Last Updated on November 30, 2023 by LawEuro
The application concerns the State’s alleged failure to take adequate measures to protect the applicants from unlawful mob action, hate speech and other discriminatory actions by private parties in the context of their being prevented from opening a Muslim boarding school.
The European Court of Human Rights noted the following:
The Government maintained, with reference to the civil anti‑discrimination proceedings, that they had complied with their positive obligations via affording the first applicant an appropriate legal mechanism allowing it to protect its rights effectively. In view of the relevant findings of the domestic courts and having regard to the Court’s own findings under Articles 8 and 9 of the Convention, the Court finds it difficult to accept the Government’s above argument. It notes that the loss of the first applicant’s control over the school building, with all the consequences it entailed, cannot be reduced to private persons’ actions. The relevant authorities failed in the face of discriminatory and threatening actions, to take swift measures to stop the school blockage. In any event, the present case concerns also, in the context of the State’s negative obligations, the domestic authorities’ failure to connect the school building to the sewerage system of Kobuleti. The Government did not provide any justification for the impugned inaction. The domestic courts in the context of the anti-discrimination proceedings against the Kobuleti municipality and Kobuleti Water Ltd explicitly stated that “local religious conflict” could not serve as a justification for their inaction. The relevant court decision has not, however, been enforced to date.
The above is sufficient for the Court to conclude that there has been a violation of Article 1 of Protocol No. 1 to the Convention.
Full text of the document.
European Court of Human Rights
FIFTH SECTION
CASE OF GEORGIAN MUSLIM RELATIONS AND OTHERS v. GEORGIA
(Application no. 24225/19)
JUDGMENT
Art 14 (+ Art 8 and Art 9) • Discrimination on the basis of religion • Private life • Freedom of religion • Failure to comply with positive obligation to provide adequate protection to individual applicants from unlawful mob action, hate speech and other discriminatory actions by private parties in the context of their being prevented from opening a Muslim boarding school • Failure to balance competing interests at stake • Discriminatory behaviour coupled with police’s inactivity created feelings of fear and insecurity and prevented applicants from opening the school • Obvious grounds to believe applicants had been insulted and threatened because of their religious beliefs • Failure to effectively investigate and identify and sanction those responsible • Deficient and protracted criminal investigation contributed to atmosphere of official acquiescence and developed a general feeling of impunity • Failure to establish whether religious prejudice played a role in impugned events and react accordingly • Cumulative effect of inaction to stop discriminatory behaviour and investigative shortcomings
Art 1 P1 • Peaceful enjoyment of possessions • Applicant association’s loss of opportunity for a significant period of time to use rented building for the opening of the school • Domestic authorities’ failure to take swift measures to stop the school blockage and to connect the building to the local municipality’s sewage system
STRASBOURG
30 November 2023
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Georgian Muslim Relations and Others v. Georgia,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Georges Ravarani, President,
Lado Chanturia,
Carlo Ranzoni,
María Elósegui,
Mattias Guyomar,
Kateřina Šimáčková,
Mykola Gnatovskyy, judges,
and Victor Soloveytchik, Section Registrar,
Having regard to:
the application (no. 24225/19) against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Georgian Muslim Relations, a legal entity, and seven Georgian nationals (“the applicants”) listed in the appendix, on 25 April 2019;
the decision to give notice to the Georgian Government (“the Government”) of the application;
the parties’ observations;
Having deliberated in private on 3 October and 7 November 2023,
Delivers the following judgment, which was adopted on the latter date:
INTRODUCTION
1. The application concerns the State’s alleged failure to take adequate measures to protect the applicants from unlawful mob action, hate speech and other discriminatory actions by private parties in the context of their being prevented from opening a Muslim boarding school. The applicants (except for the first applicant, Georgian Muslim Relations) relied on Articles 3, 8 and 9 of the Convention in conjunction with Article 14. The first applicant complained under Article 1 of Protocol No. 1 of a violation of its right to the peaceful enjoyment of its possessions.
THE FACTS
2. The first applicant is a non-profit association, registered under Georgian law on 31 January 2013, whose main objective is to foster support for religious education and provide free education to socially vulnerable children. The remaining applicants are Georgian nationals belonging to the Muslim minority. Their details are set out in the appendix. The applicants were represented by Ms T. Mikeladze, Ms K. Chutlashvili and Ms T. Samkharadze, lawyers practising in Tbilisi, and Ms J. Sawyer, Ms R. Ramezaite, Ms J. Gavron, Mr P. Leach and Ms K. Levine, lawyers practising in London.
3. The Government were represented by their Agent, Mr B. Dzamashvili, of the Ministry of Justice.
4. The facts of the case may be summarised as follows.
I. ATTEMPTS TO OPEN A MUSLIM BOARDING SCHOOL IN KOBULETI
5. On 1 August 2014 the first applicant obtained, under a lease agreement, a right to use a plot of land with a building on 13 Lermontovi Street in Kobuleti. It was decided to open a Muslim boarding school there.
6. As alleged by the applicants, already in June 2014 when the local Orthodox Christian population had learned about the upcoming plan, they had started holding protests against the opening of a Muslim school in the neighbourhood. Between July and November 2014 local residents erected barricades at the entrance of the building preventing the applicants from entering it and finalising the necessary renovation works. As set out below, according to the applicants, their attempts to open the school were repeatedly blocked with the connivance of the police and other local authorities, resulting in the school never being opened.
A. The incident of 23 July 2014
7. On 23 July 2014 the emergency response centre 112 received a call from the fourth applicant (the head of Georgian Muslim Relations, the first applicant) asking for police to intervene at the address of the school. The request was transmitted to the Kobuleti police department. On the same day police interviewed the fourth applicant in connection with the incident. According to his statement, the seventh applicant, his friend, was a representative of M&b Ltd which owned a private three-storey house on Lermontovi Street in Kobuleti. He had decided, on behalf of M&b Ltd, to rent this building out to the first applicant for the purpose of opening a Muslim boarding school in it and on 23 July 2014 had brought school supplies to the building. Neighbours from the area, including one person identified as Zh.K., told them that they were against the opening of a Muslim school in the neighbourhood and prevented the applicants from taking the items inside the building. The fourth applicant noted that no verbal or physical abuse had taken place and that he was simply asking the police to help them to take the school supplies inside the building.
8. On 6 August 2014 the police interviewed the seventh applicant, who confirmed the events of 23 July 2014 as described by the fourth applicant. He noted that there had been no physical or verbal abuse on the part of the neighbours and that eventually he had managed to get the school supplies into the building.
9. On 4 September 2014 the responsible police officer drew up a note in which he described the incident of 23 July 2014 and, with reference to the statements of the two applicants, concluded that the matter had been resolved and there was, hence, no basis to initiate a criminal investigation.
B. The incident of 6 August 2014
10. On 6 August 2014 the emergency response centre was informed about “a conflict between citizens” in Lermontovi Street in Kobuleti. The information was transferred to the Kobuleti police department.
11. On the same date the seventh applicant was interviewed in connection with the incident. He claimed that he had been verbally insulted and that people from the neighbourhood were preventing him from conducting the necessary works in the school. Av.Kh., a local resident who had been involved in the incident, was also interviewed. He noted that the local population was against the opening of a Muslim school in the neighbourhood. While confirming that they had impeded the renovation works in the building and had protested by blocking the street, he dismissed any allegations of physical and/or verbal violence.
12. On 12 August 2014 the responsible police officer drew up a note in which she described the incident of 6 August 2014, noting that the seventh applicant had had a conflict with neighbours. She also noted that local residents were against the opening of a Muslim school in the neighbourhood.
C. The incident of 26 August 2014
13. On 26 August 2014 another incident of “neighbourhood conflict” was reported to the police. Av.Kh., who was interviewed on the same day, claimed that no physical and/or verbal abuse had taken place. He confirmed again that the local population was against the opening of a Muslim school in the area and that they were determined to continue their peaceful protests until the applicants stopped the works. The fourth applicant, who was also interviewed in connection with the incident, complained that the local population was preventing them from carrying out renovation works at the school and that they were being subjected to verbal abuse. He noted that earlier that day they had requested the police to intervene in order to de-escalate the situation. While noting that no physical altercation had taken place, the fourth applicant asked the police to assist them in being able to continue the planned works in the building.
D. The incident of 10 September 2014
14. On 10 September 2014 at around 1 p.m. those protesting in front of the school slaughtered a pig and nailed its bleeding head to the school entrance door. They also fixed a big metal cross in front of the building. One of the protesters from the neighbourhood, Zh.R., stated in a televised interview that a pig had been slaughtered in front of the Muslim school because Muslims hated pigs. On the same date, the seventh applicant lodged a complaint with the local police referring to the above incident and further noting that he had received threats that the school building would be set on fire and destroyed (see paragraphs 16-37 below).
E. The incident of 15 September 2014
15. According to the case file, the opening of the school on 15 September 2014 was disrupted. Local residents set up barricades at the entrance to the school building, using old tyres and wooden boards, and did not allow pupils to enter, while those already inside, including the fifth applicant, were blocked in and could not leave. Most of the protesters dispersed after some two hours, although about ten people stayed to control access to the entrance to the building.
