TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): Sometimes my mother has a purple cheek.
AP1 (Applicant): My father has hit me a lot of times.
AP1 (Applicant): He always slaps me several times in the face.
AP1 (Applicant): It has been going on for a long time.
AP1 (Applicant): Then my father slapped me 12 times in the face.
AP1 (Applicant): You could see the imprints on my cheek.
AP1 (Applicant): And he kicked my butt twice.
AP1 (Applicant): I am very afraid of my father because he always hits me and screams with me.
AP1 (Applicant): Then his little sister, she told the police, quote, father always takes pills when he's stressed.
AP1 (Applicant): When he's stressed, he hits us and the mother.
AP1 (Applicant): I'm afraid of my father because he hits me and he screams.
AP1 (Applicant): And then both children talked to the police and they said, mother is afraid of my father because he's stronger.
AP1 (Applicant): He always says mean things to her.
AP1 (Applicant): Everyone in the family is afraid of my father and he always takes pills.
AP1 (Applicant): Therefore, at the relevant time, the authorities had all information they needed to identify the risk.
AP1 (Applicant): In fact, the police should have been aware that all mentioned risk factors were serious signs for the heightened danger the applicant's husband posed, especially since the police explicitly pointed these factors out in the bearing order.
AP1 (Applicant): However, the bearing order only covered the family's home and the home of the applicant's parents.
AP1 (Applicant): The police failed to identify the children as endangered persons, despite their statements.
AP1 (Applicant): They were not mentioned as endangered persons in the bearing order, although all results of the investigation, and I can tell you it's the matching statements by the three victims, the documented injuries of the mother, the statements by the applicant's husband, which was not consistent with the investigation results, but was contradictory.
AP1 (Applicant): So all results at this time pointed to a serious risk for the children.
AP1 (Applicant): And to say the applicant herself seemed not to have been aware of the acute danger emanating from her husband in respect of the children is not only contrary to the facts, but it also tries to shift the responsibility principally placed on the state unto the applicant, a line of argument that was not only used by the chamber below, but also by the government of Austria and the observations as we could hear today.
AP1 (Applicant): Let me now refer to the risk assessment.
AP1 (Applicant): When issuing the bearing order, the police enumerated some risk factors.
AP1 (Applicant): However, these factors were not part of a specific system or a scientifically proven risk assessment tool.
AP1 (Applicant): All these risk factors listed in the bearing order were used by the police only with regard to the question of whether a bearing order should be imposed or not.
AP1 (Applicant): These risk factors were not taken into account in the decision on whether to impose pretrial detention or not.
AP1 (Applicant): As you can see in the annex 41, which I forwarded to the court, the bearing order listing the mentioned risk factors was not forwarded to the public prosecutor by the police.
AP1 (Applicant): And therefore, the risk factors were not taken into account when assessing the risk by the public prosecutor, the one who decides upon the pretrial detention.
AP1 (Applicant): Also, the decree of the Ministry of Justice from 2019, so it's a very new one, it shows that it was only in 2017 that it was agreed upon for all future cases of domestic violence that the police has to forward bearing orders to the public prosecutor's office from beginning of now.
AP1 (Applicant): This was not the standard procedure in 2012.
AP1 (Applicant): Up until now, I can say from my experience, it is not common practice despite the decree.
AP1 (Applicant): At the end of 2018 and beginning of 2019, we already heard there was an accumulation of femicides in Austria.
AP1 (Applicant): The number of femicides doubled in a few years.
AP1 (Applicant): Therefore, the government installed a screening group, which is very good, to analyze the murder and attempted murder cases in this period.
AP1 (Applicant): The experts came to the conclusion that the enforcement agents do not use a standardized tool, even regarding murder.
AP1 (Applicant): Also, it appeared that there is a reliance on the victim to actively provide all information.
AP1 (Applicant): Furthermore, there are risk factors that are never or hardly ever asked by the police, like for example, the access to firearms.
AP1 (Applicant): Also, the applicant was not explicitly asked by the police if her husband has access to a gun when interrogating her.
