AGHDGOMELASHVILI AND JAPARIDZE v. GEORGIA

THIRD SECTION

Application no. 7224/11
Ekaterine AGHDGOMELASHVILI and Tinatin JAPARIDZE
against Georgia
lodged on 25 January 2011

STATEMENT OF FACTS

1. Ms Ekaterine Aghdgomelashvili (“the first applicant”) and Ms Tinatin Japaridze (“the second applicant”) are Georgian nationals, who were born in 1969 and 1979 respectively and live in Tbilisi. They are represented before the Court by Mr L. Tchintcharauli and Ms A. Tvaradze, members of the Article 42, a human rights organisation in Tbilisi, and Ms J. Sawyer and Mr S. Japaridze, of the Interights in London.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicants, may be summarised as follows.

3. The first applicant is a co-founder of the first lesbian, gay, bisexual and transgender (LGBT) non-governmental organisation (NGO) in Georgia – the Inclusive Foundation (IF). Its goal is to promote the integration of the LGBT community in Georgia through advocacy and by overcoming homophobia and increasing the civil activity of the group. At the time of the events, the first applicant was working at the IF as a part-time programme manager, and was acting head of the organisation in the absence of its director, whilst the second applicant was working there as a programme officer in charge of office administration.

1. Police raid of 15 December 2009

(a) General picture of the police raid, as described by the applicants and other eyewitnesses

4. On 15 December 2009 approximately eight to ten women gathered in the IF office in Tbilisi to make bracelets for an upcoming art exhibition. They were working in the office kitchen. Mr P.S., the director of the IF, was also in the office.

5. At approximately 6 - 7 p.m. someone rang the doorbell. As soon as the door was opened, up to six men in civilian clothing and a woman rushed into the office. They shouted “police” and, without providing any explanation or presenting any documents, ordered everyone in the kitchen not to move and to give them their cell phones. The men kept yelling at everyone and were dashing from room to room. They asked for the whereabouts of Mr P.S., and as soon as they identified the director, they isolated him in a separate room for questioning. All the women in the kitchen were ordered to go to the discussion room. Only Ms A.M., a male‑to‑female transsexual person, was left in the kitchen, as the police seemed confused as to her gender. Half an hour later some ten additional police officers, including females, joined their colleagues. The police officers were not wearing police uniforms but a few of them subsequently put on jackets bearing the police insignia. They kept moving all the time, leaving one room, entering another, re-entering and so on. The women in the discussion room kept asking why their cell phones had been confiscated and what was going on. In response, the police officers told them to be quiet and that once the search was over everyone would be released.

6. It was apparent at the beginning of the search that the police did not know about the specific nature of the NGO. The police officers became progressively surprised, observing on the office walls various posters depicting homosexual couples. They started asking about the IF’s activities and, realising that they had entered the premises of an LGBT organisation, suddenly became extremely aggressive and started manifesting homophobic behaviour towards all the people present in the office. The women in the discussion room were referred to by the officers as “not Georgians”, “sick persons” and “perverts” who should receive medical treatment. Referring to Mr P.S., the police officers wondered what those in the office had in common with that “faggot”.

7. The police threatened to reveal the sexual orientation of the individuals in the office to the public, and to their parents and relatives. They also threatened to hurt their family members. The officers said that they wished those in the office were men, in which case they would feel freer to use physical force on them. One of the police officers ripped a poster depicting two men embracing, with the slogan “If you love, it means you care”, off the wall in the discussion room and tore it to pieces, adding that he would burn the place down if he had matches. Taking Ms A.M. for male, the police officers tried to make friends with her and enquired sarcastically whether the women in the discussion room were interested in men at all. At one point, one of the police officers mockingly commented that Ms A.M. was very tender and delicate.

