European Court of Human Rights finds that authorities systemically failed to prevent gender-based violence
Tkhelidze v Georgia (Application no. 33056/17)
Summary
The European Court of Human Rights (the Court) unanimously held that the Government of the country of Georgia (the Respondent) violated Articles 2 and 14 of the Convention of the European Convention on Human Rights (the Convention). The Applicant, a resident of Georgia, complained under Articles 2 and 14 of the Convention that the Georgian authorities’ failed to protect her daughter from domestic violence and to conduct an effective criminal investigation. It was determined that the Respondent failed to protect the Applicant's daughter from escalating acts of family violence which culminated in her death, thereby denying her right to life (Article 2) and her enjoyment of the rights and freedoms set out in the Convention (Article 14).
Facts
The primary question for the Court's consideration was whether the Respondent had contravened Articles 2 and 14 of the Convention, by failing to protect the Applicant's daughter, MT, from family violence and failing to conduct an effective investigation.
Article 2 of the Convention states, in part, that:
Everyone’s right to life shall be protected by law.
Article 14 of the Convention states:
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
In August 2013, MT moved into an apartment with her partner, LM. Shortly afterwards, arguments between them began. On 29 April 2014, LM's father reported his son's abuse of MT to the authorities.
Between April 2014 and October 2014, LM abused MT on numerous occasions. His behaviour included, but was not limited to, verbal abuse, threats of physical harm to both LM and her daughter, intention to cause a traffic accident, stalking, breaking and entering and physical abuse.
On 22 September 2014, MT reported being verbally and physically abused by LM. The incident resulted in LM requiring medical assistance. The attending police officers categorised LM's behaviour as 'criminal battery'. LM's parents also informed the authorities of LM's abusive behaviour, and when questioned, LM admitted to making death threats against MT on multiple occasions. However, the police officers classed the assault as a "shove", and recorded that MT did "not need any kind of medical treatment". The authorities informed MT that "it was not possible to arrest her partner or to request any other restrictive measures given the 'minor' nature of the 'family altercation.'" On the following day, MT separated from LM, and relocated to her mother's house with her daughter. Despite this, LM continued to threaten and abuse MT.
LM's abusive behaviours were reported to authorities on, at least, 11 occasions. However, the police refrained from appraising MT of her procedural and legal rights (including those under the Criminal Code of Georgia), or the protective measures which could otherwise have been deployed in response (for example, a restraining order).
Instead, the authorities informed MT and her relatives that no restrictive measures could be enforced in response to LM's behaviour, as his violent conduct had not been witnessed by the police.
On 22 October 2014, LM, attended MT's place of work and murdered her, before immediately committing suicide. Police opened an investigation into MT's death, but the inquiry was discontinued shortly thereafter on the grounds that the offender was deceased.
Between April 2015 and April 2017, the Applicant:
filed a criminal complaint with the local public prosecutor's office, requesting that an investigation be opened against the authorities who dealt with the accusations of family violence allegations against LM on the basis of negligence;
followed up on the complaint, after failing to receive a reply, and outlined that the inactivity of the police officers in question could be considered gender-based discrimination; and
re-lodged the complaint to the Chief Public Prosecutor's Office and the General Inspectorate of the Ministry of the Interior on at least four occasions.
On 5 May 2017, the Chief Public Prosecutor's Office confirmed it had received the Applicant's complaints, but did not respond to them.
On 13 April 2017, the Applicant lodged a case against the Georgian Government with the Court, in which she alleged that the Respondent was liable for negligence because of its failure to protect her daughter's life, and initiate an effective investigation into the circumstances contributing to her death. The Applicant further asserted that the Respondent's negligence occurred due to the proliferation of prejudicial attitudes towards women. In their response, the Georgian Government did not dispute the facts of the Applicant's submission, or contest the Applicant's legal arguments. Instead, the Respondent outlined measures taken by the State to address violence against women, and better preserve the rights of women, in the country.
Decision
The Court was satisfied that the Respondent had violated Articles 2 and 14 of the Convention. In reaching this decision, their Honours first turned to the relevant legal principles contained within each Article.