II. PROCEEDINGS INITIATED BY THE APPLICANTS
A. Criminal proceedings
16. On 10 September 2014 criminal proceedings were initiated under Article 151 of the Criminal Code (the offence of threat) into the allegations of the seventh applicant that he had received threats that the school building would be set on fire and destroyed. The seventh applicant, who was interviewed on the same day, provided a detailed account of the events that followed the decision to open a Muslim boarding school on Lermontovi Street in Kobuleti, including the alleged threats and insults that he had been subjected to by the local population. According to his statement, the local population had started protesting as soon as they had learned about the plan to open a Muslim school. He noted that because of their aggressive behaviour and verbal insults he had had to ask the local police for help on several occasions. On an unspecified date, sometime in late August or early September, protests had been organised in front of the school building and people had started threatening him with burning down the school building. On 10 September 2014 at around 4 p.m. he and N.B. had gone to the school and seen the bleeding head of a pig nailed to the entrance door of the school and blood spilled all over the ground. The seventh applicant claimed that he feared for his safety as he had been subjected to continuous threats and verbal insults for more than six months already. He also complained that he had been prevented from connecting the school to the Kobuleti public sewerage system. In reply to a question put to him, he noted that the school, as a preparatory educational establishment, did not require any licence according to law, and that its opening was planned for 15 September 2014.
17. During the interview on 10 September 2014, N.B. confirmed that on 10 September 2014 he had gone to the school building together with the seventh applicant and had seen a pig’s head nailed to its entrance door.
18. On 11 September 2014 the investigator organised for the examination of the scene with the participation of an expert and the third applicant. According to the police report drawn up thereafter, tyres and wooden boards had been noted at the entrance to the building. Further, reddish stains had been discovered at the entrance of the boarding school as well as nails hammered to the entrance door. According to the report, no intrusion into the building itself had taken place and accordingly no damage had been identified inside the building.
19. On 12 September 2014 the third applicant was interviewed. According to his statement, he was a khoja, an Islamic religious person, who was supposed to teach at the new Muslim school in Kobuleti. He had learned about the incident with the pig’s head from the television. On that day he had gone to the school but had been prevented from entering the building and had left. According to his statement, another incident had taken place on 12 September 2014 when he had witnessed a verbal altercation between T.I., another member of the local Muslim community, and some locals in front of the school about its opening. The third applicant had then accompanied T.I. to the police station in order to report the incident.
20. On the same date T.I. was interviewed. He confirmed the events of 10 September 2014. As for the incident of 12 September 2014, he stated that he had not experienced any verbal or physical abuse.
21. On 14 September 2014 the fourth applicant was interviewed. Reiterating his previous allegations, he noted that he had learned about the incident with the pig’s head from the third applicant. He maintained that he had been subjected to verbal assaults and also threats.
22. Between 11 and 14 September 2014, eighty-six residents of Lermontovi Street and the neighbouring area were interviewed. While noting that they had nothing against the Muslim religion as such, they maintained that the area was mainly populated by Orthodox Christians and hence there was no need to open a Muslim school there. Moreover, they did not want the noise from the school and the praying to interfere with their daily lives. All of the residents denied the allegations of verbal insults and threats and instead complained that some of the applicants had allegedly insulted them and threatened them with the police. As regards the incident with the pig’s head, some of those interviewed claimed that they had noticed the pig’s head towards the end of the demonstration, on their way home, while others claimed that they had learned about the incident from television reports.
23. On 10 October 2014 the applicants’ legal representative wrote to the Minister of the Interior and the Chief Prosecutor of Georgia providing detailed information about the events that had unfolded around the opening of the Muslim school in Kobuleti and complaining that the police response had been ineffective. She claimed that the police had failed to prevent the discriminatory violence vis-à-vis the applicants and had tolerated the violation of their various rights for several months already. She requested that the Ministry of the Interior take immediate actions to ensure the opening and functioning of the school; that the general inspection of the Ministry examine whether the conduct of individual police officers in response to the incidents of violence had been adequate; and that the violent incident of 10 September 2014 and subsequent events be investigated in an efficient manner. In support of her request the applicants’ legal representative submitted, among other things, detailed statements by the third and fifth applicants. On 22 December 2014 the applicants’ legal representative sent a follow-up complaint enquiring, in particular, as to whether a criminal investigation had been initiated into the allegations of police misconduct. She further claimed that the inactivity of the police officers in question could also be considered as amounting to religious-based discrimination. In the absence of a reply, she lodged two more complaints on 18 February and 23 April 2015 concerning the inactivity of the police. These complaints contained detailed statements by the second, third, fourth, fifth, and eighth applicants about the verbal insults and humiliation that they had allegedly endured in the relevant period of time.
24. In May 2015 individual applicants were interviewed in connection with the events that had unfolded around the school in September 2014. In his statement of 21 May 2015, the fifth applicant noted that he had learned about the 10 September incident with the pig’s head from television reports. As regards the opening of the school on 15 September 2014, he submitted that it had been disrupted because of the local residents protesting outside the building. They had blocked the school entrance with old tyres and various wooden constructions and had not allowed anyone to get in. Although most of the protesters, according to his statement, had dispersed within around two hours, about ten people had remained behind in order to control access to the entrance to the school. During the following few days, the fifth applicant was allowed, with the consent of the local residents, to enter the school building and sleep there. He recounted one day when he had been accused of being a participant of Turkish expansion (on account of the fact that the school was allegedly owned by a Turkish businessman) and told that there was no place for a Muslim boarding school in a Christian area. He also recalled being ordered by three private individuals parked in a car in front of the school building to leave the area. The fifth applicant confirmed in his statement that as of 15 September 2014, the police had been periodically patrolling the area but that they had never intervened to stop the unlawful acts of the local population.
25. According to the eighth applicant, who was interviewed on 28 May 2015, he was a khoja, an Islamic religious person, who was involved in preparing the school building for its opening on 15 September 2014. He had arrived in Kobuleti on 10 September 2014. On 11 September 2014 he had gone to the school but been prevented from entering the building by Zh.K., who had told him that he was “a son of Turks” and that there was no place for them there. Over the following twelve days he had stayed and slept at the school. In the relevant period of time local residents, who had set up the barricades at the entrance of the school, had been controlling access to the area, deciding who could get in or out of the school. The police had also been patrolling; however, they had not intervened to remove the barricades. The eighth applicant noted that the local residents had called them “Tatars” (თათარი – a term which is alleged by the applicants to have been uttered as an insulting expression insinuating, in their submission, that their Muslim faith was incompatible with their being Georgian) and participants of the “Turkish expansion” and told them to leave. He also recalled that throughout that period, he and the second applicant had been prevented from buying food in the neighbouring grocery shop on the ground that the shop belonged to locals, and they were Muslims and had to leave; those outside had been prevented from bringing food to them. An incident with the second applicant being verbally insulted outside the school had also taken place.
26. According to the statement of the second applicant, who was also interviewed on 28 May 2015, he was Muslim and in 2011-12 he had been working in one of the Muslim boarding schools in Georgia. He had gone to Kobuleti on 11 September 2014, after seeing television reports about the incident with the pig’s head. He had decided to stay at the school together with the fifth and eighth applicants and help with the preparations for the school opening. In total, he had stayed there for some ten days, during which period access to the school building had been controlled by the local population. The latter had been expressing various discriminatory views, including “we need no religion with foreign money” and that the applicants were “Tatars” and had to leave. He confirmed the eighth applicant’s statement as far as problems with food delivery to the school were concerned, including the incident in the grocery shop. He further recalled another incident when he had been insulted because of his religion by various persons in the area. He confirmed the police being present in the district but not intervening.
27. On 30 May 2015 the police re-interviewed the fourth applicant, the head of Georgian Muslim Relations. He stated that before 10 September 2014 there had been no barricades at the entrance to the school, however, each time people had accessed the school building, local residents had verbally insulted them. He noted that he had many times contacted the police seeking help, however, this had been in vain; they had not removed the barricades and had done nothing to allow the applicants unimpeded access to the building. The police had told him that unless physical confrontation occurred, they could not intervene. Eventually, according to his statement, the applicants had been forced to close the school building in January 2015. In reply to a question put to him, the fourth applicant confirmed that he had never been attacked physically but that he had had to endure constant verbal insults because of his religion. He also confirmed that the school was still closed, with the entrance door blocked and that he felt helpless as the police had done nothing in the face of the aggression and violence on the part of the local population.
28. The third applicant gave a similar statement, describing the events that had taken place on 10 September 2014 and afterwards. He confirmed that access to the school had been blocked by the local population and that the police had not done anything about it. On a few occasions, rather than getting into confrontations with the protesters, he had simply chosen to leave. He also recalled various verbal insults that they had all had to endure on account of their religion; he personally had been called a Turk and told that if he was Georgian, he should go to church instead. The third applicant claimed that he had felt humiliated by this type of remark.
29. In early June 2015 a new incident concerning the school was reported. The fifth applicant and someone identified as G.D. reported that a window on the third floor of the school building had been damaged. First, they thought that the window had simply been broken, however, on 2 June 2015 the seventh applicant had examined the scene and discovered two metal fragments resembling bullets on the ground.
30. On 11 and 15 June 2015 an investigator examined the scene, seizing two bullet-like metal fragments. He also noted damage to the wooden door on the third floor. Forensic expert examination was ordered, which established that the damage caused to the window and the door of the school building amounted to GEL 11.28 (about 4 euros), and that the metal fragments seized from the scene were shells from a pneumatic rifle and did not constitute an ammunition.
31. On an unidentified date the case was assigned to a new investigator. On 7 April 2017 the previous investigator was interviewed. According to her statement, on 10 October 2014 when she had gone to inspect the school building and the area adjacent to it, the entrance had not been blocked and there had been no barricades in the street.
