Not Vulnerable Enough, not Assimilable Enough: Promising Victimhood in Latvia and Lithuania’s ECtHR Pushback Arguments

By Maria Gevorgyan, Central European University

 

In recent years, pushbacks, the practice of forcibly returning asylum seekers without access to legal procedures, have become a central issue in European border politics. On 12 February 2025, the European Court of Human Rights (ECtHR or Court) Grand Chamber heard three landmark pushback cases at the Belarus border, including H.M.M. and Others v Latvia and C.O.C.G. and Others v. Lithuania, among over 30 pushback-related applications pending before the Court. Their context has been further shaped by Lithuania’s recent submission to the International Court of Justice (ICJ), accusing Belarus of violating its obligations under the UN Protocol against the Smuggling of Migrants. The hearings illuminate evolving interpretations of pushback practices and their implications beyond the individual claims under Article 3 and Article 4 of Protocol No. 4 of the European Convention of Human Rights (ECHR or Convention). The respondent states framed their arguments within the broader geopolitical narrative of a 'hybrid war' allegedly orchestrated by Belarus to justify an unwritten exception to absolute rights, despite the Court’s established rejection of any balancing in such cases. This submission examines how the responding states, namely Latvia and Lithuania, framed their arguments not only in legal terms but also through the lens of deservingness. Using the concept of promising victimhood, it examines two key courtroom rationales: vulnerability and assimilability, paradoxical criteria demanding asylum seekers be both vulnerable and assimilable. It shows how this deservingness logic, once mainly political, is now entering legal reasoning before the ECtHR.

 

The EU-Belarus Migration Standoff

Tensions at the EU-Belarus border began in the summer of 2021, when Belarus eased visa rules for nationals, predominantly from Middle Eastern and African countries, and, in coordination with local travel agencies, facilitated their arrival in Minsk. It also stopped preventing irregular crossings into the EU. In response, Latvia and Lithuania alongside Poland swiftly amended domestic laws to restrict asylum access for irregular arrivals and allow summary returns without individual assessments. By mid-August 2021, Latvia and Lithuania saw a sharp spike in entries and detentions:  Latvia registered 386 asylum applications in a single month, more than the total of   2018 (185) and 2019 (195) combined.. Lithuania reported over 4,000 irregular entries.

 

Respondent States’ Legal Arguments and the Hybrid Warfare Narrative

In H.M.M. and Others v. Latvia, 26 Iraqi Kurds, including children, reported being held in a tent with inadequate conditions, subjected to abuse, pushbacks and pressured into agreeing to return to Iraq. In C.O.C.G. and Others v. Lithuania, four Cuban nationals were repeatedly expelled by Lithuanian border guards to remote areas and pushed back by Belarusian forces. Despite these cycles, they were eventually granted international protection in Lithuania. A central argument in the respondent governments’ submissions was that the situation at the Belarus border amounted to a form of hybrid warfare with Poland citing efforts to ‘undermine regional security’ and Lithuania accusing Belarus of weaponizing Convention to undermine democracy.

These attempts, often coupled with an overly expansive reading of the Grand Chamber’s judgment in N.D. and N.T. v. Spain which introduced a two-tier test under Article 4 of Protocol No. 4 ECHR, permitting exceptions to the prohibition on collective expulsions as well as Ždanoka v. Latvia (No. 2), in which the Court acknowledged that where the Court recognised that it ‘does not operate in a vacuum’ (para. 55).  The respondent states asked the Court to consider the exceptional nature of the situation, advocating for a broad margin of appreciation in interpreting both the non-refoulement principle guaranteed under Article 3 ECHR and Article 4 of Protocol No. 4. They effectively urged the Court to move away from its established case law affirming the absolute nature of these protections, invoking security concerns without offering substantive legal arguments, despite repeated questions from the bench.

