CEDH · CASELAW;COMMUNICATEDCASES;ENG — 7 juin 2018

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sB853CD26 { font-family:Arial; font-size:8pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8DF6C4 { font-family:Arial; color:#333333 }   Communicated on 7 June 2018   FIFTH SECTION Application no. 12699/18 Tatia TORADZE against Georgia lodged on 6 March 2018 STATEMENT OF FACTS 1.     The applicant, Ms. Tatia Toradze, is a Georgian national, who was born in 1981 and lived at the material time in Tbilisi. She is represented before the Court by Mr E. Marikashvili, Mr. T. Svanidze, and Ms.   G.   Tsulukidze – lawyers practicing in Tbilisi, also by Mr. P. Leach, Ms.   J. Sawyer, Mr. V. Grigoryan, Ms. K. Levin, Ms. J. Gavron, and Ms.   J.   Evans – lawyers practising in the United Kingdom. A.     The circumstances of the cases 2.     The facts of the case, as submitted by the applicant, may be summarised as follows: 3.     In summer 2014 the applicant became acquainted with G.B. through social media. Sometime in the autumn of 2014 they started dating. G.B. was holding a senior position at the Ministry of Internal Affairs (“MIA”) at the material time. Soon G.B. became abusive towards the applicant. He started controlling her actions and threatened and humiliated her. 4.     According to the applicant, the first physically violent incidents against her occurred in July, August and early October 2015; however, she did not report them to police. 5.     On 19 October 2015 G.B. assaulted the applicant while on a street in Tbilisi. The police arrived, but instead of taking action, they apparently verbally insulted the applicant by calling her a “bitch”. According to the report concerning the incident, G.B. complained to the police that the applicant had been harassing him by systematically visiting his home without his permission. The incident report further stated that none of the parties had any claims towards the other. No proceedings were consequently initiated. 6.     On 20 October 2015 the applicant cut her wrist in front of G.B.’s home, following which she was allegedly beaten by G.B. The police arrived and drew up a report according to which G.B. had beaten the applicant.   The following day investigation was initiated into the circumstance of the violent incident pursuant to Article   125 of the Criminal Code (an offence concerning beating) and the applicant was questioned. As the applicant notes, she told the police about the incident and the history of her violent relationship with G.B. in detail but was, however, prevented from filing a formal written complaint against G.B. about continuous physical and psychological abuse. 7.     On the same day the applicant called the General Inspection at the MIA’s hotline and reported the incident. A forensic examination, which was organised by an investigator, established that the applicant had suffered less serious bodily injuries. 8.     In May 2016 the investigation was discontinued for lack of elements of a crime. The Prosecutor’s office concluded that G.B. had assaulted the applicant, including hitting her on the head. However, no major damage was caused to her health and the applicant did not suffer any physical or psychological harm. 9.     On 10 November 2016 the General Inspection of the MIA issued a report concerning the incident of 20 October 2015. In the report they concluded that G.B. had insulted the applicant, causing her physical injury and treating her in a degrading manner. That incident had breached MIA disciplinary rules and G.B. was accordingly issued with a reprimand. 10.     In the meantime, another violent incident, according to the applicant, took place in January 2016, but she was afraid of reporting it to the police. 11.     On 22 May 2016 the applicant was detained by police, acting at the request of G.B. for allegedly insulting the latter and resisting a police order. Having spent about four hours in detention, the applicant was later released by a decision of the Tbilisi City Court. The latter acquitted her of the above-mentioned administrative charges. On 24 May 2016 the applicant complained to the General Inspection of the MIA about her unlawful arrest and verbal abuse by G.B. In reply, on 10 June 2016 the General Inspection of the MIA informed the applicant that, having conducted an internal examination, they concluded that G.B. had not committed any disciplinary violation. According to the case file, the applicant also complained about the police officer who, at the request of G.B., had arrested her. The General Inspection came to a similar conclusion with respect to him. 12.     On 28 July 2016 G.B. severely beat the applicant, pushing her down the stairs, and hitting her head against a door and a wall. The applicant called the police, who arrived together with an ambulance. The applicant was taken to a hospital where she was diagnosed with concussion, closed skull-brain trauma, and partial hearing loss. A criminal investigation was initiated against both of them into mutual beating under Article 125 of the Criminal Code. The next day the applicant called the General Inspection of the MIA and complained that the investigation into the incident of 28 July 2016 was not being conducted in an impartial manner. 13.     On 8 August 2016 the applicant applied to the Office of the General Prosecutor of Georgia, providing details of all the alleged incidents of psychological and physical violence and requesting the conduct of an effective investigation into the abuse suffered. She requested the organisation of a forensic examination to establish her injuries, granting her victim status in the pending criminal proceedings, and the examination of a gender-based discriminatory motive behind all acts of violence committed against her. She also requested the application of protective measures during the investigation as she feared repercussions from G.B. In the absence of a reply, on 6 October 2016 the applicant sent another letter to the Prosecutor’s Office, reiterating her requests. 