32. Between 6 and 15 April 2017 five police officers were interviewed in connection with the incident on 10 September 2014 and the subsequent events. Four of them stated that on 10 September 2014 they had gone to Lermontovi Street, however, the street had not been blocked and no barricades could be seen. None of them had seen the pig’s head nailed to the school and none had witnessed any tensions. Two of them noted that they had learned about the incident from television reports on the same evening. Two of the police officers interviewed stated in addition that they had been patrolling in the area on 17 and 19 September 2014 and that they had not noticed anything in particular and no one had approached them with a request for help.
33. In April 2017 a former employee of a human rights non-governmental organisation who had monitored the events and had visited the area three times in September 2014 was interviewed, as was the head of the Kobuleti municipality.
34. On 5 February 2019 the prosecutor issued a decision amending the qualification of the alleged offence from Article 151 (threat) to Article 156 (persecution on religious grounds).
35. On 8 February 2019, in reply to their reiterated requests, the prosecution informed the applicants that there was no legal basis for granting any of them the procedural status of a victim. They were also told that the allegations of the police officers having committed a criminal offence had not been proven. The applicants’ subsequent appeals to the superior prosecutor and the Batumi City Court were refused on 28 March and 22 April 2019 respectively.
36. In the meantime, on 13 February 2019 the seventh applicant was interviewed again. While confirming his previous statement, he noted that he had not witnessed the incident with the pig’s head himself and did not know who had been involved. He also did not know who had been responsible for blocking the entrance to the school and setting up barricades. He recalled one concrete incident of verbal altercation with local residents, although he could not identify them by name. In reply to a question put to him, the seventh applicant confirmed that the school had never opened.
37. In 2020 additional investigative measures were undertaken, notably the questioning of several local residents from Lermontovi Street and the examination of the video-recording of the incident with the pig’s head. According to the information in the case file, the individual applicants, acting through their legal representative, regularly voiced their complaints to the prosecutor’s office that the investigation conducted into their allegations of discriminatory violence and abuse and the related complaint of police misconduct had been inadequate. Many of their complaints and requests went unanswered. The investigation is still ongoing.
B. The inquiry conducted by the general inspection of the Ministry of the Interior
38. On 6 October 2014 a representative of the Public Defender’s Office requested the general inspection of the Ministry of the Interior to look into the circumstances of the incidents that had occurred on 10, 15 and 16 September 2014 on Lermontovi Street in Kobuleti and to investigate the conduct of the police officers who had apparently been in the area but had failed to act. On 10 December 2014 the Public Defender’s Office was informed that the internal inquiry had not revealed any disciplinary offences on the part of any of the police officers concerned.
C. Civil anti-discrimination proceedings
39. On 9 November 2014 the first, third, fifth and sixth applicants instituted civil proceedings against the Ministry of the Interior and three private individuals, Zh.R., A.K. and Z.R. They requested that the Batumi City Court order the respondent parties to cease their continued discriminatory acts against the applicants and to allow the latter to open a Muslim boarding school in Kobuleti. They specifically requested that the Ministry of the Interior remove the barricades, ensure secure and free access to the building and prevent all incidents of verbal abuse, coercion and threats vis-à-vis the local Muslim community. The applicants claimed a symbolic amount of GEL 1 in respect of non-pecuniary damage.
40. According to the information in the case file, on 7 July 2015 the first‑instance judge conducted an on-site inspection with the participation of the parties to the proceedings. According to the inspection report, the entrance to the building was blocked by tyres and a big cross was fixed in front of the building. The representative of the Ministry of the Interior explained that it was not within the Ministry’s responsibility to remove barricades erected on private property.
41. On 19 September 2016 the Batumi City Court granted the applicants’ claim in full as far as three private individuals were concerned. The first‑instance court established that the opening of the school, planned for 15 September 2014, had been prevented by the local Orthodox Christian population. It found it established that a pig had been slaughtered on the grounds and its bleeding head had been nailed to the entrance door of the school on 10 September 2014. From that date onwards, permanent control posts had been set up by the local population, including the three individuals concerned, in order to control the movement of Muslims in the neighbourhood and to limit their access to the school. On 15 September 2014 access to the building had been blocked by wooden barricades and tyres. Those in the building had been blocked inside, while the pupils, who had come for the opening of the school, had not been allowed to enter the building. In the subsequent few days, the protesters had controlled access to the building, authorising or denying people entry. As of 27 September 2014, only the fifth applicant had been granted the right to enter. The court noted that the barricades were still in place one year after the events and that the applicants had eventually been forced to vacate the building. Having examined the behaviour and individual statements of the three private individuals, the Batumi City Court concluded that their attitude was Islamophobic.
42. As regards the Ministry of the Interior, the court found it established that during the incident with the pig’s head on 10 September 2014, the police had not been on the ground, and that they had started routine patrolling of the area on 15 September 2014. In the following period, the police had never been approached with a request for assistance. Moreover, they had not witnessed a single incident of disorder or violence. In such circumstances, the first-instance court concluded that there was no evidence showing that the police had failed to perform their duties. Moreover, there was no evidence that they had failed to act because of a possible discriminatory motive. In this regard the Batumi City Court noted that criminal proceedings had been initiated under Article 151 of the Criminal Code concerning the allegations of a threat to burn and/or destroy a building; that various investigative measures had already been undertaken, including the interviewing of more than a hundred witnesses; and that there was no evidence that the investigation was being protracted or otherwise impeded on account of the applicants’ religion.
43. In conclusion the court found that the three private individuals, as representatives of a dominant religious group, had arbitrarily interfered with the applicants’ religious rights and prevented them from opening a Muslim boarding school. They had also breached the first applicant’s right to the peaceful enjoyment of its possessions. In this connection the court noted that the failure to connect the school to the Kobuleti public sewerage system had also breached the first applicant’s property rights. The court went on to find that the above actions had been motivated by the applicants’ religion and ordered the three individuals concerned to cease their discriminatory acts and to pay the non-pecuniary damage claimed.
44. The applicants appealed against the above decision to the Kutaisi Court of Appeal. On 29 December 2016 the appellate court decided to separate the proceedings concerning the Ministry of the Interior and transferred the case to its administrative chamber. As to the proceedings concerning the three private individuals, on the same date the Kutaisi Court of Appeal upheld the decision of the first-instance court in full. It confirmed that because of their actions, which were discriminatory on religious grounds, the applicants had not been able freely to possess and use their property; they had also been prevented from connecting the school to the Kobuleti public sewerage system; their freedom of movement had been restricted; they had been targeted by Islamophobic statements; and, lastly, their right to freedom of religion had been breached on account of the applicants not being able to open a Muslim school. The subsequent appeal on points of law lodged by three private persons was rejected as inadmissible by the Supreme Court on 16 June 2017.
45. As to the separated case against the Ministry of the Interior, on 18 April 2017 the Kutaisi Court of Appeal, confirming the reasoning of the first-instance court, dismissed the applicants’ claim in its entirety. The appellate court found it established that on 10 September 2014 when the bleeding head of a pig had been nailed to the school building, the police had not been present; that as of 15 September 2014 the police had been present on the ground to prevent possible escalation; and that as of that date onwards the police had not been asked to intervene. In view of the above-mentioned and other related circumstances, it concluded that there was no evidence to show that the Ministry of the Interior had failed to perform its duties and that that failure had been on discriminatory grounds. The appellate court further noted that a prompt investigation had been initiated into the circumstances of the alleged incident on 10 September 2014, including into the allegations of possible discrimination on religious grounds. The proceedings were ongoing, with more than a hundred witnesses already interviewed, and the fact that the investigation was yet to be completed did not suffice to show that those in charge of it were biased and had been motivated by religious prejudice.
46. The applicants appealed, maintaining that the gist of their complaint was the failure of the Ministry of the Interior to comply with their positive obligations as a result of being religiously biased vis-à-vis the applicants. They referred to the decisions of the national courts in which it had been found that the applicants had suffered religious discrimination by private individuals. With this conclusion in mind and knowing that the police had been present on the ground at the relevant time, the applicants considered that the total denial of the responsibility of the police for the events in question was to say the least inexplicable. The applicants also argued that the protests had not been peaceful, thus falling outside the protection of national and international law; that the appeal court had incorrectly distributed the burden of proof as far as their allegations of discrimination were concerned; and that almost four years after the events, they were still unable to open the school.
47. On 15 March 2018 the Supreme Court granted the applicants’ appeal in part. In particular, the court did not find convincing the applicants’ argument about the inaction of the police being motivated by religious bias. It concluded that despite the allegations of an insufficient response on the part of the police, the claim of discrimination on religious grounds was unfounded. At the same time, the court noted that the applicants maintained their request that the police ensure the unimpeded opening and functioning of the boarding school. In this connection it decided to return the case back to the appeal court so that the latter could examine new factual circumstances concerning the school and adopt a new decision.
48. On 12 March 2019 the Kutaisi Court of Appeal dismissed the applicants’ application as far as their request concerning the police ensuring unimpeded opening and functioning of the boarding school was concerned. The court noted that in the period between 1 January 2016 and 1 January 2019 the Kobuleti police had received no information and/or complaint concerning possible impediment to the functioning of the boarding school in Kobuleti. In such circumstances, at the moment of examination of the case in court, the fact of the applicants’ being prevented from using the boarding school, could not be established.
