MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1355/H46-8

25 September 2019

1355th meeting, 23-25 September 2019 (DH) Human rights   H46-8 Identoba and Others group v. Georgia (Application No. 73235/12) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2019)795, CM/Del/Dec(2018)1318/H46-8

 

 

Application	Case	Judgment of	Final on	Indicator for the classification
73235/12	IDENTOBA AND OTHERS	12/05/2015	12/08/2015	Complex problem
71156/01	97 MEMBERS OF THE GLDANI CONGREGATION OF THE JEHOVA’S WITNESSES AND 4 OTHERS	03/05/2007	03/08/2007
28490/02	BEGHELURI AND OTHERS	07/10/2014	07/01/2015
18766/04	TSARTSIDZE AND OTHERS	17/01/2017	17/04/2017

Case description

These cases concern the authorities’ failure to provide adequate protection against inhuman and degrading treatment inflicted by private individuals on LGBTI activists (in May 2012) and Jehovah’s Witnesses (in 1999-2001), who were violently attacked during marches/meetings (substantive violations of Article 3, taken separately and in conjunction with Article 14), as well as the absence of effective investigations, including as regards discriminatory motives in that connection (procedural violations of Article 3, taken separately and in conjunction with Article 14). They also concern the authorities’ failure to take the necessary measures to ensure the exercise by Jehovah’s Witnesses of their right to freedom of religion, as well as to consider properly their complaints (Article 9, taken separately and in conjunction with Article 14).

In Identoba and Others, the homophobic attacks, by members of two religious groups, took place during a march in May 2012 to mark the International Day against Homophobia. In addition to the violations of Articles 3 and 14, the Court held that the authorities had breached their obligation to ensure that the march could take place peacefully by sufficiently containing homophobic and violent counter-demonstrators (violation of Article 11 taken in conjunction with Article 14).

The Court noted in particular that, given the reports of negative attitudes towards sexual minorities in some parts of society, as well as the fact that the organiser of the march had specifically warned the police about the likelihood of abuse, the law enforcement authorities were under a compelling positive obligation to protect the demonstrators, including the applicants, which they failed to do. The authorities also fell short of their procedural obligation to establish a possible discriminatory motive and identify those responsible for committing the homophobic violence. In the absence of a meaningful investigation, it would be difficult for the respondent State to implement measures aimed at improving the policing of similar peaceful demonstrations in the future, thus undermining public confidence in the State’s anti-discrimination policy.

In Gldani Congregation and Begheluri and Others, religiously-motivated attacks by a group of extremist Orthodox believers took place repeatedly during meetings of the applicants in 1999-2001. In addition to the violations of Articles 3 (substantive and procedural) and 14, the Court found that the authorities had failed in their duty to take the necessary measures to ensure that Jehovah’s Witnesses were able to exercise their right to freedom of religion (violation of Article 9 separately and in conjunction with Article 14).

In Begheluri and Others, the Court considered that the authorities were ineffective in preventing religiously-motivated violence. Through the conduct of their agents, who either participated directly in the attacks on Jehovah’s Witnesses or showed acquiescence and complicity in the unlawful activities of private individuals, the authorities created a climate of impunity, which ultimately encouraged other attacks against Jehovah’s Witnesses throughout the country. This was compounded by the obvious unwillingness to ensure the prompt and fair prosecution and punishment of those responsible (§ 145). The Court therefore considered that through their involvement, connivance or at least acquiescence, the relevant authorities had failed in their duty to take the necessary measures to ensure that Jehovah’s Witnesses were able to exercise their right to freedom of religion (§ 165).

In Tsartsidze and Others, the Court found a violation of Article 9 separately and in conjunction with Article 14 with respect to seven applicants for the following reasons: the dispersal of a religious meeting and the confiscation of religious literature in October 2000, as well as the subsequent legal proceedings; the manner in which the domestic courts rejected the applicant’s allegations about violent and insulting behaviour during their arrest in September 2000, as well as the superficial and one-sided consideration by the courts (taking into account only the police version of events) which dealt with the disruption of a religious meeting in March 2000 by a group of orthodox religious extremists and the public destruction of the religious literature seized by the attackers. As regards the judicial proceedings conducted, the Court noted in particular that the examination of the applicants' complaints was superficial and biased, culminating in accepting the police version of events as true by default (§ 84) and that such an examination coupled with an automatic reliance on law enforcement officials and the unsubstantiated rejection of the applicants’ version of events could only be regarded as connivance on the part of the judiciary with the violent acts committed against the applicants (§ 86). With regard to the incidents, the Court found in particular that, put in a wider context of country-wide religious violence against Jehovah’s Witnesses at the material time, the applicants were victims of police violence on account of their religious beliefs (§ 85). Such facts would not have been possible without the connivance, or at least the acquiescence of the police (§ 87).

