Jasinskis v Latvia the police were aware of a person’s disability and after he fell and hit his head, they should have taken steps sooner to seek medical attention. This violated Article 2.
In Reynolds v UK it was found that it was arguable that the authorities had failed to take reasonable steps to protect against a real and immediate danger of suicide. The duty will arise in particular where the authorities are on notice of a suicide risk.
Renolde v. France 2008 This case concerned the placement for forty-five days and the suicide in a disciplinary cell of the applicant’s brother who was suffering from acute psychotic disorders capable of resulting in self-harm.
Despite a previous suicide attempt and the diagnosis of the applicant’s brother’s mental condition, there had not been a discussion of whether he should be admitted to a psychiatric institution. Further, the lack of supervision of his daily taking of medication had played a part in his death. In the circumstances of the case, the Court found that the authorities had failed to comply with their positive obligations to protect the applicant’s brother’s right to life, in violation of Article 2 (right to life) of the Convention.
The Court further held that there had been a violation of Article 3 (prohibition of inhuman or degrading punishment or treatment) of the Convention, because of the severity of the disciplinary punishment imposed on the applicant’s brother, which was liable to break his physical and moral resistance. He had been suffering from anguish and distress at the time. Indeed, eight days before his death his condition had so concerned his lawyer that she had immediately asked the investigating judge to order a psychiatric assessment of his fitness for detention in a punishment cell.
The penalty imposed on the applicant’s brother was, therefore, not compatible with the standard of treatment required in respect of a mentally ill person and constituted inhuman and degrading treatment and punishment.
Other Suicide Risk
In Mammadov v Azerbaijan a woman had committed suicide by setting fire to herself in circumstances where police conducted an operation in a building in which he was unlawfully residing. The police could not have foreseen this, but the court indicated that once the risk became clear the obligation was to take steps to mitigate the risk that arose.
Durmaz v. Turkey The applicant’s daughter died in hospital after her husband had taken her to the emergency department, informing the doctors that she had taken an overdose of medicines. When questioned by the police, he also stated that the couple had had a row on the same day and he had hit her. The Court held that there had been a violation of Article 2 (right to life) of the Convention in its procedural aspect on account of the Turkish authorities’ failure to carry out an effective investigation into the death of the applicant’s daughter..