The European Court of Human Rights (ECtHR) has ruled that the Georgian authorities failed to protect the life of a woman who was murdered following a prolonged period of domestic violence at the hands of her former partner, a serving police officer.  

In its judgment, the Court found unanimously that Georgia had violated the right to life (in both its procedural and substantive aspects) and the prohibition of discrimination.  

It highlighted “major failings” in the Georgian police’s response to the murder.

“Overall, (this) case could be seen as yet another vivid example of how general and discriminatory passivity of the law-enforcement authorities in the face of allegations of domestic violence could create a climate conducive to a further proliferation of violence committed against victims, merely because they were women. Despite the various protective measures available, the authorities had not prevented gender-based violence against the applicants’ next-of-kin, which had culminated in her death, and they had compounded that failure with an attitude of passivity, even accommodation, as regards the alleged perpetrator, later convicted of the victim’s murder.”

ECtHR judgment

The case, A and B v Georgia, was brought to the Court in 2015 by EHRAC and our partner organisation the Georgian Young Lawyers Association (GYLA), on behalf of C’s mother (‘A’) and minor son (‘B’).

Tamar Dekanosidze, GYLA lawyer, said: “Femicide has always been a serious issue in Georgia, but it was largely overlooked until 2014. This is the reason why A and B v Georgia was the very first application on femicide that reached the European Court of Human Rights. 

“The case also set a very important legal precedent at the local level. In addition to prosecuting the perpetrator, the Georgian courts found the Government bodies responsible for paying moral damages to the mother of their victim because of their failure to prevent the killing.”

Tamar Dekanosidze, GYLA lawyer

“The case was also widely covered by the local media and was instrumental in mobilising and uniting different parts of society to join forces in ending violence against women.”

Failure of the police and prosecutor to protect C from D’s violence 

In 2011, aged 17, C was kidnapped for marriage by D, a 22-year-old police officer. Under constant threat from D, she began living with him until June 2012 when she returned to her parents’ house. She was two months’ pregnant with B at the time. 

In July 2012, C called the police, stating that D had threatened to kill her mother, but she received no response.  

In August 2013, D beat up C in her parents’ house following a dispute about child support payments. The police were called and three officers, all of whom were D’s acquaintances, interviewed C in his presence. One of the officers told C that ‘wife-beating’ was “commonplace”, and inaccurately recorded the details of her physical abuse. D forced C to sign the police report, threatening to kill her if she did not sign it as it was drafted. 

On the same day, C filed a criminal complaint to the local public prosecutor’s office, reporting D’s abuse and the police officer’s failure to carry out their duties with due diligence. In the complaint, she stated that D had been constantly harassing her, threatening to kill her and to abduct B. C expressly asked the prosecutor to take “all the measures necessary to end D’s violent behaviour”, and explained that as D was a police officer, she did not trust that the police would help her, which is why she directed her complaint to the prosecutor.

In September 2013, the prosecutor interviewed C, D and one of the police officers, and both D and the officer denied C’s version of events. D gave a written undertaking that he would never again verbally or physically abuse C or her family, which satisfied the prosecution, and they decided not to launch a criminal investigation. 

During the time in which D abused C and C made repeated requests for help from the law enforcement authorities, D was promoted to senior police lieutenant.  

On 25 July 2014, after C left an interview with a the Ministry of the Interior, D followed her in the street and witnesses saw them having an argument in a public park. D pulled out his service pistol and fired five shots at C, killing her instantly.

Criminal proceedings were opened against D and he was charged with C’s murder. He was convicted of her murder, and sentenced to eleven years’ imprisonment.  

A, acting on behalf of herself and B, filed a complaint with the Chief Public Prosecutor’s Office, requesting a criminal investigation be opened into the authorities’ failure to protect her daughter’s life. She argued that the negligence of the police and prosecutor was motivated by gender-based discrimination. 

A criminal investigation was opened into the negligence of the police officers, but when A repeatedly inquired about its progress, she was told it was pending and no charges had been brought. A received no response to her repeated requests for information on whether an investigation into the conduct of the prosecutor had been opened.  