14.     After repeated requests, on 24 October 2016 the Tbilisi Prosecutor’s office informed the applicant that an investigation into the incident of 28   July 2016 was still pending. 15.     On 8 November 2016, the applicant requested the Tbilisi Prosecutor’s Office to reclassify the offence under investigation into an offence of violence under Article 126 of the Criminal Code. She alleged in this respect that she had been a victim of continuous abuse. Furthermore, the applicant requested discontinuation of the criminal proceedings pending against her and the conduct of an effective investigation given that domestic violence and violence against women in general were widespread crimes in Georgia and that there was a high public interest in the prosecution. 16.     In response to the above letter, on 17 November 2016 the Tbilisi Prosecutor’s office informed the applicant that there were no grounds for granting her requests. 17.     On 13 March 2017 the applicant applied to the Tbilisi Prosecutor’s Office asking for updated information about the investigation. She also asked for access to medical reports concerning her medical condition that had been issued following her medical examination. In reply, by a letter of 26 April 2017, the responsible prosecutor informed the applicant that the investigation was being conducted under Article 126 of the Criminal Code and that the relevant medical report had been obtained from the National Forensic Bureau. 18.     It appears from the case file that several forensic examinations of the applicant were organised for the purposes of the investigation, but the applicant was not given access to the relevant medical reports. 19.     On 31 July 2017 the applicant was seen by a psychologist, who concluded that she was suffering from post-traumatic stress disorder and mild depression. 20.     On 7 September 2017 the applicant was informed by the Public Defender’s Office of Georgia that, having inquired about the progress of the proceedings, they had been told that the proceedings into the violent incident of 28 July 2016 were still pending. B.     Relevant domestic law 1.     The Criminal Code of Georgia 21.     The relevant Articles of the Criminal Code as in force at the material time read as follows: Article 125 – Beating (the Article was repealed on 01 December 2016) “1. Beating or other violence that has caused the victim physical pain, but has not incurred the consequences provided for in Article 120 of this Code, shall be punishable by a fine or community service from 120 to 180 hours, or by corrective labor for up to fifteen months. ...” Article 126 - Violence “1. Beating or other violence that has caused the victim physical pain, but has not entailed the consequence provided for in Article 120 of this Code, shall be punishable by a fine or community service for a term of 120 to 180 hours or house arrest for a term of six months to two years, or imprisonment for a term of up to one year. 1(1). The same act committed: a) Knowingly against a minor, a helpless person, a person with disability or a pregnant woman; ... d) Repeatedly, Shall be punishable by a fine or community service from 180 to 240 hours, or by imprisonment for a term of up to two years. 1(2). Regular beating or other violence which caused physical or mental suffering of an affected person but did not entail a consequence provided for by Articles 117 or 118 of this Code, Shall be punishable by house arrest for a term of one to two years, or imprisonment for a term of one to three years. 2. An act provided for by paragraph 1(2) of this Article committed: ... d) Knowingly by an offender against a minor, a helpless person or a person who depends on the offender financially or otherwise; ... h) By abusing official position; i) Repeatedly; Shall be punishable by imprisonment for a term of four to six years, with or without deprivation of the right to hold an office or carry out activities for up to three years.” 22.     On 25 June 2012 a separate provision criminalising domestic violence was introduced into the Criminal Code of Georgia, which read at the material time, as follows: Article 126(1) - Domestic violence “1. Violence, regular insult, blackmail, humiliation by one family member against another family member, which has resulted in physical pain or anguish and which has not entailed the consequences provided for in Articles 117, 118 or 120 of this Code, shall be punished by community service from 80 to 150 hours or imprisonment for up to one year. 2. The same act committed: a) Knowingly against a minor, a helpless person, a person with disability or a pregnant woman; ... e) Repeatedly, Shall be punishable by community service from 200 to 400 hours, or by imprisonment for a term of one to three years. Note: For the purposes of this article, the following persons shall be considered as family members: a spouse, mother, father, grandfather, grandmother, child (stepchild), foster child, adopting parent, adopting parent’s spouse, adoptee, foster family (foster mother, foster father), guardian, grandchild, sister, brother, parents of a spouse, son ‑ in-law, daughter-in-law, former spouse, also persons who maintain or maintained a common household.” 23.     On 1 June 2017 the above Article was amended increasing the possible sanction for the offence of domestic violence. At the same time, the above note providing for the definition of a family member was deleted. 2.     The Law on Elimination of Violence against Women and/or Domestic Violence, Protection and Support of Victims of Violence 24.     