Status of execution

The Committee last examined this group in June 2018. On 10 July 2019 the authorities submitted a consolidated action report (DH-DD(2019)795) which is summarised below.

Individual measures:

a)         Investigation of the cases following the Court’s judgments

Referring to the information submitted in previous action plans/reports, the authorities indicated that the prosecution service examined all possibly applicable provisions of the Criminal Code[1] regarding all of these cases. They reiterated their position that, notably with regard to the Jehovah’s Witnesses cases where approximately 20 years have passed since the events, the initiation of criminal proceedings is impossible due to prescription. The situation is similar regarding the Identoba and Others case in which the two-year prescription period for encroachment on the right to assembly or demonstration elapsed even before the Court’s judgment became final. The authorities indicated that the investigations will therefore be terminated due to prescription.

b)         Victim involvement

The applicants in Identoba and Others have been granted victim status and the right, inter alia, to challenge a prosecutor’s decree terminating an investigation and/or a criminal prosecution, as set out in Article 106 of the Criminal Procedure Code. Such an appeal may be lodged with a superior prosecutor. The latter’s decision is final and cannot be appealed before a court except for particularly grave crimes.

c)         Possible compensation claims by the applicants

In response to the Committee’s invitation to present information on other possible forms of redress to compensate for the prolonged delay in adopting adequate individual measures, the authorities, referring to Articles 992 to 1005 of the Civil Code, stated that domestic legislation allows the applicants to bring a claim for compensation before the domestic courts if they consider that prescription occurred due to competent authorities’ fault.  In particular, according to Article 1005, “If a state employee or a public servant breaches his/her official duty in relation to other persons intentionally or by gross negligence, then the state or the body by which the employee or the servant is employed shall pay for the damage inflicted.

When the damage is caused intentionally or by gross negligence, the state employee or the public servant together with the state shall be jointly and severally liable.” The authorities also indicated that by virtue of Article 207 of the General Administrative Code and Article 413 of the Civil Code, compensation for non-pecuniary damage may also be claimed by the applicants.[2]

General measures:

The Committee of Ministers has noted with interest the important measures which the authorities have continued to take in the context of the development of a national policy to fight discrimination and intolerance.

1.         Constitutional changes

Article 16 of the new Constitution that entered into force in December 2018 has thus eliminated the earlier references to “national security”, “prevention of crime” and “administration of justice” as justifications for interferences with freedom of assembly to align the Constitution with Article 9 § 2 of the European Convention. The authorities indicate that the Venice Commission’s opinion of 2017 was taken into account by the State Constitutional Commission during the preparatory work. In March 2018 the Venice Commission welcomed these amendments.[3]

2.         Legislative reform

A Law on the Elimination of All Forms of Discrimination, was adopted on 2 May 2014. This law was amended in February 2019, and the principle of equal treatment was extended to the spheres of labour and all stages of pre-contractual relations, as well as education, social security, healthcare, goods and services. The law also better defined the notions of harassment and sexual harassment.

On 3 May 2019 the Civil Procedure Code was amended so as to extend the deadline for seeking compensation through the courts for moral or material damage caused by discrimination from three months to one year after a person becomes aware, or ought to have become aware, of a fact of discrimination. The authorities consider this amendment very important because the previous term of three months was insufficient for potential applicants to prepare their case. The extended deadline gives the possibility to apply also to the Public Defender and to obtain his/her decision before applying to a court.

In July 2010 the Organic Law on the Public Defender was amended and the mandate of the Public Defender with respect to private individuals was extended. In particular, individuals and legal entities are obliged to provide the Public Defender with information about instances of alleged discrimination within 10 days. The same law places an obligation on individuals and legal entities to inform the Public Defender within 20 days of the results of recommendations or general proposals addressed to them. In case the Public Defender’s recommendation is not followed, the complainant is entitled to refer the case to the courts, according to the Civil Procedure Code, with a request to confirm the finding of discrimination and deliver a decision which is binding on the respondent.

The authorities also presented several examples of the Public Defender’s recommendations to eliminate discrimination (see the action report for details) showing that the Public Defender’s intervention has brought positive results. 

