TrustHLT/LaCour huggingface dataset:
Paul Lemmens (Judge): It would have been possible under the law to obtain a temporary restraining order, but as I understand it, it would still apply to the homes, but could be for a longer period of time.
Paul Lemmens (Judge): And there would also be a possibility of obtaining a temporary injunction, and that could be extended then to other places, including the school.
Paul Lemmens (Judge): My question is, to what degree is that a more effective protection, not only for the reason that my colleague asked, namely that it is another legal act, but why would it not be possible for a violent husband to kill a person outside the places that are mentioned in all of these orders?
Paul Lemmens (Judge): We are concentrating on the school because the murder happened there, but would it not have been possible to find another place to kill the children?
Robert Spano (JudgeP): Thank you very much, Judge Kucsko-Stadlmayer.
Gabriele Kucsko-Stadlmayer (Judge): Thank you, Mr. President.
Gabriele Kucsko-Stadlmayer (Judge): I have questions to both parties, and I start with the applicants.
Gabriele Kucsko-Stadlmayer (Judge): First, I recall the sequence of events.
Gabriele Kucsko-Stadlmayer (Judge): The applicant reported her husband to the police on 22nd May 2012, 1.05 PM.
Gabriele Kucsko-Stadlmayer (Judge): The tragic murder was, as you all know, committed on 25th May by 8.10 AM,
Gabriele Kucsko-Stadlmayer (Judge): a bit less than three days later.
Gabriele Kucsko-Stadlmayer (Judge): Now, at what point during these three days do you think the police authorities should have become aware that the applicant's husband was a danger to her children, even in their school, and that it was not sufficient to bar him from the common flat already on 22nd May, 1.05 PM,
Gabriele Kucsko-Stadlmayer (Judge): or at a later moment?
Gabriele Kucsko-Stadlmayer (Judge): And I ask this because the applicant said in her police interview immediately after the murder on 25th May that she knew, and I quote, she knew that something like this would happen.
Gabriele Kucsko-Stadlmayer (Judge): And she added that for the last two days, this means on 23rd and 24th May, her husband, and I quote again, had called her several times a day because he always wanted to meet her and the children together.
Gabriele Kucsko-Stadlmayer (Judge): Why did the applicant not report these frequent phone calls to the police?
Gabriele Kucsko-Stadlmayer (Judge): And another question, did she tell her consultant from the Center for Protection from Violence about these phone calls?
Gabriele Kucsko-Stadlmayer (Judge): And I remind you that this consultant, immediately after the murder, stated explicitly that she, and I quote, the consultant, had never expected the applicant's husband to commit such an act.
Gabriele Kucsko-Stadlmayer (Judge): This does not quite match.
Gabriele Kucsko-Stadlmayer (Judge): And my question to the government are, the applicant instituted state liability proceedings in 2014, and her claim was, as you are all aware, that the public prosecutor's office should have requested that her husband be held in pretrial detention.
Gabriele Kucsko-Stadlmayer (Judge): Now, my question, on the evening of 22nd May, when the public prosecutor decided not to take the applicant's husband into pretrial detention, he acted on the basis of various police reports that he had received by email in the late evening of the same day, including the applicant's witness statement.
Gabriele Kucsko-Stadlmayer (Judge): Now, was this sufficient information for the public prosecutor's decision on pretrial detention?
Gabriele Kucsko-Stadlmayer (Judge): Or should he have interviewed the applicant right away, for instance, on the next day?
Gabriele Kucsko-Stadlmayer (Judge): Would this have changed the prosecutor's assessment concerning pretrial detention?
Gabriele Kucsko-Stadlmayer (Judge): And what is the general law and practice in such cases?
Gabriele Kucsko-Stadlmayer (Judge): And my last question, following up to what I asked the applicant, if the public prosecutor had known that the applicant had received frequent phone calls by her husband on 23rd and 24th May, and his wish to see his wife and children urgently, could this have changed their mind with regard to the necessity of pretrial detention?
Gabriele Kucsko-Stadlmayer (Judge): Thank you.
Robert Spano (JudgeP): Thank you very much indeed, Judge Koskelo.
