A terrible family drama reopens the debate about the coercive sting of ECHR positive obligations

Measures to prevent crime have always been considered part of the positive obligations under Article 2 ECHR (right to life). Their scope is traditionally defined on a case-by-case basis, taking account of other relevant Convention provisions. Since the latter include Article 5 § 1, which allows for exceptions to the right to liberty on certain specifically enumerated grounds, the following question is inevitably asked: Would not a broad interpretation of these exceptions be necessary to ensure effective protection for Article 2?

Not surprisingly, the ECtHR has not excluded this argument (S., V. and A., § 124), for which support may also be found in recent Strasbourg judgments concerning ‘preventive detention’. Thus, McVeigh is no longer an isolated example of a case in which Article 5 § 1 (b) was found to authorise deprivation of liberty “to secure the fulfilment of (a sufficiently specific and concrete) obligation prescribed by law”. Ostendorf shows how this provision may be also used, under certain conditions, to police the obligation not to commit a criminal offence. Moreover, S., V. and A. relied on Lawless to interpret the second limb of Article 5 § 1 (c) (“when it is reasonably considered necessary to prevent … committing an offence”) in a manner that authorises deprivation of liberty not “in connection with criminal proceedings” (despite the link Lawless made between Article 5 § 1 (c) and § 3, which refers to a “trial”). It is true that this precedent has been applied rather sparingly, so far. However, these developments illustrate that the fear expressed about the ‘coercive sting’ of positive ECHR obligations is far from unfounded.

The dilemmas involved in situations where the right to life is pitted against other Convention-protected interests have been brought to the fore in the Kurt case, recently decided by the Grand Chamber. A father, against whom a barring and protection order had been issued on domestic-violence grounds, murdered his son, having taken him out of the classroom with his teacher’s permission. The application was brought in Strasbourg by the boy’s mother who argued, inter alia, that the father should have been remanded in custody following a criminal complaint lodged against him for rape, bodily harm and dangerous threats. The ECtHR, which reached an overall no-violation-of-Article-2 conclusion, disposed of the above argument by recalling the national courts’ finding that the authorities had acted lawfully in not taking the father into pre-trial detention.

The Kurt judgment would have, of course, rested on reasonably firmer ground (on this question) had the national courts found that it would have been unlawful to remand the father in custody. However, the Article 5 issue need not have arisen at all, as Kurt provides a good example of how the right to life can be safeguarded without unduly restrictive measures. Today, there is little doubt that the classroom murder would have been avoided with a better risk assessment (one that would not have focused exclusively on the mother, since the father had also ‘threatened’ her with the death of their children), coupled with information-sharing with the school.

However, how far can a body like the Court go in second-guessing, with the benefit of hindsight, operational decisions taken by the domestic authorities in such sensitive cases? The GC was divided, in this respect, between 10 judges who were prepared to recognise, in fact, a large national margin of appreciation and seven judges who wanted to examine whether every “reasonable measure” had been taken that could have had “a real prospect of altering the outcome”.

A different approach could have stressed the structural issues (see also EHRAC’s and Equality Now’s third-party intervention) that contributed to the authorities’ ‘not getting it right’:  the failure to use standardised risk-assessment tools (see GREVIO’s intervention), the limited scope of the domestic-violence-related orders and the shortfalls in the Austrian liaison systems (the above points also figure in the GC minority opinion). This would have been fully compatible with the subsidiarity principle. When understood in a constructive, forward-looking manner, the latter should be also about promoting general conditions in member states that favour respect for human rights. And cases of obvious injustice like Kurt provide the perfect opportunity for interpreting subsidiarity in this way.