European Court of Human Rights judgment in Tkhelidze v Georgia
Forum: European Court of Human Rights
Case No.: 33056/17
Judgment date: 8 July 2021
This case concerns the femicide of M.T., a university professor, by her ex-husband L.M. after a prolonged period of domestic violence. Despite more than eleven reports of violence and threats made to the police by M.T. and her relatives in a six-month period, not a single protective measure was put in place.
This case is representative of the systemic discrimination by the law enforcement authorities in Georgia in failing to adequately respond to victims of domestic violence.
EHRAC brought the case before the European Court of Human Rights (ECtHR) in collaboration with Union Sapari on behalf of M.T.’s mother.
The ECtHR embedded its consideration of discrimination into right to life complaints for the first time in a domestic violence case, and was robust in its criticism of the authorities’ ‘major failings’, representing a highly progressive judgment by the Court.
M.T and L.M. lived together in a flat with L.M.’s parents and M.T.’s young daughter from a prior relationship. The police attended the flat twice, in April and September 2014, following reports from L.M.’s father and M.T. that L.M. was physically and verbally assaulting M.T. and making threats to her life.
L.M.’s parents reported that L.M. suffered from pathological jealousy, was mentally unstable and became aggressive when drunk. L.M.’s father also reported that the death threats made by L.M. towards M.T. were frightening and that he wanted the police to force L.M. to leave their home. After the latter incident an ambulance was called and M.T. received medical attention, yet the incident was recorded as a minor family altercation, with the physical abuse recorded as just a “shove”.
When interviewed, L.M. admitted to being jealous and making multiple death threats against M.T. The police filed reports but failed to open a criminal investigation or place any restrictive measures on L.M. The day after the second incident, M.T. and her daughter moved into her mother’s home, at which point L.M. began to send abusive messages. The messages included the statements “I can easily make you disappear”; “I’m going to commit suicide, I can’t live without you”; and “No one can stop me, I’m not afraid of the police”. L.M. also made death threats against M.T.’s young daughter.
Over the next three weeks, M.T. reported a further five incidents to the police informing them that L.M. was repeatedly threatening to kill her, that he had attempted to break into her mother’s flat, that he had accosted her outside her mother’s flat and at her place of work, and that he had followed her to her daughter’s school. M.T.’s mother also filed four reports with the police stating that L.M. was stalking and threatening her daughter daily, that he had turned up at her workplace with a grenade which he threatened to detonate, and that her and her daughter’s lives had become unbearable due to L.M.’s terrorising behaviour.
The police repeatedly and inaccurately told M.T. that no restrictive measures could be a taken against L.M. and that they could not arrest him. At one point they said that they couldn’t make an arrest as a police officer had not witnessed the violence. On another occasion they suggested that M.T. tell her brothers about L.M.’s behaviour so that they could take revenge by “breaking his bones”.
On 17 October, the day after M.T. reported to the police that L.M. had followed her to her daughter’s school, L.M. turned up at Ilia State University, Tbilisi, where M.T. was teaching and asked to speak to her in the corridor outside a class of students. When she stepped into the corridor L.M. shot her dead, and then fatally shot himself.
Neither the applicant (M.T.’s mother) nor her daughter were ever advised of their procedural rights or the legislative and administrative measures of protection available to them under the Criminal Code and the Domestic Violence Act.
An investigation was opened into the double homicide on 17 October 2014, however it was discontinued on 31 December due to the death of the perpetrator. In 2015/16 the applicant lodged multiple complaints with the District Prosecutor’s Office and with the Chief Prosecutor requesting an investigation into negligence by the police towards her daughter, which she argued constituted gender-based discrimination. No investigation was opened.
EHRAC brings case to European Court of Human Rights
We lodged the application with the European Court of Human Rights (ECtHR) in 2017, in collaboration with Union Sapari, raising:
- Article 2 (right to life), due to the authorities’ failure to respond with due diligence to threats to life and failure to protect;
- Article 3 (prohibition of torture) due to the state of terror in which the applicant and her daughter lived as a result of the authorities’ inaction;
- Article 14 (prohibition of discrimination), on the basis that the conduct of the authorities and the individual police officers was discriminatory on grounds of gender and reflected systemic failings by the Georgian authorities.