Subsequently A sued the Ministry of the Interior and Chief Public Prosecutor’s Office for the failure to protect her daughter’s life. The claim was allowed in part by the Tbilisi City Court, which ruled that the authorities had failed to take measures to put an end to gender-based discrimination and protect C’s life. 

Establishing state responsibility for the failure to protect C from domestic violence

In the application to the ECtHR, we complained of violations of C’s right to life (Article 2 ECHR) and the prohibition of discrimination (Article 14 ECHR), arising from the domestic authorities’ failure to protect C from gender-based violence and the failure to investigate the conduct of the law enforcement bodies to which C appealed for help before her murder.  

Recognising that D was convicted of C’s murder, the Court emphasised that the case was not about the violent actions of D, but rather about the authorities’ “inactivity and negligence” which had disastrous consequences. The Court underlined that the “lack of protection” of C from domestic violence and the “absence of an effective investigation into the law enforcement authorities’ inaction – stemmed from their insufficient acknowledgment of the phenomenon of discrimination against women”. The Court agreed with the applicants’ submission that the right to life and discrimination complaints are inextricably factually and legally interwoven and should be examined simultaneously.  

In its judgment, the Court found violations of both Article 2 (in its substantive and procedural aspects) and Article 14 of the European Convention of Human Rights (ECHR), arising from the authorities’ failure to take protective measures after being notified of D’s abuse of C, and the failure to conduct an effective investigation into the conduct of the police officers and prosecutor, including the failure to examine the gender-bias that may have motivated the conduct of the law enforcement officials.  

In a robust conclusion on the State’s liability, the Court found that in disregarding a “panoply of various protective measures” and combining this with “an attitude of passivity, even accommodation” toward D, the Georgian authorities failed to protect C’s right to life.  

The applicants were awarded €35,000 in non-pecuniary damages in recognition of the damage they suffered in losing their daughter and mother.  

Setting legal precedents

The judgment provides an indisputable acknowledgment of the myriad ways in which the Georgian authorities failed in their duty to protect C from domestic violence, made even more grave given  the official status of D and his deliberate abuse of this with fatal consequences.  

The judgment also makes a number of significant contributions to the Court’s existing case law on gender-based violence:  

• It is the first case in which the Court found that the prosecution of the defendant should have examined gender bias and discriminatory motive on his part.  
• As in Tkhelidze v Georgia (also an EHRAC case), the judgment in A and B reiterates the need for an investigation into gender bias and discriminatory motive on the part of law enforcement officials.  
• A and B is only the second case on domestic violence in which the Court adopted a simultaneous adjudication of violations of the right to life and gender-based discrimination (the first being Tkhelidze). This dual approach is crucial for the Court’s recognition of the centrality of discrimination in the state’s response to gender-based violence.  
• In A and B, the Court unequivocally acknowledged the immediacy of the threat in a situation of lasting domestic violence, hence further embedding the adaptation of the Osman test (used to determine the immediacy of risks to life) established in Tkhelidze. The Court in A and B found that C’s circumstances were “clearly a lasting situation of domestic violence which means that there could be no doubt about the immediacy of the danger” to C.  

The post Georgia responsible for discriminatory failures to protect woman from police-perpetrated domestic violence   appeared first on European Human Rights Advocacy Centre (EHRAC).

Temirlan Machalikashvili was fatally shot during a raid on his family home in Duisi, Georgia, on 26 December 2017. According to the security forces, the victim attempted to detonate a hand grenade during the raid and was shot in response. Temirlan’s family have always rejected the claim that he had a hand grenade.

The 19 year old, who was from the Kist community, a small Muslim minority who live primarily in the Pankisi Gorge area that includes Duisi, was one of five local people accused of providing ongoing support – food, household items, help with finding accommodation – to members of a terrorist group.