Further, the Ministry of Internal Affairs initiated amendments to the Criminal Code that were adopted on 30 September 2018, increasing the sanctions for crimes committed on discriminatory grounds. In particular, pursuant to the new paragraph 3 of article 53.1 (aggravating circumstances for punishment) of the Criminal Code, when imposing a fixed-term imprisonment for a crime committed with aggravating circumstances, the term of the sentence to be served shall exceed at least by one year the minimum term of sentence provided for that crime.

3.         Statistical data

Between 2016 and 2018, 359 criminal cases involving hate crimes were examined, 63 of which in 2016, 86 in 2017 and 210 in 2018.

Of the 210 cases in 2018, 112 cases concerned sex/gender issues, 29 sexual identity, 28 sexual orientation and 23 religion.

81 judgments were given in 2018 on discrimination issues. In 88% of these cases the person was convicted. The remaining cases ended in acquittal.

Within the framework of the ongoing Council of Europe project “Fight against Discrimination, Hate Crime and Hate Speech in Georgia”, the authorities plan to establish a unified methodology for collecting statistical data on hate crimes by the Ministry of Internal Affairs, the Prosecutor's Office and the Supreme Court.

4.         The Human Rights Department of the Ministry of Internal Affairs (MIA)

In January 2018 the Human Rights Protection and Monitoring Department (the Department) was established with, as the authorities claimed, the task of investigating intolerance and discrimination crimes as well as monitoring all crimes with signs of discrimination. The authorities pointed out that both the Committee of Ministers and the European Commission against Racism and Intolerance (ECRI) have considered the creation of this department as a positive step.[4]

As a new development in the Department’s activity, the authorities mentioned the analysis of information concerning the author of the notification, the relation between the victim and the abuser, the period between committing a crime and application to the police, the restraint measures issued in the course of an investigation, the data on the abuser’s detention, as well as the features of victims and abusers. On the basis of this analysis, corresponding recommendations are elaborated and legislative initiatives drafted. In 2019 the mandate of the Department was extended in order to ensure the effectiveness of investigations of crimes committed against health and life.

5.         Victim and witness protection

With the aim of ensuring effective investigations into crimes and of supporting victims and witnesses as well as protecting them from repeated victimisation, the service of the witness’ and victims’ coordinator was set up in the MIA. One of its main objectives is effective communication between the investigator and the victim/witness, including those affected by discrimination or hate crimes, and assisting them in dealing with the stress caused by the crime. Furthermore, pursuant to research carried out by the Caucasus Research Resource Centre in June-September 2018, among the redress mechanisms for victims of hate crime and hate speech in Georgia the police “were the most commonly recognised institution that could be turned to (62%)”.[5]  

6.         Training and awareness-raising activities

The authorities presented extensive information about numerous police and judicial authorities’ training and awareness-raising activities held in recent years, as well as some examples of international standards on the prohibition of discrimination being reflected in domestic case law (see the action report for details).

7.         Other measures

On 17 April 2018 the Human Rights Action Plan of 2018-2020 was approved by the government. It envisages notably the strengthening of secularism and religious neutrality, action against discriminatory and hate-motivated crimes and increasing the effectiveness of criminal proceedings in this domain.

8.         Evaluation of the impact of the measures taken

As regards the repeated invitations of the Committee to provide their assessment of the impact of the measures taken to date and to provide information on what measures they still intend to take in the light also of the conclusions of the latest report by ECRI on Georgia and the repeated findings and concerns of the Public Defender and civil society, the authorities submitted that all the general measures taken in the course of the execution of the Identoba and Others group, including the legislative amendments referred to above, as well as the investigation of discrimination cases and the related statistical data, show that the Government have indeed made every effort to address the problems revealed by these judgments.

Most recent communications under Rule 9

In a communication of 26 June 2019, the European Association of Jehovah’s Witnesses submitted that Georgia’s “National Human Rights Strategy”, aimed inter alia at fostering religious tolerance and prohibiting discrimination on religious grounds, is not working fully as yet, and that there is still no effective investigation of the numerous criminal assaults against Jehovah’s Witnesses. Instead, many law enforcement officials continue to demonstrate an unwillingness to promptly and effectively investigate hate crimes against Jehovah’s Witnesses and to prosecute those responsible. As a result, hate crimes against Jehovah’s Witnesses in Georgia continue (see DH-DD(2019)841). The Association also attached a detailed list of 25 reported attacks (almost all violent causing bodily injury) between March 2013 and May 2019 against Jehovah’s Witnesses which are unresolved or with regard to which the investigations have not led to any results.