Pauliine Koskelo (Judge): Thank you very much.
Pauliine Koskelo (Judge): I understand from the applicant's written and oral submissions that the applicant is advocating more frequent recourse to detention of the alleged perpetrator in the context of domestic violence for the purposes of effective prevention.
Pauliine Koskelo (Judge): I would like you to comment on how this position would accord with the provisions and the standards that are applicable under Article 5 of the Convention.
Pauliine Koskelo (Judge): And in particular, are you actually suggesting or implying that the court should review and reconsider the current interpretation of the provisions governing detention under Article 5?
Pauliine Koskelo (Judge): Of course, the government is also welcome to comment on this issue.
Pauliine Koskelo (Judge): And in this context also, I would be curious to hear your comments about how effectively an increased recourse to detention would actually ensure effective deterrence, because detention cannot be indefinite.
Pauliine Koskelo (Judge): So is there a risk that even detention would actually postpone further acts rather than effectively prevent them?
Pauliine Koskelo (Judge): Thank you.
Robert Spano (JudgeP): Vice President Turković.
Ksenija Turković (Judge): We have in our file that actually the husband has been convicted of bodily harm and dangerous threatening behavior just one year before the incident and actually he got three months imprisonment that was suspended for three years with probation and what he has done he actually has done during the probation period.
Ksenija Turković (Judge): And I'm not sure, we have heard that discussions around the bearing order and that he never violated the bearing order but actually he violated the conditions of the suspended sentence.
Ksenija Turković (Judge): So if you could explain to what extent in which way domestic authorities are actually obliged to take that into consideration when they are deciding upon the imposing pretrial detention or bearing orders or any kinds of restraint related.
Ksenija Turković (Judge): Second question that I have is related to the last part of the Osman test which says which judge reasonably might have been expected to avoid that risk.
Ksenija Turković (Judge): Reasonably might have been expected to avoid that risk.
Ksenija Turković (Judge): So what is the causal link or should be the causal link between what has happened and of what could have prevented.
Ksenija Turković (Judge): How closely that has to be connected.
Robert Spano (JudgeP): Thank you very much, Judge Felici.
Gilberto Felici (Judge): Thank you, Mr. President.
Gilberto Felici (Judge): But Judge Turković just quoted in his first question my question, so I'm satisfied.
Gilberto Felici (Judge): Thank you.
Robert Spano (JudgeP): George Poláčková.
Alena Poláčková (Judge): Thank you very much. I have only one factual question concerning the applicant.
Alena Poláčková (Judge): I don't want to blame the victim. I know that they are in a very, very difficult position.
Alena Poláčková (Judge): But I wonder if I'm not mistaken, I didn't find in the statement of facts any note regarding the character, the temper and aggressive behavior of husband towards her and her children.
Alena Poláčková (Judge): And on the other side, his very polite attitude towards the others.
Alena Poláčková (Judge): So I would like to ask why, if she was able, the applicant, if she was able to report her husband to the police on Tuesday, 22nd May 2012, and she was able to speak about really very, very awkward situation, very intimate, etc., etc., why she did not mention also this fact?
Alena Poláčková (Judge): Thank you very much.
Robert Spano (JudgeP): Judge Elósegui?
María Elósegui (Judge): I have only some factual question for the applicant and also for the government.
María Elósegui (Judge): It's about culture.
María Elósegui (Judge): The government has said that in the victims, the violence, domestic violence, there is also some advice related with the cultural backgrounds.
María Elósegui (Judge): Then I want to know if in this case, that's for the government, this advice was done.
María Elósegui (Judge): And for the applicant also, I want to know how many years the applicant was living in Austria.
María Elósegui (Judge): She was born there or not, how she manages in German, and what was the level of studies and her job.
María Elósegui (Judge): That's quite factual.
Robert Spano (JudgeP): There are no further questions.
Robert Spano (JudgeP): We will now suspend the hearing until 11.45,
Robert Spano (JudgeP): so for just over 25 minutes.
Robert Spano (JudgeP): We will then come back for the answers of the parties.
Robert Spano (JudgeP): So the hearing is suspended.
