CASE OF TSULUKIDZE AND OTHERS v. GEORGIA

FIFTH SECTION

CASE OF TSULUKIDZE AND OTHERS v. GEORGIA

(Application no. 14797/11)

JUDGMENT
 

STRASBOURG

16 May 2024

This judgment is final but it may be subject to editorial revision.

In the case of Tsulukidze and Others v. Georgia,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

 Stéphanie Mourou-Vikström, President,
 Lado Chanturia,
 Mykola Gnatovskyy, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 14797/11) against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 26 January 2011 by sixteen Georgian nationals (“the applicants”), whose relevant details are listed in the appended table and who were represented by Mr M. Tsimintia and Mr A. Carbonneau, lawyers practising in Strasbourg;

the decision to give notice of the complaints under Articles 3 and 9 of the Convention taken separately and in conjunction with Article 14 to the Georgian Government (“the Government”), represented by their Agent, Mr B. Dzamashvili of the Ministry of Justice, and to declare the remainder of the application inadmissible;

the parties’ observations;

Having deliberated in private on 18 April 2024,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The application involves nine cases concerning allegedly religiously motivated assault on the applicants, all Jehovah’s Witnesses, carried out from 2008 to 2010 in various parts of Georgia. The applicants complained under Articles 3 and 9 of the Convention taken separately and in conjunction with Article 14.

2.  This part of the application concerns applicants K. Tsulukidze and T. Soselia (listed in the appendix as applicants nos. 1 and 2 respectively). On 13 December 2009 they were allegedly verbally and physically assaulted by a group of persons in the city of Martvili. The first applicant was threatened with further physical violence unless he stopped practising his religion in Martvili and left the city together with his wife. On the same date the applicants complained to the Martvili police; the first applicant complained that systematic violence had been committed against him and other Jehovah’s Witnesses in the city on account of their religion. He identified by name several of the attackers in his complaint and described in detail several other incidents of religious violence involving him and his fellow believers. By a letter of 5 January 2010, the applicants were informed that the police had warned the persons concerned to stop assaulting the Jehovah’s Witnesses. No investigation was initiated. On 13 January 2010 the applicants complained to the General Prosecutor of Georgia. On 12 February 2010 a criminal investigation was initiated under Article 156 of the Criminal Code of Georgia (persecution). On 4 May 2010 the proceedings were, however, dropped. The investigation concluded that the fact of the applicants’ persecution on religious grounds had not been proved. At the same time, it was noted in the relevant decision that the alleged attackers had been formally warned to stop assaulting Jehovah’s Witnesses.

3.  By a letter of 9 May 2010, a representative of the General Prosecutor’s Office, in reply to a request for information, wrote to the first applicant, stating that the criminal probe in connection with another incident involving his alleged persecution was still ongoing, while the remaining incidents of alleged violence against the Jehovah’s Witnesses in Martvili were unknown to the prosecution.

4.  The applicants appealed against a decision taken by the prosecutor on 4 May 2010. Their appeal was dismissed by the Martvili District Court on 16 June 2010. That decision was upheld by the Kutaisi Court of Appeal on 28 July 2010.

5.  This part of the application concerns applicants M. Zakaraia and M. Gegetchkori (listed in the appendix as applicants nos. 3 and 4 respectively). It appears from the material in the case file that on 8 February 2009 they were both attacked by Mr A. Ujmajuridze while distributing religious literature in Tbilisi. M. Gegetchkori, who was 13 years old at the material time, suffered a head injury and a concussion as a result of the attack. The investigation commenced and both applicants were questioned. On 8 and 10 February 2009 both were granted victim status. Subsequently, the applicants’ lawyer claimed to have had several phone conversations with the investigator in charge and three personal meetings in order to receive updated information about the progress of the investigation. The last time he apparently contacted the investigator was in October 2009 but the investigator did not provide him with any updated information.

6.  According to the information provided by the Government in 2016, the relevant criminal investigation was still ongoing.

7.  This part of the application concerns two incidents of assault to which M. Ikoshvili (listed in the appendix as applicant no. 5) was subjected in Sagaredjo, Eastern Georgia, on 29 January and 7 May 2009. In both incidents a certain T.E. was involved. By a letter of 18 May 2009 the regional police informed the applicant that T.E. had been warned to stop attacking the applicant. On 17 June 2009 the applicant was additionally informed by the prosecution that an investigation was being conducted into the circumstances of the assault of 29 January 2009. As for the incident of 7 May 2009, the district prosecutor noted that no investigation had been initiated, as no elements of a criminal offence had been identified.

8.  One year later the public defender’s office requested information from the prosecution about the progress of the proceedings. In reply, by a letter of 12 March 2010, the prosecutor in charge confirmed that the proceedings initiated under Article 239 of the Criminal Code (breach of public order) on 1 March 2009 were still ongoing and that certain investigative actions had already been conducted.

