CEDH · CASELAW;COMMUNICATEDCASES;ENG — 28 novembre 2024

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } Published on 16 December 2024   FOURTH SECTION Application no. 6400/24 I.K. and T.K. against Georgia lodged on 22 February 2024 communicated on 28 November 2024 SUBJECT MATTER OF THE CASE The application concerns the respondent State’s procedural obligations under Articles 3 and 8 of the Convention, taken alone and in conjunction with Articles 13 and 14, on account of the alleged inadequacy of the criminal response to domestic abuses committed against the applicants, who are siblings, by their stepfather. The first applicant accused her stepfather of sexual abuses continuously perpetrated against her in the period between 2005 and March 2021, including those committed while she had still been a minor (she was born in 1991), whilst the second applicant, her brother (born in 1981), who is a person with physical impairment (deaf), accused the stepfather of psychological and harassment committed in the period between 2005 and October 2020. By a final judgment of 25 October 2023, the Supreme Court of Georgia, amending a lower court’s judgment, found the applicants’ stepfather guilty of having committed abuses against the second applicant only. Endorsing almost all of the facts imputed to the perpetrator by the public prosecutor’s office on behalf of the victims, the court decided to give those facts a legal qualification different from that initially proposed by the prosecution authority. Notably, whilst the prosecution office had requested that more than fifteen years of the first applicant’s sexual harassment be prosecuted as a criminal offence under Article 144(3) § 2 of the Criminal Code (“the CC”) – inhuman and degrading treatment –, the Supreme Court ruled that the perpetrator’s conduct rather fell to be prosecuted under Article 138 of the CC (sexual abuse), which was a lex specialis in the circumstances. However, since the prosecution authority had not brought charges against the perpetrator under the latter criminal provision (apparently because the authority considered that prosecution for sexual abuse would be time ‑ barred), the Supreme Court stated that it lacked jurisdiction to convict the applicants’ stepfather in relation to the sexual abuses committed against the first applicant. As regards the years of harassment committed against the second applicant (described as daily insults using violent expressions, episodes of deprivation of food and social contacts, limitation of physical liberty, and so on), whilst the Supreme Court acknowledged that a hate crime motivated, amongst others, by the perpetrator’s intolerance of the second applicant’s physical impairment had indeed been committed, it refused, similarly to the lower court, to classify it, contrary to the prosecution authority’s request, as inhuman and degrading treatment (Article 144(3) of the CC), stating that the necessary threshold had not been reached. Instead, the court decided to give those facts a legal classification under Article 126(1) of the CC (domestic violence). Domestic violence was considered to be a less serious criminal offence in comparison to inhuman and degrading treatment according to the scale of the crime gravity provided for by the CC. Having thus found the perpetrator guilty of domestic violence committed against the second applicant, the Supreme Court sentenced him to two years in prison for that particular episode. The Supreme Court also found the applicants’ stepfather guilty of domestic violence (Article 126(1) of the CC) committed against his wife, the applicants’ mother (who is not an applicant in the present case), in the period between 2012 and April 2021. He was sentenced to one year in prison for that particular episode. Finally, the Supreme Court found the applicants’ stepfather guilty of a separate offence under Article 157(1) of the Criminal Code (taking, making or sharing of intimate information) on account of having secretly installed, in March 2021, a video equipment in the bathroom of the first applicant’s apartment and having thus recorded her intimate images, sentencing him to five years’ imprisonment in relation to that particular episode. All in all, applying the principle of total absorption of the imposed custodial sentences, the Supreme Court sentenced the applicants’ stepfather to five years in prison in relation to (i) the domestic violence committed against the applicants’ mother and the second applicant and (ii) the recording of the first applicant’s intimate videos. The sexual abuses committed against the first applicant were left unpunished. QUESTIONS TO THE PARTIES 1.     Having regard to the positive obligations of the respondent State inherent in Articles 3 and 8 of the Convention, taken alone and in conjunction with Article 13, to carry out a thorough and effective investigation and prosecution of acts of sexual abuse and other attacks on physical and mental integrity, has the domestic criminal investigation into the allegations of sexual abuse and other forms of harassment of, respectively, the first and second applicants by their stepfather been in breach of either of the above ‑ mentioned Articles (compare, for example, Vučković v.   Croatia , no.   15798/20, §§ 49-50, 12 December 2023, with further references therein, and Y. v. Slovenia , no. 41107/10, §§ 95-100, ECHR 2015 (extracts))?   1.1.     In particular, can the sentence that the perpetrator received be considered to be manifestly disproportionate given the gravity of the committed acts (compare Smiljanić v. Croatia , no. 35983/14, § 99, 25 March 2021)?   1.2.     What were the reasons for which the public prosecution service decided to abstain from bringing sexual abuse charges against the perpetrator of the relevant acts against the first applicant? If those reasons lay in the relevant statute of limitations and the associated concerns linked to the principle of non ‑ retroactivity, was any consideration given to the question of whether or not the sexual abuses committed against the first applicant constituted “a continuous offence” (compare, mutatis mutandis , Rohlena v.   the Czech Republic [GC], no. 59552/08, §§ 54-73, ECHR 2015)?   1.3.     Do the domestic courts’ findings – confirmed by the Supreme Court in the final instance – that the first applicant’s sexual abuses and the ill ‑ treatment of the second applicant, who was moreover a physically impaired person and thus belonged to a vulnerable category, did not reach the threshold of “inhuman and degrading treatment” sit well with the Court’s relevant case ‑ law under Article 3 (compare, mutatis mutandis , Nicolae Virgiliu Tănase v.   Romania [GC], no. 41720/13, §§ 121 and 123, 25 June 2019, and M.C.   v.   Bulgaria , no. 39272/98, §§ 169-187, ECHR 2003-XII).   2.     Can the first applicant be said to have suffered gender-based discrimination contrary to Article 14 of the Convention, read in conjunction with either Article 3 or Article 8 of the Convention, on account of the allegedly inadequate criminal response by the State to her sexual abuses?