FIFTH SECTION
CASE OF A AND B v. GEORGIA
(Application no. 73975/16)
 
 
JUDGMENT
 
Art 2 (substantive and procedural) (+ Art 14) • Discrimination • Positive obligations • Failure to prevent gender-based violence culminating in murder by a police officer and to investigate the response of law-enforcement authorities • Passive and even accommodating attitudes of law-enforcement, conducive to proliferating violence against women
 
STRASBOURG
10 February 2022
 
FINAL
 
10/05/2022
 
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of A and B v. Georgia,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
 Síofra O’Leary, President,
 Ganna Yudkivska,
 Stéphanie Mourou-Vikström,
 Lətif Hüseynov,
 Lado Chanturia,
 Arnfinn Bårdsen,
 Mattias Guyomar, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 73975/16) against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Georgian nationals, A (“the first applicant”) and B (“the second applicant”), on 16 September 2016;
the decision to give notice of the application to the Georgian Government (“the Government”);
the decision not to have the applicants’ names disclosed;
the parties’ observations;
Having deliberated in private on 18 January 2022,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case mainly concerns complaints under Articles 2 and 14 of the Convention about the respondent State’s failure to protect the applicants’ next of kin from domestic violence and conduct an effective investigation into the matter. THE FACTS
2. The first and second applicants were born in 1972 and 2013 respectively and live in Georgia. They were represented before the Court by five Georgian lawyers – Ms T. Dekanosidze, Ms T. Abazadze, Ms N. Jomarjidze, Ms A. Arganashvili and Ms A. Abashidze – and four British lawyers – Mr Ph. Leach, Ms K. Levin, Ms J. Evans and Ms J. Gavron. 3. The Government were represented by their Agent, Mr B. Dzamashvili, of the Ministry of Justice. 4. The facts of the case, as submitted by the parties, may be summarised as follows.
circumstances leading to C’s killing
5. The first and second applicants are the mother and son of C, who was born on 24 November 1994 and killed by her partner, D, the second applicant’s father, on 25 July 2014 (see paragraph 17 below). 6. In 2011 C, who was seventeen years old, was kidnapped for marriage by D, a twenty-two years’ old police officer serving in the small city where she lived. As C was under constant threat from D, she began cohabiting with him. The couple never registered their marriage. 7. The couple’s cohabitation, which was marked often by disputes fuelled by D’s jealousy, lasted from December 2011 until June 2012, when C, exhausted by the physical and psychological harassment from her partner, returned to her parents’ house. She was two months pregnant at the time. 8. From December 2011, C and her family became the target of regular verbal and physical abuse from D. He threatened to kill C and her parents, referring to his official status as a police officer and strong connections within the police. The family members were afraid to report the majority of the incidents to the police but still managed to report a number of the most violent ones. 9. On an unspecified date in July 2012 C called the police, complaining that D had threatened to kill her mother, the first applicant. She received no response to her complaint. 10. According to the materials available in the case file, on 31 August 2013 D, following an altercation over child support payments, beat up C in her parents’ house. The police were called and three patrol officers, all of whom were D’s acquaintances, interviewed C in his presence. As confirmed by several independent eyewitnesses, such as neighbours, D was on good terms with the officers, who were his immediate colleagues, during the interview. One of the officers told C that wife-beating was commonplace and that not much importance need be attached to it. When the officers were interviewing C and she, who was bearing signs of recent physical abuse, started reporting the above‑mentioned details of her ill-treatment, D interfered in the process, mocking C’s responses and shouting at her, but the officers did not attempt to stop him. Without interviewing the alleged abuser, the police officers drew up a report that did not accurately reflect the extent of the violence of the incident, referring to it as “a minor family altercation related to child support payments”. C initially refused to sign the report, but D forced her to do so, making threats to kill her, which were overheard by the police officers. Prior to leaving the house, one of the police officers told C not to contact them in the future without a valid reason or face being fined for wasting police time as they were busy with other, more serious matters. D left C’s house with the officers and they drove away in the same