Feminicide as a Human Right Violation: a Commentary of N.D. v. Switzerland

Spendenbutton / Faire un don
Gender Law Newsletter FRI 2025#3, 01.09.2025 - Newsletter abonnieren

EUROPE: HUMAN RIGHTS (FEMINICIDE – INVITED CONTRIBUTION)

Invited contribution of Dr. Angela HEFTI commenting the jugdment of 3 April 2025 of the European Court of Human Rights N.D. vs. Switzerland (application no. 56114/18)

Angela HEFTI, The European Court of Human Rights recognises Femi(ni)cide as a Human Rights Violation: N.D. v. Switzerland, originally published on 16 July 2025 in the Strasbourg Observers blog[1].

I. Introduction

In Switzerland, every two weeks a woman is killed, and women experience disproportionately high levels of domestic violence. Femi(ni)cide is not only a Latin American problem, although the term gained prominence in relation to the disappearance, rape and murders of women in Ciudad Juarez, Mexico. Femicide is a systemic issue that transcends borders and affects all countries to varying degrees. Femicide is a European problem too. The European Court of Human Rights has acknowledged this for the very first time in N.D. v. Switzerland concerning Switzerland’s duty to protect a woman from attempted murder and torture by her ex-partner. N.D. builds on a line of well-established domestic violence jurisprudence, most notably the landmark case Kurt v. Austria, where the Court held that states are required to carry out a “lethality risk assessment which is autonomous, proactive and comprehensive” (Kurt, para. 186). N.D. is significant in that it cements this jurisprudence, but also shapes the Court’s nascent femicide case law.

II. Facts

In November 2006, N.D. (the applicant) entered a relationship with X. who had been sentenced in 1995 to twelve years’ imprisonment for rape and murder, but was conditionally released in 2001. In 2006, criminal proceedings were brought against him for threats, coercion, misuse of a telecommunications system and defamation of his former partner. Two psychiatric reports prepared in connection with those proceedings noted that separation from previous partners triggered his violent behaviour towards them, although his former partner was not at immediate risk. X. was subjected to a barring order with respect to his former partner and ordered to undergo psychological treatment. The authorities were also instructed to report any breach of these conditions to the competent domestic authority.

N.D. did not know that X. had a criminal past. However, due to his strange behaviour, she contacted X.’s family doctor on 29 August 2007. The doctor advised her to end the relationship, but warned against doing so abruptly. That same day, the doctor informed the police about his contact with the applicant and also consulted a forensic psychiatrist, who described X. as a “ticking time bomb”[2].  The next day, a police officer called N.D., who explained that she had tried to end the relationship, but that X. kept calling and messaging her and refused to accept her decision. The officer informed her about the services offered by the victim support centre and the possibility of lodging a criminal complaint. He did not disclose X.’s criminal past, but recommended ending the relationship, stating that X was “not harmless”. N.D. responded that she intended to end things cautiously. Around the same time, X. confided in his psychologist that he feared his partner would discover his criminal past and leave him.

On 19 September 2007, at 10 p.m., the applicant sent X. an email ending the relationship. In response, X. broke into her apartment and abducted her. He raped her and tried to suffocate her for two hours. He then shot her three times in the chest with a crossbow, shackled her, and put her in the trunk of his car. After driving around for several hours, X. returned to his flat where he continued to threaten N.D. with a knife. Around 9 a.m., the applicant persuaded X. to let her speak to his psychologist who then contacted the police. The police rescued the severely injured applicant. X. committed suicide while in police custody.  

III. Summary of the Judgment

The question before the Court was whether the Swiss authorities knew or ought to have known of a real and immediate risk to the applicant’s right to life under Article 2 of the European Convention of Human Rights. The Court found that the domestic authorities were aware of X.’s relationship with the applicant, his prior convictions for rape and murder, and the criminal proceedings in relation to another former partner. In particular, it emphasised that two psychiatric reports had identified situations of separation as triggers for his violent behaviour. The Court also referenced a statement by GREVIO, the independent expert body tasked with implementing the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence (Istanbul Convention), to explain that break-up situations can indicate a high risk of violence.

