Published: 8 Mar 2016 | By Kate Levine

CEDAW Decision: X and Y v Georgia

Report

იხილეთ სტატიის ქართული ვერსია

On 13 July 2015, the United Nations Committee on the Elimination of Discrimination against Women (the ‘CEDAW Committee’) adopted its decision in the case of X and Y v Georgia (Application No. 24/2009), the first ever decision from an international body relating to domestic violence in Georgia. The Committee’s final decision was published in early 2016. The case was litigated jointly by the European Human Rights Advocacy Centre (EHRAC), based at Middlesex University, and Article 42 (an NGO in Tbilisi).[1]  Information on the case is set out below.

Summary

The CEDAW Committee recently decided the first ever individual communication against Georgia, concerning the State’s failure to prevent and adequately respond to domestic violence, X and Y v Georgia (Communication No. 24/2009, 13 July 2015). The communication was brought by a mother and daughter who complained of the State’s failure to prevent, investigate and punish prolonged physical violence, and sexual and psychological abuse, suffered at the hands of their former husband and father respectively. The Committee found all of the violations of the Convention on the Elimination of all Forms of Discrimination against Women (the ‘CEDAW Convention’) claimed by the applicants.[2] In its recommendations to the Georgian Government, the Committee called on the Georgian Government to provide adequate financial compensation to the applicants. It also emphasised the need for the Government to: ensure that other victims of domestic violence are provided with prompt and adequate support; intensify awareness raising campaigns on and implement a zero-tolerance policy towards violence against women; provide mandatory training to law enforcement officials, judges and lawyers on national and international standards on countering domestic violence; and ratify the Council of Europe Convention on preventing and combatting violence against women and domestic violence (the ‘Istanbul Convention’).

The Georgian context

For a small country, domestic violence has assumed epidemic proportions

(BBC News, November 2014)

Violence against women is a serious problem in Georgia, where two thirds of women have been the victim of at least some form of domestic violence during their lifetime, according to statistics collected by the Anti-Violence Network Georgia, a Tbilisi-based NGO. Estimates suggest that between 25 and 30 women are killed each year by their partners in Georgia. In a small country, these figures and the resultant public anger and shock, loom large. Notwithstanding increased media coverage of domestic violence in 2014, Georgian society largely continues to regard domestic and sexual violence against women as a private matter, to be resolved within the family, behind closed doors. As a result, women are often reluctant to report violence to the police. Where cases are reported to the police, often little or no action is taken until it is too late.  For example, Maka Tsivtsivadze, a lecturer at Ilia State University, was shot dead by her husband in October 2014 in front of colleagues, after having  lodged numerous complaints with the police (in response to which no preventative action was taken against her husband). In another recent example, Salome Jorbenadze, a young woman kidnapped at gunpoint at the age of 17 by a police officer who forced her to become his wife, was routinely abused verbally and physically. Although Salome made repeated calls for help  to the police, her husband was not subjected to any preventive measures and  killed her  with his police firearm in a public park in July 2014.

The Georgian Government began to tackle this insidious form of gender-based discrimination with the adoption of the 2006 Law on the Elimination of Domestic Violence, Protection of and Support to its Victims (the ‘Law on Domestic Violence’). The Law provides for, inter alia, temporary protection measures, in the form of restraining and protective orders which can be issued by police and the courts respectively. It also requires the State to provide shelters and social services for victims of domestic violence and their children, and conduct awareness raising campaigns in order to make people aware of their rights and the State’s obligations relating to domestic violence. Following the adoption of the Law, the existing Criminal Code was amended to criminalise domestic violence. To date, however, the State has failed to ensure thorough and effective implementation of the Law on Domestic Violence.  For example, as EHRAC has seen in several ongoing cases from Georgia, the police do not routinely adopt a zero-tolerance approach to domestic violence, nor do they handle complaints by victims in an appropriate and sensitive manner.

Following protests by women’s rights activists and NGOs over several high profile murders of women by their partners in 2014, the State promised to prioritise the fight against domestic violence. In August 2015, the Ministry of Justice unveiled a package of measures aimed at bringing Georgia closer to ratifying the Istanbul Convention by autumn 2016, including adding a new article on ‘stalking’ to the Criminal Code, and allowing the police to issue restraining orders without subsequent court approval. The Government began developing an Action Plan for 2016-18 on combatting violence against women in November 2015; the new action plan is due to be published in spring 2016. In February 2016, the UN Special Rapporteur on violence against women (‘SRVAW’), Dr Dubravka Šimonić, visited Georgia to meet with civil society working on tackling violence against women, Government representatives, and victims. The SRVAW’s final report and recommendations for the Georgian Government will be published in June 2016. Commenting on her preliminary findings from these meetings, the SRVAW underlined that:

“Domestic violence is considered a private matter and not a public concern, especially in rural areas…Women victims of domestic violence, who decide not to keep this scourge taboo, are forced by the community – in particular in rural areas – and/or the police, to remain with their perpetrators and are not only revictimized, but at risk of new assaults.”[3]

The case

The case of X and Y v Georgia relates to events occurring prior to the adoption of the Law on Domestic Violence. In light of the prevailing systemic issues around lack of implementation of this Law and other aspects of the national framework designed to counter domestic violence, the Committee’s findings and recommendations serve as a timely reminder of the State’s obligations under the CEDAW Convention to comprehensively address domestic violence and prevent other women and children from suffering the same fate as the applicants in this case.

