Communicated on 6 September 2018
FIFTH SECTION
Application no. 73975/16
A and B
against Georgia
lodged on 16 September 2016
STATEMENT OF FACTS
1. The applicants, A (“the first applicant”) and B (“the second applicant”), are Georgian nationals, who were born in 1972 and 2012 respectively and live in a city in Georgia. They are represented before the Court by ten lawyers who are practising either in Georgia, Armenia or the United Kingdom. Amongst these, Ms T. Dekanosidze and Ms T. Abazadze, practising in Georgia, are, according to the case materials, the main representatives, who have been in contact with the Court.
A. The circumstances of the case
1. Background
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. The first and the second applicants are, respectively, the mother and the son of C who was born on 24 November 1994 and killed by her spouse, D, the father of the second applicant, on 25 July 2014 (see paragraph 14 below).
4. In 2011 C, who was seventeen years old at that time, was kidnapped by D, a police officer serving in the same small city where the former lived, who wanted to marry her. Being under constant threats from the latter, C ceded to cohabiting with him. The couple never registered their marriage.
5. The couple’s cohabitation lasted from December 2011 until June 2012, when C, exhausted under the physical and moral harassment exercised by her partner, returned to her parents’ house. She was two months pregnant at that time.
6. Starting from December 2011, C and her family became the target of regular verbal and physical abuses effectuated by D. The latter was threatening the lives of C and her parents, making reference to his official status as a police officer and his strong connections with the local police, and the victims were afraid to report the majority of the incidents to the police. However, they still managed to complain about a few of the most violent incidents.
7. Thus, on an unspecified date in July 2012 C called the local police, complaining that D had been threatening to kill her mother. That complaint was left without any reaction.
8. On 31 August 2013 D, following an altercation with C over the child support payments, beat her up in her parents’ house. The police were called. Three police officers, who were all D’s acquaintances, interviewed C in the latter’s presence. As confirmed by several eyewitnesses, D was making jokes with the intervening officers, his colleagues, during the interview. One of those officers told C that wife battering was a common thing in many families and that it was not necessary to attach much importance to it. The police officers drew up a report that did not reflect the scale of the violence of the incident. C initially refused to sign that inaccurate report, but D forced her to do so. The latter, who was not interviewed in relation to the incident, left the former’s house together with the intervening officers, and they drove away in the same car.
9. On the same day C filed a criminal complaint with a local public prosecutor’s office. She complained both against D, who had physically abused her, and the three intervening officers, who had failed to perform their duties with due diligence.
10. Subsequently, in September 2013, a local prosecutor interviewed C, D and one of the intervening police officers regarding the incident of 31 August 2013. On 9 September 2013 D made a written pledge to the attention of the local prosecution authority that he would never abuse again verbally or physically either C or her family members. The prosecution authority was content with that pledge and never launched any criminal investigation.
11. On 5 July 2014 C complained to the General Inspection Unit of the Ministry of the Interior (“the General Inspection Unit”), the division in charge of conducting internal inquiries against police officers, that D had physically assaulted her in public on 3 and 5 July 2014.
12. On 20 July 2014 D was promoted to the rank of Chief Lieutenant of the police.
13. On 25 July 2014 a representative of the General Inspection Unit summonsed C for an interview in relation to the two incidents she had complained of on 5 July 2014.
14. Later on the same day, 25 July 2014, shortly after C had left the interview with the General Inspection Unit, she was shot dead by D. He fired five bullets at her from his service pistol in a public park.
15. According to the materials available in the case file, numerous independent witnesses confirmed in their written statements that D had been employing various attributes of his official position when committing abuses against C in the period between April 2011 and July 2014. Notably, during that period, he (i) flaunted his service pistol in an intimidating manner on at least seven occasions, (ii) regularly threatened to bring false charges against C’s father and brother in case she dared to report their altercations to the police and (iii) often repeated that he was not afraid of the law-enforcement machinery as he formed part of it himself.
2. Criminal proceedings against D
16. By a judgment of 17 April 2015, the Kutaisi City Court found D guilty of murder with malice afterthought of a family member and sentenced him to eleven years’ imprisonment. The decision became final on 15 February 2016. The conviction did not refer to the possible role of the gender-based discrimination in the commission of the crime (see paragraph 25 below).
3. The first applicant’s complaints concerning the authorities’ failure to protect her daughter’s life
17. On 22 January 2015 the first applicant filed complaints with the Chief Public Prosecutor’s Office (“the CPPO”), requesting that a criminal investigation be launched in relation to the failure of the relevant police officers and public prosecutors to protect her daughter’s life by not giving proper consideration to the latter’s repeated reports of domestic violence. She emphasised that the State agents’ negligent conduct might have contained elements of gender-based discrimination.