8. Without providing any explanation for the investigative action, female police officers searched the handbags of the women in the discussion room, whilst Ms A.M.’s handbag was searched by male police officers due to a confusion regarding her sex. After the police had found some lubricant in the handbag of one of the women, the officers started behaving inappropriately: they ran around the office and shouted to each other that they had found some “oiling”; they kept laughing and offering lubricant to each other, then asked the women in the room if they used lubricant. They could not hide their surprise when a couple of the women said “yes”. One of the police officers turned to another, saying mockingly: “They all use it and they are all lesbians!” At one point, a police officer, who was referred to by his colleagues as a “Killer”, found a black plush toy. He loudly announced that he had found a “voodoo”, and other police officers exclaimed “They are not only homosexuals, but Satanists as well!”

9. At about 10.30 p.m., without providing any explanation or informing the women of their rights, the police officers announced that the women had to be strip searched. Ms A.M. and two other women were the only persons not to be searched. The strip searches were conducted in the office toilet by the female police officers. Most of the women were searched in groups of two to three, and some of them were asked to take off their underwear. They stood barefoot on the cold and dirty floor, humiliated by the police officers’ remarks such as “dykes”. Nothing was found on any of the women during the searches. All the witnesses felt that the reason for the searches was to humiliate them, as the police paid little attention to searching the clothes that they asked the women to remove.

10. Before releasing the women, including the applicants, at about 11.30 pm, the police wrote down their names and dates of birth, but did not ask them to sign anything.

11. During the search, at about 8.15 p.m., some cannabis was found in the office. The director of the NGO, Mr P.S., was then arrested and taken to the police station for further questioning. He was subsequently charged with drug offences. On 26 December 2009 Mr P.S. accepted a plea bargain: he confessed to the offence and was released in exchange for a fine.

12. There has never been any suggestion of any involvement by the applicants or other women present in the office on that day in the drug offences of which Mr P.S. was convicted.

(b) The first applicant’s account of her personal situation during the police raid of 15 December 2009

13. The first applicant arrived at the office of the IF at about 8 p.m. on 15 December 2009. As soon as she opened the office door, she was pushed into the discussion room by a man in plain black clothes. She asked the police officer to explain what was going on and to show her papers justifying the police’s presence in the office. The officer said that they were searching the office based on intelligence. The applicant then asked to see a search warrant, but a police officer (later identified as D.K.) replied that he was not obliged to produce a search warrant. He demanded again that she hand him her cell phone. The first applicant refused and insisted that she had the right to make a call. D.K. then grabbed her hand and twisted her arm, but was still unable to get the cell phone. Other police officers intervened and started shaking the first applicant. Several women wanted to help her and as a result, one of them was pushed and knocked onto a sofa by the police. The police then forcibly carried the first applicant into the corridor, confiscated her cell phone and took her back to the discussion room.

14. The first applicant heard the police using expressions such as “pervert”, “sick”, “dyke”. When she saw the ripped poster, she asked who had done it. D.K. responded that it had been him and he had done it because he wanted to. He then asked in a sarcastic manner if she had any objections.

15. The first applicant continued to ask to see a search warrant and the police officers’ identification. As she did not stop, one of the men took her into the corridor. Another man (a policeman, referred to as “Killer” by his colleagues) went to the other room, brought a small plastic bag containing a green substance, put it in front of the first applicant’s face and told her that this was what they had come for. The policeman told the first applicant that according to intelligence data, a dealer had imported drugs. Because the first applicant kept demanding a search warrant, one of the police officers (later identified as N.G.) got so irritated with her that he threatened to kill her and “tear her to pieces” if she did not shut up. Another police officer used disrespectful language when addressing the first applicant, calling her “Ekushkebi” (a pet name for Ekaterine).

16. The first applicant’s handbag was searched by a police officer in her presence. At no point was she informed about the reasons for this. She was then subjected to a strip search alone by two female police officers in the office toilet. She felt that the strip search had been carried out to humiliate her, as despite being ordered to undress to her underwear, the police officers did not search the clothes she had taken off. While in the toilet, the police officers kept referring to those “sicks” and “perverts” in the third person. The comments of the police officers and the whole situation made the first applicant feel offended and humiliated. She spent about five minutes in the toilet. No record of the search was drawn up, and she was not asked to sign any other document.

