Professional Documents
Culture Documents
CASE OF A AND B v. GEORGIA
CASE OF A AND B v. GEORGIA
JUDGMENT
STRASBOURG
10 February 2022
This judgment will become final in the circumstances set out in Article 44 § 2 of the
Convention. It may be subject to editorial revision.
A AND B v. GEORGIA JUDGMENT
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.
1
A AND B v. GEORGIA JUDGMENT
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
2
A AND B v. GEORGIA JUDGMENT
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.
3
A AND B v. GEORGIA JUDGMENT
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).
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
4
A AND B v. GEORGIA JUDGMENT
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
5
A AND B v. GEORGIA JUDGMENT
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
Article 2
“1. Everyone’s right to life shall be protected by law ...”
6
A AND B v. GEORGIA JUDGMENT
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.”
A. 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.
B. Merits
7
A AND B v. GEORGIA JUDGMENT
8
A AND B v. GEORGIA JUDGMENT
9
A AND B v. GEORGIA JUDGMENT
§§ 191 et seq., ECHR 2009). Such discriminatory treatment occurs where the
authorities’ actions are not a simple failure or delay in dealing with the
violence in question, but amount to repeatedly condoning such violence and
reflect a discriminatory attitude towards the complainant as a woman (see
Talpis v. Italy, no. 41237/14, § 141, 2 March 2017). Indeed, an immediate
response to allegations of domestic violence is required from the authorities
who must establish whether there exists a real and immediate risk to the life
of one or more identified victims of domestic violence by carrying out an
autonomous, proactive and comprehensive risk assessment (see Kurt, cited
above, § 190).
43. The Court observes that, since the crux of the application is that the
inactivity and negligence of the law-enforcement authorities was one of the
main reasons why the domestic abuse was allowed to escalate, culminating
in C’s murder, and given that the authorities knew or should have known of
the high level of risk faced by her if they failed to discharge their policing
duties properly – as she was complaining about a fellow police officer, with
access to a firearm – and were thus in a position to establish whether he had
been involved in similar incidents in the past or his propensity to violence,
the Court considers that their inactivity and negligence went beyond a mere
error of judgment or carelessness. Consequently, amongst the remedies used
by the applicants at domestic level, the most pertinent for the purposes of
Article 35 § 1 of the Convention were the criminal proceedings instituted
against the police officers and public prosecutors involved (see
paragraphs 20-25 above and compare Tkhelidze, cited above, § 60).
44. However, the Court notes with concern that the competent
investigative authority neither made an attempt to establish responsibility on
the part of the police officers for their failure to respond properly to the
multiple incidents of gender-based violence occurring prior to C’s murder nor
deem it necessary to grant the applicants victim status. No disciplinary
inquiry into the police’s alleged inaction was even opened, and no steps were
taken to train the police officers in question on how to respond properly to
allegations of domestic violence in the future. As regards the part of the
applicants’ complaint calling into question the inaction of the public
prosecutors, no response was received whatsoever – the applicants repeatedly
sought but failed to receive information from the investigative authority on
this aspect of their criminal complaint. However, in the light of the relevant
circumstances of the case, in particular the existence of indices pointing to
possible gender based discrimination as at least partly informing the response
of law enforcement to the complainant and the complaints and the fact that
they permitted the alleged perpetrator to participate in the questioning of the
10
A AND B v. GEORGIA JUDGMENT
complainant and victim of the alleged domestic abuse, the Court considers
that there was a pressing need to conduct a meaningful investigation into the
response of law enforcement and their inaction, which might have been
motivated by gender-based discrimination, in the face of C’s complaints
(compare Tkhelidze, cited above, § 60). The fact that the alleged perpetrator
of the violence of the abuse was a member of law enforcement himself, and
that the threats he had used against the victim and her family referred to this
fact and what he considered to be his impunity, rendered the need for a proper
investigation all the more pressing.
45. Although the above considerations are sufficient for the Court to
conclude that there has been a breach by the respondent State of its procedural
obligations under Article 2 read in conjunction with Article 14 of the
Convention (ibid., §§ 58-60), it notes in addition the insufficiency of the
redress offered by the two other sets of domestic proceedings – the criminal
prosecution of the perpetrator and civil proceedings brought by the applicants
against the law-enforcement authorities. With respect to the former, the Court
notes that D’s trial and conviction did not involve any examination of the
possible role of gender-based discrimination in the commission of the crime
(see paragraph 19 above). As regards the latter, whilst it was undoubtedly
positive that the domestic courts acknowledged the law-enforcement
authorities’ failure to take measures aimed at putting an end to the gender-
based discrimination and protect C’s life, the Court notes that they did not
expand their scrutiny to the question of whether the official tolerance of
incidents of domestic violence might have been conditioned by the same
gender bias. Nor have the courts addressed the question of whether there had
been indications of the relevant law-enforcement officers’ acquiescence or
connivance in the gender-motivated abuses perpetrated by their colleague, D.
