MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1419/H46-14

2 December 2021

1419th meeting, 30 November – 2 December 2021 (DH) Human rights   H46-14 Identoba and Others group v. Georgia (Application No. 73235/12) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2021)1008, CM/Del/Dec(2020)1383/H46-5

 

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 JEHOVAH’S WITNESSES AND 4 OTHERS	03/05/2007	03/08/2007
7224/11	AGHDGOMELASHVILI AND JAPARIDZE	08/10/2020	08/01/2021

Case description

These cases concern degrading treatment of the applicants on account of abusive police conduct, motivated by homophobic and/or transphobic hatred, during a search of the premises of an LGBT NGO (in 2009: Aghdgomelashvili and Japaridze case); and the authorities’ failure to provide adequate protection against inhuman and degrading treatment inflicted by private individuals on LGBTI activists (in May 2012: Identoba and Others case) and Jehovah’s Witnesses (in 1999-2001: Gldani Congregation case), 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 into these facts, 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 of their rights to freedom of religion by Jehovah’s Witnesses and freedom of assembly by LGBTI activists (violations of Articles 9 and 11, taken separately and in conjunction with Article 14).

In the Identoba and Others judgment the Court found that, having regard to the reports of negative attitudes towards sexual minorities in some parts of society, as well as the fact that the organisers of the 2012 march warned the police about the likelihood of abuse, the authorities were under a compelling positive obligation to protect the demonstrators and to ensure their freedom of assembly. They should have used any means possible to this end, for instance, by making public statements to advocate a tolerant stance and to warn potential law-breakers of the nature of possible sanctions. Furthermore, the authorities should have ensured more police power by mobilising, for instance, a squad of anti-riot police to sufficiently contain violent counter-demonstrators.

Status of execution

In its decision adopted in September 2020 (1383rd DH meeting) the Committee noted with regret that due to prescription the offences in four cases[1] may not be subject to further prosecution and decided to close the supervision of the individual measures in all these cases. General measures were continued to be supervised under the two leading cases[2] and the two repetitive cases were closed by the Final Resolution CM/ResDH(2020)200.[3] In June 2021 the Committee classified a new judgment Aghdgomelashvili and Japaridze as a repetitive case in this group. On 8 October 2021 the authorities submitted an updated action report (DH-DD(2021)1008).

Individual measures

-       Criminal investigation in the Aghdgomelashvili and Japaridze case:

The authorities report that the applicants were recognised as victims on 23 January 2021 and they were re-questioned. Ten other individuals were recognised as victims and questioned in February-July 2021. They confirmed they had been subjected to psychological pressure, verbal abuse and inhuman treatment by police officers during the search. The authorities submit that it is impossible to identify all the police officers involved, except those who drafted and signed the search report. The investigation into the events is ongoing. 

In their Rule 9 submissions of 18 March 2021 (DH-DD(2021)373) and 25 October 2021
(DH-DD(2021)1152), the applicants’ representatives underline that the investigation has been pending for almost ten years and express their concern about the possible statute of limitation, as well as the remit of the investigation which is limited to  Article 333 of the Criminal Code (abuse of official power), thus not reflecting fully the nature and gravity of the violations found by the Court as regards the motivation of homophobic and/or transphobic hatred. They also note that the applicants have been provided with little specific information as to the steps taken or planned in the investigation.

General measures

a)     Last decision adopted by the Committee:

In September 2020 the Committee welcomed a number of measures undertaken by the authorities and at the same time noted with concern that discrimination on grounds of sexual orientation and gender identity remains a serious challenge, including the realisation of freedom of expression and assembly by LGBTI persons and Jehovah Witnesses, as well as identification of bias in the context of investigations. It called on the authorities to redouble their efforts in order to overcome the persisting challenges in the fight against hate crime, to further improve hate crime (especially anti-LGBTI) investigations and provide updated statistical data on such investigations and their outcomes, including as regards the events of the LGBTI pride march in Tbilisi in June 2019. The Committee reiterated its call on the authorities to establish a specialised investigative unit within the police for effective investigations into hate crime.

b)     The information submitted by the authorities in response to the Committee’s decision:

As regards investigations and prosecutions of discrimination cases, the authorities indicate that from 1 September 2020, specialised prosecutors, who have undergone Council of Europe-supported training courses, are providing procedural guidance over the investigation of the crimes motivated by intolerance and that the quality and effectiveness of their work in terms of identifying bias in criminal offences has increased.