The Court held that the authorities were under an obligation to act from the moment the applicant contacted X.’s family doctor who then alerted the police. (The government had argued that the obligation only arose on the night of the break-in). It was immaterial, in the Court’s view, that the applicant had not filed a formal criminal complaint, since she had limited knowledge about X.’s criminal background and the danger he posed.  
As to the measures that should have been adopted, the Court found that the police ought to have carried out a risk assessment in line with Kurt v. Austria, which requires that the authorities consider both the nature and level of the risk. In N.D., no risk assessment had been carried out, “which could have had a real chance of changing the outcome or mitigating the harm caused” (para. 76). While the police officer’s advice to the applicant was commendable, it was provided outside an established risk assessment procedure.

The Court observed that, at the time, Swiss law did not permit disclosure of X.’s criminal background to the applicant. However, in 2017 the relevant cantonal police law was amended to allow the sharing of personal data of dangerous individuals when necessary to prevent imminent harm. The Court also emphasised that the authorities should have coordinated their efforts to ensure adequate protection of the applicant. Given the applicant’s vulnerable situation and “the asymmetry of information”, the authorities should have been particularly vigilant, “leading to a complete and up-to-date assessment of the seriousness of the risk to which she was exposed” (para. 74). As the Court explained, this would not have necessarily guaranteed a successful outcome, as the state’s obligation is one of means, not of results. Hence, the authorities had failed to undertake the necessary preventative measures that could have reasonably be taken to protect the applicant’s right to life.

IV. Separate Opinions

The concurring opinions in N.D. took the Court’s reasoning on femicide and the required preventive measures a step further. Judge María Elósegui carefully explained that gender-based acts like harassment tend to recur and escalate. She argued that the authorities were well aware of X.’s record of femicide. Judge Elósegui suggested the adoption of legislative frameworks and protocols that enable the police to evaluate risks and inform victims of a record of gender-based violence, referring to the United Kingdom’s Domestic Violence Disclosure Scheme and Spain’s legislative frameworks, according to which information is shared with the victim based on an elaborate proportionality analysis and risk evaluation. She further stressed the importance of inter-agency coordination in these risk assessments, which can help balance the victim’s rights and the perpetrator’s privacy rights, while setting boundaries as to what personal information can be shared.

In a joint concurring opinion, Judges Gilberto Felici and Kate?ina Šimá?ková emphasised that N.D. was a victim of attempted femicide and had clearly been at high risk of such harm. They also observed that stereotypes and the broader cultural context can influence gendered crimes and can contribute to police inaction.

In contrast, the Swiss ad hoc Judge Nicolas von Werdt, joined by Judge Stéphanie Mourou-Vikström, argued in their dissenting opinion that unlike in prior domestic violence cases, where the claimants had suffered physical abuse and lodged complaints, N.D. had not been physically assaulted or had received death threats, nor had she filed a criminal complaint. Judge von Werdt also contended that requiring the police and other authorities to coordinate their knowledge and actions would place an excessive burden on the state and would interfere with X.’s right to private life. Even assuming such coordination was necessary, the dissent expressed concern that the judgment could lead to the dissemination of psychiatric reports, regardless of the context in which they were produced.

Finally, the dissenting Judges argued that the applicant had not been in imminent danger as she was subject to stalking, but not harassment. They maintained that under the Istanbul Convention, she was not at risk of violence, and that stalking was not subject to prosecution ex officio. In their view, requiring states to initiate criminal proceedings in the context of civil cases would go too far.

V. Analysis

N.D. v. Switzerland squarely fits within the Court’s well-established domestic violence case law, beginning with its landmark judgment in Opuz v. Turkey, and solidified by the Grand Chamber’s ruling in Kurt v. Austria. The Court carefully applied existing principles to N.D., a case marked by an extreme degree of cruelty and harm. The applicant barely survived, and only by chance. As the Court rightly observed, this is a case of femicide, thereby acknowledging that femicide also exists in Europe.

For the first time, the Court and all the separate opinions, engaged explicitly with femicide, an extreme form of gender-based violence, often understood as the murder of women and girls. In this sense, the Court found a violation of the right to life with respect to the applicant. However, femicide is not limited to killings, but can include other types of ill-treatment and torture. As I have argued elsewhere[3], limiting femicide to violations of the right to life fails to capture the full extent of the harm inflicted on women and girls.

