TrustHLT/LaCour huggingface dataset:
GR3 (Government): From the statistics on temporary restraining orders and temporary injunctions from 2015 to 2019, it follows that roughly only 10% of the applications for such orders are dismissed.
GR3 (Government): In the same years, 382 applications were submitted without prior police intervention.
GR3 (Government): These numbers can also be assumed mutatis mutandis for 2012.
GR3 (Government): In addition, also based on statistical evidence, these injunctions could have been issued on the very day of the application or on the following day if necessary.
GR3 (Government): In urgent cases, the offender does not have to be heard.
GR3 (Government): In 2012, the court fee was around 10 euro.
GR3 (Government): In the meantime, all fees for such injunctions have been abolished.
GR3 (Government): Moreover, temporary restraining orders and temporary injunctions cannot only be filed on days of public court consultation, but on every working day during office hours.
GR3 (Government): Against this background, our position remains unchanged that the applicant has not exhausted all domestic remedies.
GR3 (Government): Allow me now to turn to question one of the court regarding the positive obligation under Article II of the Convention.
GR3 (Government): The barring order was issued ex officio on the 22nd of May, 2012, not only on the basis of the applicant's report made at 1 o'clock in the afternoon, but also after having recorded every accessible evidence.
GR3 (Government): The applicant's report to the police was handled by a female police officer who was an expert on and dedicated to handling cases of domestic violence.
GR3 (Government): The applicant was medically examined.
GR3 (Government): There were hematoma and scratches on the applicant's neck and chin, which were documented by means of pictures.
GR3 (Government): There was, however, no evidence that the alleged rape had occurred.
GR3 (Government): According to a standard procedure, an online query was made by the police in a central electronic database containing personal data of offenders, including reasons and extent of previous barring orders, temporary restraining orders, and temporary injunctions.
GR3 (Government): The public prosecutor ordered the husband and the applicant's children to be questioned immediately.
GR3 (Government): The husband accompanied the police voluntarily and was interrogated at the police station at 4 PM.
GR3 (Government): As a result of the interrogation, the police barring order was granted.
GR3 (Government): In the late afternoon of the same day, the police officer reported the case to the public prosecutor on duty and discussed the issue with him.
GR3 (Government): Thereupon, the public prosecutor on duty ordered the questioning of the two children and instituted criminal proceedings against the husband.
GR3 (Government): In the evening, the two children were questioned by a female police officer in a child-appropriate manner in their grandparents' apartment for 40 minutes.
GR3 (Government): The police also checked the registry of firearms, whether the husband had a gun at his disposal, with negative result.
GR3 (Government): In the late evening, the police officer reported extensively to the public prosecutor on duty about the questioning of the children, the interrogation of the husband, and the barring order, both in writing and orally.
GR3 (Government): The youth welfare services were subsequently informed.
GR3 (Government): Based on the applicant's report and the evidence obtained, the police officers and the prosecutors knew that the children were sometimes to a firearm because it can favor an escalation of the case.
GR3 (Government): Therefore, it had checked the registry of firearms and had no further indication that there was an immediate and real threat to their lives or a serious damage to their health.
GR3 (Government): Towards the police, the husband had been calm and cooperative, and his arguments in respect of the alleged rape were not implausible when he denied any violent behavior and threats.
GR3 (Government): The husband had never been aggressive in public.
GR3 (Government): Regarding the husband's violent attack in 2010 and the corresponding criminal conviction on probation, it was known to the authorities that he had not only adhered to the barring order, but also gone to hospital of his own accord to be treated for his mental problems.
GR3 (Government): There was no indication that the husband would not respect the barring order this time.
GR3 (Government): Last but not least, it was also of importance that the reported violence happened exclusively in the marital home.
GR3 (Government): There was no indication that the husband would act violently outside his home.
GR3 (Government): The applicant spent three days with her husband in their marital home without violent or aggressive episodes known to the authorities and was able to move freely and to leave the home.
GR3 (Government): In conclusion, the authorities were justified in assuming that both the danger known to them and the likely danger of future violence could be countered by a barring order regarding the marital home and that of the applicant's parents.
GR3 (Government): The facts known to the authorities indicated that the cycle of violence, which had been mainly directed against the applicant, would be broken for the time being.
GR3 (Government): We would also like to add that the barring order not only served the applicant's protection, but also the protection of her children, as is evident from the reasons given to include the flat of the applicant's parents, stating, since the endangered person and her children are staying there.
GR3 (Government): On 23 May 2012, the barring order was examined by the Federal Police Directorate, considered lawful and confirmed because the police had expressly taken into account the fact that the children were also endangered.
GR3 (Government): On 24 May 2012, the husband came to the police station once more, this time on his own initiative, to inquire whether he was allowed to contact his children.
