Johanna Westeson - The ICHRP

2. Council of Europe
Jurisprudence of the European Court of Human Rights
The Court has in recent years examined several cases involving intimate partner violence,
and has repeatedly stressed that states have a positive obligation to protect women from
such violence. These cases have given rise to claims under Article 2, 3, and 8 of the
Convention. So far, the Court has not examined state obligations when intimate partner
violence has occurred in same-sex relationships.
An early case in which the Court addressed domestic violence in relation to the right for
the battered spouse to judicial separation from the perpetrator was Airey v. Ireland. 493 See
for discussion of this case Chapter 3D: Termination of marriage.
In Kontrova v. Slovakia, 494 the applicant was a woman whose husband had killed himself
and the couple’s two children after having subjected her to violence and threats for years.
The applicant had filed two complaints about her husband’s violence and threats with the
local police, but the response from the police had been inadequate and led to no
interference. The applicant complained that the Slovakian state had failed to protect the life
of her two children and therefore had violated Article 2 of the Convention, guaranteeing
the right to life.
The Court reiterated that Article 2 not only requires the state to abstain from the unlawful
taking of life, but also to take appropriate steps to safeguard the lives of the persons within
its jurisdiction. This positive obligation includes the primary duty to secure the right to life
by putting in place effective criminal-law provisions to deter that offences against the
person be committed, backed up by law enforcement machinery for the prevention,
suppression and punishment of breaches of such provisions. For this 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 and that they failed to take measures within the scope of their
powers which, judged reasonably, might have been expected to avoid that risk (para 50).
In the present case, the applicant had communicated to the police department serious
allegations of violence and threats that she and her children had been subjected to by her
husband. These included long-lasting physical and psychological abuse, beatings with an
electric cable, and threats with a shotgun. Thus, the authorities were well aware of the
situation. Under specific provisions of Slovakian police regulations, the police had several
obligations to act. These obligations had not been complied with; on the contrary, the
police had advised the applicant to modify her complaint so that it would lead to no further
action. The direct consequence of this failure to comply with its positive obligations was
the death of the applicant’s children. The Court therefore found that the Slovakian state
had violated Article 2 of the Convention.
In Bevacqua and S. v. Bulgaria, 495 the issue of domestic violence was brought under a
claim that there had been a violation of Article 8, the right to respect for family and private
life. The applicants were a woman and her son. The woman had suffered domestic abuse
493 Application no. 6289/73, decided on 9 October 1979.
494 Application no. 7510/04, decided on 31 May 2007.
495 Application no. 71127/01, decided on 12 June 2008.
166