Last Updated on July 8, 2021 by LawEuro
Information Note on the Court’s case-law 253
July 2021
Tkhelidze v. Georgia – 33056/17
Judgment 8.7.2021 [Section V]
Article 2
Positive obligations
Article 2-1
Effective investigation
Failure to take preventive action to protect domestic violence victim and to investigate police inaction, against backdrop of systemic failures and gender-based discrimination: violation
Article 14
Discrimination
Failure to take preventive action to protect domestic violence victim and to investigate police inaction, against backdrop of systemic failures and gender-based discrimination: violation
Facts – The applicant’s daughter (M.T.) was domestically abused by her partner (L.M.) and eventually killed by his hand in a murder-suicide. Afterwards, the applicant filed several unsuccessful and/or unanswered criminal complaints with the district public prosecutor’s office and the Chief Public Prosecutor’s Office, requesting that an investigation be opened into the alleged negligence of police officers who had dealt with her daughter’s domestic violence.
Law – Article 2 taken in conjunction with Article 14 (substantive limb):
The Court was satisfied that there existed an adequate legislative and administrative framework designed to combat domestic violence against women in the country in general. It was rather the manner of implementation of this deterrent mechanism by the law-enforcement authorities, that is to say the issue of compliance with the duty to take preventive operational measures to protect the applicant’s life, which raised serious concerns in the present case.
Within a very tight frame of some six months, M.T. and the applicant had requested help from the police on at least eleven occasions. They had always clearly conveyed the level of violence in L.M.’s behaviour. Moreover, the police knew that L.M. had suffered from pathological jealousy and had other mental instabilities, had difficulties in managing his anger and had a criminal record and history of drug and alcohol abuse. The police had also been aware that M.T. had carried various defence weapons with her all the time and experienced extreme fear and anxiety at seeing her partner approaching either her flat or workplace. All those considerations had confirmed the reality of the danger caused by L.M. to M.T. Furthermore, the violence to which M.T. had been subjected could not be seen as individual and separate episodes but had instead to be considered a lasting situation. Where there was a lasting situation of domestic violence, there could hardly be any doubt about the immediacy of the danger posed to the victim. Thus, the police had known or certainly ought to have known of the real and immediate threat to the safety of the applicant’s daughter.
As regards the requirement of special diligence, the Court discerned several major failings on the part of the law-enforcement authorities. Firstly, there were indications of inaccurate or incomplete evidence-gathering by police officers. Shortcomings in the gathering of evidence in response to a reported incident of domestic violence could result in an underestimation of the level of violence actually committed, have deleterious effects on the prospects of opening a criminal investigation and even discourage victims of domestic abuse from reporting an abusive family member to the authorities in the future. It was also significant in that connection that, when recording the incidents, the police officers did not appear to have conducted a “lethality risk assessment” in an autonomous, proactive and comprehensive manner (compare Kurt v. Austria [GC]). They had not attached sufficient importance to potential trigger factors for the violence and had failed to take into account the victim’s own perceptions of danger. The police had preferred to downgrade the classification of an incident to a “minor family altercation”. The very same shortcomings in the police’s initial responses to domestic violence allegations had been identified as systemic failings in Georgia by the United Nations Special Rapporteur on violence against women, its causes and consequences (“the UN Special Rapporteur”).
Furthermore, whilst the domestic legislative framework had provided for various temporary restrictive measures in respect of the abuser, the relevant domestic authorities had not resorted to them at all. What was more, neither the applicant nor her daughter had been advised by the police of their procedural rights and of the various legislative and administrative measures of protection available to them. On the contrary, they had been misled as the police had referred to their inability to arrest the abuser or to apply any other restrictive measure. Despite the police failures in that regard, owing to the numerous criminal complaints repeatedly filed by M.T. and the applicant, there had still existed plenty of evidence warranting the institution of criminal proceedings against L.M., which would have opened up the possibility of placing him in pre-trial detention. It was deplorable that the law-enforcement authorities had not done so. This had been identified by the UN Special Rapporteur as another systemic problem in the country.
The inactivity of the domestic law-enforcement authorities, in particular the police, had been even more unforgivable when assessed against the fact that, in general, violence against women, including domestic violence, had been reported to be a major systemic problem affecting society in the country at the material time. The domestic authorities responsible thus had known or should have known of the gravity of the situation affecting many women in the country and should have shown particular diligence and provided heightened State protection to vulnerable members of that group. In the light of the foregoing, the Court could only conclude that the general and discriminatory passivity of the law-enforcement authorities in the face of allegations of domestic violence such as the present case had created a climate conducive to a further proliferation of violence committed against women. That being so, the respondent State’s failure to take preventive operational measures had undermined the rights of the applicant and her daughter to equal protection before the law.
All in all, there had been a persistent failure to take steps that could have had a real prospect of altering the tragic outcome or mitigating the harm and the police inaction in the present case could be considered a systemic failure.
Conclusion: violation (unanimously).
Article 2 taken in conjunction with Article 14 (procedural limb):
The Court also had to determine whether the State had had a further positive obligation to investigate inaction of any of the law-enforcement officials involved and hold them responsible.
It had already established that the inactivity of the law-enforcement authorities had been one of the causes of the descent of the domestic abuse into the killing of the victim. Given that the authorities had known or should have known of the high level of risk that would be faced by the victim if they failed to discharge their policing duties, their negligence had gone beyond a mere error of judgment or carelessness. However, the prosecution authority had disregarded the applicant’s numerous criminal complaints and had made no attempt to establish the identity of the police officers, to interview them and to establish their responsibility in relation to their failure to respond properly to the multiple incidents of gender-based violence that had preceded the killing of the victim. Furthermore, having lodged a criminal complaint seeking the necessary investigation into the actions of law enforcement, the applicant had repeatedly sought but failed to receive information from the Chief Public Prosecutor’s Office. It was noteworthy that it had taken the latter over two years to acknowledge receipt of her correspondence, and no further information had been provided even then. Not even a disciplinary probe into the alleged police inaction had been opened, despite the fact of the applicant’s having complained to the body in charge of disciplinary supervision of police officers, and no steps had been taken to train the police officers on how to respond properly to allegations of domestic violence for the future. However, in the light of the existence of discriminatory overtones associated with violence committed against women, there had been 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.
Conclusion: violation (unanimously).
Article 41: EUR 35,000 in respect of non-pecuniary damage. Claim in respect of pecuniary damage dismissed.
(See also Kurt v. Austria [GC], 62903/15, 15 June 2021, Legal Summary)
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