AP1 (Applicant): The police just had no indication, but they did not ask her.
AP1 (Applicant): If they had done so, she could have told them that her husband had repeatedly mentioned that a weapon was easy to find for him.
AP1 (Applicant): One call would be enough.
AP1 (Applicant): In fact, it took him only three days to organize one, as the murder was three days later.
AP1 (Applicant): Besides, he could have killed them with another weapon, a sharp knife from his Doner-K-Bab-Stahl, which he owned, or with his bare hands.
AP1 (Applicant): Also, we know that most murders in the family are done by using a knife, not a weapon.
AP1 (Applicant): So this is not the important point.
AP1 (Applicant): The researchers of this screening group propose the introduction of a risk assessment tool for law enforcement officers when intervening in cases of domestic violence.
AP1 (Applicant): I think this is a clear sign.
AP1 (Applicant): It's from 2019.
AP1 (Applicant): In summary, in assessing if a person's life is at risk and the perpetrator should be taken into pretrial detention, neither a standardized risk assessment tool designed for domestic violence nor any enumeration of specific risk factors is or was used by the public prosecutor's office.
AP1 (Applicant): But it is essential to point out that more important than the type of the chosen tool is the need to use it systematically and that the authorities also have a profound knowledge about domestic violence.
AP1 (Applicant): And there we come to the topic of the training of judges and prosecutors.
AP1 (Applicant): In 2019, the Austrian government initiated a task force called criminal law to improve the protection of victims.
AP1 (Applicant): 120 experts were invited to make the recommendations.
AP1 (Applicant): According to the results of this task force, the experts pointed out that there is a lack of understanding of domestic violence due to a lack of awareness in the professional training of prosecutors and judges.
AP1 (Applicant): This was in 2019.
AP1 (Applicant): They also stated, 120 experts, they stated acts of violence that are considered serious in other areas, they tend to be assessed less if they are committed just in the context of domestic violence.
AP1 (Applicant): The current range of seminars on the topic of violence against women and children or domestic violence is not sufficient to provide a comprehensive understanding of the diverse and complex issue involved.
AP1 (Applicant): This is a quote of the task force report.
AP1 (Applicant): Although it is very good to hear that the two female public prosecutors who were briefly involved in this case were trained in the field of domestic violence, as the government stated in their observations, we have to focus on the fact that the male public prosecutor, the one who decided on his own on the question of the pretrial detention, you can see his name in the annexes, it's a man, not the women.
AP1 (Applicant): He had not received any specific training in the field of domestic violence as the government admitted in their submissions.
AP1 (Applicant): So in the present case, the lack of knowledge regarding the dynamics of violence led to a serious misjudgment or various serious misjudgments.
AP1 (Applicant): First of all, the Austrian authorities failed to identify the children as endangered persons.
AP1 (Applicant): We already heard that in the bearing order.
AP1 (Applicant): As the third party interventions show, violent men know that the children are the most important for their partners, and they kill joint children in order to hurt their partners.
AP1 (Applicant): This is why the applicant's husband threatened to kill the children.
AP1 (Applicant): He wanted to hurt his wife.
AP1 (Applicant): The killing of a child is always an act of aggression against the woman too.
AP1 (Applicant): This is why any risk assessment must address systematically the risk, not only for the women concerned, but also for the joint children.
AP1 (Applicant): And the authorities involved must fulfill their obligation to protect the children on the slightest suspicion that they might be at risk.
AP1 (Applicant): In addition, as mentioned before with reference to the court's case law, the perpetrator has unique access to the victim and knowledge also about the victim's daily routine.
AP1 (Applicant): Although domestic violence often takes place at home, as this is the arena of control and access, however, access and not the location is a defining feature of where the violence occurs.
AP1 (Applicant): Since the perpetrator was banned from home, but not from school, as there were no bearing orders for schools at the time, he knew that he had access to his children there, so the risk was evident.
AP1 (Applicant): He knew where to find them.