18. On 2 March 2015 the first applicant enquired with CPPO about the fate of her criminal complaints and on 20 March 2015 the prosecution authority replied that a criminal investigation had been launched on 17 February 2015 in relation to the negligence of the relevant local police officers. No response was given to the applicant’s complaint directed against the relevant public prosecutors.
19. On 29 April and 23 June 2015 and 21 January 2016 the first applicant repeatedly enquired with the CCPO about the progress, if any, of the criminal investigation of the negligence committed by the relevant police officers and public prosecutors.
20. By letters of 1 and 16 March 2016, a Regional Public Prosecutor’s Office confirmed to the first applicant that the criminal investigation into the alleged negligence committed by the relevant police officers had been pending; no charges were pressed against anyone and nobody was granted victim status at that time. No answer was given with respect to the first applicant’s complaint directed against the relevant public prosecutors.
21. On 17 March 2016 the first applicant again enquired with the CCPO whether a criminal investigation into the actions of the relevant public prosecutors had been launched. That latest query was left unanswered as well.
4. The first applicant’s civil action against the Ministry of the Interior and the Chief Public Prosecutor’s Office
22. On 22 January 2015 the first applicant sued the Ministry of the Interior and the Chief Public Prosecutor’s Office under Article 1005 of the Civil Code for failure to protect her daughter’s life, requesting non‑pecuniary damages in the amount of 200,000 Georgian laris (GEL) (approximately 70,000 Euros (EUR)).
23. By a judgment of 24 July 2015, the Tbilisi City Court allowed the claim in part, awarding a non-pecuniary damage in the amount of GEL 20,000 (approximately EUR 7,000). The court found that there had been a causal link between the inactivity of the relevant police officers and the public prosecutors and the killing of C. It emphasised in that connection that according to the Act of 17 May 2014 on the Elimination of All Forms of Discrimination, the public authorities were under a statutory obligation to react promptly and effectively to allegations of discrimination. That obligation had however been blatantly disregarded in the present case. The court observed, by reference to the incident of 31 August 2013, that the relevant police officers had neither interviewed C and the witnesses to the incident, nor issued a restraint order against the former, nor taken measures aimed at restricting the use of his service pistol. As regards the role of the relevant public prosecutors, the court noted that they had fallen short of their obligation to conduct an adequate criminal investigation of the violent incident in question. The court concluded that the respondent agencies, who ought to be considered liable together with the relevant individual officials, had failed to take measures aimed at combating the gender-based discrimination and to protect C’s life.
24. The judgment of 24 July 2015 became final on 29 June 2017.
B. Relevant domestic law
25. On 27 March 2012 an amendment to Article 53 of the Criminal Code of Georgia was adopted, pursuant to which discrimination was recognised as a bias motive and an aggravating circumstance in the commission of a criminal offence. The provision read as follows:
Article 53 § 3(1)
“The commission of any offence listed in the present Code on the grounds of any type of discrimination, such as, for instance and not exclusively, that linked to race, skin colour, language, sex, sexual orientation and gender identity, age, religion, political and other views, disabilities, citizenship, national, ethnic or social background, origin, economic status or societal position or place of residence shall be an aggravating circumstance.”
COMPLAINTS
26. The applicants complain under Articles 2 and 3 of the Convention, invoked separately and in conjunction with Article 14, that the State had failed (i) to protect C’s life from the gender-based violence perpetrated by D, a State agent who was clearly abusing his official status for that purpose, and (ii) to investigate and punish adequately both the murderer and the public officials (police officers and public prosecutors) who did not react adequately to C’s repeated complaints on domestic violence.
QUESTIONS TO THE PARTIES
1. Having regard to the outcome of the various domestic proceedings initiated by the first applicant, can the applicants still claim to be victims of the alleged violations of the Convention, within the meaning of Article 34?
2. In the affirmative, did the relevant domestic authorities, notably, the police and the prosecution authority, take all necessary measures to safeguard C’s life from the domestic violence perpetrated by her former partner, D, as required by the positive obligations under Articles 2 and of the Convention (see, for example, Talpis v. Italy, no. 41237/14, §§ 107-131, 2 March 2017)?
3. Having regard to its procedural obligations under Article 2 of the Convention, has the State adequately reacted to the relevant domestic authorities’ alleged failure to protect C’s life (compare with Halime Kılıç v. Turkey, no. 63034/11, § 101, 28 June 2016)? Was the criminal prosecution of the perpetrator of the domestic violence and murder, D, conducted effectively?
4. Did C suffer discrimination on the ground of her sex, contrary to Article 14 read in conjunction with Articles 2 and 3 of the Convention, in relation to the manner with which the relevant domestic authorities reacted to her complaints on domestic violence (see, Talpis, cited above, §§ 141‑149)?
Full & Egal Universal Law Academy