(c) The second applicant’s account of her personal situation during the police raid of 15 October 2009

17. The second applicant arrived at the IF office at about 9 p.m. She already knew from a friend of the NGO director that the police had raided the office. When the second applicant entered the office she saw that everything was in a mess (the furniture had been moved, the piano dismantled and some other objects were scattered on the floor). There were a lot of unknown people in civilian clothes walking around, talking on their cell phones or just sitting around. One of the police officers forced the second applicant against her will into the discussion room, where she noticed that some of the women were pale, terrified and crying. Once there, the second applicant found out that the police officers had found some drugs in the office.

18. The second applicant was then strip searched together with her sister by two female police officers in the toilet. She too felt that the strip search had been carried out to humiliate her and her sister, as despite being ordered to undress, the police officers did not even properly check the clothes they had taken off. The second applicant spent about five minutes in the toilet. She felt degraded and humiliated. When she asked why she had been searched she was ignored. No record of the search was drawn up.

2. Investigation of the police raid of 15 December 2009

19. On 9 January 2010 the applicants filed a complaint with the Chief Public Prosecutor’s Office, the Tbilisi City Public Prosecutor’s Office (“the Tbilisi Prosecutor”) and the head of the General Inspectorate of the Ministry of Internal Affairs (“the General Inspectorate of the MIA”), listing the abuses of power committed by the police officers during the search of the IF office and requesting that the authorities look into the matter and respond accordingly.

20. On 12 and 22 January 2010 respectively the applicants’ letter of 9 January 2010 was forwarded to the Tbilisi Prosecutor from the Chief Public Prosecutors’ Office and the General Inspectorate of the MIA for further inquiry.

21. On February 8, 2010, the International Lesbian and Gay Association (ILGA) Europe wrote to the Chief Prosecutor of Tbilisi, the head of the General Inspectorate of the MIA and the Prosecutor General of Georgia regarding the complaint submitted by the applicants on 9 January 2010. The letter stressed that ILGA Europe would follow the complaint closely and take a special interest in whether the case was properly investigated. They also requested that the prosecutor’s office take into consideration the influence that the perceived sexual orientation and gender identity of the women had had on the police’s behaviour. To date, ILGA Europe has received no response to its letters.

22. On 19 April 2010 the applicants asked the Tbilisi Prosecutor to grant them victim status and to be questioned on the case.

23. On 25 June 2010 the applicants enquired with the Tbilisi Prosecutor as to why there had been no reply to their previous complaints. The applicants once again drew the prosecutor’s attention to the violations of both the domestic law and the Convention during the search. They asked whether an investigation had been initiated on the basis of their complaint of 9 January 2010 and, if not, demanded that an inquiry be launched immediately. They also requested that they be granted victim status and be questioned together with the other women who had been present in the IF office during the police raid of 15 December 2009. The detailed written statements of both the applicants and the eyewitnesses, describing in detail the police abuse, were attached to the letter.

24. On 16 March 2011 the applicants again wrote to the Deputy Tbilisi Prosecutor. They referred to all the previous communications with the law‑enforcement authorities, noting that there had been no replies to any of them. The applicants once again reminded the prosecutor of the positive obligation under both the domestic legislation and the European Convention to carry out an effective investigation capable of leading to the prosecution and punishment of those responsible for treatment contrary to Articles 3, 8 and 14 of the Convention. In addition, the letter stressed the fact that the information about the alleged crimes committed by the law-enforcement authorities on 15 December 2009 had been brought to the attention of the deputy prosecutor by various national and international organisations. Thus, a pre-trial investigation should have been commenced as a minimum requirement. The applicants also informed the prosecution authority that an introductory letter had been sent to the European Court and that they intended to submit a full application shortly afterwards. Referring to the subsidiary role of the European Court and its backlog of cases, the applicants emphasised the desirability of seeking to address the issues raised by the case at domestic level.