In their joint communication of 2 August 2019 (see DH-DD(2019)938), the Human Rights Education and Monitoring Center, the Women’s Initiatives Support Group and ILGA-Europe welcomed the fact that important legislative proposals initiated by the Public Defender in 2015 as well as recommendations made by NGOs were adopted by the Georgian Parliament, thus enhancing domestic anti-discrimination law. Notwithstanding these amendments, and despite the frequency and seriousness of hate crime incidents against LGBTI persons, the number of charges brought in relation to these offenses remains low while courts use very rarely the “aggravating circumstances” provisions of the Criminal Code when sentencing perpetrators of hate crimes. This, they argue, along with the authorities’ inability to safeguard the safety of participants in the 2019 Tbilisi Pride March, which led to its cancellation, demonstrates that the Identoba judgment is far from being satisfactorily implemented. They also noted that as regards the National Human Rights Action Plan 2018-2020, the chapter addressing the rights of LGBTI persons has still not been approved.

In her communication of 19 August 2019, (DH-DD(2019)939), the Public Defender noted that, according to the United Nations independent expert on protection against violence and discrimination on the basis of sexual orientation and gender identity, homophobia, transphobia and xenophobia remain systemic problems. According to the Public Defender, the situation is exacerbated by the fact that public figures often convey intolerance to the general public. By way of illustration, she pointed out that, since 2011, the LGBTI community had been trying to celebrate May 17 - IDAHOT Day but that its right to freedom of expression has always been subject to significant violations, including situations that threaten physical security. Both in May 2018 and May 2019, during the IDAHOT days, members of the LGBTI community and NGOs have still not been able to freely choose the location and format of their demonstrations due to gender movements and the risk of altercations. The situation in 2019 and in particular the obstacles encountered by the organisation of Tbilisi Pride are particularly illustrative in this respect. The Defender also brings to the Committee's attention the events of 14 June, when Tbilisi Pride organisers and supporters were confronted with the aggressiveness and violence of counter-demonstrators (including an attempted attack on the Deputy Public Defender) and had to be surrounded by a police cordon.

As regards the implementation of the national action plans, the Public Defender raised concern that the human rights national action plan for 2018-2020 does not contain a chapter on equality which is a step back compared with the one for 2016-2017. She further noted that the problems linked to freedom of religion have not been solved and that although the number of religious hate crimes has declined over the past two years, this problem still has a systemic nature. Concerning the investigation of hate crimes, she considered that the identification and correct qualification of discriminatory motives still remains problematic. Victims also frequently allege offensive and ridiculing attitude from police officers and may thus choose not to report to the police or to withdraw their report and stop any cooperation. Finally, the Public Defender presented a number of recommendations for changes in law and practice aimed at improving the fight against intolerance.

Analysis by the Secretariat

Individual measures

a)     Questions linked to investigations

In its last decision of June 2018, the Committee expressed regret that no criminal charges could be brought on grounds of prescription, notably as a result of the prolonged absence of adequate individual measures, and, in this context, drew attention to the frequent references to prescription, something which raised questions about the legal classification of the crimes (depending on whether “less serious”, “serious” or “particularly serious” crime). The Committee thus requested information on the remedies available at domestic level to challenge this classification.

While the information provided indicates the possibilities for review of the prosecutor’s decision to terminate an investigation, it does not clarify however what avenues exist to contest the classification of the events as such.

It also transpires that the prosecutors in charge of the Identoba and Others case did not classify the events as a “serious crime” (which carries a limitation period of ten years), but as “less serious crimes”. If a Criminal Code provision were to be applied which concerns a “serious crime”, then prosecution could still be possible in that case.

In conclusion, the importance for victims to have a real opportunity to contest the classification of crimes, preferably before the courts, is once again underlined. Information on the possibility of so doing in the domestic system, as well as on whether the applicants have done so in their cases, is therefore still required. The situation also highlights a possible need for a stricter policy on the part of the police and other investigative authorities with respect to discriminatory attitudes within the police and to hate crimes in general. This problem has been stressed in the NGO submissions.

b)    Questions linked to other possible forms of redress

As regards the possibility to receive compensation for the prolonged absence of any adequate individual measure, the authorities referred to civil and administrative law provisions for possible compensation claims which may be applied in cases where prescription of offences has occurred due to the authorities’ fault. To what extent these rules could also, as a matter of the law as its stands today, allow compensation for the authorities’ inaction and delays in opening and pursuing necessary criminal investigations remains to be elucidated. It would therefore be useful to receive further information on the legal avenues which may be, or could have been, pursued by the applicants to obtain such compensation. It would be particularly helpful to receive relevant domestic case law examples.