AP1 (Applicant): Also due to a lack of knowledge regarding the dynamics of violence, the Austrian authorities underestimated the dangerous threats as indication of real danger.
AP1 (Applicant): As the third party interveners, most of them, show, it is regularly argued that the threatening person has often made threats in the past, and none of these has yet been carried out.
AP1 (Applicant): So did the chamber below, as well as the government.
AP1 (Applicant): According to the expertise of the third parties, this is incorrectly interpreted as a sign that the threats will not be carried out.
AP1 (Applicant): In fact, most of the homicides that are committed are preceded by threats.
AP1 (Applicant): Also due to a lack of knowledge regarding the dynamics of violence, but also due to a lack of knowledge concerning the psychology of victims and perpetrators, the Austrian authorities expected the applicant to be a perfect victim, who reports the crime immediately after the first insult, who always contacts the police when the husband shows his violent behavior, who documents all incidents and requests a temporary restraining order on herself on the same day as the bearing order.
AP1 (Applicant): This approach disregards the dynamics of domestic violence and the imbalance of power between men and women, often given in domestic violence situations, and the effect this has on the victim's behavior towards the outside world.
AP1 (Applicant): Not only was the applicant afraid of potential retaliation acts by her husband, but she was also ashamed of exposing their problems to the outside world, like, for example, to a pharmacist, as the government suggested she should have done on the weekend.
AP1 (Applicant): Furthermore, in the present case, the applicant did take a cut.
AP1 (Applicant): She did take actions.
AP1 (Applicant): On Monday, 21st of May, 2012, the first working day after the rape, the applicant contacted immediately her psychosocial counselor from the protection center, with whom she was in contact with since she had first reported her husband in 2010.
AP1 (Applicant): Together, they decided to find a way to break out of the violence and the relationship immediately after the last escalation of violence.
AP1 (Applicant): The next day, on Tuesday, 22nd May, the applicant, supported by her psychosocial counselor, of course, that helps a lot, took the first chance available to her and filed for divorce at the district court, right before she went to the police.
AP1 (Applicant): She told the divorce judge about the years of violence she had experienced and that her husband threatened to harm her and the children because he could not accept her leaving him.
AP1 (Applicant): The government's claim in the observation that children being at risk was not an issue when the applicant filed for divorce.
AP1 (Applicant): This is not correct.
AP1 (Applicant): As seen in the divorce file on Act 6, the applicant stated that her husband threatens to kill the children, so it was an issue, even in the divorce.
AP1 (Applicant): She had told the judge that she was in great fear and wanted her husband to be banned.
AP1 (Applicant): Despite these circumstances, and although the divorce judge would have been obliged to inform the applicant that she could file for a restraining order on the spot with her, the judge failed to do so.
AP1 (Applicant): Apart from that, the applicant herself set an appointment with her psychosocial counselor for Friday, 25th May, to prepare an application for such a temporary restraining order, but on the same day, her son was shot.
AP1 (Applicant): To say that the applicant herself probably became aware of the risk her husband posed to the children only gradually, as the government did in their observations, is therefore an outflow of unawareness of the dynamics of domestic violence.
AP1 (Applicant): Victims must be empowered.
AP1 (Applicant): They must not be left alone with the sole responsibility for their own security, often not even in a position to make use of all the protective measures.
AP1 (Applicant): In a situation like this, the responsibility to protect her lies with the authorities.
AP1 (Applicant): But in case of the applicant, she herself was made responsible by the authorities for not having done everything possible to prevent the murder of her own son, since she did not apply for a temporary restraining order in the three days before the murder.
AP1 (Applicant): But the judge did not help her, and also, there had been a long time for her left to do so.
AP1 (Applicant): As a third party intervention show, this phenomenon is known as victim blaming.
AP1 (Applicant): The victim does not have any responsibility for a renewed violence, which could even result in homicide.
AP1 (Applicant): And she must not be held responsible for not immediately requesting a temporary restraining order.
AP1 (Applicant): The perpetrator is always responsible for their own actions, and the state has the obligation to provide the best possible protection for the victims.