These gaps in the response of the domestic courts do not sit well with the
respondent State’s heightened duty to tackle prejudice-motivated crimes.
46. The Court thus concludes that, in the particular circumstances of the
present case and having regard to the nature and quantum of the pecuniary
award, the applicants, the applicants have retained their victim status within
the meaning of Article 34 (see paragraph 35 above) and that there has been a
violation of the procedural limb of Article 2 read in conjunction with
Article 14 of the Convention.
47. Like the leading case of Tkhelidze, the circumstances of the present
application confirm that there was clearly a lasting situation of domestic
violence, which means that there could be no doubt about the immediacy of
the danger to the victim, and that the police knew or certainly ought to have
known of the nature of that situation. Although they were put on alert about
the seriousness of the risks, the police failed to display the requisite special
diligence and committed major failings in their work such as inaccurate,
11
A AND B v. GEORGIA JUDGMENT
12
A AND B v. GEORGIA JUDGMENT
A. Damage
13
A AND B v. GEORGIA JUDGMENT
55. On 10 May 2019, within the time-limit allocated by the Court for the
submission of just satisfaction claims under Rule 60 of the Rules of Court,
the applicants claimed EUR 22,817.60 for the costs and expenses incurred
before the Court by two of their British lawyers. No claim was made with
respect to the applicant’s representation by the remaining seven (five
Georgian and two British) lawyers (see paragraph 2 above). No copies of
legal service contracts, invoices, vouchers or any other supporting financial
documents were submitted. The amount claimed was based on the number of
hours spent by the British lawyers in question on the case (ninety-eight hours
and thirty minutes) and the lawyers’ hourly rate (GBP 150) and included, in
addition, a claim for postal, translation and other administrative expenses
incurred by them.
56. On 24 June 2019 the Government replied that the claims were
unsubstantiated and excessive. They stated, in particular, that no copy of the
legal service contract between the applicants and two British lawyers had
been submitted.
57. On 21 August 2019 the applicants, without being invited by the Court
to do so and without being given any additional time for this submission,
supplemented their previous claims with a legal service contract dated
5 August 2019 signed by them and their British lawyers.
58. The Court observes, at the outset, that the applicants’ submissions of
21 August 2019 were submitted in breach of the relevant procedural
requirement contained in Rule 60 of the Rules of Court. That is to say, the
submissions reached the Court outside the relevant time-limit, and no
extension of time was requested before the expiry of that period. Furthermore,
the submissions consisted of a legal service contract signed and dated after
the applicants had formally filed their just satisfaction claims with the Court
(compare paragraphs 56 and 58), and no explanation for this discrepancy was
given. In these circumstances, the submissions of 21 August 2019 cannot be
taken into consideration by the Court (compare, amongst other authorities,
Kováčik v. Slovakia, no. 50903/06, §§ 91-93, 29 November 2011, and
Stavebná spoločnosť TATRY Poprad, s.r.o. v. Slovakia, no. 7261/06,
§§ 55-56, 3 May 2011).
59. As regards the applicants’ claims submitted under Rule 60 of the
Rules of Court on 10 May 2019, the Court observes that they did not contain
documents showing that they had paid or were under a legal obligation to pay
the fees charged by their two British representatives. In the absence of such
documents, the Court finds no basis on which to accept that the costs and
expenses claimed by the applicants have actually been incurred (see
14
A AND B v. GEORGIA JUDGMENT
C. Default interest
61. The Court considers it appropriate that the default interest rate should
be based on the marginal lending rate of the European Central Bank, to which
should be added three percentage points.
1. Joins to the merits the question relating to the applicants’ victim status;
3. Holds that the applicants may claim to be victims for the purposes of
Article 34 and that there has been a violation of Article 2 under its
substantive positive and procedural limbs taken in conjunction with
Article 14 of the Convention;
4. Holds
(a) that the respondent State is to pay the applicants jointly, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, EUR 35,000
(thirty-five thousand 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;
and
(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;
15