49. The applicants’ appeal on points of law was rejected by the Supreme Court on 16 June 2022. From the outset the court defined the scope of the issue pending before it, noting that the allegation of the police failing to act on discriminatory grounds back in 2014 had already been examined and rejected in its decision of 15 March 2018. It reiterated in this connection that routine patrolling of the area had proved, in the circumstances, to be sufficient and adequate and that no incident which required police intervention had been reported and/or witnessed in the relevant period of time. The Supreme Court further stressed that while the case was being examined in court the applicants had not filed a single complaint and/or request with the police asking them to intervene. Accordingly, there was no evidence in the case showing that the police were failing in their duty to stop the impediment to the functioning of the boarding school.
D. Administrative proceedings initiated by the Public Defender
50. On 27 July 2016 the first applicant complained to the Public Defender of Georgia about the alleged discrimination by the Kobuleti municipality and Kobuleti Water Ltd. According to the complaint, on 26 June 2014 the first applicant had entered into a contract with Kobuleti Water Ltd, a company in charge of the sewerage system in Kobuleti and owned entirely by the Kobuleti municipality, to connect the building located at 13 Lermontovi Street in Kobuleti to the public sewerage system of the city. Despite the first applicant paying in advance for the works, the building had never been connected to the sewerage system. The first applicant maintained that the company’s failure to perform its contractual obligations was the result of their prejudice towards Muslims. It requested the Public Defender to make use of its power under section 6 of the Discrimination Act to issue recommendations to the Kobuleti municipality and Kobuleti Water Ltd.
51. On 19 September 2016 the Public Defender’s Office issued a recommendation finding that the first applicant had been discriminated against by the Kobuleti municipality and Kobuleti Water Ltd because of its religious affiliation. It requested that the building be connected immediately to the public sewerage system so that the school could start functioning. The recommendation was not implemented and on 27 October 2017 the Public Defender of Georgia initiated administrative proceedings against the Kobuleti municipality and Kobuleti Water Ltd requesting that they be ordered to ensure and conduct, respectively, the works in order to connect the building located at 13 Lermontovi Street in Kobuleti to the public sewerage system of the city. On 8 May 2018 the first applicant joined the proceedings as a third party. On 12 October 2018 the Batumi City Court granted the Public Defender’s request. The court established that on 3 July 2014 the company had been prevented by the local Orthodox population from carrying out the necessary works. Subsequently, they had refused to conduct the works in view of the absence of security guarantees. The subsequent appeal by Kobuleti Water Ltd was found by the Kutaisi Court of Appeal to be time‑barred. As regards the Kobuleti municipality, their subsequent appeal was rejected by the Kutaisi Court of Appeal and the Supreme Court of Georgia on 10 July 2019 and 18 March 2021 respectively. The Supreme Court noted in its decision that “local religious conflict” could not serve as a valid reason for the municipality to refuse to perform its contractual obligations.
52. According to the case file, a writ of execution was issued on 16 June 2021 requesting the Kobuleti municipality to ensure the connection of the school building to the sewerage system of the city. It appears, however, from the information provided by the National Bureau of Enforcement, that the above decision has not been enforced to date.
RELEVANT LEGAL FRAMEWORK AND PRACTICE
I. The Criminal Code, as in force at the material time
53. Article 53 of the Criminal Code provides that discrimination based, among other grounds, on religion, is an aggravating circumstance in the commission of a criminal offence.
54. Article 151 of the Criminal Code provides that the act of making death threats or threats to damage health, or destroying property is criminally punishable. A qualifying condition for the offence is that the victim, the person receiving the threat, must have perceived, from his or her subjective standpoint, the threat as real.
55. Under Article 156 of the Criminal Code, persecution on grounds of, inter alia, religion, is a criminally punishable offence.
II. The Law on Elimination of All Forms of Discrimination, enacted on 2 May 2014 (“the Discrimination Act”)
56. Section 6 of the Discrimination Act entrusts the Public Defender of Georgia with the function of overseeing the implementation of its provisions. For that purpose, the Public Defender has the power to, among other things, examine of his or her own motion or on the basis of a complaint, allegations of discrimination, to issue recommendations and/or to facilitate friendly settlement negotiations. The Public Defender can also lodge applications with courts, if his or her recommendations are not implemented, seeking either the issuance of administrative acts and/or execution of certain acts.
57. Section 10 of the Discrimination Act entitles an individual who is subjected to any form of discrimination to bring a civil claim seeking (a) the cessation of discriminatory actions and/or the ordering of measures to rectify discrimination and its consequences; and (b) compensation for pecuniary and non-pecuniary damage.
58. The Government submitted four examples of relevant domestic practice. In three out of four of the relevant cases, the national courts had ordered various public authorities to pay compensation to the complainants in respect of the pecuniary and non-pecuniary damage they had suffered on account of various discriminatory actions. In the fourth case, local authorities had been ordered to issue an administrative act allowing Jehovah’s witnesses to continue the construction of their house.
III. The Civil Code of Georgia
59. Article 1005 § 1 of the Civil Code provides that harm inflicted on an individual by the deliberate or negligent misconduct of a State official is to be compensated by the State.
IV. Other relevant material
60. On 8 December 2015 the European Commission against Racism and Intolerance (ECRI) adopted its fourth report on Georgia (fifth monitoring cycle), which included an assessment of the situation concerning religious minorities in Georgia. In its report ECRI referred to the circumstances of the various incidents that had occurred in September 2014 in Kobuleti and recommended that the authorities protect the rights of religious and other minorities against violent protesters.
61. In its third opinion on Georgia, adopted on 7 March 2019, the Advisory Committee on the Framework Convention for the Protection of National Minorities (FCNM) noted that persons belonging to minority religions continued to face specific and systemic problems.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLES 3, 8 AND 9 OF THE CONVENTION TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 14
62. Relying on Articles 3, 8 and 9 of the Convention, both alone and in conjunction with Article 14, the applicants (except for the first applicant) complained about the State’s alleged failure to take adequate measures to protect them from mob action, hate speech and other discriminatory actions by private parties in the context of their being prevented from opening a Muslim boarding school. The provisions cited read as follows:
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 8
“1. Everyone has the right to respect for his private and family life …
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 9
“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
Article 14
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
A. Admissibility
1. The parties’ submissions
63. The Government submitted that, as far as the events preceding the incident on 10 September 2014 were concerned, the applicants’ complaints were inadmissible for non-exhaustion of domestic remedies, as they had failed to voice their respective grievances in either their criminal complaints or in the context of the civil and administrative proceedings initiated by them. They also considered that the complaints had been submitted outside the six months’ time limit under Article 35 § 1 of the Convention. They further argued that the second, fourth, seventh and eighth applicants had omitted to bring proceedings under the special anti-discrimination legislation, namely, section 10 of the Discrimination Act, as the remaining applicants had done. They could also have complained to the Public Defender of Georgia under section 6 of the Discrimination Act. As regards the third, fifth and sixth applicants, they submitted that the national courts had found that they had been subjected to discriminatory treatment by private individuals and had ordered three responsible private individuals to pay them compensation for non-pecuniary damage. In such circumstances, the situation as far as discriminatory treatment by private parties was concerned had been remedied. As to their complaints concerning the Ministry of the Interior, the complaints were premature, as at the time the application had been lodged with the Court, the relevant anti-discrimination proceedings against the Ministry of the Interior had still been ongoing.
64. The Government further argued that the applicants had failed to lodge an administrative complaint against the Kobuleti municipality and Kobuleti Water Ltd under Article 3632 § 3 of the Code of Civil Procedure and section 10 of the Discrimination Act; and that they had failed to institute civil proceedings for damages against the Ministry of the Interior claiming compensation for pecuniary damage on account of the latter’s failure to act. As regards the applicants’ complaint about the alleged ineffectiveness of the criminal investigation, according to the Government, they had failed to lodge their application with due expedition, as required by Article 35 § 1 of the Convention.
65. The applicants maintained that they had used all fora at their disposal to voice their allegations of discriminatory violence and had accordingly expected the police, who had been provided with the information, to conduct an investigation into all incidents. They further noted, in so far as their complaints concerning hate speech and discriminatory actions on the part of private individuals and the police’s failure to protect them were concerned, that the criminal investigation into the relevant events had constituted the most adequate and sufficient remedy. Since the authorities had reassured them that the investigation in their case had been ongoing, they could not be reproached for awaiting its outcome before lodging their complaints with the Court. In the same vein, they dismissed the Government’s argument that the third, fifth and sixth applicants had ceased to be victims of the alleged violations, alleging that in the absence of effective criminal proceedings, their complaints could not be considered to be fully remedied at the national level.
66. In addition, in the applicants’ submission, the only remedy they were obliged to use before turning to the Court was a sufficiently speedy preventive remedy compelling the relevant authorities to adopt measures as a matter of urgency to ensure the opening and unhindered functioning of the Muslim boarding school. A claim for compensation for non-pecuniary and/or pecuniary damage was not an effective domestic remedy, as it could not have helped them to ensure the opening and normal functioning of the school. Administrative proceedings against the Kobuleti municipality and Kobuleti Water Ltd could not have provided sufficient redress either, as the main issue was about the Ministry of the Interior failing to stop the obstructive and discriminatory actions of the local population.