car. 11. On the same day, C filed a criminal complaint with a local public prosecutor’s office. She complained about D, for physically abusing her, and the three police officers, for failing to carry out their duties with due diligence. In her complaint, she also pointed out that her former partner had been constantly harassing her, resorting to threats to kill and physical violence. He had also threatened to abduct their child. She asked the prosecution authority to take all the measures necessary to put an end to D’s violent behaviour. She also added that since her abuser was a police officer, she could not trust that the police would come to her assistance, hence she had addressed her complaint to the public prosecutor’s office. 12. Following C’s criminal complaint, on 4 September 2013 a public prosecutor interviewed C, D and one of the police officers regarding the incident of 31 August 2013, both of whom denied that C had been ill-treated in any way. D’s version of events was that they had simply had an argument over child support payments. On 9 September 2013 D gave a written undertaking for the attention of the prosecution authority that he would never again verbally or physically abuse either C or her family members. The prosecution authority was satisfied with that undertaking and decided not to launch a criminal investigation. 13. On 5 July 2014 C complained to the General Inspectorate of the Ministry of the Interior (“the General Inspectorate”), the division in charge of conducting disciplinary inquiries against police officers, that D had physically assaulted her twice in public, on 3 and 5 July 2014. 14. According to the material available in the case file, numerous independent witnesses confirmed in their written statements that D had been using various attributes of his official position to commit abuse against C between April 2011 and July 2014. Notably, during that period, he had (i) intimidatingly flaunted his service pistol on at least seven occasions, (ii) regularly threatened to bring false charges against C’s father and brother if she reported their altercations to the law-enforcement authorities and (iii) often said that he was not afraid of the law-enforcement machinery as he was part of it himself. All this information was made known to both the police and prosecution authority. 15. On 20 July 2014 D was promoted to the rank of senior police lieutenant. 16. On 25 July 2014 a representative of the General Inspectorate summoned C for an interview in relation to the two incidents referred to in her complaint of 5 July 2014 (see paragraph 13 above). During the interview she reiterated that D had been systematically subjecting her to physical and psychological harassment. Whilst she wanted the General Inspectorate to intervene and put an end to her former partner’s violent behaviour, she asked it not to be too harsh with him because he was the father of her child. 17. Shortly after C had left the interview, D stalked her in the street. Eyewitnesses saw them having a tense and loud argument in a public park. All of a sudden, D pulled his service pistol out and fired five shots at C’s chest and stomach at close range. She died instantly.
criminal proceedings against D
18. On the same day, a criminal case was opened and D was charged with C’s murder. When questioned the following day, he told the investigators that his relationship with C had been strained from the very beginning because she had always wanted to move to Tbilisi, the capital, to pursue a modelling career, to which he had strongly objected. He had become particularly jealous after their separation because he had started seeing her date other men. He also stated that what had served as a trigger for his rage, and what had made him use his gun on the day of the shooting, had been something C had said, in an intentionally provocative and vulgar way, namely that her private and sex life did not concern him at all. In his view, C had “humiliated him”, and that was why he had used a gun on her. 19. By a judgment of 17 April 2015, the Kutaisi City Court found D guilty of premeditated murder of a family member and sentenced him to eleven years’ imprisonment. D pleaded insanity, claiming that he had shot C because of an episodic mental disorder caused by pathological jealousy. That line of defence was however dismantled by the results of a court-ordered forensic examination of D’s mental health. The decision became final on 15 February 2016. The conviction did not refer to the possible role of gender-based discrimination in the commission of the crime (see paragraph 29 below).
criminal COMPLAINTS against THE relevant LAW‑ENFORCement authorities