25. On 14 April 2011, two weeks after sending their completed application form to the European Court, the applicants received a letter from the Tbilisi Prosecutor’s Office informing them that a pre-trial investigation into the case was pending under Article 333 of the Criminal Code of Georgia (abuse of official powers). As the letter did not give the date that the pre-trial investigation had commenced, nor provide any information on the particular investigative measures undertaken, on 27 May 2011 the applicants made an additional enquiry with the Tbilisi Prosecutor’s Office.

26. On 28 June 2011 the applicants received a further letter from the Tbilisi Prosecutor’s Office reiterating that a pre-trial investigation into the case was pending under Article 333 of the Criminal Code of Georgia. According to the letter, “a range of investigative measures have already been taken on this criminal case. All other pertinent investigative measures are planned and will be taken for the purpose of thorough investigation”. No other information was provided.

27. According to the applicants, the investigation of the police abuse during the search of the IF office on 15 December 2009 is still pending at its preliminary stage.

B. International and domestic observations on the situation of the LGBT community in Georgia

28. On 27 May 2008 the Research Directorate of the Immigration and Refugee Board of Canada published a report concerning the general situation of the LGBT community in Georgia. Relevant excerpts from that report read as follows (references have been omitted from the quotation):

“Georgia: Situation of homosexuals, including societal attitudes and availability of State protection

Societal Attitudes

The ILGA Europe and COC Netherlands fact-finding mission report describes homosexuals as the ‘most despised group in Georgian society’. Sources report that homosexuality is commonly perceived as a ‘disease,’ ‘sin’ or ‘perversion’. In a poll taken by the Caucasus Research Resource Center in December 2006, 81.4 per cent of respondents said that they ‘would not be on friendly terms with a homosexual’.

An article in The Villager (New York) describes homosexuality in Georgia as a ‘considerable social stigma [that] remains very much closeted’ (15-21 June 2005). ILGA Europe and COC Netherlands found that only those who live in Tbilisi and are economically independent are able to live openly as homosexuals. An anonymous commentator quoted in the ILGA Europe and COC Netherlands fact-finding mission report estimates that only five to ten per cent of homosexuals are open about their orientation. Furthermore, of the 120 respondents surveyed during the fact-finding mission, 13.3 per cent had come out to their families whereas 33.3 per cent had come out to friends.

Issues affecting the lesbian, gay, bisexual, transgender (LGBT) community

In a February 2006 study undertaken by the Inclusive Foundation, the first organization in Georgia devoted to serving the needs of the lesbian, gay, bisexual, transgender (LGBT) population; respondents from the LGBT community identified three main priorities: preventing HIV/AIDS infection, securing a meeting place and promoting lobby and advocacy efforts.

In a 2005 report published by the United Nations Educational, Scientific and Cultural Organization (UNESCO), the authors determined that homosexual men have difficulty obtaining interventions for the prevention, treatment and care of HIV/AIDS due to the on-going stigmatization by society and the consequent secrecy surrounding their sexual orientation. Due to the social stigma, individuals are often reluctant to be tested or seek care. Article 6 of the Georgian Health Law on Health Protection bans discrimination based on HIV/AIDS status, but no legal bureau or penalties exist to deal with violations.

LGBT persons have few support networks or meeting places in Georgia, but in their fact-finding mission report, ILGA Europe and COC Netherlands observed that there is ‘a growing momentum towards protection and equality’. In contrast, it was noted in the 2005 UNESCO report that homosexual men were unable to openly organize associations and groups, and that attempts to open potential meeting places, such as gay bars and nightclubs, had been unsuccessful. The situation remained unchanged in 2006 according to ILGA Europe’s country-by-country guide, which noted that ‘[t]here are no official gay bars or clubs in Tbilisi’.

According to the ILGA Europe and COC Netherlands fact-finding mission report, the LGBT community in Georgia is too fearful to organize and advocate for their rights. Support from outside Georgia is also difficult to obtain as the rights of sexual minorities are not perceived as a priority by international agencies when compared to other human rights concerns in the country. Following the fact-finding mission, the president of COC Netherlands announced that it had joined ILGA Europe in initiating a five-year project supporting empowerment and HIV/AIDS prevention among the LGBT population in the South Caucasus. ...