2. The Court’s assessment
67. The Court notes that the applicants instituted criminal, civil anti‑discrimination, and administrative proceedings and that they cannot be criticised, in view of the Court’s relevant case-law, for not attempting to pursue another remedy (see, among others, Mikeladze and Others v. Georgia, no. 54217/16, § 52, 16 November 2021; see also R.B. v. Hungary, no. 64602/12, §§ 61-62, 12 April 2016; and Budinova and Chaprazov v. Bulgaria, no. 12567/13, § 76, 16 February 2021). The civil anti-discrimination and administrative proceedings were completed after the applicants had lodged their application with the Court; as for the criminal proceedings, while they are still ongoing, it appears that the applicants have acted with due diligence in their attempts to assist the investigation and also in submitting their complaints to the Court within a reasonable period of time. In such circumstances, having regard to the nature and status of the various proceedings instituted by the applicants at the domestic level, the Court dismisses the Government’s pleas of inadmissibility on the ground of non-exhaustion of the domestic remedies and of premature and/or belated nature of the applicants’ complaints.
68. As to the remaining inadmissibility plea, the Court notes that its task in the present case is to examine whether the authorities’ response to the situation for which the applicants had sought assistance was in line with the State’s positive obligations flowing from the Convention. From this perspective, the question of possible loss by the third, fifth and sixth applicants of their victim status on the basis of the outcome of the anti-discrimination proceedings is closely linked to the substance of their complaints. The Court, therefore, considers it appropriate to join the matter to the merits. It further considers that the application is neither manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. It must therefore be declared admissible, without prejudice to the decision ultimately to be taken on the Government’s preliminary objection of ratione personae.
B. Merits
1. The parties’ submissions
69. The individual applicants’ core complaint was that the State had failed, in violation of its positive obligations under Articles 3, 8 and 9 of the Convention taken separately or in conjunction with Article 14, to prevent and stop the discriminatory violence inflicted on them by local protestors. The applicants alleged that they had endured ongoing harassment, which had included verbal aggression and threats on the part of the local Orthodox Christian community, and restrictions on their freedom of movement, directed against them because of their religious identity as Muslims and aggravated further by their sense of helplessness owing to the inaction of the police. Such constant abuse had disrupted their daily lives and caused them significant levels of stress and suffering meeting the requisite level of intensity under Article 3 and/or 8 of the Convention. They submitted that the Government were downplaying the nature of their allegations.
70. The applicants further maintained that by not protecting them from religiously motivated violence, the police had failed to ensure the opening and functioning of the Muslim boarding school. They asserted that the police had known about but had tolerated the abuse. Although they had been present on the ground after 15 September 2014, they had acted as passive bystanders and had not intervened to remove the barricades or otherwise ensure free access to the school and its unimpeded functioning. The reaction of the police, which the applicants alleged was due to their religious bias, had fallen short of the standard required by the Convention as it had not allowed the applicants to open the school.
71. As to the various attempts they made to resolve the situation, the applicants argued that the criminal investigation had been defective and inefficient. Despite the identities of many of the protesters being known to the police, and in disregard of important evidence such as video-recordings of the incidents, no charges had been brought to date. After years of investigation, it had gone nowhere, depriving it of all deterrent effect for future crimes of this nature. The civil anti-discrimination proceedings, according to the applicants, had also been marred by the domestic courts’ failure to uncover discriminatory bias behind the police inaction. As to the administrative proceedings against the municipality which had ended in their favour, the relevant decision of the courts has never been enforced. To sum up, none of the remedies employed had been effective in practice as the school had never been opened.
72. The Government submitted that the treatment complained of by the seven individual applicants had not reached the minimum level of severity necessary to attract the application of Article 3 of the Convention. Namely, the general allegations of verbal aggression, humiliation, threats and psychological stress that the applicants submitted they had endured throughout the period in question came down to two concrete incidents of threatening with physical violence, the blocking of access to the school, and the nailing of the bleeding head of a pig to the school entrance door. While serious and offensive by nature, the latest incident had, in the Government’s view, been of an isolated nature, which had occurred when no members of the Muslim community had been present. As for the shooting incident, the Government submitted that there had been no evidence to show that it had been directed specifically at the Muslim community because of their religion. The Government distinguished the present case from a number of cases of religious or racial hatred in which the combination of actual physical confrontation with hate speech had led the Court to a finding of a violation of Article 3 of the Convention (see Abdu v. Bulgaria, no. 26827/08, § 39, 11 March 2014), and concluded that in the absence of such confrontation, the minimum level of severity had not been reached.
73. They further submitted that the alleged incidents of violence had been committed by private individuals and that there had not been a single instance of any of the applicants complaining about police officers insulting or otherwise harming them. Furthermore, the situation had been remedied in so far as the applicants’ discriminatory treatment by private individuals was concerned. As to the positive obligations of the police, with reference to the relevant findings of the domestic courts, the Government submitted that the police on the ground had done everything possible to prevent physical confrontation. They noted that in the period between 10 September and the end of October 2014, regular police presence on the ground in the neighbourhood had been provided and that within the relevant period of time the applicants had not even once asked the police for help. Furthermore, the national authorities had reacted adequately, inter alia, by instituting criminal proceedings. Significant number of investigative actions had been carried out within the first year of the proceedings and the fact that they were still ongoing was not in and of itself indicative of its ineffectiveness.
74. The Government also accepted the existence of positive obligations under Article 9 of the Convention, however, they denied that there had been a breach of those obligations. They noted that the case concerned, on the one hand, the applicants’ right to freely practice their religion through teaching, as guaranteed by Article 9 of the Convention, and, on the other hand, the right of the local population to freedom of expression and peaceful assembly, rights enshrined in Articles 10 and 11 of the Convention. The reason for the protests, according to the Government, had not been intolerance of the Muslim religion, but the unwillingness of the local population for practical reasons, such as noise, to have a boarding school in the area. In view of the delicacy of the case, the national authorities had acted carefully, striking a proper balance between the competing interests. The Government reiterated their submission that their response to religiously motivated violence carried out by private individuals had been adequate and that the police had taken all measures necessary to prevent any violent incidents; as a result, no physical confrontation or altercations had been reported in the relevant period of time.
75. As regards the investigation, the Government submitted that it had been initiated promptly with a significant number of investigative actions carried out within the first year of the proceedings. The fact that the proceedings were still ongoing was not in and of itself indicative of its ineffectiveness.
2. Legal classification of the complaints
76. The Court would begin by noting that while there were initially allegations of physical altercations, none of the applicants confirmed these allegations in their individual accounts of the events (see paragraphs 16-19, 21, 26-28 and 36 above). The alleged violent behaviour against the applicants consisted of insulting and discriminatory verbal expressions and acts such as blocking the applicants’ movement in the area, controlling their entering and/or leaving the building of the school, slaughtering a pig and nailing its head to the entrance door of the school, and the alleged shooting at the school building with a pneumatic rifle.
77. In the light of the evidence before it, the Court accepts the applicants’ allegation that the individuals involved in acts against them went beyond simply protesting against the opening of a Muslim school, and that they acted in a manner objectively designed to mock publicly, debase and instil fear in persons seeking to open the school, the seven individual applicants being among them. The Court also notes the applicants’ allegation that the acts against them were motivated by hostility towards their Muslim religious identity, which, if established, must be seen as an aggravating factor causing injury. However, although premediated and undoubtedly distressing, the Court is not convinced that the impugned acts were so severe as to cause to the applicants – all of them adults – the kind of fear, anguish or feelings of inferiority that are necessary for the Article 3 threshold to be reached (see Karaahmed v. Bulgaria, no. 30587/13, § 75, 24 February 2015, with further references; compare Alković v. Montenegro, no. 66895/10, § 69, 5 December 2017). It notes in this regard that none of the applicants was present when a pig’s head was nailed to the door or shots with a pneumatic rifle were fired at the window of the school. The Court also notes that none of the children, who were allegedly present at some of the impugned events and were prevented from having classes in the school, has complained either before the domestic courts or this Court. The Court therefore considers that the Article 3 threshold has not been met in the present case.
78. As regards Article 8 of the Convention, the Court notes that the notion of “private life” within the meaning of Article 8 is a broad term that is not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person. The Court has accepted in the past that an individual’s ethnic and religious identity might fall within the personal sphere protected by Article 8. In particular, any negative stereotyping of a group, when it reaches a certain level, is capable of impacting on the group’s sense of identity and the feelings of self-worth and self-confidence of members of the group. It is in this sense that it can be seen as affecting the private life of members of the group (see S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 66, ECHR 2008, and Aksu v. Turkey [GC], nos. 4149/04 and 41029/04, §§ 58 and 60, ECHR 2012). The Court considers that the applicants’ allegations summarised in paragraph 76 above, insofar as they concern an alleged interference with their private life on account of an assault on their physical and moral integrity motivated by hatred, fall to be examined under Article 8 of the Convention (see Sandra Janković v. Croatia, no. 38478/05, § 31, 5 March 2009; R.B. v. Hungary, cited above, §§ 79-80; and Király and Dömötör v. Hungary, no. 10851/13, § 43, 17 January 2017).
79. The Court further notes that all the individual applicants are Muslims, who were active members of the Muslim religious community in the region concerned. The fourth applicant was the head of Georgian Muslims Relations (the first applicant) and the third and eighth applicants were khojas. All seven of them were involved, in various ways, in setting up a boarding school in Kobuleti, an activity related to the sphere or teaching within the meaning of Article 9 of the Convention, which was what triggered the events complained of. It follows that the complaints under examination also concerned their right to freedom of religion, as enshrined in Article 9 of the Convention. Furthermore, in the circumstances of the present case, in view of the applicants’ allegation that the unlawful mob action aimed at preventing the school from opening, was prompted by religious hatred or prejudice, the Court finds that the most appropriate way to proceed would be to subject the applicants’ complaints to a simultaneous examination under Articles 8 and 9 of the Convention taken in conjunction with Article 14.