General measures

It can be welcomed that the terms “national security”, “preventing crime” and “administering justice” were removed from the text of the new Constitution as grounds for restricting freedom of religion, in response to the Venice Commission’s opinion, as those terms were not in line with Article 9 § 2 of the Convention.

As regards the legislative reform aimed at combatting discrimination, the changes presented are positive developments. However, in view of reports of considerable problems in the implementation of the new anti-discrimination framework, notably as reported by the UN Independent Expert on Violence and Discrimination based on Sexual Orientation and Gender Identity (see below) and other sources, there appears to be an urgent need for additional action to improve both the regulatory framework for police action and the effectiveness of investigations.

As regards investigations, the indications are that there is still a problem in identifying hate motives. The Public Defender registered 50 cases in 2015-2018 involving alleged hate crimes committed on account of religion, ethnic origin, sexual orientation and gender identity as well as incidents of physical and verbal assault allegedly committed by law enforcement authorities with hate motives. In the majority of the cases involving Jehovah’s Witnesses, discrimination grounds were not identified, and the investigations have either been discontinued or not commenced at all. The situation is similar in LGBTI cases.[6]

Consequently, it is vital that the authorities make further and sustained efforts involving not only legislative but also practical measures to ensure the proper investigation of discrimination and hate crime cases and the identification and punishment of those responsible.

As regards the activity of the Human Rights Department of the MIA, while indeed ECRI has in general considered its creation as a positive step, it also indicated that “such a department is not a substitute for a specialised investigative unit within the police, as recommended by ECRI. The new department was created to review hate crime investigations, not to carry them out”.[7] Consequently, the authorities could be invited to implement ECRI’s recommendation by creating a specialized investigative unit within the police.

As for efforts to eliminate religious discrimination, it is noted that ECRI has recommended that the Georgian authorities scale up their support for the Council of Religions, which operates under the auspices of the Public Defender’s Tolerance Centre. In particular, ECRI has called on the authorities to task the newly created State Agency for Religious Issues with cooperating with the Council of Religions and utilise the Council’s expertise and recommendations in order to tackle the problem of religious intolerance.[8]

The incidents surrounding the attempts to hold first LGBTI pride in Tbilisi, in June 2019 give rise to serious concerns. According to the organisers as well as numerous media reports,[9] the event was cancelled due to threats against would-be marchers and the law enforcement bodies’ inability to protect participants from violent homophobic groups. It is particularly worrisome that the Public Defender has received death threats following her statements on the need to protect and uphold the right to freedom of peaceful assembly.[10] It appears from media reports that eventually a small 30-minute LGBTI rally took place in Tbilisi on 8 July 2019 in front of the Ministry of Internal Affairs.[11]

It is noteworthy that arbitrary restrictions of the right to freedom of expression and peaceful assembly without discrimination were a matter of concern also for the UN Independent Expert on Violence and Discrimination based on Sexual Orientation and Gender Identity.^[12] Moreover, the Public Defender mentioned in her report that discrimination on account of sexual orientation and gender identity remains one of the challenges in the country, and that existing homophobic attitudes often lead to discrimination against representatives of the LGBTI community.

Lastly, it is noted that in October 2018, in the statement at the end of his mission to Georgia, the UN Independent Expert on Violence and Discrimination based on Sexual Orientation and Gender Identity acknowledged that Georgia has carried out significant legal and institutional reform but also identified a number of major shortcomings in practice and law. These include notably the following:

a) infrequent or non-application by law enforcement bodies and courts of Article 53.31 of the Criminal Code concerning aggravating circumstances for hate crimes. As a consequence, there is a lack of case law regarding aggravating circumstances especially in homophobic or transphobic crime;

b) the Criminal Code does not explicitly prohibit hatred against LGBTI persons;

c) efforts to adopt a Code of Ethics for MPs have failed while such acts are never reprimanded publicly by the authorities and therefore tacitly condoned.

It thus transpires that further sustained and systematic measures are still required in order to prevent violations similar to those of the present group of cases. 

Financing assured: YES