9.  According to the information provided by the Government in 2016, the relevant proceedings were still ongoing.

10.  On 17 July 2009 Sh. Tchiabrishvili (listed in the appendix as applicant no. 6) was allegedly physically and verbally assaulted by police officer G.L. in Tbilisi. As a result, he sustained multiple bruises and excoriations. Criminal proceedings were initiated under Article 118 of the Criminal Code (infliction of less serious bodily injuries) and the applicant was granted victim status. In his statements, the applicant provided the details of the incident, noting, in particular, that he had been assaulted while distributing religious literature and talking to passers-by about religion and that the assailant had identified himself as police officer G.L. One of the eyewitnesses to the alleged incident confirmed that she had seen the attacker showing the identification document of a police officer bearing the name of G.L. G.L., however, denied any involvement in the incident and provided an alibi. On 12 August 2009 the legal classification of the alleged offence was amended to that of unlawful interference with the right to conduct religious service. In reply to the applicant’s enquiry, he was informed on 9 June 2010 that the investigation was still pending.

11.  According to the information provided by the Government in 2016, the relevant criminal proceedings were still ongoing.

12.  This part of the application concerns the allegedly systematic use of violence against Jehovah’s Witnesses, including applicants B. Orbelashvili and P. Melkoniani (listed in the appendix as applicants nos. 7 and 8), in the village of Akhalkalaki (Kaspi Region). The religiously motivated attacks were mainly led by a local priest, I.Kh. On 9 and 23 December 2008, when he verbally and physically assaulted B. Orbelashvili and P. Melkoniani, the applicants complained that the priest had been responsible for the persecution of Jehovah’s Witnesses in the region. An investigation was initiated under Article 155 of the Criminal Code (unlawful prevention of the conduct of religious rites). However, on 30 January 2009 the proceedings were discontinued owing to the absence of evidence of an offence. The applicants were informed of the relevant decision on 10 April 2009; however, they did not appeal against it.

13.  On 3 July and 4 December 2009 I.Kh. allegedly assaulted the applicants again. They complained and two separate investigations were initiated into the incidents under Article 155 of the Criminal Code. After various investigative measures had been conducted, on 30 October 2009 and 20 September 2010 the respective investigations were discontinued. The applicants were informed of the above-mentioned decisions but did not appeal against them.

14.  On 16 October 2009 B. Egiashvili and L. Korkotadze (listed in the appendix as applicants nos. 9 and 10) were allegedly physically and verbally assaulted in Tbilisi by someone identified as B.K. A criminal probe was launched under Article 118 of the Criminal Code (infliction of less serious bodily injuries) on the same date and the applicants gave detailed statements to the investigating authorities. Both applicants were granted victim status. On 26 October 2009 they wrote to the prosecutor’s office, requesting punishment of the alleged perpetrators. On 23 December 2009 they were informed via the public defender’s office that the investigation was ongoing.

15.  According to the information provided by the Government, as of March 2016 the relevant investigation was still ongoing.

16.  On 12 April 2010 B. Tabidze and G. Gurgenidze (listed in the appendix as applicants nos. 11 and 12) were allegedly physically attacked by several persons in the city of Lanchkhuti while distributing religious literature. The applicants complained and criminal proceedings were initiated in respect of the incident under Article 156 of the Criminal Code (persecution). Both applicants were interviewed and subsequently granted victim status. They also underwent a medical examination which did not reveal any injuries. The alleged perpetrators, who were interviewed on 13 and 14 April 2010, confirmed having asked the applicants to leave, however they denied any allegations of abuse or insult. Several eyewitnesses to the incident also dismissed the applicants’ allegations as untrue.

17.  On 29 July 2011 the criminal proceedings were discontinued for lack of elements of a criminal offence.

18.  In October 2009 an office of the Jehovah’s Witnesses which was being constructed in the city of Zugdidi (Western Georgia) was attacked on several occasions by a group of people. On at least two occasions, on 20 and 21 October 2009, the applicants R. Gogua and K. Mirtshkhulava (listed in the appendix as applicants nos. 13 and 14), who were working at the construction site, were allegedly physically and verbally assaulted. On 9 November 2009 an investigation was initiated into, inter alia, the circumstances of the assaults on the applicants. On several occasions in March and February 2010 several other incidents were reported at the construction site.