Robert Spano (JudgeP): Good morning again.
Robert Spano (JudgeP): I call Mr. Tichy for the government.
GR3 (Government): Thank you, President.
GR3 (Government): We have carefully prepared answers to the questions.
GR3 (Government): And as to the first set of questions, I would like to give the floor to my colleague from the Ministry of Justice, Mr. Pesendorfer.
GR1 (Government): President, distinguished members of the court, I would like to respond to the questions by judges Pavey and Lemons, recording the protection through temporary injunctions.
GR1 (Government): Let me give you a quick overview on temporary restraining orders in Austria.
GR1 (Government): With such an order, a person can apply for protection from violence in homes.
GR1 (Government): But you can also apply for a prohibition of contact in any form with the applicant.
GR1 (Government): And you can apply for a prohibition on entering other places than the home.
GR1 (Government): And since last year, you can apply also for a prohibition on approaching the applicant closer than a prescribed distance.
GR1 (Government): In this case, there was a great opportunity that the court would have immediately delivered a decision on an application by the applicant to issue a temporary restraining order or a temporary injunction pursuant to section 382E of the Enforcement Act covering a children's school.
GR1 (Government): In urgent matters, the court has to decide without delay.
GR1 (Government): The applicant showed up at court when filing for divorce with her counselor.
GR1 (Government): The judge dealing with the divorce file is the same judge that is competent in matters regarding the violence thing.
GR1 (Government): The protection through such a temporary restraining order could not take any risk.
GR1 (Government): But it would and it could minimize the risk to a minimum.
GR1 (Government): The respondent, and let me point it out, obeyed to the barring order in 2010.
GR1 (Government): And he did so in 2012 as well because he did not enter the home of the family or the home of the grandparents of the children.
GR1 (Government): If a temporary restraining order would have been delivered, also the school would have been, also the school and the teachers would have been informed of this order, especially by the applicant or also by the counselor of the protection center.
GR1 (Government): In this case, the teacher would not have handed over the children to their father.
GR1 (Government): And also because of the possible prohibition to contact his children, it can be assumed that the respondent would not have contacted his children and that he would have obeyed to this order.
GR3 (Government): I thank my colleague from the Ministry of Justice and I would now like to...
GR3 (Government): Minister of Interior, Mr. Andre, please, you have the floor.
GR2 (Government): Thank you, President.
GR2 (Government): Distinguished members of the court, I would like to answer to the question of Judge Pavli concerning the danger management and the tool so-called SALFAC was also mentioned in annex 43, the applicant sent to the court.
GR2 (Government): Following our written observations, I would like to point out that the risk assessment is concerned.
GR2 (Government): We have provided information and material for this in our written observations and as standards in the police work, in the report from the police to the public prosecutor, also all the facts in risk assessment are written down.
GR2 (Government): It's always the role of the police is to make this danger management because the task of the security police act, the task for the especially the prevention protection has always to be based on certain facts.
GR2 (Government): Then the police officers have to do their danger management.
GR2 (Government): And so we use always over the years a lot of tools and a lot of measures.
GR2 (Government): And one was SALFAC, it was concept paged by the Austrian Minister of the Interior, especially by the Department for Psychological Measures.
GR2 (Government): And we tested this system in some provinces.
GR2 (Government): And now, after that, this risk assessment and danger management tools are also under evaluation as others and everything comes to the formula for the...
Robert Spano (JudgeP): Mr. Andre?
Robert Spano (JudgeP): Mr. Andre, may I stop you just for a minute?
Robert Spano (JudgeP): Is the applicant having problems listening?
AP2 (Applicant): No.
Robert Spano (JudgeP): Okay, good.
Robert Spano (JudgeP): Please continue, Mr. Andre.
Robert Spano (JudgeP): Sorry for that.
GR2 (Government): So, yes, that was my answer.
GR2 (Government): So this is always an evaluation of these tools.
GR3 (Government): Mr. President, distinguished members of the court,
GR3 (Government): let me now try to reply to some other questions.
GR3 (Government): There is the question of Judge Kuzco-Stadelmayer about the interview not held by the public prosecutor when he became active.