 

The Paradox of Promising Victimhood in Latvia and Lithuania’s Legal Reasoning

Originally developed by Chauvin and Garcés-Mascareñas hers the concept of promising victimhood captures how migrants are selectively deemed deserving. The ‘ideal asylum seeker’ must meet contradictory demands: they must show vulnerability from exceptional displacement while also proving assimilability. Welfens extends this with three tensions: cultural, political, and economic. This concept provides a useful framework to analyse how its two central rationales manifest in the arguments of Latvia and Lithuania before the Court.

Applicants in both the Latvian and Lithuanian cases fall into multiple vulnerability categories: they are asylum seekers subjected to pushbacks, placed under exclusive state control, and in some instances, have faced or undergone removal. The Latvian case also involves minors, triggering an additional layer of heightened vulnerability. However, Latvia and Lithuania challenged applicants’ vulnerability by framing them as autonomous, downplaying harm from pushbacks and questioning their need for protection based on origin, means, or minor infractions.

 

1.     Vulnerability related to migration

A key factor enabling the Court’s assertiveness under Article 3 is the vulnerability of applicants. M.S.S v. Belgium and Greece cemented the recognition of asylum seekers as particularly vulnerable under Article 3 (paras 232 and 251). Even when not explicitly invoked, vulnerability shapes the Court’s reasoning, including in recent ‘Greek hotspots’ (see M.A. and others v. Greece). Consequently, it is logical that the states attempt to construct a line of argumentation that challenges this vulnerability.

Beyond overlooking vulnerabilities linked to migration, both states disregarded the risk of ill-treatment upon return,  asserting Belarus was safe without substantiating this claim. The Council of Europe (CoE) Commissioner for Human Rights, in a third-party intervention, noted the absence of a functioning asylum system in Belarus. According to applicants, Latvian officials were aware of the abuses, with the Interior Minister calling Belarusian practices ‘inhumane,’ and the Defence Minister acknowledging violence and forced border crossings. Lithuania too, according to submissions, was aware of systemic violations, engaging potential Article 4 obligations.

While applicants typically must show individualized risk under Article 3 non-refoulement, vulnerability can lower this threshold. Particularly in extra-Dublin returns, the Court has found that members of persecuted ethnic, religious, or political groups face a real risk in non-EU or non-CoE countries (compare, for instance, Hirsi Jamaa and Others v Italy and Savriddin Dzhurayev v Russia).

 

2.     Vulnerability related to exclusive state control

All applicants were apprehended and subjected to measures amounting to deprivation of liberty, often for return purposes and in remote or makeshift border zones.Under Article 3 jurisprudence, such exclusive state control is a key source of vulnerability, particularly in the context of deprivation of liberty (see Rezmiveș and Others v Romania, para 72). Despite this, both Latvia and Lithuania denied any additional vulnerability stemming from their own conduct. In Latvia, applicants, including families, reportedly faced repeated violence under Order No. 518, including electroshocks and beatings, as well as inadequate shelter, food, and forced separations. In Lithuania, they reportedly endured at least six pushbacks into remote forests, often 10 hours from official crossings, spending over two weeks in snow, developing frostbite, injuries, and PTSD before being detained. The CoE Commissioner for Human Rights explicitly noted before the Court that such pushbacks placed asylum seekers in ‘great vulnerability.’

 

3.     Vulnerability of minors

In the Latvia case, the applicants included children. Minor asylum seekers’ vulnerability is especially influential under Article 3 .Latvia appeared to disregard the compounded vulnerability caused by its actions toward minor asylum seekers. Minors as young as 10 months were reported effectively deprived of liberty, a fact Latvia denied, claiming children stayed with families upon parental request. Judge Mits underscored the distinction between the situation of detained children and detained adults, raising the question of the alternatives to placing children with adults. In Latvia’s case, the pushback conditions, already harmful to adults, reportedly posed an even greater risk to minors, whose early developmental stage makes them especially vulnerable.   

In Tarakhel v. Switzerland, the Court held that extreme vulnerability overrides immigration status and that conditions causing stress or trauma to children may violate Article 3 (para 99). Moreover, importantly for the case in question, even accompanied children were considered extremely vulnerable (paras 99, 119). In A.B. and Others v France, the Court emphasized that child immigration detention must be a last resort (paras 110-115).