3. The Court’s assessment
(a) General principles
(i) General principles concerning positive obligations under Article 8 of the Convention
80. The Court reiterates that in addition to the primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life. These positive obligations may involve the adoption of measures even in the sphere of the relations of individuals between themselves (see Aksu, cited above, §§ 58-59; see also A. v. Croatia, no. 55164/08, § 60, 14 October 2010; and Sandra Janković, §§ 44-45, and R.B. v. Hungary, § 78 and §§ 81-84, both cited above). The Court has also acknowledged that criminal sanctions, including against the individuals responsible for the most serious expressions of hatred, inciting others to violence, could be invoked only as an ultima ratio measure. That being so, it has also held that where acts that constitute serious offences are directed against a person’s physical or mental integrity, only efficient criminal-law mechanisms can ensure adequate protection and serve as a deterrent factor. The Court has likewise accepted that criminal-law measures were required with respect to direct verbal assaults and physical threats motivated by discriminatory attitudes (see Beizaras and Levickas v. Lithuania, no. 41288/15, §§ 110-11, 14 January 2020, with further references).
81. The Court is also mindful of the fact that an impossible or disproportionate burden must not be imposed on the authorities, without consideration being given, in particular, to the operational choices which they must make in terms of priorities and resources (see R.B. v. Hungary, cited above, § 99, and Kotov and Others v. Russia, nos. 6142/18 and 12 others, § 134, 11 October 2022).
(ii) General principles concerning positive obligations under Article 9 of the Convention
82. Where the acts complained of are carried out by private individuals and were not therefore directly attributable to the respondent State, the Court must consider the issues in terms of the positive obligation on the State authorities to secure the rights under Article 9 to those within their jurisdiction (see, mutatis mutandis, Eweida and Others v. the United Kingdom, nos. 48420/10 and 3 others, § 84, ECHR 2013 (extracts)). In this connection, the responsibility of the State may be engaged where religious beliefs are opposed or denied in a manner which inhibits those who hold such beliefs from exercising their freedom to hold or express them. In such cases the State may be called upon to ensure the peaceful enjoyment of the rights guaranteed under Article 9 to the holders of those beliefs (see Begheluri v. Georgia, no. 28490/02, § 160, 7 October 2014).
83. In a case where a religious ceremony has been disturbed by a hostile demonstration, there is the exercise of two sets of competing fundamental rights: the rights of those participating in the demonstration to freedom of expression and to peaceful assembly and the rights of the worshippers to pray peacefully in community together without undue interference. All are rights protected by the Convention: the rights to freedom of expression and freedom of peaceful assembly by Articles 10 and 11, the right to freedom of religion by Article 9. None are absolute rights: all three Articles provide that the exercise of these rights may be subject to restrictions, inter alia, for the protection of the rights of others. The Convention does not establish any a priori hierarchy between these rights: as a matter of principle, they deserve equal respect. They must therefore be balanced against each other in a manner which recognises the importance of these rights in a society based on pluralism, tolerance and broad‑mindedness. Three further principles follow from this:
1. It is incumbent upon the State to ensure that ‑ in so far as is reasonably possible ‑ both sets of rights are protected. This duty applies equally when acts which may impinge upon one of the two rights are carried out by private individuals.
2. To do so, the State must ensure that a legal framework is put in place to safeguard those rights from third parties and to take effective measures to ensure that they are respected in practice.
3. As is always the case when a Contracting State seeks to protect two values guaranteed by the Convention which may come into conflict with each other, the Court’s task is to verify whether the authorities struck a fair balance between those two values. In doing so, the Court should not act with the benefit of hindsight. Nor should it simply substitute its view for that of the national authorities who, in any given case, are much better placed to assess where the appropriate balance lay and how best to achieve that balance. This is particularly true when it is the police who must in practice strike that balance, since, as the Court has frequently said, due regard must be had to the difficulties in policing modern societies. Thus, in assessing the response of the police to the impugned events, the positive obligation on them to guarantee the rights of both the demonstrators and worshippers must be interpreted in a way which does not impose an impossible or disproportionate burden on them (see Karaahmed v. Bulgaria, no. 30587/13, §§ 91‑96, 24 February 2015, with further references).
(iii) General principles concerning positive obligations under Article 14 of the Convention
84. The relevant general principles were summarised by the Court in Begheluri and Others (cited above, §§ 171-173) and, more recently, in Alković (cited above, §§ 66-67). In addition, the Court has recognised that a duty of the authorities to investigate possible discriminatory attitudes may be implicit in their responsibilities under Article 14 of the Convention in certain circumstances, including when such attitudes resulting in the stigmatisation of the person concerned are at issue in the context of Article 8 (see Basu v. Germany, no. 215/19, § 33, 18 October 2022).
(b) Application of these principles to the present case
(i) The Court’s approach in the present case
85. The Court notes that the seven individual applicants did not claim that the police or other public authorities were directly involved in the alleged campaign of violent harassment and threats. It is true that they also mentioned the refusal of the local authorities to connect the school building to the sewage system of Kobuleti, later quashed by the courts but allegedly belatedly, but the Court notes that the focus of the applicants’ grievances before the Court is the allegedly inadequate reaction of the authorities in the face of an illegal mob action. The applicants’ complaints will accordingly be examined in terms of the positive obligation on the State authorities to secure the rights under Articles 8 and 9 to those within their jurisdiction and to do so without discrimination as required by Article 14 (see the relevant general principles cited in paragraphs 80-84 above).
86. As to the scope and content of the positive obligations in the concrete circumstances of the present case, the Court considers, in view of the general principles outlined above (see ibid.), that what was expected from the relevant authorities was to take swift and adequate measures to stop unlawful mob action, hate speech and other discriminatory actions on the part of the local population (see Karaahmed, cited above, §§ 100-07, and Association ACCEPT and Others v. Romania, no. 19237/16, §§ 105-13, 1 June 2021). The authorities were also expected to take more proactive steps that could realistically allow the applicants to exercise their religious rights, including their right to open a Muslim boarding school. The Court’s analysis will rest on whether the State complied with the above-mentioned positive obligations.
(ii) The unlawful mob action and the immediate reaction by the police
87. The Court observes that the parties did not dispute the fact that the opening of a Muslim Boarding School in Kobuleti in September 2014 had been disrupted because of the protests organised by the local Orthodox Christian population. The Government did not allege that the school required a licence or some sort of an authorisation, or that its functioning was otherwise not in compliance with the domestic law; nor was this argument put forward within the scope of the domestic proceedings. The Court will, accordingly, continue its examination of the case on the premise that there was no legal obstacle to the opening of this school.
88. The Court notes that in the context of civil anti-discrimination proceedings, the domestic courts established, as far as third, fifth and sixth applicants were concerned, that in the relevant period of time they had been subjected to verbal abuse, including hate speech and threats directed against them and their Muslim faith and had been humiliated, inter alia, by being restricted in the exercise of their rights such as freedom of movement by protesters who had been controlling the neighbourhood (see paragraph 41 and 43-44 above). In view of those findings, also having regard to the nature of the allegations individually voiced by all individual applicants during the criminal proceedings (see paragraphs 16-19, 21, 26-28 and 36 above) and supported by various video and photo evidence, the Court is ready to accept that the seven individual applicants felt offended, scared and traumatised by the events that took place in September 2014 in connection with the opening of the Muslim boarding school in Kobuleti. It considers that the nailing of the pig’s bleeding head by protesters to the entrance door of the soon-to-be Muslim boarding school was an especially hostile expression of hate speech, which caused the applicants deep humiliation. In view of the context of the events in question, notably, the protests organised by the local Orthodox Christian population against the opening of a Muslim boarding school, which continued for several weeks, and the nature of the insults, including the slaughtering of a pig in front of the school and the nailing of its bleeding head to the school doors, the Court has no doubt that the insults were directed against the applicants for their belonging to a religious minority. The impugned conduct of those trying to prevent the opening of the school necessarily affected the applicants’ right to respect for their private life and their right to freedom of religion within the meaning of Articles 8 and 9 of the Convention.
89. The Government maintained in their observations that the national authorities’ actions were adequate and in compliance with their positive duties under Article 9 of the Convention as they had had to strike a fair balance between the applicants’ religious rights, on the one hand, and the local population’s rights to freedom of expression and peaceful assembly on the other. The Court notes, in view of the general principles outlined above (see paragraphs 82-83 above), that the State is indeed expected in such circumstances to ensure that, in so far as it is reasonably possible, both sets of rights are protected. It appears, however, in the circumstances of the present case, that no proper consideration was given as to how to strike the appropriate balance in ensuring respect for the effective exercise of the rights of the individual applicants and the protestors (see Karaahmed, cited above, § 107; see also, mutatis mutandis, Ouranio Toxo and Others v. Greece, no. 74989/01, §§ 42-43, ECHR 2005-X (extracts)). The Government, in fact, failed to show how the State had protected the rights of the applicants. The Court notes, in this connection, that attacks on persons committed by insulting, holding up to ridicule or slandering specific groups of the population can be sufficient for the authorities to favour combating xenophobic or otherwise discriminatory speech in the face of freedom of expression exercised in an irresponsible manner (see Vejdeland and Others v. Sweden, no. 1813/07, § 55, 9 February 2012; see also Association ACCEPT and Others, cited above, § 119).
