MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1514/H46-15

5 December 2024

1514th meeting, 3-5 December 2024 (DH) Human rights   H46-15 Tkhelidze group v. Georgia (Application No. 33056/17) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2024)1115, DH-DD(2022)427, DH-DD(2022)1152, CM/Del/Dec(2023)1483/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	15/06/2023	15/09/2023

Co-operation Project: VC 2996 - Reinforcing gender equality and implementing GREVIO recommendations to combat violence against women and domestic violence 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 death in 2014 and 2017. They further concern 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. It 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.

In the Gaidukevich case the Court emphasised that the Supreme Court’s conviction of the perpetrator was based on a single incident of domestic violence dismissing years of violence which the victim had suffered. The above-mentioned approach coupled with the lack of any examination of the possible role of gender-based discrimination in the commission of the crime as an aggravating circumstance led to the sentencing of the perpetrator to one year.

Status of execution

This group was examined by the Committee of Ministers twice in December 2022 and December 2023. The most recent updated action plan (DH-DD(2024)1115) was submitted by the authorities on 3 October 2024.

Individual measures

a)     Previous decision adopted by the Committee:

In December 2023, the Committee noted positive developments in the A and B case as regards the legal classification of the offence of abuse of power and expansion of the scope of the investigation. It also called upon the authorities to redouble their efforts with a view to taking all the necessary investigative measures rapidly and diligently in the Tkhelidze and A and B cases, ensuring due examination of a possible bias motive.

b)    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.[1] In their most recent action plan the authorities reiterated their previous indication that a final decision will be delivered shortly. In their Rule 9 communication (DH-DD(2024)1259) the applicant’s representatives complained that they have not been informed about any updates since their last communication with the GPO in October 2023 and that no one has been charged in the framework of the ongoing investigation.

A and B case: On 13 April 2022, the criminal case was transferred to the GPO for investigation. On 16 January 2023, the classification of the offence was changed from neglect of official duties[2] to abuse of power[3] within a separate criminal case, which was transmitted for further investigation to the General Inspectorate of the GPO. In their most recent action plan the authorities reiterated their previous indication that a final decision will be delivered shortly. In their Rule 9 communication (DH-DD(2024)1259) the applicants’ representatives underlined the authorities’ lack of willingness to prosecute those responsible, despite the existence of sufficient evidence to this end.

Gaidukevich case: The case was transferred for investigation to the Special Investigative Service (SIS). The authorities indicated that an investigative plan will be developed, and appropriate investigative/procedural actions will be taken. In their Rule 9 communication (DH-DD(2024)1259) the applicant’s representatives complained about the absence of any communication by the SIS with the victim’s next of kin.

General measures

a) Previous decision adopted by the Committee

In December 2023, the Committee, among others:

·         noted with interest the measures to upgrade the risk assessment tool and the electronic surveillance system, as well as a significant increase in the number of prosecutions for gender-based violence.

·         welcomed the authorities’ efforts to raise victims' knowledge of their rights and simplify their access to state services.

·         underlined that greater efforts are necessary to align judicial practice with the Convention requirements, among others by ensuring proper examination of a gender-based motive and imposition of more dissuasive sentences.

·         encouraged the authorities to provide statistical and analytical information on the application of the preventive and deterrent mechanisms, to further scale up the awareness-raising initiatives and strengthen mechanisms of interaction with victims.

·         called upon the authorities to foster their efforts aimed at combatting discriminatory attitudes and practices among criminal justice stakeholders and to provide specific information on the domestic practice for ensuring accountability of law-enforcement officials for their failure to respond properly to complaints on gender-based violence.

b) Measures reported by the authorities

-       Preventive and protection mechanisms

As of 1 May 2023, the risk assessment tool and the electronic surveillance mechanism are applied in an updated form. This resulted in an increased use of electronic surveillance, which has tripled between May 2023 and May 2024, compared to the previous three years.[4] In 2023, 8 734 restraining orders were issued in cases of domestic violence and 791 in cases of violence committed against women. In the first six months of 2024, 4 419 restraining orders were issued in cases of domestic violence and 455 in cases concerning violence against women.

-       Investigations, prosecutions and convictions

The 2023 annual statistics on crimes committed with a gender-based motive can be summarised as follows: 1 666 investigations were launched, prosecutions were launched against 1 169 individuals, 1 177 persons were identified as victims, 718 individuals were convicted and in 425 cases gender bias was applied as an aggravated factor for punishment. 333 persons were sentenced to imprisonment, 300 to a conditional sentence, 18 to a fine and 63 to community service. Two individuals were released due to amnesty or other grounds, and in one case, a guilty verdict was issued without a sentence due to the death of a person. Between March 2022 and August 2024, the SIS[5] launched 53 investigations and 29 law enforcement officials were prosecuted for domestic crimes.

In 2023, the GPO prepared an analysis which included current trends and challenges in relation to gender-based crimes. The trends identified from the monitoring of the cases of violence against women and domestic crimes in 2023 were integrated into the domestic crime specialisation training module and the revised prosecutorial guidelines. In January 2024, the GPO issued new internal guidelines “On eliminating shortcomings identified in femicide criminal cases”.