In September 2020 the Supreme Court, the Prosecutor’s Office, the Ministry of Internal Affairs (MIA) and the National Statistics Office signed a memorandum on cooperation to create a joint data collection and reporting system for hate crimes. The first pilot report was published for the period of October-December 2020.

The statistical data on hate crimes can be summarised as follows: In 2020 the number of prosecutions was 224, out of them 22 in respect of hate crimes on the sexual orientation and gender identity (SOGI) grounds and four on religious grounds; 28 persons were recognised as victims in respect of SOGI hate crimes and 10 persons in respect of religiously-motivated hate crimes.

In 2020, 97 persons were convicted for hate crime: in 88 cases, article 53¹ of the Criminal Code (aggravating factors for punishment) were applied (in 10 cases on SOGI grounds and in one case on religious grounds). In the first six months of 2021 the number of prosecutions in hate crime cases was 326, including five crimes motivated by religious intolerance.

As regards the outcome of the investigations into the events of the LGBTI pride march in Tbilisi in June 2019, one individual was charged under article 239 of the Criminal Code (hooliganism), with discrimination identified as a motive. He was convicted in August 2019 by the Tbilisi City Court and ultimately sentenced to one-year probation. The investigation into the other episodes is ongoing.

The authorities also provide extensive information about various capacity-building measures implemented in cooperation with domestic and international stakeholders, such as training courses for investigators, prosecutors, witness/victim coordinators and judges on hate crimes and discrimination. Several awareness raising initiatives were conducted for a wider public as well.

c)     Communications submitted to the Committee under Rule 9

Rule 9 communications in respect of general measures were submitted by the European Association of Jehovah’s Witnesses on 25 January 2021 (DH-DD(2021)242), the Georgian Young Lawyers Association on 12 October 2021 (DH-DD(2021)1100), the Public Defender of Georgia on 18 October 2021
(DH-DD(2021)1136), the European Human Rights Advocacy Centre and the Women’s Initiatives Support Group on 25 October 2021 (DH-DD(2021)1152), the Social Justice Center and ILGA-Europe on 26 October 2021 (DH-DD(2021)1151).

The Public Defender and NGOs express concerns about the increased influence of homophobic radical groups and the frequency of violent threats and actions emanating from them. They underline the absence of a systemic vision on the part of the authorities to combat discrimination, in particular against LGBTI persons, along with the lack of proper analysis of the factors causing it. They highlight the rhetoric of high-level public officials, which instead of supporting equality and conveying messages of tolerance, including at critical times, is often itself discriminatory. The submissions provide detailed information and express serious concerns over the recent developments in respect of the Tbilisi March of Dignity of July 2021, in particular as regards the authorities’ obligation to secure the safety and the right to freedom of assembly of the LGBTI community/activists. They also underline that hate crimes against the LGBTI community remain a major challenge and their effective investigations are hindered mainly by the lack of promptness and adequate victim participation.