20. On 22 January 2015 the first applicant, acting on behalf of herself and the second applicant, filed a complaint with the Chief Public Prosecutor’s Office, requesting that a criminal investigation be launched into the failure of the relevant police officers and public prosecutors to protect her daughter’s life and give proper consideration to the repeated reports of domestic violence. The first applicant argued that the State agents’ negligent conduct might have been influenced by gender-based discrimination. 21. On 19 February 2015 the prosecution authority opened a criminal case into the police officers’ alleged failure to properly respond to C’s allegations of domestic violence and interviewed the three patrol officers who had attended the incident of 31 August 2013 (see paragraphs 10 and 11 above). According to the officers, they did not think that the incident was of a violent nature. On 27 February 2015 the first applicant was interviewed and told the prosecution authority the entire history of the strained relationship between her daughter and D, including his repeated use of violence. As regards the incident of 31 August 2013, she confirmed the sequence of events as described above (see paragraph 10 above). 22. Between March and August 2015, the public prosecutor’s office interviewed five witnesses to the incident of 31 August 2013, who were either relatives of A and C or their neighbours. The majority of them gave evidence indicating that the incident was of a particularly violent nature. 23. On 2 March, 29 April and 23 June 2015 and 21 January 2016 the first applicant repeatedly enquired with the Chief Public Prosecutor’s Office about the progress of the investigation, if any, and on 20 March 2015 it replied that a criminal investigation had been launched into the alleged negligence of the police officers. The first applicant received no response to her complaint directed against the public prosecutors (see paragraph 20 above). 24. By letters of 1 and 16 March 2016, a regional public prosecutor’s office informed the first applicant that the criminal investigation into the alleged negligence of the police officers was pending, but that no charges had been pressed against anyone and it was not necessary to grant her victim status at that time. She received no response to her complaint directed against the public prosecutors. 25. On 17 March 2016 the first applicant again enquired with the Chief Public Prosecutor’s Office whether a criminal investigation into the actions of the public prosecutors had been launched. She received no response.
civil ACTIONS against the law-enforcement authorities
26. On 22 January 2015 the first applicant, acting on behalf of herself and the second applicant, sued the Ministry of the Interior and Chief Public Prosecutor’s Office under Article 1005 of the Civil Code for failure to protect her daughter’s life, claiming compensation in respect of non-pecuniary damage in the amount of 120,000 Georgian laris (GEL – approximately 34,000 euros (EUR)). 27. By a judgment of 24 July 2015, the Tbilisi City Court allowed the claim in part, awarding compensation in respect of non-pecuniary damage in the amount of GEL 20,000 (approximately EUR 7,000). The court found that there was a causal link between the inactivity of the relevant police officers and public prosecutors and C’s killing. It emphasised, in that connection, that the public authorities were under an obligation to respond promptly and effectively to allegations of discrimination. That obligation had however been blatantly disregarded in the case in issue, in breach of Articles 3 and 8 of the Convention. The court observed, referring to the incident of 31 August 2013, that the police officers had not interviewed C or the witnesses to the incident, had not issued a restraining order against D and had not taken measures aimed at restricting the use of his service pistol. As regards the role of the public prosecutors, the court noted that they had failed in their obligation to conduct an adequate criminal investigation into the violent incidents in question. The court concluded that the respondent authorities, who ought to be considered liable together with the relevant individual officials, had failed to take measures to put an end to the gender-based discrimination and protect C’s life. 28. The judgment of 24 July 2015 became final on 29 June 2017, when the Supreme Court of Georgia finally terminated the proceedings. RELEVANT LEGAL FRAMEWORK AND PRACTICE
29. On 27 March 2012 an amendment to Article 53 of the Criminal Code of Georgia was adopted whereby discrimination was recognised as a bias motivation and an aggravating circumstance in the commission of a criminal offence. The relevant provision reads as follows:
Article 53 § 3 (1)
“The commission of any offence listed in this 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.”
30. Other relevant domestic law, as well as international material concerning violence against women in Georgia, is comprehensively summarised in paragraphs 25-40 of the Court’s judgment in the case of Tkhelidze v. Georgia (no. 33056/17, 8 July 2021). THE LAW
