CEDH · CASELAW;CLIN;ENG — 3 avril 2025

.s3ABFC313 { font-size:10pt } .sD4B5322E { margin-top:12pt; margin-bottom:12pt; text-align:justify } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s97EB40D9 { margin-top:12pt; margin-bottom:14pt; page-break-after:avoid } .s65B66A85 { margin-top:12pt; margin-bottom:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .s8B6C6D43 { margin-top:0pt; margin-bottom:0pt; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } Legal summary April 2025 N.D. v. Switzerland - 56114/18 Judgment 3.4.2025 [Section V] Article 2 Positive obligations Article 2-1 Life National authorities’ failure to comply with positive obligation to protect applicant’s life against her partner’s violent actions: violation Facts – In 1995 X was sentenced to twelve years’ imprisonment for the 1993 rape and murder of his partner. Having been released on licence, he was later placed in pre-trial detention in 2006 in the context of criminal proceedings brought against him for (among other offences) threatening behaviour and coercion in respect of his then partner. His subsequent release was conditional on compliance with various measures, in particular a prohibition on contacting his victim. The applicant met X in November 2006 and, unaware of his background, began an intimate relationship with him. In August 2007 she contacted X’s family doctor on account of his behaviour towards her. The doctor recommended that she end the relationship, but advised that she avoid doing so abruptly. He then informed the police about that conversation, with the applicant’s consent. Acting on his own initiative, a police officer contacted the applicant by telephone. She told him that X was harassing her by telephone and text message. Without mentioning X’s criminal record, the police officer told the applicant that X “could be dangerous”. In September 2007, after the applicant had informed him that she wished to end their relationship, X kidnapped and tortured her for more than eleven hours; he also tried to kill her. X was arrested and took his own life while in police custody. The applicant brought an action for damages against the relevant canton in January 2015, seeking compensation for the non-pecuniary damage she had sustained. She argued, in particular, that the authorities ought to have informed her of her partner’s criminal record and the danger that he posed. Her claims were dismissed by the cantonal courts and, at final instance, by the Federal Supreme Court. Law – Article   2: Having regard to X’s previous conduct, characterised throughout his life by recurrent violent acts against his successive partners, including a femicide in 1993, the Court considered that the acts in issue could be categorised as violence against women. (1) Whether the authorities knew or ought to have known the risk to which the applicant was exposed – In the circumstances of the case, the Court considered that the relevant national authorities had been aware of the applicant’s relationship with X, his criminal background and the real and imminent nature of the danger he was likely to pose. Furthermore, it had been clear from two expert psychiatric reports of October 2006 and January 2007 that X found the end of relationships particularly difficult and that those situations were likely to trigger violent behaviour on his part. In that connection, the Court reiterated, as had the Group of Experts on Action against Violence against Women and Domestic Violence (GREVIO), that those factors were indicators that were regarded as red flags indicative of a high risk. (2) When the authorities’ obligation to protect the applicant arose – The authorities had to be regarded as having been informed of the existence of a risk to the applicant at the latest by the time that X’s doctor, with her consent, approached the police in August 2007. This sequence of events had alerted the authorities to the situation in which the applicant found herself and had given rise to an obligation to protect her right to life with a greater degree of vigilance, even in the absence of a complaint by her. (3) Whether the authorities took the necessary measures to protect the applicant’s life – During his telephone conversation with the applicant in August 2007, the police officer had enquired about the extent of the harassment to which X was allegedly subjecting her and whether she had the situation under control or required assistance. He also told her that it would be better if she ended her relationship with X, offered her police assistance, including the emergency number, and informed her of the possibility of lodging a criminal complaint or contacting the victim-support services. With regard to the police officer’s failure to provide information about X’s criminal record, the Court – while reiterating that in cases of violence against women, the perpetrator’s rights could not supersede victims’ rights to life and to bodily and psychological integrity – noted that disclosure of X’s previous conviction for rape and murder to the applicant would have constituted an interference with his right to respect for his private life, for which there had been no legal basis. The Court considered that the police officer had attempted, on his own initiative, to inform the applicant – to the maximum extent possible given the information in his possession and the legal constraints on him – of the dangerous situation in which she found herself. The various police services concerned had had immediate access to the entry from the police register in which the telephone conversation between the applicant and the police officer had been logged on the day it had taken place. However, no follow-up action had been taken. This revealed, at the very least, a lack of communication and coordination that was likely to hinder the efforts required in such a situation. The obligation to take preventive operational measures where this was called for by the existence of a risk included a requirement to assess the nature and level of the risk as soon as the authorities became aware of it. The authorities could not rely solely on the victim’s perception of the risk to which he or she was exposed but had to complement it by their own assessment, which had to be autonomous and proactive. Given the vulnerability of the applicant – who had been unaware of all the factual elements available to the various domestic authorities involved in the case –, this imbalance in the information available, which was known to those authorities, ought to have been counterbalanced by increased vigilance on their part, resulting in a thorough and up-to-date assessment of the level of the risk to which she was exposed. Lastly, given that – in the absence of a finding of imminent danger (as required by the domestic law in force at the material time) – it had been impossible for the competent authorities to take, on their own initiative, operational measures capable of averting a risk to a person’s bodily integrity from materialising where the individual concerned had not made a complaint or requested assistance, no other specific measure had been put in place in order to protect the applicant in a manner that would have corresponded to the seriousness of the situation. While, admittedly, the Court could not speculate either on the legal feasibility of such measures being adopted by the authorities, or on their effectiveness, it reiterated that the taking of preventive operational measures under Article   2 of the Convention was an obligation of means and not of result. Conclusion – In the light of the foregoing and of all the circumstances of the case, the Court found that the different authorities involved had not done all that could reasonably have been expected of them to avert the real and immediate risk to the applicant’s life, of which they had or ought to have been aware. Although the Court commended the police officer’s spontaneous initiative, it noted that there had been neither an adequate assessment of the risk to the applicant’s life nor operational measures which might have had a real chance of altering the course of events or mitigating the harm caused. It followed that, on account both of the lack of sufficient coordination between the various services and of the shortcomings in the domestic law in force at the time, the authorities had failed to comply with their positive obligation to protect the applicant’s life under Article 2 of the Convention. Conclusion : violation (five votes to two). Article   41: 30,000 euros in respect of non-pecuniary damage. (See Opuz v.   Turkey , 33401/02, 9   June 2009, Legal Summary ; Bljakaj and Others v.   Croatia , 74448/12, 18   September 2014, Legal Summary ; Volodina v.   Russia , 41261/17, 9   July 2019, Legal Summary ; Kurt v.   Austria [GC], 62903/15, 15   June 2021, Legal Summary ; Luca v.   Republic of Moldova , 55351/17 , 17   October 2023; Paragraph   31(a)(ii) General recommendation No.   35 on gender-based violence against women , adopted by the Committee on the Elimination of Discrimination against Women on 26   July 2017)   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. To access legal summaries in English or French click here . For non-official translations into other languages click here .