The submissions further emphasise the need for establishing a special investigative unit within the MIA, as recommended by the Committee of Ministers, the European Commission against Racism and Intolerance (ECRI) and UN Universal Periodic Review. As to hate crime investigations concerning Jehovah’s Witnesses, positive trends were observed in 2020 in comparison with the previous years, in particular in terms of proper legal classification of offences. However, the overall efficiency remains problematic mostly due to protracted investigations. According to the European Association of Jehovah’s Witnesses, out of 15 incidents which occurred between June 2019 and December 2020, only six resulted in prosecution/conviction. 

d) Developments in respect of the March of Dignity planned for 5 July 2021

No information was submitted in the action report in respect of the July 2021 events. As it appears from the Rule 9 communications and publicly available information that on 5 July 2021 a March of Dignity was planned to take place on Rustaveli Avenue in Tbilisi in the framework of the Tbilisi Pride Week. After the announcement of this event, radical groups started calling upon their supporters to disrupt it.[4] Several high-level public officials, including the Prime Minister, made statements calling on the march organisers to refrain from going ahead since the march was inadvisable and unacceptable for the majority.[5] 

On 5 July 2021 violent attacks were committed at various locations in Tbilisi by radical groups, during which the offices of several NGOs and civic movements were stormed and ransacked. More than 55 persons, including LGBTI community members, activists, journalists, human rights defenders, policemen and other individuals were assaulted and attacked.[6] The police were reported to be present in insufficient numbers and failed to intervene effectively.[7] The MIA made a statement in which it “once again publicly called on the participants of ‘Tbilisi Pride’ to refrain from holding the ‘March of Dignity’ in a public space due to the scale of counter-manifestations planned by opposing groups.”[8] The organisers had to cancel the march. A few days later, a cameraman who had been assaulted and sustained serious injuries during the above events was discovered dead.[9] 

Many international and national actors expressed serious concerns over the authorities’ failure to call publicly for the protection of the March of Dignity participants, to deter hate speech against them and to take the necessary actions to protect them. The authorities were called upon to effectively and promptly investigate and prosecute all the relevant offences and to take measures to prevent their recurrence in the future.[10]

Relying on the information from the MIA and the General Prosecutor’s Office, the Rule 9 submissions indicate that criminal investigations and prosecutions have been launched in relation to the 5 July 2021 events. However, the Public Defender and NGOs express concern that no organisers of the violent hate-motivated crimes have been charged so far, although there appears to be sufficient, publicly-available evidence to do so.[11]

e) additional information provided by the authorities on 16 November 2021[12]

According to the additional information provided by the authorities on 16 November 2021
(DH-DD(2021)1202) and therefore too late to be assessed in detail in the present notes, high level public officials, including the President,[13]the Prime Minister[14] and the Chair of the Parliament[15], condemned the violence against participants in the July 2021 events. The MIA launched investigation in respect of these events and for the time being 31 individuals have been charged under various articles of the Criminal Code of Georgia and 59 individuals (including 45 journalists and cameramen) and one legal person have been recognised as victims.. The authorities are currently elaborating the Human Rights Strategy for the next 10 years which sets a uniform state policy for the fight against discrimination and hate-crimes.

Analysis by the Secretariat

Individual measures

It appears that most of the shortcomings found by the Court in the initial investigation in the Aghdgomelashvili and Japaridze case, in particular as concerns lack of promptness and thoroughness, have not been remedied so far. The investigation is still ongoing and although the authorities indicate that at least those police officers, who signed the search report, have been identified, no information has been provided so far as to bringing criminal charges against any individual. It seems that no bias motive has been identified yet or even investigated into either. The authorities should therefore be called upon to redouble their efforts to conduct an effective investigation into this case without further delay, including by duly taking into consideration the role played by homo/trans-phobic motives in the police conduct.

General measures

The developments of July 2021 in respect of the March of Dignity in Tbilisi and the consequences thereof raise profound concern. It is to be recalled that in both the Identoba and Others and Gldani Congregation judgments the Court found the breach of the positive obligations by the authorities to provide the applicants with the required protection from homophobic and religiously-motivated violent attacks while they were trying to exercise their rights to freedom of peaceful assembly and / or freedom of religion. The recent events indicate that some nine years after the facts described in the Identoba and Others judgment, the LGBTI community in Georgia still does not enjoy effective protection from homophobic violence or the possibility to realise their fundamental right to freedom of assembly. The increased scale and intensity of hate speech and aggression, as well as the organised character of the violent attacks on the LGBTI community, civic activists and journalists, which appear to have been largely unrestrained by the authorities during the 5 July 2021 events, are particularly worrying. It is a source of deep concern that instead of underlining the importance of equality and demonstrating dedication to the fight against discrimination, the highest public officials suggested that the participants of the peaceful march should refrain from the realisation of their fundamental rights, qualifying their intentions as inappropriate and unacceptable for the majority.

