MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1483/H46-14

7 December 2023

1483rd meeting, 5-7 December 2023 (DH) Human rights   H46-14 Tkhelidze group v. Georgia (Application No. 33056/17) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2022)427, DH-DD(2022)1152, CM/Del/Dec(2022)1451/H46-14

 

Application	Case	Judgment of	Final on	Indicator for the classification
33056/17	TKHELIDZE	08/07/2021	08/10/2021	Complex problem
73975/16	A AND B	10/02/2022	10/05/2022
38650/18	GAIDUKEVICH[1]	15/06/2023	15/09/2023

Cooperation Project: VC 2610 - Promoting an Integrated Approach to End Violence against Women and Enhancing Gender Equality in Georgia

Case description

These cases concern the State’s failure to take preventive action to protect the applicants’ female relatives from domestic violence culminating in their murder in 2014, and the failure to investigate the law-enforcement authorities’ inaction, against a backdrop of systemic failures and gender-based discrimination (violations of Article 2 in its substantive positive and procedural limbs taken in conjunction with Article 14 of the Convention).

The Court underlined that the responsible authorities knew or should have known of the gravity of the situation affecting many women in the country and that they should have shown particular diligence and provided heightened State protection to vulnerable members of that group. The Court concluded that the general and discriminatory passivity of the law-enforcement authorities in the face of allegations of domestic violence created a climate conducive to further proliferation of violence committed against women.

In the A and B case the Court also established the insufficiency of the redress offered to the victims given that the criminal proceedings against the perpetrator, himself a police officer, had not involved any examination of the possible role of gender-based discrimination in the commission of the crime. Moreover, in the civil proceedings, while awarding damages for the inaction of the authorities, the domestic courts did not examine whether the official tolerance of domestic violence might have been conditioned by gender bias or whether the relevant law-enforcement officers had acquiesced or conspired in the abuses.

Status of execution

This group was first examined by the Committee of Ministers at its 1451^st meeting (December 2022) (DH).

The most recent updated action plan (DH-DD(2023)1193) was submitted by the authorities on 6 October 2023.

Individual measures

-       Previous decision adopted by the Committee:

In December 2022 the Committee called upon the authorities to conduct the ongoing investigations in a fully independent, prompt and thorough manner. It also called on them to establish the responsibility of the relevant officials for their failure to respond properly to the gender-based violence, which led to the death of victims. The authorities were also invited to provide clarifications on the legal classification of the offence and the scope of the investigation in the A and B case.

-       Information about criminal investigations:

Tkhelidze case: On 22 November 2021 the General Prosecutor’s Office (GPO) launched an investigation into neglect of official duties leading to death.[2] The victim’s next of kin (mother) was granted victim status and interviewed. Information was requested and obtained from different agencies. In November 2022 - February 2023 some 13 employees of the Ministry of Internal Affairs (MIA) were interviewed. The authorities indicated that other investigative actions are planned with delivery of a final decision soon. In their Rule 9 communication (DH-DD(2023)1312) the applicant’s representatives complained that the investigation has been ongoing for nearly two years without any charges brought in respect of the individuals responsible.

A and B case: On 13 April 2022 the criminal case was transferred to the GPO for investigation. The victim’s relatives and lawyer were interviewed. The victim’s next of kin (mother) was granted victim status. Information was requested and obtained from different agencies, inspections and some other investigative actions were carried out. The classification of the offence was changed from neglect of official duties to abuse of power.[3] Additionally, a new criminal investigation into neglect of official duties[4] by prosecutors was launched and the case was transferred for further investigation to the General Inspectorate of the GPO. In their Rule 9 communication (DH-DD(2023)1312) the applicants’ representatives complained about the slow pace of the investigation, as well as the lack of specific investigative actions, including interviewing the law enforcement and prosecutorial officials in question, determining their current positions and taking measures to prevent their potential influence on the case.