19.  According to the information provided by the Government, as of 2016 the relevant investigation was still pending.

20.  This part of the application concerns applicants G. Muradovi and M. Gakharia (listed in the appendix as applicants nos. 15 and 16 respectively). They were both assaulted allegedly because of their religion during a violent incident in one of the residential districts in Tbilisi on 22 October 2009. Mr Muradovi was particularly severely beaten and was also threatened with a gun. An investigation was initiated on the same day under Articles 118 and 151 of the Criminal Code (infliction of less serious bodily injuries and making threats). Both applicants were granted victim status and questioned on the same date. A medical examination of applicant no. 15, conducted between 23 and 26 October 2009, confirmed various bruises on his body and face. On 27 October 2009 the applicants wrote to the General Prosecutor’s Office, requesting the conduct of an efficient criminal investigation and its adequate supervision.

21.  According to the information provided by the Government, the prosecutor in charge, having undertaken various investigative measures, decided on 25 November 2013 to discontinue the proceedings on account of the expiry of the relevant limitation periods in respect of the offences concerned.

THE COURT’S ASSESSMENT

22.  Starting with the second, third, sixth and ninth criminal cases, the Government argued that the applicants had not complied with the six-month time-limit since their alleged ill-treatment had occurred in the period between January and October 2009, whereas the present application had been lodged with the Court only on 26 January 2011. In the intervening period, they had not acted diligently, as they had failed to enquire about the progress of the respective investigations or to otherwise communicate with the authorities in order to speed up the proceedings. In connection with the fifth and eighth criminal cases, the Government maintained that the applicants had failed to exhaust available domestic remedies. In particular, as far as the fifth criminal case was concerned, the relevant applicants had not appealed against the relevant prosecutorial decision to discontinue the criminal proceedings, whereas in the eighth criminal case the applicants had never complained of their alleged ill-treatment in person. In addition, the Government submitted in connection with the first and third criminal cases that the relevant applicants’ complaints were unsubstantiated.

23.  The applicants dismissed the Government’s various inadmissibility pleas, arguing, among other things, that the remedies proposed by them were ineffective against the backdrop of State-tolerated hate crimes and other discriminatory violent acts targeting Jehovah Witnesses. They referred in this respect to Members of the Gldani Congregation of Jehovah’s Witnesses and Others v. Georgia (no. 71156/01, 3 May 2007) and Begheluri and Others v. Georgia (no. 28490/02, 7 October 2014).

24.  The Court would begin by noting that the circumstances of the present case are different from those examined by it in the two cases referred to by the applicants in the previous paragraph. Whereas in Begheluri and Others (cited above) the Court found that the relevant Georgian authorities had been ineffective in preventing and stopping religiously motivated violence and that there had been a systematic practice of refusing to adequately and effectively investigate acts of violence against Jehovah’s Witnesses (ibid., §§ 144-45), the allegedly violent incidents complained of in the present case took place in a different period of time (from 2008 to 2010, as opposed to the late 1990s to 2001 in the two above-mentioned cases) and against the background of a different general context marked by a decrease in the scale of violent and discriminatory acts against Jehovah’s Witnesses (see in this connection Members of the Gldani Congregation of Jehovah’s Witnesses and Others, cited above, §§ 120-25). In such circumstances the Court’s analysis in the present case cannot simply be identical to that in the two above-mentioned cases.

25.  Turning to the circumstances of the specific violent incidents complained of in the present case, in so far as the second, third, sixth and ninth criminal cases are concerned, the Court agrees with the Government that there was no meaningful contact with the authorities concerning the ongoing investigations and no requests for information for more than fifteen months (see paragraphs 5, 7, 14 and 20 above). The applicants’ complete inactivity for such a long period of time before lodging the present application with the Court is inexplicable, particularly in view of their argument that the available domestic remedies were as such ineffective (see paragraph 23 above). The Court accordingly considers that the various complaints lodged by applicants nos. 3-5, 9-10 and 15-16 concerning the second, third, sixth and ninth criminal cases were introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

26.  As regards the fifth criminal case, the Court notes that the applicants (nos. 7 and 8 in the appendix) did not appeal against the prosecutorial decision to discontinue the relevant investigation (see paragraph 13 above). In the absence of any explanation, the Court finds this part of the application inadmissible for non-exhaustion of domestic remedies pursuant to Article  35  §§  1 and 4 of the Convention.

27.  In connection with the first, seventh and eighth criminal cases the Court observes the following: the relevant applicants’ allegations of religiously motivated violence appear to be unsubstantiated. In particular, in the context of the eighth criminal case, the applicants (nos. 13 and 14 in the appendix) failed to provide to the relevant domestic authorities or to the Court detailed and consistent statements of what exactly had happened to each of them (contrast Members of the Gldani Congregation of Jehovah’s Witnesses and Others, cited above, § 101). The investigation in the seventh criminal case was discontinued and the applicants apparently failed to appeal against the decision to discontinue the criminal proceedings (see paragraph 17  above). In view of their apparent lack of due diligence at the national level (they did not submit a single copy of any complaint or request filed with the investigative authorities in the relevant period of time), coupled with the absence of any evidence regarding the severity of the treatment they allegedly endured, the Court considers their allegations unsubstantiated. Lastly, as regards the first criminal case, the Court notes that the national courts at two levels of jurisdiction upheld the decision to discontinue the proceedings, concluding that there were no elements of a criminal offence (see paragraph 4 above). In view of the evidence available before it, the Court is unable to reach a different conclusion. In such circumstances, it considers that the various complaints lodged by applicants nos. 1-2 and 11-14 are manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention.