Violence against the LGBT population and state response

According to a British Broadcasting Corporation (BBC) article, homosexuals in Georgia are frequent targets of abuse and physical violence. ILGA Europe featured an article about a 25-year-old homosexual man, who was the victim of a physical attack based on his sexual orientation. The victim stated that violence directed against the LGBT community is common but that victims rarely report such incidents due to fear of police harassment and the revelation of their sexual orientation. The victim in the above case did file a report with police but they ‘refused, however, to document the case as a hate crime or discrimination, arguing that there is no relevant legislation in Georgia’. The case was treated as a robbery, but the investigation was suspended. A subsequent telecast documenting the incident provoked revulsion from the public toward the victim rather than sympathy.

According to the ILGA Europe and COC Netherlands fact-finding mission report, with the exception of this incident, ‘there are no officially reported incidents of harassment, discrimination or violence against members of the LGBT population in Georgia. However, the report does refer to another complaint based on sexual orientation which was made to the Office of the Public Defender. The Inclusive Foundation documented six cases of discrimination in its 2006 survey of the LGBT community, but added that the reports had been made to ‘NGOs, International human rights organizations, Ombudsman, Police or Media’. The Inclusive Foundation maintains that victims are generally too intimidated to file a report and lack confidence that the authorities will respond.

A report by Global Rights, an organization that describes itself as motivated by a vision of a ‘just society worldwide built on the fundamental principles of human rights’, concludes that police investigations involving crimes against members of the LGBT population are ‘inadequate, if not discriminatory’. A source from the Inclusive Foundation advised Global Rights that hate crimes are not defined under Georgian legislation and therefore, they are categorized as ‘regular physical assault or robbery [or] murder’. ILGA Europe and COC Netherlands corroborate the absence of hate crime legislation in Georgia in their joint fact-finding mission report, which also makes note of informal reports of violence directed toward the LGBT community, much of it in ‘cruising areas’.

Nevertheless, in the Inclusive Foundation survey conducted in February 2006, seventy per cent of 120 respondents reported that they had not experienced any threats or harassment or been the victim of an assault based on their sexual orientation. The majority of those who answered in the affirmative had suffered verbal abuse or threats rather than physical harm. However, ILGA Europe and COC Netherlands note that the proportion of respondents who had suffered some form of harassment is nonetheless ‘disturbingly high’.

The Inclusive Foundation contends that homophobia is ‘endemic in Georgian politics’. The ILGA Europe and COC Netherlands fact-finding mission report includes the observation that levelling accusations of homosexuality at political rivals is an effective means of discrediting reputations and damaging careers. In a commentary on homosexuality in Georgian politics, freelance writer Paul Rimble was quoted in the following excerpt from the report:

‘Fewer things are more scandalous than homosexual activity in a traditional, homophobic country like Georgia.... It exists but isn’t talked about. People know about it but don’t want to believe it.... The families would be dishonoured, an unbearable reality in this part of the world.’

In 2005, during an interview with the Akhali Taoba newspaper, the Chairperson of the Parliamentary Committee for Human Rights and Civil Integration, Elene Tevdoradze, stated that the government ‘‘neither infringes nor defends’’ the rights of sexual minorities. She also expressed dismay over young people changing their sexual orientation which in her opinion, could lead to a possible ‘catastrophe’. Tevdoradze added that ‘[a] mass change of sexual orientation could be more harmful than our youth embarking on the road to organised crime’. During a televised program on 28 May 2006, another public official, Sozar Subari, the Public Defender of Georgia (Ombudsman), stated that he thought it unnecessary to offer his support for LGBT demands for equality. ...”