The Court took the unusual step of examining Article 2 in conjunction with Article 14 from the outset, and found violations of both substantive and procedural Article 2 with Article 14.
“This is a very progressive judgment by the Court. The case demonstrates many of the discriminatory failings typical of law enforcement authorities in domestic violence cases and this was recognised by the Court.”
The Court had taken a similar approach previously in the case of Aghdgomelashvili and Japaridze v. Georgia, in which it ruled that a police raid on Georgia’s first ever LGBT organisation not only violated the applicants’ right to freedom from torture and inhuman or degrading treatment under Article 3 of the European Convention on Human Rights (ECHR) but also their right to protection from discrimination under Article 14.
In M.T.’s case, the Court found that ‘In flagrant disregard for the panoply of various protective measures that were directly available to them, the authorities failed to display special diligence to prevent gender-based violence against the applicant’s daughter, which culminated in her death’ and that this action constituted a systemic failure (57).
The Court also held that, in the light of the discriminatory overtones associated with violence against women, there was a pressing need to conduct a meaningful inquiry into the possibility that gender-based discrimination and bias had also been a motivating factor behind the alleged police inaction (60).
The Office of the Public Defender of Georgia intervened in the case to highlight the work it had done to protect women’s rights and combat discrimination, stating that violence against women was widespread in the country and persisted due to entrenched patriarchal attitudes and gender stereotypes.
The United Nations Committee on the Elimination of Discrimination against Women expressed similar concerns to the Public Defender, while the UN Human Rights Committee added that violence against women remains underreported due to a ‘lack of due diligence on the part of law enforcement officers’ alongside ‘insufficient protection measures for victims’.
The ECtHR said that the police’s actions appeared ‘to be even more unforgivable’ in light of the Public Defender and international bodies’ statements.
This is a very progressive judgment by the Court. The case demonstrates many of the discriminatory failings typical of law enforcement authorities in domestic violence cases and this was recognised by the Court which, for the first time in a domestic violence case, embedded its consideration of discrimination into the right to life complaints – simultaneously examining Article 2 substantive (failure to protect) and procedural (failure to investigate) with Article 14 (discrimination).
This is a significant development in the Court’s jurisprudence, signalling an understanding that discrimination was central to the authorities’ failings. The Court also explicitly clarified the application of the Osman test, asserting ‘[w]here there is a lasting situation of domestic violence, there can hardly be any doubt about the immediacy of the danger posed to the victim’.
The judgment is robust in its criticism of ‘major failings’ by the authorities, including inaccurate and incomplete evidence gathering by police officers, which ‘can result in an underestimation of the level of violence actually committed, can have deleterious effects on the prospects of opening a criminal investigation and even discourage victims of domestic abuse, who are often already under pressure from society not to do so, from reporting an abusive family member to the authorities in the future’.
It further condemned the failure to conduct a lethality risk assessment, to consider significant trigger factors, the failure to resort to any protective measures and on the contrary, the misleading of the applicant and the victim of their procedural rights and downgrading the physical violence.
The Court also considered that the physical violence, the incessant (unspecific) death threats and a threat to blow her up with a grenade warranted opening criminal proceedings that could have justified putting L.M. in pre-trial detention and that it was ‘deplorable’ that the authorities did not do so. Compare this with Kurt v Austria [GC] in which the Court held that repeated death threats and physical violence against the victim and her children, marital rape and breach of a suspended sentence for similar offences did not warrant pre-trial detention.
Again in an apparent first for a domestic or gender-based violence case and constituting a finding under procedural Article 2 that comes close to an Article 46 measure, the Court noted that no steps had been taken to train police officers to respond properly to future allegations of domestic violence and held that there should have been an investigation into the gender-biased motivation behind the police inaction (60).