 

4.     Assimilability: cultural, political, and economic considerations

Having shown how states sought to undermine vulnerability, I now turn to the second rationale of the promising victimhood framework: assimilability. This concerns not only doubts about the ‘legitimacy’ of protection claims, such as the argument that applicants knowingly crossed the border despite ineligibility, but also broader cultural, political, and economic factors shaping who is seen as deserving of protection.

Lithuania’s response to claims of discrimination against Cuban nationals compared to Ukrainians warrants closer scrutiny. The government argues the cases are not comparable, as Ukrainians fall under the EU’s Temporary Protection Directive, due to the ongoing military conflict, whereas Cuban applicants are not fleeing ‘from a military aggression’. However, this framing ignores context: the Cuban applicants fled persecution after the July 2021 protests in Cuba, reportedly the largest since the 1994 Maleconazo, accompanied by serious human rights violations that forced thousands to flee the country. Furthermore, after escaping to Russia, they reportedly faced renewed threats, including forced conscription into its war in Ukraine.

This challenges Lithuania’s narrow distinction based solely on armed conflict. But is it truly about armed conflict? Viewed through the lens of promising victimhood, it reflects the second rationale of deservingness: assimilability, shaped not only by culture, but also by ethnic and political markers, as Welfens and Abdelaaty note.

As a CBS reporter in Kyiv said , ‘This isn’t a place like Iraq or Afghanistan...’, while an Al Jazeera anchor remarked, ‘We are talking about Europeans leaving in cars that look like ours to save their lives.’ These statements are far from tangential. Domestic publics tend to empathize with refugees who share a common identity, while racialized ‘others’ are seen as threats. Policymakers in democracies often align refugee policy with these sentiments, especially when admitting ‘kin’ is seen as politically safer. What crystallizes here is the underlying assumption that the suffering of Europeans is more urgent and more deserving of empathy than that of racialized ‘others’ escaping distant conflicts. This logic is evident in Lithuania’s stance, which overlooks Cuba’s repressive history and the applicants’ multilayered vulnerability, such as persecution in Russia and the risk of forced conscription into its war against Ukraine, a reality faced by many migrants there. Despite the applicant’s arduous journey and likely trauma, they are portrayed as undeserving simply because they are not fleeing an armed conflict, framing applicants’ actions as a matter of personal choice.Another key assimilation argument is economic: migrants are often seen as voluntary economic actors rather than asylum seekers, making them less deserving of protection. Latvia highlighted applicants’ extended stays in Belarus, implying a lack of direct persecution, while Lithuania, taking this argument further, cited evidence of applicants previously living and working in countries like Russia and Armenia. Lithuania also focused on applicants’ financial means, citing ‘pricey flights’ and ‘taxi service’, to suggest agency, equating economic autonomy with ‘undeservingness’ and undermining their vulnerability.

New arguments surfaced during the final stage of the hearings when Lithuania asserted that it had reviewed the applicants’ backgrounds and found administrative offences such as small thefts or travelling without tickets, infractions that were invoked to suggest a lack of worthiness, even though they bear no relevance to protection under international law. In this framework, Lithuania weaponizes economic autonomy. In doing so, it imposes a paradox: the ideal asylum seeker must be vulnerable enough to require protection, yet not so resourceful as to appear to have agency.

 

Conclusion 

This analysis revealed the paradox at the heart of ‘promising victimhood,’ a paradox mirrored in the states' line of argumentation: asylum seekers are expected to meet conflicting demands, to be sufficiently vulnerable yet not strategic, visibly harmed yet devoid of agency.  Even then, their perceived deservingness ultimately hinges on broader considerations such as ethnic and cultural 'fit' and the political interests of the receiving state.

Given the broader restrictive turn in European asylum policy, the significance of the upcoming Grand Chamber judgments cannot be overstated. Latvia and Lithuania’s logic of deservingness is echoed in the recent letter by nine EU leaders, including Latvia and Lithuania, which calls for a reinterpretation of the ECHR in the field of migration and openly questions whether the Court has protected the ‘wrong people.’ These rulings will determine not just individual outcomes but whether absolute protection can persist amid mounting political pressure to elevate 'deservingness' into a legal threshold.