90. As to the role the police played in the events that unfolded, the Court observes that as early as July 2014 the police had been informed about local protests being held against the opening of a Muslim school in the neighbourhood (see paragraph 7 above). In August the first incidents of verbal abuse were reported (see paragraphs 11 and 13 above). The Government submitted that the police had started regularly patrolling the area on 10 September 2014, after the slaughtering of the pig in front of the school building (see paragraph 14 above). However, on 15 September the opening of the school was disrupted, and the police apparently did not intervene (see paragraph 15 above). The Court considers that, in view of the rather hostile religious climate prevailing at the material time, particularly having regard to the seriousness of the incident that had happened on 10 September 2014 (see paragraph 14 above), the responsible authorities should have anticipated that the opening of the school was liable to be disrupted. Subsequently, for at least two weeks the applicants were subjected to hate speech and humiliating treatment, on account of, among other things, not being allowed to get freely in or out of the school building or to buy food. The Court is prepared to accept the Government’s argument, also relied upon by the domestic courts, that the police presence as of 10 September 2014 ensured that no physical violence occurred between the protesters and the applicants and that no one was physically hurt during the events. There was likewise no destruction or damage of the school building in the relevant period of time. However, leaving aside the question whether the fact that the tensions did not result in physical assaults or significant damage to the school building was the result of measures undertaken by the police, the question arises whether the authorities’ obligation to protect the applicants from recurring acts of intolerance and hate speech could be seen as requiring more decisive and constant actions being taken than those undertaken by the police. The Court notes in this connection that the applicants’ debasing and humiliating treatment, at the culmination of the events, lasted for some two weeks. The Government argued that none of the alleged incidents of verbal violence had actually happened in the presence of the police. Even if it were to accept this argument as far as the derogatory statements and hate speech are concerned, the Court is not prepared to accept this argument in connection with the humiliating treatment that the applicants had to endure on account of, inter alia, the blockage of the school building and their movement in the area being controlled by protesters. The domestic courts found that the school building had been blocked until at least July 2015 (see paragraph 40 above) and the case file contains relevant evidence thereof, including photographs. The national courts also established that it was the protesters who had been deciding whom to let in or out (see paragraph 41 above). The only argument advanced by the police in this respect and supported in the Government’s submissions – that the police were not authorised to remove tyres and wooden constructions from private property (see paragraph 40 above) – is beside the point, seeing that the question was not who would remove the obstacles hindering access to the building but the ensuring that those responsible for repetitive illegal actions of openly discriminatory and threatening nature be identified and sanctioned. While not underestimating the realities of police work, which may require deployment of resources simultaneously in many places on the basis of an assessment of risks and significance of the disturbances to deal with, the Court considers that the failure to invest efforts in identifying and sanctioning at least the leaders of the mob was in disregard of the danger stemming from mob action against individuals based on hostility towards their religion.
91. In the present case, it has not been argued in any of the domestic proceedings, or before the Court, that the tensions erupted so abruptly or so overwhelmed the police resources as to justify a decision to limit their reaction to merely attempting to minimise the damage by preventing physical confrontation (compare Karaahmed, cited above, § 107; see also P.F. and E.F. v. the United Kingdom (dec.), no. 28326/09, §§ 43-45, 23 November 2010).
92. To sum up, as far as the applicants’ protection from mob action, hate speech and other discriminatory actions is concerned, there was an apparent lack of an adequate response by the authorities to continuous interference with the private life, dignity and religious beliefs of the applicants. The Court moreover considers that the impugned passive attitude of the authorities contributed to intensifying the discriminatory treatment the applicants suffered (see Association ACCEPT and Others, cited above, § 112). By failing to identify and sanction the perpetrators and restore legal order, the police allowed the protesters to engage repeatedly and enduringly in what the domestic courts later qualified as discriminatory treatment and the applicants, in the face of police indifference, had simply to endure it.
(iii) Subsequent actions of the applicants to obtain protection and redress
93. The Court observes that, in view of the circumstances of the present case, the domestic authorities were confronted with prima facie indications of hate speech, threats and humiliating treatment motivated by the individual applicants’ religious beliefs (compare Begheluri, cited above, § 176; see also R.B. v. Hungary, §§ 83-84, Association ACCEPT and Others, § 114, Alković, § 66, Király and Dömötör, §§ 72 and 80, all cited above; see also, mutatis mutandis, Muhammad v. Spain, no. 34085/17, §§ 63-68, 18 October 2022). According to the Court’s case-law, this mandated for an effective application of domestic criminal-law mechanisms capable of elucidating the possible hate motive behind the violent incidents and of identifying and, if appropriate, adequately punishing those responsible (see ibid.). The Court considers that prompt and efficient investigation was reasonable and necessary in the circumstances in order to discourage and supress unlawful and discriminatory mob action. However, no such investigation has ever taken place. More than eight years have passed since the initiation of the proceedings, and the investigation into the allegations of religious violent behaviour has not yet produced any findings (see Begheluri and Others, cited above, §§ 136 and 140; Identoba and Others, cited above, § 75; and Women’s Initiatives Supporting Group and Others v. Georgia, nos. 73204/13 and 74959/13, § 65, 16 December 2021). Albeit with a delay of four and a half years after the events, the scope of the investigation was widened to cover the allegations of persecution on religious grounds (see paragraph 34 above). But no one has been charged or prosecuted to date. Such a passage of time, for which no explanation was being provided, is liable not only to undermine an investigation, but also to compromise definitely its chances of being completed (see Mikeladze and Others, cited above, § 68, with further references). Moreover, the deficient and protracted criminal investigation into the allegations of religious discrimination contributed to an atmosphere of official acquiescence and developed a general feeling of impunity (see, mutatis mutandis, Women’s Initiatives Supporting Group and Others, cited above, § 66).
94. The Court does not overlook the fact that the applicants, seeking the State’s intervention to resolve the situation, successfully availed themselves of other remedies. Thus, they initiated civil anti-discrimination proceedings against three private persons and the Ministry of the Interior under section 10 of the Discrimination Act (first, third, fifth and sixth applicants) and another set of anti-discrimination proceedings through the Public Defender against the Kobuleti municipality and Kobuleti Water Ltd under section 6 of the Discrimination Act. As regards the anti-discrimination proceedings against the private individuals, the applicants’ claim was granted in full, and the three individuals concerned were ordered to cease their discriminatory acts. The Court notes that by choosing to seek a symbolic compensation in the amount of 1 GEL, the applicants themselves undermined the possibility of exerting pressure on the perpetrators via pecuniary means.
95. However, the anti-discrimination proceedings against the Ministry of the Interior lasted for almost eight years, undermining, in view of their length, the effectiveness of the remedy as such (ibid.; see also Doran v. Ireland, no. 50389/99, § 57, ECHR 2003‑X (extracts), and Golha v. the Czech Republic, no. 7051/06, § 49, 26 May 2011). Also, while concluding that the applicants had been subjected to discriminatory treatment on account of inter alia the blockage of the school building, the courts did not consider it necessary to order the police to ensure the identification and sanctioning of those responsible or taking any other measures aimed at permanently restoring public order in the neighbourhood and ensuring that the applicants’ religious rights were adequately protected. Instead, the domestic courts limited themselves to a finding that the police had not witnessed a single incident of disorder or violence. In view of the scale and nature of the events at stake, the Court, having regard to its findings above (see paragraphs 90-92 above) finds difficult to accept such a conclusion. It considers that the domestic courts overlooked the role the police were to play in a religiously tense atmosphere.
96. The Court also notes, as far as the proceedings against the Kobuleti municipality and Kobuleti Water Ltd are concerned, that they were finalised on 18 March 2021 that is almost six years after the events in question. Moreover, despite the Supreme Court ordering the Kobuleti municipality and the Kobuleti Water Ltd to perform their contractual obligations and to connect the school building to the sewerage system of Kobuleti, and in spite of the applicants’ repeated efforts, the domestic courts’ decision has not been enforced to date (see paragraph 52 above).
97. Regard being had to the circumstances of the case as a whole, the Court considers that the authorities fell short of their positive obligation to investigate in an effective manner and identifying and sanctioning those responsible. This coupled with the deficiencies encountered by the applicants in the context of other domestic proceedings, leads it to a conclusion that the third, fifth and sixth applicants have retained their victim status within the meaning of Article 34 of the Convention.
(iv) Conclusion
98. Taking into account all the evidence, the Court reiterates its finding that the seven individual applicants in the present case were subjected to unlawful mob action, hate speech and other discriminatory actions on account of their religion in the context of their being prevented from opening a Muslim boarding school in Kobuleti. That discriminatory behaviour, which consisted mostly of hate speech, threats and humiliating treatment, coupled with the police’s inactivity, created in them feelings of fear and insecurity and resulted in them not being able to open a Muslim boarding school.
99. Having regard to the above context, the Court considers that there were obvious grounds to believe that it was because of their being Muslim that the applicants had been insulted and threatened by those involved in the protests. Thus, it was essential for the relevant domestic authorities to take all reasonable steps, including in conducting the investigation in that specific context, with the aim of unmasking the role of possible religious bias for the events in question and in protecting the applicants from religious discrimination. The Court finds, however, in the light of the limited and delayed efforts employed in the present case, that the national authorities failed in their duty to establish whether or not religious prejudice may have played a role in the events complained of and react accordingly, as required under the Convention (see also the reports referred to in paragraphs 60-61 above).