GR3 (Government): He was immediately interviewed as an accused person and confessed that he had slapped his children from time to time.
GR3 (Government): This showed that the husband respected the barring order and suggested that the risk assessment of the authorities was correct and that the barring order was the adequate measure for this situation.
GR3 (Government): Last but not least, the police and the public prosecutors knew that the applicant was assisted by the protection center.
GR3 (Government): The center's work focuses on the security of the victim and the children.
GR3 (Government): Every assistance and intervention of the center is examined as to whether it enhances the victim's security as well as the security of the children.
GR3 (Government): On the basis of a comprehensive standardized risk assessment and security plans, the center elaborates options and solutions for detaching the victim from the violent relationship.
GR3 (Government): The victims are at liberty to decide whether they make use of the proposed options and solutions.
GR3 (Government): In the present case, the center and the applicant had agreed by telephone to draft an application for a temporary restraining order and temporary injunction on 25 May 2012.
GR3 (Government): President distinguished members of the court regarding the Osman Tesk of real and immediate risk in the context of domestic violence, we take the following view.
GR3 (Government): The present case makes the limits of feasible state precautions very clear.
GR3 (Government): Article 2 of the convention requires a display of due diligence in respect of preventive operational measures.
GR3 (Government): For such positive obligation to arise, it must 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 from the criminal acts of a third party.
GR3 (Government): This question can only be answered taking into account all circumstances of the particular case.
GR3 (Government): From the facts of the present case follows that the police and the public prosecutors acted promptly and targeted.
GR3 (Government): Immediately after the applicants reported to the police, they took evidence in every possible way.
GR3 (Government): Police and public prosecutor discussed the case on the basis of the information provided and the reliable facts available.
GR3 (Government): Subsequently, they made their decisions on the basis of their respective risk assessments.
GR3 (Government): Considering all circumstances and carefully balancing the available evidence, they concluded that there was neither a real nor an immediate risk to the children's and the applicants' lives for the time being.
GR3 (Government): Therefore, a barring order prohibiting the husband from returning to the marital home and to the applicant's parents' apartment was considered effective to break the cycle of violence.
GR3 (Government): We believe that in the present case, the Austrian authorities have carefully weighed all the interests and rights enshrined in the convention.
GR3 (Government): They have made every reasonable effort to protect the applicant and her children.
GR3 (Government): Our statistical data show that in the vast majority of cases, our protective system consisting of police barring orders and court-temporary restraining orders and temporary injunctions is, in combination with the proactive support by the protection centers, is effective.
GR3 (Government): As far as the second question of the court regarding the risk assessment is concerned, we have provided extensive information and material in our written observations and subsequent submissions.
GR3 (Government): We have shown that the methods used by the Austrian authorities cover the usual standardized risk assessment tools.
GR3 (Government): In the present case, the expert from the Competent Protection Center conducted a standardized risk assessment independently and based on a comprehensive set of facts, which with an outcome identical to that of the Austrian authorities.
GR3 (Government): After the murder on 25 May 2012, she stated repeatedly to the police that she had never imagined it possible that the husband would commit such a crime.
GR3 (Government): A sound result of a risk assessment requires an informed individual evaluation.
GR3 (Government): It cannot be replaced by the mechanical use of standardized risk assessment tools.
GR3 (Government): It is essential to have a well-trained staff able to check on a case-by-case basis the generally accepted factors and patterns, such as heavy alcohol use, controlling behavior, forced sexual activity, psychological violence.
GR3 (Government): Therefore, the Austrian authorities constantly display targeted training activities in general and in particular for violence prevention officers.
GR3 (Government): In the case at hand, one of the public prosecutors had worked for five months with a lawyer specialized in assisting victims.
GR3 (Government): As far as the third question of the court regarding the legal framework in force in 2012 is concerned, we have explained that the Austrian prevention system for the protection of victims provides not only for the arrest and pretrial detention, but also for ex officio police barring orders, as well as temporary restraining orders and temporary injunctions of the courts.
GR3 (Government): In addition, free assistance and support by independent protection centers are actively offered.
GR3 (Government): The police have the general duty to prevent dangerous attacks into alia on life, health, and liberty if such attacks are probable.
GR3 (Government): In such cases, the police have an obligation to take ex officio appropriate and proportionate protective measures if they attacked or otherwise endangered persons cannot protect themselves.
GR3 (Government): And this is to be found in section 22 of the Security Police Act.
GR3 (Government): They must issue a protective barring order if there is a relevant risk in a particular case.
GR3 (Government): This spares victims of domestic violence the burden of taking the initial steps necessary to break off the circle of violence.
GR3 (Government): In addition, the police have to inform the victim on all options provided by law.