In relation to convictions, the authorities provided three examples of Supreme Court judgments and noted that the Supreme Court draws particular attention to the gender-based discrimination and a gender bias, and refuses to mitigate the punishment in such cases.

-       Responsibility of law-enforcement officials for their inaction

The authorities described the applicable disciplinary and criminal framework for ensuring that prosecutorial and police officials face responsibility for the abuse or neglect of their duties.

-       Policy development and victim support

In December 2023, the government approved the National Human Rights Action Plan for 2024-2026, which includes strengthening victim protection mechanisms in relation to violence against women and domestic violence. In January 2024, the National Referral Procedures for the identification, protection, support and rehabilitation of the victims of violence against women and/or domestic violence (National Referral Procedures) was approved, which, among others, describes the responsibilities of the investigative and prosecutorial bodies while handling such cases, as well as their obligation to ensure effective and coordinated work.

In 2024, a witness and victim coordinator’s office as a separate division was established within the Human Rights Protection and Investigation Quality Monitoring Department of the Ministry of Internal Affairs, which provided support to 2 307 victims. In 2023, the rate of involvement of the GPO’s victim and witness coordinators in cases of domestic crimes and violence against women increased.

Coordinators were involved in 1 825 domestic violence cases in 2023, compared to 1 454 in 2022.[6] As regards cases of violence against women, coordinators were involved in 1 982 cases in 2023, in compassion to 1 576 in 2022.[7]

The authorities carried out various awareness-raising initiatives, including through mass communication channels, on how to respond and report violence against women and domestic violence. In addition, the GPO continued implementation of the public information campaign “No to Femicide”.

-       Capacity building

Various capacity building activities were carried out for prosecutors and law-enforcement officers. In 2024, the Council of Europe’s HELP training courses “Domestic Violence and Violence against Women” and “Hate Crime and Hate Speech” were launched in the GPO. Learning modules and training programmes on gender equality and violence against women/domestic violence are institutionalised in the curriculum of the High School of Justice.

Communications submitted to the Committee under Rule 9

On 18 and 24 October 2024 the Public Defender’s Office (PDO) (DH-DD(2024)1242) and three NGOs[8]
(DH-DD(2024)1259) brought Rule 9 submissions to the attention of the Committee. They highlighted persistent gaps in the risk assessment, as well as in the examination of a gender-based motive by law-enforcement, prosecution and judicial authorities, resulting in inadequate sentencing. They positively assessed the increased application of the electronic surveillance mechanism. They also expressed concerns about the absence of adequate response to non-compliance with restraining and protective orders. In relation to the accountability of law-enforcement officials, the PDO provided information about two ongoing investigations, launched in 2022, into the neglect of duty allegedly committed by the Ministry of Internal Affairs (MIA) employees. According to the PDO, no one has been charged or recognised as a victim yet in these cases. Finally, concerns were raised as to low public awareness of victim’s rights and support services, insufficient number of victim coordinators, continued stereotypical and discriminatory attitudes of the state agents towards victims.  Furthermore, the NGOs underlined that their ability to work in the field of domestic violence and to participate in the execution process is in grave danger due to the consequences of the new Law on Transparency of Foreign Influence, including ensuing stigmatising attitudes and violence manifested against their organisations.

Analysis of the Secretariat

Individual measures:

While the new investigations have been pending for over three years already in the Tkhelidze case, and for more than two years in the case of A and B., the authorities have neither produced any formal conclusive findings nor taken any single investigative action since January-February 2023. Such lengthy periods of unexplained inactivity pose a problem in terms of the requirement to display particular diligence when investigating such cases.

As regards the Gaidukevich case, it is worrying that that the development of the investigative plan has not been accomplished yet and that no investigative measure was reported to have been taken, while more than a year has passed since the judgment became final. Information is awaited in this respect. Furthermore, it is of key importance that the victim’s next of kin is effectively involved in the process. Information is awaited also on the measures in response to the deficiencies identified by the Court in the implementation of the criminal-law mechanisms in respect of the perpetrator.

The Committee may therefore wish to urge the authorities to take all outstanding measures in these cases, including proper examination of a bias motive, with utmost urgency and diligence and to promptly complete pending investigations.

General measures:

a)     Preventive and protection mechanisms

The increased use of the electronic surveillance system can be noted with interest. These efforts should be further pursued along with enhanced awareness raising on this mechanism among victims.