General measures

a)     Previous decision adopted by the Committee

While noting with interest important measures taken by the authorities, the Committee expressed concerns about the high number of femicides and underlined that further sustained action was required to address the root-causes of the problem. It welcomed theintroduction of a risk assessment tool and an electronic surveillance system, noting that stronger efforts should be deployed for effective application of these and other deterrent mechanisms along with stepping up communication with victims. The authorities were invited to provide the disaggregated statistical data on investigations, prosecutions, convictions and sanctioning of gender-based crimes. They were also invited to submit concrete information on the domestic practice on the accountability of law-enforcement officials for their failure to respond properly to complaints on gender-based violence.

b)     Measures reported by the authorities

-       Risk assessment and electronic surveillance 

The risk assessment tool and the electronic surveillance mechanism were reviewed and as of 1 May 2023 they are applied in an updated form. The risk assessment tool became more victim-oriented, the scoring system and questions were improved. The threshold for application of electronic surveillance was changed allowing for an increased recourse to this measure.[5] These changes were followed by training sessions for 900 police officers and dissemination of a special video to raise awareness of the general public, given that a victim’s consent is required for the application of the surveillance tool.

Legislative amendments were initiated to allow for the application of the electronic monitoring system in the criminal proceedings along with the application of non-custodial measures in respect of a defendant at all stages of proceedings.

-       Victim support

As a follow-up to the Public Defender’s recommendation, the GPO published the 2022 report on the witness and victim coordinators’ activities with a view to raising public awareness of their duties/services provided. 12 coordinators specialised in domestic violence work in the GPO. Some 1,485 individuals benefited from their service in respect of cases of domestic crime in 2022.

The rules for awarding State compensation to victims were approved in November 2022. As a result of the legislative amendments, as of 1 July 2023 an individual, who identifies himself/herself as a victim of gender-based violence/domestic violence is entitled to State guaranteed services without obtaining formal victim status. The national referral procedures for the identification, protection, support and rehabilitation of the victims are being finalised and will be approved soon.

-       Investigations, prosecutions and convictions

The 2022 annual statistics[6] on crimes committed with a gender-based motive can be summarised as follows: 1,579 investigations were launched, prosecutions were launched against 1,069 individuals , 1,086 persons were identified as victims, 523 individuals were convicted and in 399 cases gender bias was applied as an aggravated factor for punishment. 218 individuals were sentenced to imprisonment, 246 to a conditional sentence, 16 were fined and 42 were sentenced to community services. The discrepancies between the number of convictions and prosecutions were explained by the authorities by the fact that the court hearings take up to two years, thus convictions are delivered later than the charges are enforced.

In 2022 the GPO analysed more than 300 criminal cases of femicide and attempted femicide from 2014 to 2022.^[7] Some of the trends revealed included increased identification of a gender-based motive in investigations and prosecutions, proper consideration of the prior history of violence, strict criminal justice policy for prosecution, endorsement of the gender element as an aggravating circumstance by the judiciary in 65% of guilty verdicts. The GPO plans to develop guidelines for prosecutors to address the shortcomings and challenges identified by the study. In December 2022, a consultative Council was established under the auspices of the Prosecutor General. The Council examines particularly complex cases of crimes against life, with a special focus on femicide cases either upon the decision of the Prosecutor General and/or the victim's complaint, identifies possible flaws in the investigation and provides recommendations to the Prosecutor General.

The crimes committed by law enforcement on the grounds of domestic violence/gender-based violence are investigated by the Special Investigation Service since March 2022. 30 investigations were launched and 17 persons were prosecuted between March 2022 and September 2023.

-       Responsibility of law-enforcement officials for their inaction

The authorities described the disciplinary and criminal framework for ensuring prosecutorial and police officials face responsibility for the abuse or neglect of their duties. They indicated that the MIA is closely monitoring the conduct of its officials. If an ineffective response by police officials to the allegations of domestic violence and/or violence against women is detected, disciplinary proceedings are initiated. Furthermore, issuing a restraining order against an employee of the MIA leads to the dismissal as a disciplinary sanction.