29. In September 2013 a Georgian gender-equality and LGBT rights organisation, Identoba, published a report concerning violations of the rights of the LGBT community in Georgia, and submitted it to the United Nations Human Rights Committee. The relevant chapter, describing the instances of ill-treatment and encroachments upon the right to security of person and the level of adequacy of the State response, reads as follows:

“Violations of the Rights of Lesbian, Gay, Bisexual, and Transgender People in Georgia

1. LGBT people lack security in public

LGBT respondents in Identoba’s 2012 survey reported that their lack of personal security in public is the biggest problem that they face. 32% of survey respondents had experienced physical violence at least once in the previous 2 years, and 45.8% of those incidents took place in public places such as parks or streets.On April 9, 2013, Z.S., a gay man, was entering the Tbilisi metro with two companions when another man approached him and asked Z.S. to join him outside the metro. As Z.S. and his companions exited the metro, 3 men attacked Z.S. Before Z.S.’s companions fled the scene, the attackers asked them, ‘Why are you with him? Don’t you know that he’s a faggot?’ Z.S. suffered a concussion, the facial bones on one side of his face were destroyed, and he needed major reconstructive surgery after the attack.On May 22, 2013, 4 transgender people, two of whom were minors, were attacked by a group of people as they exited a bar in the Gardabani district. Some of the attackers used a chair to physically assault the victims, who needed medical treatment for their injuries.

Violence also has occurred during public demonstrations in 2012 and 2013. On May 17, 2012, LGBT and human rights activists held the first-ever public demonstration relating to LGBT issues. Activists marched down a major street in Tbilisi to mark the International Day Against Homophobia and Transphobia. During the march, approximately 60 counter-protestors representing ultra-Orthodox Christian factions encircled the small group of demonstrators and blocked their way. The counter-demonstrators threatened the LGBT activists and then physically assaulted them. The designated police escort did not step in to protect the demonstrators, and police officers did not intervene until after the counter-protestors began attacking the demonstrators.

On May 17, 2013, LGBT and human rights activists were attacked again when they attempted to hold an anti-homophobia demonstration in Tbilisi. Thousands of well-organized counterdemonstrators, led by Orthodox clerics, surrounded the small group of demonstrators. Counterdemonstrators broke through police cordons and attacked the activists, screaming, ‘Kill them! Tear them to pieces!’ and ‘Don’t let them leave alive!’ The police evacuated many activists on buses, which the mob also attacked. The mob surrounded one minibus, smashed the windows, and dragged out the occupants. The mob also surrounded a house where some activists had hidden, threatening to ‘drag them out’ and ‘stomp them to death.’ Another small group of activists sought refuge in a grocery store. When a police escort later evacuated the activists, the escort was attacked and chased. A total of approximately 30 people, including journalists, suffered injuries, primarily to the skull and chest, as a result of the attacks.

Identoba has received information about 34 incidents of violence and intimidation that occurred during and after the May 17, 2013 anti-homophobia demonstration. Identoba estimates that the Ministry of Internal Affairs has received information about 50 cases. The Public Defender (human rights ombudsman) also has received information about 32 cases of violence that occurred during and after May 17, 2013. These acts occurred against LGBT people and people whom the perpetrators believed were LGBT.D.B. harassed and threatened Identoba and its staff members repeatedly before, during, and after the May 17, 2013 anti-homophobia demonstration. On May 14, D.B. called S., an Identoba employee, and threatened the organization. He later continued to threaten S. on Facebook. On May 16, he came to Identoba’s office and again threatened to attack the anti‑homophobia demonstration as well as Identoba. On May 17, he threatened and chased Identoba’s staff after the demonstration. On May 17, he also threatened S. via text on her mobile phone and threatened to kill an LGBT activist who was on a TV program at the time. Before and after May 17, he also has repeatedly approached R. in the streets of Tbilisi and threatened her with a gun.After the May 17, 2013 demonstration, A. was surrounded by young men at a restaurant in Tbilisi and physically assaulted. The next day, he was again attacked by a group of young men and his hair was set on fire, ‘in order to change his gay hairstyle.’ The day after, A. was again physically assaulted.After the May 17, 2013 demonstration, a car driver attempted to run over an Identoba staff member. He then climbed out of the car, shouted at her, ‘You dirty lesbian,’ and attempted to physically assault her.On May 18, two young women were walking down a street in Tbilisi when a young man saw them and shouted, ‘Look, she does not have breasts, she must be a faggot.’ A group of young men then chased and physically assaulted the women, who had not attended the demonstration and are not LGBT activists.