On 19 January 2023, the ECtHR handed down its judgment in Machalikashvili and Others v Georgia, finding a procedural violation of Article 2 of the European Convention of Human Rights (the right to life). The Court found the Georgian authorities’ investigation was too slow and narrow, flawed in key respects and not sufficiently independent. Delays in scheduling interviews with the officers involved carried a risk of collusion and the applicants – Temirlan’s parents, sister and grandmother – were not sufficiently involved in the investigation, with delays in them being given access to investigation materials and persistent refusals regarding the granting of victim status.

The case was litigated by EHRAC and our Tbilisi-based partner Social Justice Center.

“The Court has identified serious shortcomings in the investigation into Temirlan’s death, including the way in which the key evidence from Temirlan’s room was collected and handled. Largely because of those deficiencies, the Court could not resolve the crucial question of whether or not the use of force by security forces was justified.”

Tamari Samkharadze, Strategic Litigation Lawyer, Social Justice Center

The Court did not find a substantive breach of the right to life, though Judge Gnatovskyy issued a strong dissenting opinion on this point.

The case

We argued that the circumstances surrounding the victim’s death raised a violation of Article 2 of the European Convention on Human Rights – the right to life – both on substantive and procedural grounds. We also argued there had been a violation of Article 3 of the Convention on the basis that the manner of the SSG raid had subjected the family to inhuman and degrading treatment, and of Article 13, on the grounds that the authorities’ failure to conduct an adequate investigation had deprived the family of the right to a remedy.

Procedural violation of Article 2

On the procedural violation of Article 2, we argued a long list of shortcomings in the investigation into the victim’s death.

The ECtHR agreed, and found a procedural violation of Article 2 on the grounds that:

• the investigation was not sufficiently independent, as it was commenced by officers of the State Security Services, the authority that carried out the operation, and not by the prosecution authority
• authorities had undertaken only a limited investigation of the planning and control of the operation
• there were deficiencies with respect to examining and securing the crime scene
• interviews with security officers were unduly delayed, leading to the risk of collusion or failure to accurately remember events
• the applicants had not been adequately involved in the investigation, with delays in their being allowed access to investigation materials and persistent refusals in granting victim status.

Substantive violation of Article 2

On the substantive violation of the right to life, we argued that the domestic legal framework regulating the use of force was deficient, that the planning of the operation was inadequate, and that the government had failed to show that the shooting was absolutely necessary: the authorities had failed to prove that the victim ever held a hand grenade, and failed to explain a number of other factors, including evidence that the victim was, in fact, on his phone and using headphones at the time of the raid.

The Court found no substantive violation of Article 2. It ruled that the domestic legal framework was appropriate for the use of force. As regards the planning and operation of the raid, and whether the loss of life was absolutely necessary, while the Court was critical of the domestic authorities, and recognised the deficiencies in the investigation had rendered a definitive account impossible, it found it was impossible to decide between the conflicting version of events, and that the authorities had given a ‘plausible explanation’ for the events leading to the victim’s death. It found that the current case was not one where the ‘burden of proof’ was reversed – the authorities were not, therefore, required to explain and justify the circumstances of the death, and the applicants could not prove, beyond reasonable doubt, that the victim had died in circumstances that engaged the responsibility of the authorities.

Judge Gnatovskyy, in a dissenting opinion, found that the Court was incorrect to find the ‘burden of proof’ had not shifted to the authorities, given that authorities had exclusive control over the crime scene and key evidence that would have shed light on the events; and that there were clear instances of deficient planning and operation of the event.

Articles 3 and 13

In relation to the alleged violation of Article 3, while the Court accepted that the family were severely affected by the operation, it rules that this did not go beyond what would be expected. Given the finding of a procedural violation of Article 2, the Court found no need to examine our complaint that the investigation deprived the family of the right to a remedy under Article 13 of the Convention.

You can read more about the circumstance of this case in our Key Cases summary.

The post Court finds Georgia’s failures in investigating killing of teenager breached right to life appeared first on European Human Rights Advocacy Centre (EHRAC).

