By Dr. Jasmine Sommardal, Associate Editor of the ECHR Blog
Over the recent months, the ECtHR has
delivered significant judgments concerning gender-based violence. In this post, I
argue that N.D. v. Switzerland is notable for its application
of the requirement of an autonomous and proactive risk assessment to a dangerous
person under Article 2 ECHR in the context of gender-based violence. This blog post follows a previous
one that discussed key takeaways of three other recent and important cases involving
gender-based violence.
Main Circumstances of the Case
An assessment of the Court’s reasoning in N.D. v. Switzerland requires a short review of the facts. The case concerns a woman who,
after her separation from her partner, was subject to extremely grave violence
by him. The applicant did not know about her partners’ violent past, but
different state authorities were aware, among other things, of the fact that he
in 1993 had been convicted for rape and murder, and that he had in 2006-2007
been subject to a court procedure for threats and coercion against a former
partner. An ensuing psychiatric report noted that ‘in the short term, there was
no reason to fear that X’s former partner was in danger [but that] situations
involving immediate separation, in which violent acts were to be feared, were
critical’ (para. 6).
After these events, the applicant started her relationship with X.
Because of X’s behaviour against her, the applicant contacted the family doctor
of X, who recommended her to end the relationship, but to avoid doing so
abruptly. The doctor at this point consulted a legal psychiatrist and informed
the police about the discussion with the applicant.
On the next day, the police contacted the applicant, and she told the
police officer that she was being harassed by phone and text messages by her
partner, who did not want their relationship to end. The police asked about the
extent of the harassment, seeking to determine whether the applicant ‘had
the situation under control’, or if she needed police assistance, and informed
her about the dedicated emergency number. The officer informed her of the
possibility of filing a criminal complaint or contacting victim support
services, and also advised her that it would be preferable for her to end the
relationship. The applicant replied that she had the situation under control
and wanted to give her partner a little more time before leaving him. She added
that she would proceed cautiously and would contact the police immediately if
the situation got out of hand or if she encountered any problems. The officer,
who was unaware of the contents of the psychiatric reports concerning the
applicant’s partner, did not mention his criminal past during these exchanges.
The
Autonomous and Proactive Risk Assessment
In its judgment, the Court established that there had been a ‘real and
immediate risk to life’ of which the authorities knew or ought to have known.
This is the so-called Osman test, which can raise positive obligations
under Article 2.
In applying the Osman test to this context, the Court referred to
the obligation on behalf of the state authorities to conduct an autonomous and
proactive risk assessment (requirements established in Kurt v. Austria [GC], see para. 63 of the judgment). In Kurt v. Austria [GC], the Court had held that the
assessment of the nature and level of risk constitutes an integral part of the
duty to take preventive operational measures where the presence of a risk so
requires. Thus, an examination of the State’s compliance with this duty under
Article 2 must ‘comprise an analysis of […] the adequacy of the assessment of
risk conducted by the domestic authorities’ (para. 159).
However, N.D. v. Switzerland (to my knowledge) is the first time the Court establishes such a real
and immediate risk of which the authorities knew or ought to have known in a
gender-based violence case where the woman concerned had not filed a single
complaint against her partner or contacted the authorities on her own behalf
(para. 67), and where she had not been subject to any prior violent behaviour
(para. 64). The Court applied the Kurt requirement of an autonomous and proactive risk
assessment to a new situation. The absence of a complaint by the applicant
about her partner and the absence of prior violence against her makes the
Court’s assessment of whether the authorities ‘knew or ought to have known’
about an imminent risk particularly interesting.
Some characteristics of the Court’s reasoning in this case are worth
noting. First, in the assessment of whether the authorities did or ought to
have known about such a risk, the Court did not take the position of any single
national authority (because, in fact, establishing the risk would have required
the exchange of information between them). It instead referred to the knowledge
that the domestic authorities had altogether, ‘prises dans leur ensemble’
(para. 66).
The judgment thus implies that when different authorities are in
possession of distinct pieces of information that together would allow for the
conclusion of a real and imminent risk to life, the proactive obligation of a
thorough risk assessment can trigger a violation of the positive obligations
under Article 2. N.D. v. Switzerland thus indicates the need for information exchange between
authorities in the context of violence against women. Indeed, the court also
held in Kurt v. Austria [GC], that ‘there is a duty on
the part of the authorities examining the case to ask relevant questions in
order to obtain all the relevant information, including from other state agencies’
(emphasis added, para. 169). Information exchange also seems to be in
accordance with the spirit of, and even required by, the Istanbul Convention.