A Media Psychological Analysis of the Open Letter of Nine European States on the ECHR

By Sharon Coen, Associate Professor of Media Psychology at the University of Salford and Thalia Magioglou, Assistant Professor of Psychology at the University of Westminster

 

On May 22nd 2025 nine representatives of European countries have co-signed an open letter in which they are arguing that the current interpretation of the European Convention of Human Rights is preventing nation states from being able to autonomously decide how to deal with immigrants who have committed crime. The letter has already attracted criticism for politicizing the work of the European Court of Human Rights and therefore dragging the application of the rule of law (i.e. the judicial power) in the political arena.  In his reaction post in this blog, Antoine Buyse appeals to communication scholars to examine how the letter conveys its message by appealing to particular discursive strategies. We therefore decided to respond to the appeal and offer an analysis of the communication strategies adopted by the authors to convey their message.

 

Reading this letter from a cultural/political/discourse perspective there is a combination of a binary discourse opposing “right” on the side of the signatories to “wrong”, with no mention of specific facts or legal documents to justify these positionings.  “We are leaders of societies that safeguard human rights”. Opposed to “They have learned our languages… Others have come and chosen not to integrate, isolating themselves in parallel societies and distancing themselves from our fundamental values of equality, democracy and freedom. In particular, some have not contributed positively to the societies welcoming them and have chosen to commit crimes”. 

 

The form of discourse adopted aims, as it is stated in the last phrases, to enforce a new interpretation of the European Convention of Human Rights. This implies that the European Convention of Human Rights is not interpreted in a “right” way by the European Court of Human Rights that represents the judicial power. This is an interesting statement since the signatories of the letter represent the executive power in their respective countries. In democratic states the judiciary sector is to be independent from the executive power. 

 

The construction of democracy and human rights that is adopted is presented to be embodied de facto by the signatories of the letter and the silent majority of European citizens they claim to represent, whereas immigrants are presented to occupy the opposite position as contestants of these foundational values. Although there are three different categories of immigrants mentioned in the letter, criminality seems to exist only in immigrant communities and to be unknown to European societies.

 

What is worrying is a binary form of logic throughout the document where generalised entities that are presented as homogeneous, are opposed as versions of “defenders of democracy” on the one side, to the “opponents of democracy” on the other. In this binary logic there are no questions or a need to investigate - there are certainties. However, these certainties are not, at least in this text, associated with specific studies or facts. 

 

Several rhetorical and logical strategies are adopted in the letter to persuade readers of the validity of its claims. We present them in the context of Aristotle’s triad in persuasive communication: Ethos (appeal to credibility and authority); Pathos (appeal to emotions); Logos (appeal to logic) and highlight how all three components are leveraged to frame immigration as an existential threat to sovereign Nation states, and by implication the Human Rights Commissioners’ interpretation of the European Convention of Human Rights as dangerous to national safety and sovereignty and then provide an in depth analysis of a crucial passage illustrating the logical faux pas underpinning the whole communication.

 

Ethos (Appeal to Credibility and Authority)

 

Claims to expertise are essential ingredients of persuasive communication. In the letter, authority is established by repeatedly stressing that the signatories are heads of state and government, and leaders of member states (“As leaders”, “We want to use our democratic mandate…”). Credibility is established by emphasising commitment to human rights, democracy, and multilateral institutions (without offering any – even anecdotal – evidence). Authority is also implied by presenting [false] consensus in the appeal to bipartisan unity (we belong to different political families, yet we agree on this) and the claim that their views are representative of the majority (“we believe that we are strongly aligned with the majority of the citizens of Europe in our approach.”).

 

Pathos (Appeal to Emotion)

 

The letter appeals primarily to moral outrage (by artificially creating a dichotomy between law abiding citizens and foreign criminals who have “taken advantage of our hospitality” to “commit crimes”) and fear (by suggesting that immigrants pose an existential threat “it risks undermining the very foundation of our societies. It harms the trust between our citizens and it harms the trust in our institutions.”). Finally, it expresses moral indignation: “it is beyond our comprehension”.  Such appeals are often used as strategies to disengage morally in the immigration debate.