2. The authorities have failed to prevent, investigate, and prosecute acts of violence, intimidation, and harassment.

72.9% of LGB victims of violence do not report violence to the police. 54.3% did not approach the police because they feared that the police would have a homophobic reaction or that the police would be ineffective. This fear is justified — of those who did report an incident to the police, 46.2% stated that they experienced a hostile, homophobic reaction from the police.In April 2013, Z.S. sought to file a complaint with the police after he was attacked. When Z.S. told the officer that he was attacked on the basis of his sexual orientation, the officer replied that he would have to arrest Z.S. if Z.S. added this detail to the case file.On May 19, 2013, S. was physically assaulted in the streets of Tbilisi. After the attack, S., whose face and clothes were visibly bloodied, stopped a police car and asked for help. The officers asked S. why he had been attacked. When S. replied that he had been attacked due to his orientation, the officers drove away without offering S. any assistance.

In most cases, police are not purposefully homophobic toward victims. Rather, police homophobia generally is a result of the absence of proper LGBT sensitivity training. The Ministry of Internal Affairs has said that the Ministry, after the May 17th incident, is now including anti-discrimination themes in police academy curricula, but has not provided evidence to support that claim.

Police also have discouraged LGBT victims of crimes from pressing charges against perpetrators.In April 2013, a young man was attacked in Tbilisi because he ‘looked gay’ due to his manner of dress and ‘weak’ physical appearance. The young man, a minor, sustained a concussion. Medical assistance was required to remove his dental braces from his cheek. Although the victim initially asked Identoba for assistance, the police pressured him to drop his case, and the victim subsequently recanted his testimony, stating that he had fallen and injured himself.

Police also have not taken action to arrest perpetrators of violence against LGBT people.On May 18, 2013, a woman who participated in the May 17 demonstration and who does not have a traditionally feminine appearance was chased by group of young people, who verbally and physically assaulted her. She stopped a patrol police car that brought her to safety, but the police did not detain her assailants.

When the Prosecutor’s Office has opened an investigation, it has not provided information to victims about the status or progress of investigations.In June 2012, members of Shavrazmelebi (Black Combatants), an organization that was dedicated to conducting physical attacks against members of the LGBT community, posted public incitements to violence against LGBT persons. For example, one member uploaded a photo of a T‑shirt bearing the slogan, ‘Kill Gays.’ Identoba requested the Prosecutor’s Office to open an investigation under Article 225 of the Criminal Code (organizing, directing, or participating in public violence), but received no response to its inquiry.In April 2013, a group called The Brigade Fighting against Pederasts appeared on Facebook. The group’s page included a video produced by a Russian skinhead group that showed LGBT people being physically assaulted and encouraged the murder of gays and lesbians, who were referred to as ‘mistakes of nature’. Members of the group also discussed torture and murder of LGBT people. Identoba referred this page to the Chief Prosecutor, but received no response. ...

The authorities also did not take appropriate measures to hold accountable individuals who attacked LGBT activists and their supporters during public demonstrations. After the acts of violence that occurred on May 17, 2012, 2 individuals were detained for violating the Administrative Code and fined 100 Georgian laris.

Despite widespread violence at the planned anti-homophobia demonstration on May 17, 2013, the authorities filed charges against only 9 counter-protestors. It took the Ministry of the Interior 4 days before it filed the first charges. At that time, 4 individuals were detained for disorder and minor hooliganism, and fined 100 GEL (60 USD). Subsequently, 5 attackers (including 2 priests) were charged with violating the right to assembly, which carries a maximum penalty of 2 years in prison and/or a fine.