In relation to the risk assessment tool, upgrades to which had been noted with interest by the Committee, the information which it had requested about its practical application is still awaited. In this respect, in light of the monitoring conducted by the Public Defender, it appears that further efforts are needed to prevent instances of refusal by law enforcement officers to carry out risk assessment and thus to ensure that this tool is regularly used in practice.[9] The Committee may thus wish to call upon the authorities to submit information about the application of the risk assessment tool, including whether risk assessments are carried out systematically and how the proper evaluation of the risk of repeating and escalating violence is ensured.[10]

At the last examination of this group, the Committee had asked for information on the application of the preventive and deterrent mechanisms, including restraining and protection orders. While the authorities provided statistical data on the application of restraining orders, similar information is still expected in respect of protection orders. It would also be important to provide explanations on the rates of compliance with such orders and sanctions applied for breaches thereof. In this context, it is worth noting that in its last report on Georgia, the Group of Experts on Action against Violence against Women and Domestic Violence (GREVIO) noted a high number of violations of restraining and protection orders, and strongly encouraged the authorities to ensure the application of effective sanctions in cases of such breaches.[11] To sum up, to enable evaluation of the effectiveness of the application of preventive and restraining orders, the authorities should provide information on: (i) the number of requests filed for protection orders and the number of such orders issued, as well as the number of restraining orders issued (ii) the rate of compliance with both types of orders and sanctions applied in cases of breaches thereof.

b)     Criminal investigations and judicial practice

-       Statistical data

Similarly to 2022, the 2023 statistical data on criminal proceedings in respect of offences committed with a gender-based motive show some positive trends, notably an increase in the number of prosecutions[12] and convictions[13], in comparison with the previous years. However, important variations between the number of prosecutions and convictions remain. In line with the indications given at the last examination of this group, it would be important that the authorities provide an analysis of the root causes of these trends, as well as the information on the length of relevant judicial proceedings. Information about the number of reported allegations also remains needed, in order for the Committee to be able to assess the effectiveness of the criminal justice system response to such crimes.

Lastly, underlining that proper application of detention as a measure of restraint can be of key importance while criminal investigations are ongoing, it remains important that the authorities explain the underlying reasons for low rate of motions granted on the application of detention as a restraint measure by domestic courts (around 54% in 2023).[14]

-       Identification of a gender-based motive and sentencing

The failure toadequately qualify domestic violence and examine gender-based discrimination as a bias motive was one of the main reasons for which the Court established violations of the Convention in the judgments of this group. According to the Prosecutor’s Office and the Public Defender, while the rate of identification of a gender-based motive appears to have increased in the past years, challenges in this respect are still encountered at all stages of criminal proceedings.[15]

Furthermore, as regards the dissuasive function of criminal sanctions,[16] the 2023 statistics on sentencing,[17] similarly to 2022, does not seem to show the application of a strict criminal justice policy towards this type of crimes. The three examples of the domestic case-law from 2022, provided by the authorities, show that while examining appeals in respect of the lower courts’ decisions, the Supreme Court rejected requests for application of more lenient sentences, given that the crimes were committed with a gender-based motive. It is encouraging that the Supreme Court is setting positive trends for the development of coherent judicial practice. However, given the scope and complexity of the problem, the authorities should pursue their efforts and demonstrate that there is a solid and consistent domestic judicial practice in respect of thorough examination of gender-based discrimination as a bias motive, its application as an aggravating circumstance and the use of commensurate and dissuasive sentences.

c)     Responsibility of law-enforcement officials for their inaction

Despite the Committee’s indications in the past two years, information still remains to be submitted on the application of the existing legal and institutional mechanisms for the criminal and disciplinary accountability of law-enforcement officials for their failure to respond properly to complaints on gender-based violence.[18] In the absence of such data, it remains unclear whether these mechanisms are functional and effective. Therefore, the Committee may wish to reiterate its call upon the authorities to provide concrete information in relation to accountability of law-enforcement officials.  

d)     Policy framework and victim support

The Committee may wish to invite the authorities to inform it on the implementation of the National Referral Procedures and the National Human Rights Action Plan for 2024-2026, with particular focus on the actions aimed at strengthening the criminal justice response to violence against women/domestic violence.

While noting the establishment of a witness and victim coordinators’ Office as a separate division within the Human Rights Protection and Investigation Quality Monitoring Department of the Ministry of Internal Affairs, and the increased rate of involvement of the GPO’s victim and witness coordinators in cases of domestic crimes and violence against women, it is important that the authorities continue their efforts to enhance capacities of the victim coordination bodies, including through allocating adequate resources to their operation, in order to fully respond to the existing needs.

It is positive that the authorities continued to implement various public awareness-raising initiatives. These efforts should further be pursued with a view to broader dissemination of information about protection and support services, including among minority communities and other vulnerable groups, in light of the deeply rooted nature of the problem.[19]

e)     Capacity building

The institutionalisation of learning programmes on gender equality and violence against women/domestic violence in the judicial training, as well as various capacity building initiatives targeting investigative and prosecutorial bodies, demonstrate the authorities’ efforts towards ensuring effective criminal justice response to such crimes by enhancing the knowledge of the relevant legal professionals. The authorities should be encouraged to pursue these measures for law-enforcement and prosecutorial officials, as well as judges with a specific focus on (i) identification of gender bias motive and adequate application of the relevant criminal-law mechanisms, and (ii) tackling stereotypical and discriminatory attitudes and practices among criminal justice stakeholders.

f)      Role of the civil society  

In the light of the serious concerns expressed by NGOs, and keeping in mind GREVIO’s recommendations[20], the Committee may wish to call upon the authorities to ensure that the civil society is fully enabled to be effectively involved in the work aimed at the prevention of violence against women and protection of victims, including in the context of the execution of the present judgments.

Financing assured: YES