GR3 (Government): And the question was why he did not immediately interview the husband.
GR3 (Government): The answer to this is that it was not felt necessary.
GR3 (Government): The public prosecutor disposed of all the relevant information.
GR3 (Government): As we have told the court, there have been intense discussions, repeated discussions, between the police and the public prosecutor.
GR3 (Government): So at that time of the procedure, it was not necessary for the public prosecutor to have an immediate interview with the husband.
GR3 (Government): Let me now also come to a question posed by Judge Turkovich about the fact that the husband once again became criminally active during the probation period and whether this had any consequences under Austrian law.
GR3 (Government): I can tell you that, of course, the authorities were aware of this fact.
GR3 (Government): It was part of their assessment, of their risk assessment in this particular case.
GR3 (Government): It is not the case in Austrian law that if you commit further crime during a probation period that you are immediately re-arrested.
GR3 (Government): So in that case, that was not felt necessary.
GR3 (Government): There is no automatic re-imprisonment.
GR3 (Government): But all the circumstances are taken into consideration in the special risk assessment that is taken in this moment.
GR3 (Government): There was also a question by Judge Turkovich about the causal link between the various episodes that had happened.
GR3 (Government): And here, we have to say once again that the authorities at the decisive time were only aware of one previous episode.
GR3 (Government): That is the one of 2010.
GR3 (Government): And so this was taken into consideration.
GR3 (Government): But it was only one previous episode.
GR3 (Government): Now, finally, a couple of questions related to Article V of the European Convention.
GR3 (Government): And here, I have to say that, of course, we are very careful with implementing Article V of the European Convention.
GR3 (Government): And we are very careful with putting people into detention.
GR3 (Government): We are now here in a case relating to Article II.
GR3 (Government): If we were less careful with Article V, I think we would find ourselves very often in front of this distinguished court with Article V cases.
GR3 (Government): So we very carefully examine in each individual case the reasons for detention, as was done in this case.
GR3 (Government): And with all the available information, it was not reasonably possible for the authorities at the time to, ah, I hear myself again, at the time to assume and be sure that there was a risk of a repetition of the same crime.
GR3 (Government): Now, Article V is a very, very important provision.
GR3 (Government): And as I said, we are very careful in applying it.
GR3 (Government): We rely in this context, in particular, on the Sadi judgment of your court, which says that the detention of an individual is such a serious measure that it is justified only as a last resort where other, less severe measures have been considered and found to be insufficient to safeguard the individual or public interest which might require that the person concerned be detained.
GR3 (Government): So it is a measure of last resort and in the very careful assessment of the Austrian authorities at the time.
GR3 (Government): And with all the knowledge they had of the case at the time, it was not felt necessary to detain the husband.
GR3 (Government): Now, my final words are also a comment on what we have heard in the intervention of the representative of the applicant.
GR3 (Government): We have heard a lot of things that are now, unfortunately, known with hindsight.
GR3 (Government): But what is the decision the court has to take here at the moment?
GR3 (Government): It is the question, what could have reasonably been done by the Austrian authorities at the time with the knowledge they have had at the time?
GR3 (Government): And I think we have illustrated that they have had a lot of information, that have used this information.
GR3 (Government): But it was not to be expected that in this particular case, the husband would go to the school and kill his son.
GR3 (Government): It was not part of something the authorities could reasonably have known, not something that they should have known, because it was impossible.
GR3 (Government): And our strong argument in this context is that, although our authorities are well-trained and well-informed about these things, the special experts from the Centers against Violence of Women and Domestic Violence, these experts involved, they came to the same result as the Austrian authorities.
GR3 (Government): And I have mentioned in my statement that after the murder, the lady from the intervention center, and she repeatedly said to the police that she had never imagined it possible that the husband would commit such a crime that he would go to the school and kill his son.
GR3 (Government): This, President, distinguished members of the court, brings me to the end of the presentation of the Austrian case and the position of the Austrian government regarding this case.
GR3 (Government): And with all we have heard also today, and with all the arguments we have brought to the attention of the court, we now respectfully request the Grand Chamber to uphold the judgment of the chamber.