The Prosecutor’s Office does not appear to be committed to prosecuting perpetrators of violence, particularly members of the clergy who incited and participated in the attacks. On August 1, at a preliminary hearing, the Tbilisi City Court dismissed the charges against one priest due to insufficient evidence. The judge ruled that rules of procedure require multiple pieces of evidence to support a charge and that the video evidence, which was the only evidence that the Prosecutor’s Office submitted in the case, was insufficient under this rule. The video showed the accused swearing and shouting, ‘We will kill you!’ as the crowd, led by priests, ran towards the group of demonstrators. It was unclear why the Prosecutor did not submit the testimony of any witnesses, such as the police officers present at the demonstration or anti-homophobia demonstrators. ...

3. Police, prosecutors, and judges have not implemented hate crimes legislation.

On March 27, 2012, Parliament passed amendments to the Criminal Code that added ‘homophobia’ to the list of aggravating factors for crimes.13 According to official documentation that the Prosecutor’s Office provided to the Public Defender (human rights ombudsman), a total of 0 perpetrators have been charged with the aggravating factors since Article 53(3) entered into force. There is evidence, however, that numerous criminal acts during this interval were motivated by bias against the victim’s sexual orientation or gender identity, including the violent acts that occurred during the demonstration May 17, 2013 (discussed on pages 9 and 10) and subsequent attacks on LGBT people.

Police, prosecutors, and judges all have failed to ensure implementation of the law. Police officers have not collected evidence of bias, prosecutors have not investigated bias indicators or presented evidence of bias to judges, and judges have not imposed additional penalties when determining sentences. The Ministry of Justice has not taken sufficient steps to ensure that police, prosecutors, and judges understand their responsibilities under the legislation, which also contributes to the lack of implementation of the law. Further, implementation also is hampered because many police officers, prosecutors, and judges do not fully understand the meaning of the concept of a hate-motivated crime and the legislation does not make clear what evidence shows that a hate crime occurred.”

30. In September 2013 the European Union Special Adviser on Constitutional and Legal Reform and Human Rights in Georgia, Thomas Hammarberg, published a Report on the human rights situation in the country – Georgia in Transition. The relevant part relating to the reasons for the reluctance of the LGBT community members to report to the police violations of their rights read as follows:

“There are reports from NGOs that victims of discrimination and violence avoid reporting to police not only because of the homophobic attitudes that they fear from police officers but also because they are worried that their – real or perceived – sexual orientation may be revealed to their family. This is an indicator about how deep‑rooted and complex the tackling of this issue may be. However, this cannot be an excuse for not addressing it at all.”

COMPLAINTS

31. Citing Articles 3 and 8 of the Convention, the applicants complain that the police officers subjected them to inhuman and degrading treatment and unlawfully interfered with their private lives during the search of the IF office on 15 December 2009 and that the relevant authorities failed to conduct an effective investigation of their alleged ill-treatment.

32. The applicants reiterate their complaint about the absence of an effective investigation under Article 13 of the Convention, in conjunction with Articles 3 and 8.

33. Lastly, the applicants complain, under Article 14 of the Convention and Article 1 of Protocol No. 12, that their ill-treatment, the interference with their private lives as well as the absence of an effective investigation into the police abuse was conditioned by the relevant authorities’ discriminatory attitudes towards the applicants’ actual or perceived sexual orientation and/or their LGBT-related activities.

QUESTIONS TO THE PARTIES

1. Did the applicants suffer ill-treatment and interference with their right to respect for their private lives, in breach of Articles 3 and 8 of the Convention, during the police raid on the office of the Inclusive Foundation on 15 December 2009?

2. Have the competent domestic authorities conducted an adequate investigation into the applicants’ allegations of ill-treatment, as required by the procedural obligation under Article 3 of the Convention?

3. Did the applicants have effective domestic remedies at their disposal for their complaints under Articles 3 and 8 of the Convention concerning the alleged ill-treatment and interference with their right to respect for their private lives, as required by Article 13 of the Convention?

4. Have the applicants suffered discrimination on the ground of their actual and/or perceived sexual orientation contrary to Article 14 of the Convention, this provision being read in conjunction with Articles 3 and 8, and/or Article 1 of Protocol No. 12?

Full & Egal Universal Law Academy