Against this background, the authorities should be called upon to take determined action and demonstrate a firm political will at the highest level to combat hate crime and safeguard freedom of assembly by conveying a clear zero-tolerance message towards any form of discrimination, hate speech and violence, in particular against the LGBTI persons, who were subject to recent assaults and attacks together with a large number of journalists.

Furthermore, meaningful investigations and adequate sanctioning are essential for preventing impunity and building confidence in the State’s anti-discrimination policy. The offences related to the March of Dignity of July 2021 should be effectively and promptly investigated and those responsible, including leaders and organisers of hate-motivated mass violence, should be held accountable without further delay.

Although important steps have been taken over the recent years at the legislative and institutional level, from the information submitted to the Committee, including on the results of the investigation into the events of the 2019 pride march, it transpires that the effectiveness of investigations into the offences committed on the sexual orientation and gender identity, as well as and religious hatred grounds remains challenging. While some progress has been achieved in terms of the proper classification of the latter offences, the lack of promptness of investigations persists as a major problem. In that regard it should also be recalled that in four cases in this group of judgments, the Committee noted with regret that no further prosecution of perpetrators was possible due to prescription. The authorities should therefore give the necessary priority to all these investigations, including by taking all reasonable steps for unmasking bias motive, ensuring proper legal classification of offences thus implying longer prescription periods, duly involving victims in the process and completing the investigations in a timely and meaningful manner.

Another indication demonstrating the authorities’ continued commitment towards the fight against hate crime, would be the establishment of a dedicated investigative unit within the police, which would institutionalise, consolidate and disseminate the necessary knowledge and working methods and ensure coordinated, prompt and targeted investigative response to the crimes in question. The Committee may wish to repeatedly call upon the authorities to take concrete actions in this direction by making full use of the Council of Europe and other co-operation opportunities with a view to exploring the best practices in the field and setting up such unit, taking into account also the recommendations made by the ECRI.

Putting in place a new system for collecting and publishingstatistical data on hate crimes in 2020 is a welcome development. To enable a comprehensive analysis of the dynamics, it would be useful that, in addition to the number of investigations, prosecutions and convictions, this data includes also the information on the number of incidents reported/became known to the authorities, the length of criminal proceedings, as well as the data on investigations from the State Inspector’s Service. It would also be important that the unified statistical data is complemented with the analytical component identifying and explaining the relevant trends.

Significant training efforts have been deployed for building capacities of law enforcement, prosecution and judicial authorities with large-scale support from the international organisations. These measures should be further sustained. It is also important to demonstrate how the knowledge and skills acquired have transformed into concrete achievements, including in terms of the outcomes of the hate crime cases dealt with.

As regards the unhindered realisation of the freedom of assembly by the LGBTI community, the authorities should be called upon to take all the necessary measures, including with a view to putting in place appropriate policing mechanisms for adequately protecting participants from counter-demonstrators and to inform the Committee thereof.

Finally, it is essential that there exists a uniform and holistic state policy to tackle persistent challenges related to discrimination and hate crime, in particular on grounds of sexual orientation and gender identity. This policy could be reflected in a strategy and a corresponding action plan, developed on the basis of an in-depth baseline assessment, which would set out specific actions and responsibilities for state agencies and identify indicators for measuring the impact. This would also enable the authorities to plan and organise large scale and targeted campaigns to raise public awareness. The authorities should be encouraged to develop such policy in close cooperation with the Public Defender and civil society and by using the Council of Europe’s relevant expertise. 

Financing assured: YES