GR3 (Government): Thank you very much.
Robert Spano (JudgeP): We now turn to the representative of the applicant, Ms. Aziz.
AP1 (Applicant): Thank you very much, Mr. President, honourable judges.
AP1 (Applicant): I would turn now to Judge Pavli's question.
AP1 (Applicant): If a risk at school would have been discernible to the authorities, they could have taken away the easy access of the perpetrator to them and therefore make it more complicated to reach the children and to harm them.
AP1 (Applicant): In addition, especially in regard to children, all relevant contact persons, for example the teachers, should have been informed of the danger.
AP1 (Applicant): Also, they could have had an eye on the children and not allowed, for example, the father to go into the classroom as he did and ask the son to come out so that he can give him some money for lunch.
AP1 (Applicant): Although in general it is impossible to foresee every possible action of the perpetrator and therefore to know if he hadn't turned to another place, the state's obligation under the Convention demands that the most likely scenarios of violation are prevented.
AP1 (Applicant): And of course, there would have been the possibility also for him to go to the playground and pass the child there.
AP1 (Applicant): He knows the daily life of his children, but of course, even though there was a bearing order for their home, the applicant was so afraid of her husband that she decided to sleep a few days at her parents' home.
AP1 (Applicant): That's why the police also issued the bearing order there, because they told the police, we will stay there.
AP1 (Applicant): They stayed at home most of the time, but of course, due to compulsory school, they had to go to the school.
AP1 (Applicant): And even if they had went to a women's shelter, that would have been the same situation.
AP1 (Applicant): But nevertheless, a bearing order is never sufficient or enough in cases of lethal risk.
AP1 (Applicant): And if we look at this perpetrator, who had a very unstable mental condition and he was banned from home, he was in a really difficult situation, he had lost everything and therefore nothing to lose, it would have never been a burden for him to enter the school anyways or pass his child after the child goes home after school.
AP1 (Applicant): In these cases, only pre-trial detention can prevent the children from their death.
AP1 (Applicant): Therefore, our strongest argument is not only that the bearing order couldn't be issued at the time because of the legal circumstances, but it would have never been enough.
AP1 (Applicant): So, to the next question of Judge Pavli, concerning Article 2 and 5, this is also a question from Judge Koskello.
AP1 (Applicant): No, we are not suggesting that the court should reconsider the current provision of Article 5.
AP1 (Applicant): However, Article 5 provides for detention when it is necessary to prevent someone from committing an offence.
AP1 (Applicant): If the Austrian authorities had properly considered all the relevant facts, detention would have been possible and even necessary, especially given the perpetrator's history and suspended sentence.
AP1 (Applicant): He was on probation and still did what he did.
AP1 (Applicant): So, as a result, putting the applicant's husband in pre-trial detention would have not gone against the convention standards under Article 5.
AP1 (Applicant): The perpetrator's rights need of curse to be respected, but cannot supersede women's and children's rights to live and physical and mental integrity.
AP1 (Applicant): This is also what SEDO says, what Scriabio says.
AP1 (Applicant): This is internationally known and also by the case law of the court.
AP1 (Applicant): Let me then refer to the next question.
AP1 (Applicant): Maybe the follow-up on Judge Pavley to Judge Lemons.
AP1 (Applicant): Is the possibility that one can also file for a restraining order for other places than the school and the home, like for the working place normally of the applicant or of the endangered persons, but not at any location where the family goes to?
AP1 (Applicant): So, not for every playground and every shopping center and supermarket?
AP1 (Applicant): No, this is not possible.
AP1 (Applicant): Only for frequently used locations like the working place, the home, sometimes the bus station, yes.
AP1 (Applicant): But not everything.
AP1 (Applicant): They also live in a very little town in Austria.
AP1 (Applicant): Therefore, you always have to look, does the perpetrator also need access to this area because of his work or because of his living conditions.
AP1 (Applicant): They cannot forbid him everything.
AP1 (Applicant): Let me go to the next question.
AP1 (Applicant): As far as I can see.
AP1 (Applicant): It is from Judge Kuskostalmayer.
AP1 (Applicant): This was a question to the applicant.