100. In sum, the cumulative effect of the police not intervening to stop the discriminatory behaviour and of the shortcomings in the investigation was that an openly religiously biased violent acts remained without any legal consequences and the applicants were not provided with the required protection against the interference with their private life, dignity and religious beliefs. In the light of these findings, the Court concludes that there has been a breach of the respondent State’s positive obligations under Articles 8 and 9 of the Convention taken in conjunction with Article 14.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1
101. The first applicant complained of a violation of its right to the peaceful enjoyment of its possessions, relying on Article 1 of Protocol No. 1, the relevant part of which reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”
A. Admissibility
1. The parties’ submissions
102. The Government submitted that the first applicant’s above complaint had been lodged with the Court prematurely as the relevant administrative proceedings against the Ministry of the Interior, on the one hand, and another set of discrimination proceedings against the Kobuleti municipality and Kobuleti Water Ltd, on the other, had still been pending at the material time. They maintained that both remedies offered the applicant reasonable prospects of success. Alternatively, the first applicant had failed to claim compensation from the Ministry of the Interior, the Kobuleti municipality and Kobuleti Water Ltd on account of the pecuniary and non-pecuniary damage it had suffered as a result of not being able to use it possessions.
103. The first applicant contested the above arguments. It submitted that a tort action, which could only have resulted in the payment of damages, could not be an effective remedy because it would not have compelled the authorities to bring to an end the actual violation. As to the administrative and anti-discrimination proceedings, the first applicant considered that with the passage of time it had been pointless to wait for their outcome.
2. The Court’s assessment
104. As already noted above, the civil anti-discrimination proceedings against the Ministry of the Interior as well as the administrative anti-discrimination proceedings against the Kobuleti municipality and Kobuleti Water Ltd have in the meantime been completed. The Court further considers that the compensatory remedy proposed by the Government could not provide adequate redress in a situation where the authorities were yet to take specific measures to swiftly end the alleged ongoing violation (see Papachela and AMAZON S.A. v. Greece, no. 12929/18, § 47, 3 December 2020; see also, mutatis mutandis, Hadzhigeorgievi v. Bulgaria, no. 41064/05, § 50, 16 July 2013). It therefore rejects the Government’s objections on admissibility. It further observes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
105. The first applicant complained that its right to the peaceful enjoyment of its possessions under Article 1 of Protocol No. 1 had been breached on account of the national authorities having failed in their negative and positive obligations to ensure that it be able to use the school building without any impediment. They noted that the finding of the domestic courts that private individuals had committed discriminatory acts was insufficient in the present case, as it had been incumbent on the relevant authorities to react to those findings and to bring a swift end to those acts. The first applicant argued that the Ministry of the Interior, the Kobuleti municipality and Kobuleti Water Ltd had failed to ensure, by not fulfilling their negative and positive obligations, the first applicant’s right to use its property for its intended purpose.
106. The Government submitted that they had met their positive obligations as far as the first applicant’s property rights were concerned. They noted that the domestic courts had found a violation of the Discrimination Act on account of the actions of private individuals and ordered the latter to cease preventing the functioning of the Muslim school. They also referred to the Kutaisi Court of Appeal’s decision of 12 March 2019 in which it had been found that the fact of continuous hindrance to the opening of the school had not been proven.
2. The Court’s assessment
107. The general principles concerning the right to the peaceful enjoyment of possessions are summarised in Beyeler v. Italy ([GC], no. 33202/96, § 98, ECHR 2000-I), Sargsyan v. Azerbaijan ([GC], no. 40167/06, § 217, ECHR 2015) and Kristiana Ltd. v. Lithuania (no. 36184/13, § 99, 6 February 2018). The Court also notes that a lease may be considered a proprietary interest attracting the protection of Article 1 of Protocol No. 1 (see Stretch v. the United Kingdom, no. 44277/98, §§ 32-35, 24 June 2003; Bruncrona v. Finland, no. 41673/98, § 79, 16 November 2004; and Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, § 140, ECHR 2005‑VI).
108. In the present case it is not disputed between the parties that the first applicant, having rented the building at issue, had a right to freely possess it and use it, as established by the domestic courts in two separate sets of proceedings (see above paragraphs 43-44 and 51 above). It follows that its complaint concerns a “possession” within the meaning of Article 1 of Protocol No. 1. Moreover, as established by the same courts, as a consequence of the fact that the applicants were hindered, as a result of unlawful actions of private individuals and the authorities’ failure to take sufficient measures, in their access to the school building as of at the latest 10 September 2014, and as a result of the failure of Kobuleti Water Ltd and the Kobuleti municipality to connect the school building to the sewerage system of the city, the first applicant effectively lost, for a significant period of time, the opportunity to use the building for the opening of a Muslim school, as it wished.
109. The Government maintained, with reference to the civil anti‑discrimination proceedings, that they had complied with their positive obligations via affording the first applicant an appropriate legal mechanism allowing it to protect its rights effectively. In view of the relevant findings of the domestic courts and having regard to the Court’s own findings under Articles 8 and 9 of the Convention, the Court finds it difficult to accept the Government’s above argument. It notes that the loss of the first applicant’s control over the school building, with all the consequences it entailed, cannot be reduced to private persons’ actions. The relevant authorities failed in the face of discriminatory and threatening actions, to take swift measures to stop the school blockage. In any event, the present case concerns also, in the context of the State’s negative obligations, the domestic authorities’ failure to connect the school building to the sewerage system of Kobuleti. The Government did not provide any justification for the impugned inaction. The domestic courts in the context of the anti-discrimination proceedings against the Kobuleti municipality and Kobuleti Water Ltd explicitly stated that “local religious conflict” could not serve as a justification for their inaction (see paragraph 51 above). The relevant court decision has not, however, been enforced to date (see paragraph 52 above).
110. The above is sufficient for the Court to conclude that there has been a violation of Article 1 of Protocol No. 1 to the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
111. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
112. The applicants, including the first applicant, claimed a lump sum of 20,000 euros (EUR) each in respect of non-pecuniary damage.
113. The Government submitted that the finding of a violation constituted sufficient just satisfaction in respect of any non‑pecuniary damage suffered. They further submitted that in any event the sum requested was excessive. They referred to the Court’s judgments in Members of the Gldani Congregation of Jehovah’s Witnesses and Others v. Georgia (no. 71156/01, 3 May 2007) and Begheluri and Others v. Georgia (no. 28490/02, 7 October 2014) in which the Court, in relation to religious violence against Jehovah’s Witnesses, had awarded between EUR 120 and EUR 700 to the applicants.
114. The Court has no doubt that the seven individual applicants, in respect of whose complaints it found violations of their rights under Articles 8, 9 and 14 of the Convention, suffered distress and frustration on account of those violations. The resulting non-pecuniary damage cannot be adequately compensated for by the mere finding of those breaches. The same holds true for the first applicant, which sustained non-pecuniary damage owing to the nature of the limitations on its rights under Article 1 of Protocol No. 1. Having regard to the relevant circumstances of the case, the Court finds it appropriate to make an award of EUR 1,600 to each of the individual seven applicants, and an award of EUR 1,000 to the first applicant.
B. Costs and expenses
115. The applicants also claimed, jointly, 7,950 pounds sterling (GBP – approximately EUR 9,000) in respect of the costs of their representation before the Court by two of their British lawyers (see paragraph 2 above). The amount was based on the number of hours which the lawyers had spent on the case and the lawyers’ hourly rate. Copies of the relevant legal-service contracts were submitted in support of their claim by the seven individual applicants. The applicants additionally claimed GBP 1,695.60, EUR 540.34 and 6,262.58 United States dollars for postal expenses, translation expenses and other types of administrative expenses incurred in connection with the proceedings before the Court. In that regard, they submitted copies of invoices signed by the translators.
116. The Government submitted that the claims submitted were unsubstantiated and excessive.
117. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. The Court considers that the applicants failed to show that all the costs claimed had been necessarily and reasonably incurred. Regard being had to the documents in its possession and the above criteria, the Court awards the seven individual applicants the sum of EUR 5,000 in respect of the costs and expenses in the proceedings before the Court, plus any tax that may be chargeable to those applicants, to be paid in GBP into their representatives’ bank account in the United Kingdom.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Joins to the merits the Government’s preliminary objection concerning the victim status of the third, fifth and sixth applicants and dismisses it;
2. Declares the application admissible;
3. Holds that there has been a violation of Articles 8 and 9 of the Convention in conjunction with Article 14 with respect to applicants nos. 2-8;
4. Holds that there has been a violation of Article 1 of Protocol No. 1 with respect to the first applicant;
5. Holds
(a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:
(i) EUR 1,600 (one thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to applicants nos. 2-8 each;
(ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to the first applicant;
(iii) EUR 5,000 (five thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be converted into GBP at the rate applicable on the date of settlement and to be paid into the applicants’ representatives’ bank account in the United Kingdom;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 30 November 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Victor Soloveytchik Georges Ravarani
Registrar President
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APPENDIX
List of applicants:
| No. | Applicant’s Name | Year of birth/registration | Nationality | Place of residence |
| 1. | GEORGIAN MUSLIM RELATIONS | 2013 | Georgian | Batumi |
| 2. | Roin GUNDADZE | 1991 | Georgian | village Tkhilvana |
| 3. | Badri IREMADZE | 1988 | Georgian | Batumi |
| 4. | Ramiz KAKALADZE | 1984 | Georgian | Shuakhevi |
| 5. | Kakha KAKHADZE | 1992 | Georgian | village Naruja |
| 6. | Teimuraz KHALVASHI | 1972 | Georgian | village Tsetskhlauri |
| 7. | Merab MIKELADZE | 1985 | Georgian | Chakvi |
| 8. | Dato TSETSKHLADZE | 1991 | Georgian | village Tkhilvana |
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