-       Policy development and institutional measures

The Inter-Agency Commission on Gender Equality, Violence against Women and Domestic Violence operates as a national monitoring and coordination mechanism. A working group set up in September 2022 by the Parliamentary Human Rights Protection and Civil Integration Committee developed an action plan for 2023-2024 envisaging measures for preventing femicide. In November 2022 the same Committee launched thematic research for harmonisation of the criminal law legislation with the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (the Istanbul Convention). In 2022 a memorandum was signed between the Administration of the Government and the National Association of Local Authorities, envisaging cooperation with the municipal Gender Equality Councils.

-       Capacity building and awareness raising

Various capacity building and training activities were carried out for prosecutors, including in the framework of the Council of Europe HELP programme. Learning modules and training programs were developed for the judiciary and are being institutionalised in the curriculum of the High School of Justice. A large-scale public information campaign - “No Femicide” was carried out by the GPO.

c)     Communications submitted to the Committee under Rule 9

The submissions were received from the Public Defender on 3 November 2023(1391) and three NGOs (GYLA, Union Sapari, EHRAC) on 20 October 2023 (DH-DD(2023)1312). While underscoring the importance of the new measures taken by the authorities, concerns were repeatedly expressed over the extremely high rates of femicide and other serious gender-based crimes. The submissions highlighted that the problems needed to be addressed in a meaningful way to deal with the root causes of these crimes, including shortcomings in appropriate recording of victim statements, insufficient application of the electronic surveillance mechanism, problems of risk assessment by the law enforcement and judiciary, challenges in effective consideration of gender-based motive by prosecution and judicial authorities resulting in lenient sentencing, lack of practice to hold law enforcement officials accountable for their inadequate response to allegations of violence. Concerns were raised as to the insufficient number and heavy workload of victim coordinators, low public awareness of victim’s rights and support services, lack of sensitivity both in the law enforcement and judiciary and in some cases stereotypical and discriminatory attitudes towards victims. The need for improving statistical data collection and analysis, as well as for strengthening cooperation with civil society was underlined. 

Analysis by the Secretariat

Individual measures:

It is positive that the legal classification of the offence under investigation in the A and B case was changed from neglect of official duties to abuse of power and that the scope of the investigation was expanded and covers now prosecution officials. At the same time, consideration should be given to the concerns raised by the applicants’ representatives that none of the officials in question have been interviewed so far, no actions have been taken to verify whether they are still holding their positions and to prevent any potential influence this may have on the investigation.

As regards the Tkhelidze case, it is a matter of concern that no investigative actions appear to have been taken since February 2023.

In both cases greater efforts are necessary to ensure a prompt and thorough action to avoid loss of evidence and to bring those responsible to justice promptly. Information is awaited about the examination of gender-based discrimination and bias as motivating factors behind the offences in question.

General measures:

a)     Preventive and protection mechanisms

The authorities’ efforts to review the risk assessment tool and the electronic surveillance system in the light of the challenges encountered in their application, as well as subsequent increase in the application of the surveillance mechanism can be noted with interest. It appears, however, that these efforts should be further strengthened, in particular by, developing knowledge of the police officers to effectively use this mechanism, strengthening technical capacities for its application and providing accurate and reliable information to victims for obtaining their consent for the application of such surveillance.

Along with the data on the application of the electronic surveillance system, the authorities could be invited to provide annual statistics on the application of the restraining and protection orders as well as the results of the monitoring of the compliance with these orders. Furthermore, it appears that the rate of granting of the motions for application of detention as a measure of restraint by the courts remains low (around 57%).[8] The explanation on the reasons thereof is awaited. 

b)     Victim support and awareness raising 

It is encouraging that the authorities continue taking actions to raise awareness of the rights to victims and simplify their access to State guaranteed services. In the light of the high number of the cases under investigation, the challenges faced by victims and the sensitivity of the issues at stake, it appears advisable to further strengthen the mechanisms of victim and witness coordinators in the MIA and GPO by ensuring appropriate staffing, geographical coverage and effective delineation of responsibilities between the coordinators operating in the two institutions.