AP1 (Applicant): Also due to a lack of knowledge regarding the dynamics of violence, the authorities came to the conclusion that the applicant's husband posed no threat to the members of his family, because he had presented himself as calm, polite, and cooperative.
AP1 (Applicant): According to the third party interveners, this constitutes a grave error.
AP1 (Applicant): A closer analysis with the perpetrators shows that they often appear to be very adapted and controlled to the outside world, and can accept subordination to the authorities, like to the police.
AP1 (Applicant): But this does not, this does on no account mean that they are not dangerous.
AP1 (Applicant): In the microcosm of the family, they maintain their power over the partners with violence.
AP1 (Applicant): The assessment of the level of risk or danger cannot depend on whether the perpetrator presents themselves as aggressive or as cooperative to the officers carrying out the investigation.
AP1 (Applicant): Otherwise, the arrest or placing under pretrial detention would always be dependent on how well an accused person manages to sell himself.
AP1 (Applicant): Also the fact that the applicant's husband contradicted himself again and again in his statement should have shown the authorities that he's not trustworthy.
AP1 (Applicant): And finally, I wanted to point out that the Austrian authorities are also of the opinion that in applying for a restraining order can provide adequate protection in cases of severe violence and threat.
AP1 (Applicant): As the third party interventions show, it often takes one or two weeks before a restraining order is actually issued.
AP1 (Applicant): It thus does not enable the immediate protection of victims.
AP1 (Applicant): In any case, as repeated homicide cases show, as the CEDAW cases in Austria, protection orders by the police or civil court are not strong and effective enough to prevent murder and should not be used instead of pretrial detention.
AP1 (Applicant): In practice, however, the protection against violent centers reports ever and ever again cases in which women have been killed despite the issuing of a police bearing order to enter the home.
AP1 (Applicant): And also according to Graveo, even in cases of severe violence and threat where a woman and her children are clearly at risk, the prosecution services rely on a civil law protection order to ensure their safety rather than opting for a pretrial detention.
AP1 (Applicant): So this is why Graveo held in this connection that the authorities should step up measures to assess the real risk of re-offending in domestic violence cases in order to make more appropriate use of pretrial detention where warranted.
AP1 (Applicant): In replying to Graveo's findings, it's very interesting the Austrian government recognized the need to further improve assessment.
AP1 (Applicant): So now finally, I would like to respond to the court's questions concerning women's shelters.
AP1 (Applicant): There was a question about that.
AP1 (Applicant): The applicant is not aware of any legal regulation in which cases victims of domestic violence are advised to move into a woman's shelter by the police, especially in 2012.
AP1 (Applicant): It should be noted, however, that even if the applicant had moved to a woman's shelter with her children, her husband would have caught her son at school and killed him anyway.
AP1 (Applicant): Due to compulsory school attendance, the children would nevertheless have continued to go to the same school, regardless of whether they stay at home with their grandparents or in a woman's shelter.
AP1 (Applicant): Also, the woman's shelters is not equipped with the necessary personal and financial resources to provide protection outside the shelter.
AP1 (Applicant): In 2013, a woman was even stabbed to death in front of a woman's shelter in Vienna on the brightest day on the open street in front of the door of the woman's shelter.
AP1 (Applicant): In view of the short time regarding the violation of Article 3, 8, and 14, as well as the claims for compensation, I would like to refer to the written statements.
AP1 (Applicant): And let me close my pleadings by saying that legal uncertainty regarding the standards to be applied when protecting victims of domestic violence can lead to a decline in the level of protection the state affords them.
AP1 (Applicant): The gender's judgment below has caused such uncertainty since it was in contradiction to the standards set in Talpis and stood in sharp contrast to the judgment Bolodina delivered only a few days later.
AP1 (Applicant): A negative development can already be observed in Austria.
AP1 (Applicant): The legislation allowing for bearing orders, including schools of endangered children, that was adopted in 2013 following the murder of the applicant's son, was already abolished again in 2019.
AP1 (Applicant): There are no bearing orders anymore for schools, but rather a ban on the child.
