Can the State be held to be financially accountable in cases of femicide?

This question goes beyond criminal responsibility of the aggressor and directly tests the effectiveness of constitutional protection in Mauritius: whether the State can be held accountable — including financially — when a woman is killed despite known and preventable risk factors.

Under the Constitution of Mauritius, the framework is already in place. Section 3 guarantees fundamental rights, including the right to life, liberty, security of the person, and protection of the law. Section 4 prohibits the deprivation of life except in strictly lawful circumstances. Section 7 protects against torture and inhuman or degrading treatment, and Section 17 provides access to the Supreme Court for constitutional redress where rights are infringed. Read together, these provisions impose not only negative duties on the State, but also positive obligations to protect individuals where risks are foreseeable and known.

In legal terms, the key question is whether authorities exercised due diligence: did they know or ought they to have known of the risk, and did they take reasonable operational steps to prevent harm? This may include enforcing protection orders, responding adequately to complaints, and deploying available preventive tools. Where the State fails at this level, the issue shifts from isolated criminal conduct to institutional omission and potential constitutional breach.

International jurisprudence is particularly clear and increasingly consistent on this point. In Opuz v. Turkey (European Court of Human Rights, 2009), the Court held that the authorities’ persistent failure to act on known domestic violence amounted to violations of the right to life and non-discrimination. Importantly, it recognized that such failures can give rise to State liability and financial compensation, as the inaction itself constituted a breach of positive obligations.

In Kontrová v. Slovakia (ECHR, 2007), the Court found the State responsible where police ignored repeated warnings about a violent partner who ultimately killed his family. The judgment emphasized that once authorities are aware of a real and immediate risk, failure to act with reasonable measures engages State responsibility under Article 2 (right to life).

Similarly, in Talpis v. Italy (ECHR, 2017), the Court reiterated that systemic failures in responding to domestic violence — including delays and inadequate protection measures — violate the State’s obligation to protect life and can justify compensation. Outside Europe, in Gonzales v. United States (Inter-American Commission on Human Rights, 2011) (the “Jessica Lenahan case”), the failure to enforce a restraining order was held to breach international human rights standards, reinforcing the duty of States to act effectively in cases of known domestic violence risk.

Taken together, these cases establish a clear principle: where the State is aware of a real and foreseeable risk to life and fails to act with operational diligence, it may be held internationally responsible — including through orders of financial compensation.

In Mauritius, while Sections 3, 4, 7, and 17 of the Constitution provide a strong legal foundation for similar claims, the doctrine of State liability for failure to protect in domestic violence or femicide cases remains still emerging in practice. We will have to look into the concept of French jurisprudence also with the concepts of “faute lourde” and “responsabilité de l’État pour carence fautive » of failure to protect a person in danger. Will the State be accountable for its failure to protect proactively? How will the State discharge its responsibility? Can we sue the State for failing to protect women victims of domestic violence and femicide?

Modern constitutional and human rights law is moving away from a purely reactive model focused only on punishing perpetrators, toward a framework where the State itself is also assessed on prevention, responsiveness, and accountability.

In that evolving framework, financial liability of the State in femicide cases is no longer a theoretical argument — it is a legally arguable consequence of serious institutional failure to protect life. And the State has to take note.

This dated archive preserves the author’s original commentary. It is general information, not legal advice, and may not reflect current law.