Moreover, considering the deeply rooted nature of the problem, further measures are required to raise public awareness, foster communication with victims and increase their confidence in law enforcement system. The authorities should be encouraged to reinforce and expand their work in this direction.

c)     Criminal investigations and sentencing

The statistical data on criminal proceedings in respect of offences committed with a gender-based motive shows some positive trends, notably a significant increase in the number of prosecutions in 2022 in comparison with the previous year.[9] Some increase is also visible in the number of convictions.[10] Although the authorities’ explanation that the court proceedings take up to two years is noted, the analysis of the data for 2021-2022 suggests that discrepancies between prosecutions and convictions remain high(more than 50%).[11] An additional analysis as to the root causes of these trends appears necessary. To enable a full assessment of the effectiveness of the response to such crimes, the data on the number of incidents reported and the length of proceedings should be collected as well.

Furthermore, deficiencies related to accurate and diligent recording of victim statements by law enforcement officers are reported to occur frequently. As underlined by the Court, shortcomings in the gathering of evidence in response to a reported incident of domestic violence can result in an underestimation of the level of violence committed, have deleterious effects on the prospects of opening a criminal investigation and even discourage victims of domestic abuse from reporting in the future. The authorities should give due regard to these findings and ensure that the relevant concerns are addressed through further institutional and capacity building measures.

It is to be further recalled that the failure to adequately qualify domestic violence and examine gender-based discrimination as a bias motive in the criminal and civil proceedings was one of the main reasons for which the Court established violations of the Convention in the judgments of this group.

As regards the dissuasive function of criminal sanctions, it remains a source of concern that the full-fledged application of a gender-based motive as an aggravating circumstance by domestic courts appears to remain challenging and the statistics of sentencing does not appear to show the application of a strict criminal justice policy towards this type of crimes.[12] In its 2022 evaluation report[13] by the Group of Experts on Action against Violence against Women and Domestic Violence (GREVIO) noted that the full range of aggravating circumstances provided in Georgian legislation is not frequently resorted to, and sentences are often mitigated. GREVIO urged the authorities to ensure that sentencing in such cases is commensurate with the gravity of the offence and preserves the dissuasive function of penalties and that the judiciary resorts to the full range of punishments prescribed by the legislation.

 

Another important aspect highlighted by the Court was the general and discriminatory passivity of law-enforcement authorities in the face of allegations of domestic violence. Concerns over the prevalence of stereotypical and discriminatory attitudes by investigators and other stakeholders of the criminal justice system were put forward by the GREVIO, the Public Defender and NGOs. The authorities’ information about capacity building of prosecutors and plans for institutionalisation of the relevant programmes in the judicial training are noted. It would be useful to receive updates on the similar capacity building initiatives targeting investigators. In the light of the reported ongoing concerns, it is imperative that such attitudes and practices are effectively eliminated among others through extensive awareness raising and capacity building efforts targeting the criminal justice stakeholders.

The authorities should therefore redouble their efforts with a view to addressing these challenges and strengthening criminal justice response to the cases of violence against women and domestic violence.

d)    Responsibility of law-enforcement officials for their inaction

While the information provided by the authorities describes the existing legal and institutional framework for the criminal and disciplinary accountability of law-enforcement officials, without any data on their application it remains unclear whether these mechanisms are functional and effective. The authorities should again be invited to provide concrete information on the domestic practice in respect of ensuring accountability of law-enforcement officials for their failure to respond properly to complaints on gender-based violence. This could include statistical data and examples of decisions adopted as a result of the disciplinary and criminal proceedings launched and sanctions imposed, along with the information on the examination into the gender-based discrimination as a possible motivating factor behind such inaction.

Financing assured: YES