GR3 (Government): Furthermore, they have to inform the competent protection center and, in the case of children, the youth welfare authority.
GR3 (Government): This system ensures quick interventions by the police as soon as they become aware of dangers in the context of domestic violence.
GR3 (Government): A barring order does not preclude the protection by courts through temporary restraining orders against violence in the home or temporary injunctions as general protection against violence.
GR3 (Government): Barring orders and court injunctions do not preclude the possibility of arrest or pretrial detention.
GR3 (Government): Whether a barring order or a temporary restraining order is a more lenient measure, avoiding detention depends on whether the detention's protective purposes can be achieved equally reliably by such measures.
GR3 (Government): The use of more lenient measures can only substitute detention if it can realistically and effectively make detention unnecessary.
GR3 (Government): In conformity with Article 5 of the Convention, arrest and detention in Austria are governed by Sections 170 and 173 of the Code of Criminal Procedure.
GR3 (Government): In the present case, there were no reasons for arrest and detention.
GR3 (Government): Apprehension in the acts of committing an offense risk that the offender will fly or go into hiding or risk of suppression of evidence were not applicable.
GR3 (Government): The risk of commission of an identical offense by the same offender against the same legally protected interest was examined carefully by the public prosecutor on the basis of all information available at the time, but could not be established.
GR3 (Government): Therefore, there was no legal ground for arresting the husband.
GR3 (Government): It was not possible for anybody to foresee what would happen three days later.
GR3 (Government): Since there was no legal ground for arresting the husband, the legal conditions for pretrial detention were not met.
GR3 (Government): Therefore, it was also not possible for the public prosecutor to order more lenient measures under Section 173 paragraph 5 of the Code of Criminal Procedure, such as a pledge to refrain from any contact with the victim.
GR3 (Government): As to the claims for compensation, we would like to point out that they seem to ignore the court's constant practice in awarding compensation for non-pecuniary damage in similar cases, which is far more moderate.
GR3 (Government): The same is true for claimed costs and expenses.
GR3 (Government): Here, I should like to close by referring once more to the written observations of the Republic of Austria, the motions therein are fully maintained.
GR3 (Government): To conclude, despite Austria's recognized record in combating violence against women and domestic violence, we are continuously evaluating and improving our system of protection against domestic violence.
GR3 (Government): Let me assure you that we take the respective recommendations from international treaty bodies and expert groups very seriously.
GR3 (Government): The tragic present case has triggered significant legal improvements.
GR3 (Government): Moreover, the Austrian government has committed itself to step up its efforts in the years to come.
GR3 (Government): However, we are convinced that back in 2012, the Austrian authorities have carefully weighed all the interests and rights enshrined in the Convention.
GR3 (Government): Thank you, Mr. President.
Robert Spano (JudgeP): Thank you very much indeed, Mr. Tichy.
Robert Spano (JudgeP): We now turn to the applicant.
Robert Spano (JudgeP): Ms. Aziz, you have the floor, please.
AP1 (Applicant): Mr. President, Honorable Judges,
AP1 (Applicant): it is an honor to appear before you today on behalf of the applicant, Mrs. Quart.
AP1 (Applicant): This case provides a key opportunity for the Grand Chamber to clarify and develop the jurisprudence of the court on the nature of the Osman test to be applied regarding the positive obligations to the authorities in cases of domestic violence concerning a threat to life and safety.
AP1 (Applicant): Domestic and intimate partner violence is a global phenomenon affecting more than 41 million women in the EU alone, as results from an EU-wide survey of the European Union Agency for Fundamental Rights showed.
AP1 (Applicant): In combating this problem, it is important to understand that domestic violence is a complex system of emotional dependency, humiliation, rejection, blame, financial dependency, isolation, coercion, and threats, as well as misusing children as leverage.
AP1 (Applicant): I could certainly, it could certainly be noted that there have been very positive developments within the case law of the court concerning domestic violence.
AP1 (Applicant): However, the reasoning provided by the Chamber below in the applicant's case undermines the progress made in the court's case law.
AP1 (Applicant): The Court's case law concerning domestic violence cases and creates uncertainty regarding the standards that should be followed in dealing with such cases.
AP1 (Applicant): Namely, the approach of the Chamber to some of the facts in the applicant's case was context-intensive in terms of overlooking the particularity of domestic violence, especially its tendency towards recurrence and escalation, as well as the resulting vulnerability of the victims.
AP1 (Applicant): Therefore, it is very important for the court to fully clarify its approach in those issues and take a strong stance on the standards to be followed in domestic violence cases, especially having in mind that its rulings are vital guidelines for national authorities in fulfilling their obligations under the Convention.
AP1 (Applicant): I will divide the pleadings into several parts to highlight the applicant's main arguments and answer also the questions of the court to the parties.