The law
The Court's interpretation of Article 2 enlivens two distinct, yet related, obligations. First, it imposes a substantive, positive obligation on the State to implement a legislative and administrative framework designed to secure the right to life (Limb 1). Second, it requires authorities to enforce preventative measures contained within this framework which protect individuals (including victim/survivors of family violence) who are at risk of being impacted by the criminal behaviour of others (Limb 2). This obligation arises when the authorities knew, or ought to have known, about the existence of a "real and immediate risk" to the life of an identified individual from the criminal acts of a third party, as assessed on a case-by-case basis. In this regard, the particular context of family violence including recurrent, successive episodes of violence within a family, must be taken into account. The Court noted, however, that Limb 2 must not be interpreted in a way which imposes an impossible or disproportionate burden on authorities.
In interpreting Article 14, the Court noted that "a State's failure to protect women against family violence breaches their right to equal protection before the law". The failure need not be intentional and 'discriminatory judicial passivity' may amount to a violation of Article 14. Their Honours clarified that such contraventions would be made out where it could be established that the authorities' actions consisted of repeatedly condoning such violence and reflected a discriminatory attitude towards the complainant as a woman. The Court noted that a vigorous and impartial investigation is particularly important where discriminatory attitudes have played a part in the violent act.
Application to the case
In reaching its conclusion, the Court determined that an adequate legislative and administrative framework designed to combat violence against women existed in the country of Georgia, and that the present issue was whether law enforcement agencies complied with their duty to take preventive operational measures. Their Honours divided their reasoning process as follows:
Did a real and immediate danger, emanating from an identifiable individual, exist?
Did family authorities know, or ought to have known, of this threat?
In the event questions 1 and 2 are answered in the affirmative, did the authorities display special diligence in their response to the threat?
The Court was satisfied that the risk posed by LM's behaviour presented a real and immediate danger. The Applicant and MT requested assistance from the police on at least eleven occasions over a 6 month period in response to LM's abusive actions. LM, and his parents, also directly informed police that he had a propensity to threaten, and perform, violence. The ongoing violence inflicted upon MT's daughter was deemed to further emphasise that the threat of LM's behaviour was immediate and lasting. Given the police's demonstrable awareness of these factors, the Court concluded that the authorities knew, or ought to have known, of the real and immediate threat to MT's safety.
The Court concluded that the police had failed to exercise the necessary 'special diligence' required when dealing with a case of family violence. Numerous major failings on the part of law-enforcement authorities were identified, including in relation to evidence gathering, their failure to conduct a risk assessment, displaying a lack of regard to the woman's perceptions of danger, the decision to downgrade classification of incidents in official reports, neglecting to issue temporary restrictive measures (such as restraining orders) and the provision of misleading information to the woman regarding her legal rights.. The Court also acknowledged that there was sufficient evidence to commence criminal proceedings against LM, which may have allowed authorities to place LM in pre-trial detention, thereby avoiding the murder of MT. Their Honours described these failures as "deplorable", having undermined the entitlement of MT and her daughter to receive equal protection under the law, and contributing factors to MT's murder. Therefore, the Court was satisfied that the Respondent had contravened Articles 2 and 14 of the Convention.
Additional obligation to investigate
The Court also considered whether the Georgian Government had an additional positive obligation to investigate the inaction of any law-enforcement official involved and hold them responsible. The Court acknowledged that, where "it is established that the negligence attributable to State officials or bodies goes beyond an error of judgment or carelessness… the fact that those responsible for endangering life have not been charged with a criminal offence or prosecuted may amount to a violation of Article 2". The Court outlined that, in this case, there was a pressing need for a meaningful inquiry to have been conducted into the possibility that gender-based discrimination and bias had been a motivating factor behind the alleged police inaction. The Court held that Georgia had further breached its obligations by failing to carry out an investigation.
Commentary
This case highlights the tragic consequences of passively allowing gender-discrimination to become embedded within a country’s culture. The Court found that such prejudice, when permitted to proliferate unfettered, not only increases rates of gender-based violence against women, but erodes the effectiveness of the response of law enforcement – compounding the disadvantage inflicted.
Merely establishing legal and administrative frameworks is insufficient to discharge a government’s human rights obligations. This case reinforces the responsibility of governments to take active steps to protect people against gender-based violence.
The full text of the decision can be found here.