On 25 May 2006 Georgia adopted the Law on Elimination of Violence against Women and/or Domestic Violence, Protection and Support of Victims of Violence (“Law on Domestic Violence”). In its initial version the Law provided protection to victims of domestic violence only, limiting the latter’s definition to violence within family. In 2017 the Law was amended to cover violence against women outside of the family context, including gender-based violence in public and private life. As a part of protective measures, the Law enables police officers to issue restrictive orders, which must be approved by courts within 24 hours and are valid for up to one month. In addition, judges of first instance courts may issue protective orders as a part of administrative proceedings. They determine temporary measures that should be taken to protect a victim and are valid for up to six months. C.     International law 25.     Georgia signed and ratified the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence on 19 June 2014 and 5 May 2017 respectively. The Convention entered into force with respect to Georgia on 1 September 2017. Its relevant provisions read as follows: Article 3 – Definitions “For the purpose of this Convention: a. “ violence against women” is understood as a violation of human rights and a form of discrimination against women and shall mean all acts of gender-based violence that result in, or are likely to result in, physical, sexual, psychological or economic harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life; b. “domestic violence” shall mean all acts of physical, sexual, psychological or economic violence that occur within the family or domestic unit or between former or current spouses or partners, whether or not the perpetrator shares or has shared the same residence with the victim; c. “gender” shall mean the socially constructed roles, behaviours, activities and attributes that a given society considers appropriate for women and men; d. “gender-based violence against women” shall mean violence that is directed against a woman because she is a woman or that affects women disproportionately; ...” Article 5 – State obligations and due diligence “1. Parties shall refrain from engaging in any act of violence against women and ensure that State authorities, officials, agents, institutions and other actors acting on behalf of the State act in conformity with this obligation. 2. Parties shall take the necessary legislative and other measures to exercise due diligence to prevent, investigate, punish and provide reparation for acts of violence covered by the scope of this Convention that are perpetrated by non-State actors.” Article 46 – Aggravating circumstances “Parties shall take the necessary legislative or other measures to ensure that the following circumstances, insofar as they do not already form part of the constituent elements of the offence, may, in conformity with the relevant provisions of internal law, be taken into consideration as aggravating circumstances in the determination of the sentence in relation to the offences established in accordance with this Convention: (a) the offence was committed against a former or current spouse or partner as recognised by internal law, by a member of the family, a person cohabiting with the victim or a person having abused her or his authority; (b) the offence, or related offences, were committed repeatedly; ...” Article 50 – Immediate response, prevention and protection “1. Parties shall take the necessary legislative or other measures to ensure that the responsible law enforcement agencies respond to all forms of violence covered by the scope of this Convention promptly and appropriately by offering adequate and immediate protection to victims. ...” Article 53 – Restraining or protection orders “1. Parties shall take the necessary legislative or other measures to ensure that appropriate restraining or protection orders are available to victims of all forms of violence covered by the scope of this Convention. ...” Article 56 – Measures of protection “1. Parties shall take the necessary legislative or other measures to protect the rights and interests of victims, including their special needs as witnesses, at all stages of investigations and judicial proceedings, in particular by: (a) providing for their protection, as well as that of their families and witnesses, from intimidation, retaliation and repeat victimisation. ...” COMPLAINTS 26.     The applicant complains under Article 3 of the Convention, taken alone and in conjunction with Article 14, that the State failed to protect her from continuous violence. She alleges in that respect that the relevant authorities failed to conduct an adequate and effective investigation into her allegations of abuse, and that the existing legal framework at the material time was deficient leaving her outside the scope of protection afforded to victims of gender-based violence. QUESTIONS TO THE PARTIES 1.     Has there been a violation of Article 3 of the Convention in the present case? In particular:   1.1.     Given the fact that the relevant authorities were aware of the danger posed by G.B., did they comply with their positive obligation to take all necessary steps to protect the applicant from violence by her former boyfriend, as required by Article 3 of the Convention?   1.2.     Having regard to the procedural obligation under Article 3 of the Convention, did the investigative authorities conduct a prompt and effective investigation into the applicant’s allegations of repeated violence?   1.3.     Did the applicant fall within the ambit of protection afforded to victims of domestic violence within the domestic legal system ? If so, did the existing Georgian legal framework provide the applicant with appropriate protective measures?   2.     Has the applicant suffered discrimination on the ground of her gender contrary to Article 14 of the Convention read in conjunction with Article 3? Did the applicant belong to a particularly vulnerable group given the alleged lack of protection of women against domestic violence?