Article 7 of the Istanbul Convention emphasises the importance of comprehensive
and co-ordinated policies, and Article 51 requires ‘the necessary
legislative or other measures to ensure that an assessment of the lethality
risk, the seriousness of the situation and the risk of repeated violence is
carried out by all relevant authorities’ (emphasis added).
Notable is
also the Court’s vulnerability reasoning, which established that there was a
vulnerability of the applicant, ‘stemming from her lack of knowledge of the
full range of elements available to the authorities when considered as a whole,
created an informational asymmetry’, and that ‘[t]his asymmetry should have
been offset by heightened vigilance on the part of the authorities, leading to
a comprehensive and up-to-date assessment of the seriousness of the risk to
which she was exposed’ (para. 74). While victims of domestic violence have long
been considered particularly vulnerable in the Court’s case law, the applicant’s
vulnerability in this case arose from the lack of knowledge of her partner’s
criminal background.
N.D. v. Switzerland also tells us something about the possible
(ir)relevance of the individual’s own risk assessment. In its earlier case law,
the Court has held that ‘the victims’ own perception of the risk they are
facing is relevant and must be taken into account by the authorities as a
starting-point’, which however, does not discharge the authorities from
‘proactively collecting and assessing information on all relevant risk factors
and elements of the case’ (Kurt v. Austria [GC], para. 170). N.D. v. Switzerland establishes such a proactive obligation also without the individual’s
own assessment of the risk.
It is also noteworthy that the Court found a violation of the state’s
positive obligations despite the individual police officer’s proactive
approach. After having been contacted by the doctor, the police called the
applicant on his own initiative, asked about the situation, informed the
applicant about possible support, and sought to ascertain that there was no
situation of danger. Yet, this did not hinder the Court from finding a
Convention violation (paras 68-75).
The outcome in N.D. v.
Switzerland
further implies that certain considerations in the Court’s case law seem to
have been given relatively less weight in the Court’s assessment of whether the
authorities knew or ought to have known about a real and imminent risk to life.
These considerations include i) the need to avoid relying on the benefit
of hindsight, especially in risk assessments carried out in advance (for
instance, the concurring judges in Kurt v. Austria [GC], but
also the majority view, para. 160); ii) the need not to impose an
impossible or disproportionate burden on the authorities, taking into
consideration ‘the difficulties in
policing modern societies, the unpredictability of human conduct and the
operational choices which must be made in terms of priorities and resources’ (Osman [GC], para. 116); and iii) possible Article 8
concerns for the applicant’s partner’s sensitive medical data, in accordance
with the ‘need to ensure that the police
exercise their powers to control and prevent crime in a manner which fully
respects due process and other safeguards that legitimately place restraints on
the scope of their actions, including the guarantees contained in Articles 5
and 8 of the Convention’ (Kurt v. Austria [GC], para. 182; Talpis v. Italy, para 101).
In Kurt, the Court concluded a non-violation of Article 2 despite
significantly developing the case law principles. Some have held that this shows
‘how deeply embedded a misogynistic culture is and how difficult it is
for society – including the legal system – to move from theory to practice’
(see here). In N.D. v.
Switzerland, however, the Court both referred to the Kurt principles
and challenged the domestic authorities’ treatment of the situation. It shows,
in the sense of Talpis, that
the Court’s assessment of a real and imminent risk of which the authorities
knew or ought to have known can be a particularly sensitive one in the context
of violence against women.
Conclusion
The former President of the Court, Síofra O’Leary, considered the Court ‘extremely
attentive’ when confronted with domestic and gender-based violence (here). Recent
scholarship has indicated a ‘positive shift in the Court’s case law and greater
sensitivity to, and awareness of, gender as a source of structural oppression,
discrimination and inequality’ (here). But there are
also limits to the Court’s approach. It is clear that gender biases can be
deeply embedded in (legal) culture and that the ECtHR, as a result, may
struggle to overcome them (for such comments, see here and here). In N.D. v. Switzerland, the Court took a notable approach in its application
of the obligation of an autonomous and proactive risk assessment under Article
2 in the context of violence against women. When read together with the Court’s
judgments in X v. Cyprus, I.C. v. Moldova, and L. and Others v. France, the Court’s recent case law seems to show a certain
willingness to remedy often deeply embedded gender biases.