 

Logos (Appeal to Logic and Reason)

 

The logical progression of the argument is as follows: when migration is characterised by lack of integration (which is presented as a choice operated by migrants, rather than a responsibility of the host country), it leads to crime and wider societal harm, hence the need for reform. The ‘right’ way to be an immigrant is actually presented not as integration, but as assimilation (see Berry’s work on acculturation strategies for the distinction): “They have learned our languages, believe in democracy, contribute to our societies and have decided to integrate themselves into our culture.” Consequently, the European Court of Human Rights has overreached its remit by preventing Nation states to freely decide on deportations.

 

In the letter, freedom and opportunities are presented as rights host nations share with immigrants – by implication, freedom and opportunities are not seen as universal human rights – they belong to states and their citizens who can deny them at their will. However individual nation states are prevented from doing so, as illustrated by examples listed without citing data (Cherry-picking).

 

Framing – the letter frames the immigration and human rights debate as an issue of crime without presenting sufficient data or evidence. Immigrants are presented as a threat and something extraneous to the sovereign citizenry. This is achieved using the following strategies:

- False balance: the letter presents illegal immigration as a substantial proportion (“irregular migration has contributed significantly to the immigration”), when we know it is a small minority.

- False balance: Immigrants who integrate vs. those who isolate. This is presented as a choice made by immigrants in equal proportions, and no consideration of context.

- Us-vs-them framing is used for Othering the immigrants.

 

Anticipation of Criticism

 

The signatories knew the letter would be widely criticised, hence they employed rhetorical strategies to offset this.

 

- Pre-emptive rebuttal: we will likely be accused of the opposite. This strategy disarms critics and presents the original authors as thoughtful and misunderstood.

- Appeal to an inclusive Social Identity (we, our societies, our citizens) to mask exclusionary implications of proposed policies.

- Primus inter pares: establish authority by highlighting their leadership roles ‘As leaders…’

“we believe that we are strongly aligned with the majority of the citizens of Europe in our approach. We want to use our democratic mandate…”

 

To illustrate, a particularly rich sentence is the following:

“It is beyond our comprehension how some people can come to our countries and get a share in our freedom and our vast range of opportunities, and, indeed, decide to commit crimes. Although this concerns only a minority of immigrants, it risks undermining the very foundation of our societies. It harms the trust between our citizens and it harms the trust in our institutions.”

- “It is beyond our comprehension”: Moral outrage

- “come to our countries and get a share in our freedom and our vast range of opportunities”: Social identity appeal, Zero-sum fallacy: implies that immigrants ‘take a share’ of a delimited resource (freedom, opportunities)

- “and, indeed, decide to commit crimes”: Attribution bias: attributes criminal behaviour to an active decision made by individual immigrants – ignoring all the situational factors.

- “Although this concerns only a minority of immigrants, it risks undermining the very foundation of our societies.” Hyperbole: this is an exaggeration at best – misrepresentation at worst: how can a minority, who is responsible for a minority of crimes, be responsible for the very foundation of our society?

- “it risks undermining the very foundation of our societies. It harms the trust between our citizens and it harms the trust in our institutions.” Fear appeal: immigrants pose an existential threat.

 

Overall, our analysis convenes with Antoine Buyse’s own: “the letter clearly makes a divide between useful and unwanted migrants and between domestic democracy and an international court that apparently, in these states' views, binds their hands too much.”.  In this piece, we demonstrated how the message construction was achieved from a media psychological viewpoint. The adoption of such language - especially in the context of a polarising issue such as immigration - is problematic. Academic work in the area shows how this type of framing, as well as the rhetorical strategies adopted can lead to major misunderstandings and misinterpretations of the social issue the signatories are trying to address.

 

 

ECHR Developments on Gender-Based Violence Part II: The Autonomous and Proactive Risk Assessment in N.D. v. Switzerland

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.