ALLEGED VIOLATION OF ARTICLEs 2 and 14 OF THE CONVENTION
31. Relying on Articles 2, 3 and 14 of the Convention, the applicants complained that the domestic authorities had failed to protect C from domestic violence and conduct an effective criminal investigation into the circumstances contributing to her death. 32. Having regard to its case-law and the nature of the applicant’s complaints, the Court, being master of the characterisation to be given in law to the facts of a case, considers that the issues raised in the present case should be examined solely from the perspective of the substantive positive and procedural aspects of Article 2 of the Convention, taken in conjunction with Article 14 (compare Kurt v. Austria [GC], no. 62903/15, § 104, 15 June 2021). The relevant parts of these provisions read as follows:
Article 2
“1. Everyone’s right to life shall be protected by law ...”
Article 14
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex ..., or other status.”
Admissibility
33. The Government submitted that the applicants had lost victim status for the purposes of Article 34 of the Convention given the outcome of the criminal proceedings initiated against D (see paragraphs 18-19 above) and civil proceedings initiated against the law-enforcement authorities (see paragraphs 26-28 above). In particular, they submitted that since the perpetrator of C’s killing had been promptly identified and sufficiently punished and the domestic civil courts had duly acknowledged the law-enforcement authorities’ wrongful conduct and even awarded the applicants compensation, the application should be declared inadmissible as incompatible ratione personae with the provisions of the Convention pursuant to Article 35 §§ 3 (a) and 4. 34. The applicants disagreed with the Government’s objection, arguing that the various domestic remedies pursued by them had not resulted in either sufficient acknowledgment of the violation of their various rights under the Convention or sufficient redress. They specified in this connection that the crux of their application was the inaction of the law-enforcement authorities, which had significantly contributed to the domestic violence and death of C, their next of kin. 35. The Court observes that in the present case the question of possible loss by the applicants of their victim status on the basis of the outcome of the various sets of domestic proceedings is closely linked to the issue of the effectiveness of the investigation into the circumstances contributing to the death of their next of kin. The Court thus considers it appropriate to join this matter to the merits of the complaint made by the applicants under the procedural limb of Article 2 of the Convention, read together with Article 14 (compare, for instance, Petrović v. Serbia, no. 40485/08, §§ 64 and 65, 15 July 2014, and Özcan and Others v. Turkey, no. 18893/05, § 55, 20 April 2010). 36. The Court further notes that the application is neither manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. It must therefore be declared admissible. MeritsThe parties’ submissions

37. The applicants submitted that although they had been aware of the danger to C’s life from D’s violent behaviour, the police and prosecution authority had nevertheless failed to take the necessary preventive measures. They complained that the law-enforcement authorities had inadequately and inaccurately gathered and recorded evidence when dealing with the allegations of domestic violence. The applicants further submitted that the inappropriate and discriminatory responses of the police and prosecution authority to the complaints made by C about her partner’s abusive behaviour, coupled with their failure to investigate the circumstances contributing to her death and hold the implicated law-enforcement agents criminally responsible for their failure to protect her life, were at the heart of the breach by the respondent State of its substantive positive obligations under Articles 2 and 14 of the Convention. 38. Without disputing the facts of the case as submitted by the applicants, and without contesting their legal arguments submitted on the merits of the relevant complaints, the Government limited their comments to providing the Court with an overview of various legislative, budgetary and administrative measures taken by the respondent State to tackle domestic violence and, more generally, violence committed against women from 2014 onwards. In that connection, they submitted information about various training and awareness-raising courses provided, between 2015 and 2017, to the judicial, prosecutorial and law-enforcement authorities on the problem of violence against women.

Article of the Convention at issue: Article 14
Outcome: violation