The violence suffered by X began in 1987 when she was raped by her future husband at a party. Shortly afterwards, she married him. Because of societal attitudes in Georgia which prize the sanctity of a women’s virginity prior to marriage, she believed that no one else would wish to marry her because she was no longer a virgin. Within the marriage, X gave birth to five children, and gave up her job following the birth of her first child. X’s husband was consistently violent towards the children, often shouting at them or punishing them with physical violence for misbehaving or arguing amongst themselves. X was assaulted by her husband whenever she intervened to protect the children and as a result of disputes over insignificant household issues. Her husband was only ever asked by the police to sign unenforceable written declarations that he would not use violence against his family again. Her husband also subjected two of their children (including Y) to sexual abuse. Despite reporting the incidents of physical and sexual abuse to the authorities on more than five occasions (supported by first-hand evidence from X and Y, among others, and medical reports confirming physical injuries sustained by X at the hands of her husband), the complaints were never investigated and no criminal charges were brought against her husband.

In  2009, the applicants submitted an application under the Optional Protocol to the CEDAW Convention, alleging that the failure of the Georgian State to enact criminal law provisions to effectively protect women and girls from physical and sexual abuse within the family, provide equal protection under the law to victims of domestic violence and sexual abuse, and protect them from domestic violence (thereby subjecting them to torture), constituted violations of Articles 1, 2(b)-(f) and 5(a) of the CEDAW Convention. The authors also sought to rely on the State’s due diligence obligations (under Articles 1 and 2 of the Convention read in conjunction with the Committee’s general recommendation No. 19 on violence against women) to prevent, investigate, and punish acts of domestic violence by non-State actors.  The authors had previously attempted to seek redress before the European Court of Human Rights, which unfortunately rejected the application at the admissibility stage. This was not however a bar to the Committee’s consideration of the case, which found the application admissible in 2013 on the basis that it was factually and legally distinguishable from the application submitted to the European Court.

The Committee’s decision

In its decision on the merits adopted on 13 July 2015, the CEDAW Committee found violations of the State’s obligations under Articles 2(b)-(f), in conjunction with Article 1 and 5(a) of the CEDAW Convention, as well as the Committee’s general recommendation No. 19 on violence against women. In particular, the Committee established that the Georgian State had failed to comply with its obligations to:

  • adopt appropriate legislative and other measures, including sanctions, prohibiting violence against women as a form of discrimination against women; establish legal protection of women’s rights on an equal basis with men and to ensure, through competent tribunals and other public institutions, the effective protection of women against discrimination;
  • refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions act in conformity with that obligation;
  • take all appropriate measures to eliminate discrimination against women by any person, organisation or enterprise;
  • take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against women; and
  • take all appropriate measures to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices that are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.

In light of its findings, the Committee recommended that the Georgian Government take the following concrete steps to remedy the violations of the authors’ rights and ensure that other women and children do not suffer the same fate:

  • provide adequate financial compensation to the authors commensurate with the gravity of the violations of their rights;
  • ensure that victims of domestic violence and their children are provided with prompt and adequate support, including shelters and psychological support;
  • intensify awareness-raising campaigns, and introduce a zero-tolerance policy in respect of violence against women and domestic violence;
  • ratify the Istanbul Convention; and
  • provide mandatory training for judges, lawyers and law enforcement personnel, including prosecutors, on the application of the Law on Domestic Violence, including on the definition of domestic violence and on gender stereotypes, as well as appropriate training on the CEDAW Convention, the Optional Protocol, and the Committee’s general recommendations (in particular, general recommendation No. 19).

Implementation of the Committee’s recommendations

EHRAC and Article 42 are working with other human rights NGOs in Georgia to ensure that the Committee’s recommendations are effectively implemented.  In February 2016, EHRAC Lawyer, Kate Levine, and Article 42 Lawyer, Elena Fileeva, met with the UNSRVAW during her visit to Georgia to brief her about the case and urged her to  encourage the Government to swiftly and comprehensively address the issues raised in the Committee’s recommendations. EHRAC is also consulting with other Georgian NGOs and women’s rights activists regarding the most pressing issues to be addressed within the framework of the  recommendations, including: providing adequate shelters for victims of domestic violence; widening access to existing shelters and other services; improving  training/support to promote the economic independence of female victims of domestic violence; increasing levels of awareness among women of protection orders and how to get them; ensuring that the police and prosecutors adopt  a gender sensitive approach when investigating cases of domestic violence; and ensuring that evidence from victims of domestic violence is accurately recorded by the police.


[1] The case was originally brought by INTERIGHTS, who represented the applicants until the organisation’s closure in May 2014.

[2] Georgia ratified the CEDAW Convention on 26 October 1994, and the Optional Protocol to the Convention (under which individual communications can be lodged with the Committee) on 1 August 2002.

[3] See more at: http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=17087&LangID=E#sthash.TiLOsR8X.dpuf