28.  Lastly, as regards the fourth criminal case, the Court notes that the sixth applicant’s complaints are neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. They must therefore be declared admissible.

29.  The relevant general principles have been summarised in Begheluri and Others (cited above, §§ 96-99, 156-60 and 171-73; see also, in respect of the effectiveness of an investigation for the purposes of Article 3 of the Convention, Bouyid v. Belgium [GC], no. 23380/09, §§ 114-23, ECHR  2015).

30.  The Court observes at the outset that the sixth applicant’s allegations of ill-treatment, as set out in his complaints lodged with the domestic authorities and supported by medical evidence, were arguable (see paragraph 10 above). Furthermore, they were sufficiently serious to reach the level of severity required to fall within the scope of Article 3 of the Convention. The authorities were thus under an obligation to conduct an effective official investigation.

31.  Without delving into the substance of each and every investigative measure implemented by the respondent State thus far, the Court would simply note that the proceedings into the incident that occurred on 17 July 2009 have been pending, according to the case file, for more than thirteen years. The Government did not provide the Court with any explanation for such length of proceedings. Noting the history of discriminatory violence that Jehovah’s Witnesses have had to endure in the respondent State (see Begheluri and Others, §§ 100-46, cited above) and in view of the applicant’s consistent allegations that he had been targeted by a police officer because of his faith, the authorities could reasonably be expected to conduct a prompt and efficient investigation, identifying, among other things, a possible discriminatory motive on grounds of religion behind the assault. This is sufficient for the Court to conclude that the national authorities failed in their obligation to effectively investigate the alleged incident of discriminatory violence. There has, accordingly, been a violation of Article 3 of the Convention under its procedural limb.

32.  While further noting the evidence in the case file, the Court considers that on the facts of the case it cannot reach any conclusion as to whether the assault was as such attributable to the State authorities (see Çelik v. Turkey (no. 2), no. 39326/02, § 33, 27 May 2010). Consequently, the Court cannot establish a substantive violation of Article 3 of the Convention in respect of the applicant’s alleged ill-treatment.

33.  As regards the remaining complaints under Articles 9 and 14 of the Convention, the Court, having regard to the facts of the case and the findings under the procedural limb of Article 3 of the Convention, considers that it has examined the main legal question raised in the present application and that there is no need to give a separate ruling on the admissibility and merits of the remaining complaints (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014, with further references).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

34.  The applicants claimed 1,500 euros (EUR) each in respect of non‑pecuniary damage and EUR 9,000 in respect of costs and expenses incurred before the domestic courts and the Court.

35.  The Government contested these claims.

36.  Having regard to the principle of ne ultra petite, the Court awards the sixth applicant EUR 1,500 in respect of non-pecuniary damage, plus any tax that may be chargeable.

37.  Having regard to the documents in its possession, the Court considers that, as far as the costs and expenses are concerned, that part of the claim must be rejected.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay the sixth applicant, within three months, EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 16 May 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Martina Keller Stéphanie Mourou-Vikström
 Deputy Registrar President

APPENDIX

List of applicants:

Application no. 14797/11

No

First name

Last name

Year of birth

Nationality

Place of residence

Kakhaber Tsulukidze

1980

Georgian

Tbilisi

Tsotne Soselia

1993

Georgian

Martvili

Madona Zakaraia

1962

Georgian

Tbilisi

Mariam Gegetchkori

1995

Georgian

Tbilisi

Mirza Ikoshvili

1976

Georgian

Sagaredjo

Shota Tchiabrishvili

1990

Georgian

Tbilisi

Besik Orbelashvili

1972

Georgian

Kaspi

Paata Melkoniani

1981

Georgian

Kaspi

Bachana Egiashvili

1992

Georgian

Mukhrani

Luka Korkotadze

1993

Georgian

Tbilisi

Bidzina Tabidze

1972

Georgian

Lanchkhuti

Giorgi Gurgenidze

1981

Georgian

Lanchkhuti

Roman Gogua

1982

Georgian

Zugdidi

Karlo Mirtshkhulava

1959

Georgian

Zugdidi

Giorgi Muradovi

1980

Georgian

Tbilisi

Mushni Gakharia

1994

Georgian

Tbilisi