AP1 (Applicant): So it's up to the child to call the police and tell the police, my father, the perpetrator, is standing in front of my school.
AP1 (Applicant): Please bring him away.
AP1 (Applicant): I hope that the Grand Chamber will set the record straight and hold the government of Austria account and therefore affect the protection of victims of lethal domestic violence.
Robert Spano (JudgeP): Thank you very much indeed, and I thank both parties for their submissions.
Robert Spano (JudgeP): I confirm that both audio and video was clear and acceptable.
Robert Spano (JudgeP): I now turn to my fellow colleagues.
Robert Spano (JudgeP): Judge Pavli, please, for your question.
Darian Pavli (Judge): Can you hear me okay?
Darian Pavli (Judge): Yes.
Darian Pavli (Judge): I have two questions that are addressed to both sides, two legal questions, and then a factual question for the government.
Darian Pavli (Judge): The first legal question is about protection at school.
Darian Pavli (Judge): Now, both sides have placed some emphasis on this issue, the applicants arguing that it was not possible to extend the barring order, the police barring order, immediately to the school, and the argument arguing on the other side, conversely, that the applicant could have applied for a judicial temporary protection order which would apply to the school and that they did not do that.
Darian Pavli (Judge): My question is the following.
Darian Pavli (Judge): Both of those positions assume that a barring order or a protection order of some sort covering the school would provide adequate protection in the circumstances.
Darian Pavli (Judge): And my question is, why do you assume that?
Darian Pavli (Judge): Why do you assume that a legal order would prevent a father in a mental situation, in an emotional situation, who is prepared to kill his own children?
Darian Pavli (Judge): My second question goes to the relationship between Article 2 and Article 5 of the Convention.
Darian Pavli (Judge): Now, I am aware, if I understand correctly today, from the government submissions, that the government's case rests on the argument that no real and immediate threat was discernible to the authorities at the time, at least with respect to the children.
Darian Pavli (Judge): But please, for the sake of argument, let's assume that a real and immediate threat was discernible, but at the same time, that legal national conditions for detaining the husband were not met.
Darian Pavli (Judge): And so, in a way, let's assume that a case like this fell somewhere in the middle.
Darian Pavli (Judge): And my question is, what would the Article 2 obligations of the government be in that situation, when there is a threat, but not enough to meet the detention standard, or any restriction of liberty of the alleged threat, source of the threat?
Darian Pavli (Judge): My final question is for the government, but the applicant is, of course, welcome to comment.
Darian Pavli (Judge): If I understood correctly, government's counsel today argued that at the time of the issuing of the barring order, the police did use some form of standardized risk assessment.
Darian Pavli (Judge): And my question is, what was the standard?
Darian Pavli (Judge): On what kind of standard, whether nationally developed or internationally developed and widely recognized standard that risk assessment was based?
Darian Pavli (Judge): And if you could also comment, this is related, on a recent submission by the applicant on 12th of June, so about a week ago.
Darian Pavli (Judge): The applicant submitted an Annex 43.
Darian Pavli (Judge): It's an article from the Journal of Police Science and Police Practice, 2015.
Darian Pavli (Judge): And this article describes that after the events in this case, so sometime between late 2013 and June 2014, the Austrian authorities developed and tested a risk assessment tool known as SALFAG.
Darian Pavli (Judge): It was tested in three provinces, in Vienna, Upper Austria, and Vorarlberg, but that it was then decided not to roll it out nationally and is not in use currently.
Darian Pavli (Judge): And according to the author of this article, the main reason for that is that it would add about 10 to 15 minutes of time to the consideration of cases of this nature by the police.
Darian Pavli (Judge): And so if you could please be so kind to comment on whether this article is correct in its assertions.
Robert Spano (JudgeP): Thank you very much indeed, Judge Lemmens.
Paul Lemmens (Judge): I would like to follow up somewhat on the first question that my colleague just asked.
Paul Lemmens (Judge): There was a barring order here in this case, and it applied to the homes.