Femicide can include other forms of extreme harm, such as rape and torture. Consider the facts of the case: N.D. was shot with a crossbow, shackled, driven around for hours, nearly suffocated and threatened with a knife. The Court itself – and even the dissenting judges – used the word ‘torture’ to describe her ordeal, suggesting that what was at stake exceeded a threat to life. While one might argue that X. as a private individual did not act with the required ‘purpose’ in the classical sense of state-perpetrated torture, scholars and the U.N. Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment have long argued that acts of gender-based violence can amount to torture. The overarching purpose of femicide, which can be conceived as a form of social destruction, is not necessarily to kill women, but to control them. As Judges Felici and Šimá?ková compellingly observed, women are sometimes ‘punished,’ for leaving their partners, as if they were his property. After N.D. broke up with him, X. resorted to violence, at least in part, to reassert his control. This supports the view that murder in femicide is not the ultimate aim.

Importantly, the Court opened the door for this framing by communicating the case under both the right to life and the prohibition of ill-treatment under Article 3 of the Convention. However, it left the Article 3 analysis for another day – perhaps due to the limited arguments presented by the lawyers. Of course, the Court could have examined the Article 3 claim proprio motu. Nonetheless, the onus falls on the lawyers to invoke the relevant human rights from the outset of the proceedings – not only to meet the exhaustion of domestic remedies requirement but also to fully acknowledge the victim’s ordeal and to seek greater monetary awards.

At the same time, the Court’s recognition of the risk dynamics underlying femicide is significant. In line with its domestic violence case law, it treated femicide not as an isolated act, but as part of a continuum of violence. As in Kurt, where the Court noted that domestic violence typically “increase[s] in frequency, intensity and danger over time” (Kurt, para. 175), it found in N.D. that the violence was “recurring” (para. 64). That cyclical nature of domestic violence is well supported by the literature and recognised in the Explanatory Report to the Istanbul Convention – and it is central to how risk materialises. Here, X. had already been imprisoned for similar acts, was known to be violent in break-up situations, and had not accepted N.D.’s attempt to end the relationship, thus placing her at increased risk. The dissenting Judges’ formalistic preoccupation with labelling X.’s conduct as stalking or harassment overlooks these risk dynamics, as even minor incidents of harm can indicate a future risk of violence, particularly in light of X.’s known criminal past.

Another point that merits attention is the Court’s vague engagement with whether the victim’s rights should prevail over those of the perpetrator. This line of inquiry (pursued by the dissenting Judges) seems misplaced. The central question is whether the authorities proactively assessed the risk and took protective measures. Arguing that disclosing information might infringe the perpetrator’s rights does not consider the societal costs of failing to protect women and devalues their lives. Equally troubling, it risks shifting the burden onto victims, who, once informed of a perpetrator’s past, are expected to protect themselves. That responsibility, however, should rest with the domestic authorities. Had they conducted a risk assessment, they would likely have considered key criteria, such as prior violence, recurrence, access to weapons etc., either to disclose relevant information or issue protection orders.

Finally, contrary to the dissenting Judges view, Kurt clearly holds that state agencies must proactively carry out a risk assessment and “obtain all the relevant information, including from other State agencies” (Kurt, para. 169). The state cannot excuse its inaction by pointing to institutional dysfunctions that would prevent agencies from sharing information. While the police officer in N.D. acted commendably, he did so outside an institutionalised framework or protocol. Had another officer been on duty, the outcome might have been different. Women’s right to life must not depend on chance, it requires systemic and coordinated measures to ensure their protection.

VI. Conclusion

The European Court of Human Right’s recognition of a case of violence against women as femicide is significant. N.D. v. Switzerland suggests that the kinds of risks women face are gender-specific and require a distinct legal response. Although the judgment is brief, it affirms the central role the right to life plays in femicide and sets a positive direction for future femicide judgments that build on the Court’s domestic violence case law. The Court also reiterated that acts of gender-based violence should not be viewed in isolation but are embedded in the broader dynamics of this type of harm. The case provides a foundation for lawyers to advance arguments on the prohibition of ill-treatment and torture, and to situate this harm within the broader systemic context in which it occurs.

[1] Available at https://strasbourgobservers.com/2025/07/16/the-european-court-of-human-rights-recognises-feminicide-as-a-human-rights-violation-n-d-v-switzerland.
[2] The translations are unofficial and based on the original version of the judgment, which was delivered in French.
[3] Angela Hefti, Conceptualizing Femicide as a Human Rights Violation: State Responsibility Under International Law (Edward Elgar 2022).

Direct access to the blog (https://strasbourgobservers.com)
Direct accessto the judgment (https://hudoc.echr.coe.int)
Earlier summary of the judgment in our Gender Law Newsletter 2025#2