AP1 (Applicant): For the arguments in full details, I refer to the applicant's written submissions to the court as well as to the seven third-party submissions, which are fully endorsed by the applicant.
AP1 (Applicant): First of all, I will therefore address the issue of the applicant on the Ostman test in cases dealing with domestic violence.
AP1 (Applicant): As regards to the positive obligations to take preventive operational measures, the Chamber below followed the classical Ostman test and found that there had been no discernible real immediate risk to the children's lives.
AP1 (Applicant): However, the way the Ostman test was applied by the Chamber, contrasts with the approach adopted by the court in several other cases.
AP1 (Applicant): It needs to be taken into account that the classical Ostman test was established for incident type situations.
AP1 (Applicant): Cases of domestic violence are typically not incident-based, but involve ongoing abuses in the family.
AP1 (Applicant): The court has held that the risk of a real and immediate threat must be assessed, taking due account of the particular context of domestic violence, and above all, the recurrence of successive episodes within a family, rather than on taking into account single episodes of violence in an isolated manner.
AP1 (Applicant): As Equality Now, one of the third-party interveners, stated, the court has often taken a flexible case context, and a risk-driven approach to the key components of the Ostman test.
AP1 (Applicant): Notably, in each of the cases mentioned in the intervener submission, no specific threat was reported identifying either a victim, location, or method of harm.
AP1 (Applicant): Furthermore, in none of these cases was there separate evidence of specific imminence of the threat.
AP1 (Applicant): The intervener's opinion appears to have been satisfied with the realness of the threat, meaning a significant likelihood that the risk will materialize unless preventive measures are taken.
AP1 (Applicant): Also, it is important to note that access to the victim, not location, is the defining feature of where the violence occurs, as demonstrated also by several of the court's cases where sexual violence took place outside the home.
AP1 (Applicant): This means that the authority should know that an identified risk for children at home extends to other places, like in our case, the schools, once the perpetrator is spared from places where he previously had access to them, like their home.
AP1 (Applicant): Furthermore, it should be noted that the court has clearly recognized its role in combating gender-based violence and its underlying structural inequality, and that to do so, it must adopt the gender-sensitive interpretation of the Osman test that takes account of the context in which the threat in domestic violence cases materialize and the special diligence required to prevent escalation into fatal violence.
AP1 (Applicant): Since the applicant has already submitted detailed written information, allow me now to focus myself on the main arguments why the Austrian authorities have failed to fulfill their positive obligations to take preventive operational measures, showing clearly that first, the authorities could or should have known at the time that the applicant's husband posed a real and immediate risk to the boy's life, and that there were more serious measures to be taken, such as taking the perpetrator to pre-trial detention.
AP1 (Applicant): Second, that neither the Austrian Public Prosecutor's Office nor the Austrian police had a specific risk assessment tool, in particular, to assess lethal risk as required by Article 51 of the Istanbul Convention, and they still don't have any.
AP1 (Applicant): Third, that there was a lack of knowledge regarding the dynamics of violence, which led to wrong assumptions by the authorities.
AP1 (Applicant): Let me begin to point out that at the relevant time, the authorities had all information they needed to identify the lethal risk for the applicant's children.
AP1 (Applicant): The government claims in their observations that prior to the murder of the applicant's son, the Austrian authorities and courts had no information or indications from which they could have concluded that there was a real and immediate threat to the life of the applicant's children.
AP1 (Applicant): This claim is misleading.
AP1 (Applicant): Three days before the murder of her son, the applicant had reported her husband to the police for serious violent acts against her and her children, and she was not informed of the fact that the police had already arrested her, as well as making dangerous threats that he will kill the children in cases she leaves him.
AP1 (Applicant): Also, the applicant referred to several risk factors in the course of filing her police report by herself, namely the previous conviction in 2010 against the same legal protected good for causing bodily harm and dangerous threat.
AP1 (Applicant): The previous conviction in 2012, his resulting increased aggression, his non-acceptance of her wish to get a divorce, his ongoing threats to kill her and the children on a daily basis in case she leaves him, the increase in frequency and intensity of the violence, the recently announced divorce, and her resulting fear that her husband will be in serious threats since she now filed court on the very same day of the police report.
AP1 (Applicant): She expressly mentioned the protection of her children from her husband as a motive for filing the report.
AP1 (Applicant): And I would like to quote what she said in front of the police.
AP1 (Applicant): She said, I really am in great fear of my husband and for my children. I'm reporting these allegations now
AP1 (Applicant): because I want to protect my children from him.
AP1 (Applicant): Also, the children were questioned by the police.
AP1 (Applicant): 40 minutes we heard today.
AP1 (Applicant): And her son, who was murdered three days later, he said, when they are fighting, father always hits mother.