The European Court of Human Rights (ECtHR) has found Azerbaijan responsible for the death of an elderly Armenian man who died after sustaining severe injuries following his capture in 2014.

On the morning of January 28, 2014, 77-year-old farmer Mamikon Khojoyan left his home in the Tavush region of Armenia, close to the Azerbaijani border, to collect grapes. It was reported in Azerbaijani news two days later that he had been detained for being an armed guide of an Armenian sabotage group.

He was handed over to the Armenian authorities on March 4 following mediation from the International Committee of the Red Cross (ICRC). A forensic examination later revealed a number of injuries which “caused grievous bodily harm dangerous to life”. He died at home ten weeks later.

“In this shocking case, the Court called out the torture and risk to life of an elderly farmer captured and detained as an alleged ‘saboteur’ – an argument dismissed by the Court,” said Jessica Gavron, EHRAC Legal Director.

“This case highlights the innocent victims of the ongoing tensions between Azerbaijan and Armenia, and the endemic issue of ill-treatment by law enforcement and military in Azerbaijan for which there is no accountability.”

Three of Mr Khojoyan’s children brought a case before the ECtHR in September 2014, claiming their father was tortured during his captivity. They said this treatment posed a danger to his life and was not investigated.

They also claimed he was unlawfully deprived of his liberty, that they did not have an effective legal remedy, and his rights were violated as a result of discrimination based on his ethnic origin.

In its November 4 judgment, the ECtHR ruled that Mr Khojoyan’s rights to life and to liberty and security had been violated and that the ill-treatment to which he was subjected “amounted to torture”.

Mr Khojoyan’s children said their father had been a farmer all his life, and when he left home on January 28 he had told them he was going to collect grapes in the fields. During a criminal investigation conducted by Armenia, several witnesses reported seeing him holding a bucket and also telling them he was going to collect grapes.

On the day he was captured, a video appeared of Mr Khojoyan online in which he showed no signs of injury and could move without difficulty. In the TV report two days after his capture, he was shown with his arm in a cast, and in a broadcast the following day, he had difficulty standing upright and showed visible injuries.

“In this shocking case, the Court called out the torture and risk to life of an elderly farmer captured and detained as an alleged ‘saboteur’ – an argument dismissed by the Court.”

When Mr Khojoyan was returned to Armenia in March 2014, he was taken to hospital, where examinations revealed multiple injuries to his head, ribs, arms and other parts of his body. Forensic medical experts found a gunshot wound in his arm. The Azerbaijani authorities said that Mr Khojoyan had been shot when he attempted to flee when captured, but the Court found that his lack of injuries in the video released on the day of his capture disputed the government’s claim.

The forensic experts also reported a number of wounds, scratches and fractures which “all taken together, caused grievous bodily harm dangerous to life”. Their report revealed some of these injuries were inflicted by a blunt object and others by a sharp cutting instrument. A chemical forensic investigation also found petroleum and Apaurin in his blood and urine.

After Mr Khojoyan was returned to Armenia, the General Department of Criminal Investigation in the Armenian capital of Yerevan opened an investigation concerning “intentional infliction of bodily harm with particular cruelty and with motives of national, racial or religious hate or fanaticism”.

During the investigation, Mr Khojoyan’s daughter stated that when she visited her father in hospital, he was extremely frightened, his speech was incoherent, and he told her details of his ill-treatment, including having been severely beaten and burned. His son confirmed this account, and added that his father had sustained many injuries during his detention and his health had deteriorated badly.

In its judgment, the Court ruled that the Azerbaijani authorities had violated Mr Khojoyan’s right to life, protected under Article 2 of the European Convention on Human Rights, finding “that the treatment of Mr Khojoyan while in detention was dangerous by its very nature and put him at real and imminent risk”.

The Court also ruled that the ill-treatment to which Mr Khojoyan was subjected “amounted to torture”, in violation of Article 3 of the ECHR.

The Azerbaijani authorities disputed claims of Mr Khojoyan’s ill-treatment and said he was detained as a member of the Armenian armed forces and a saboteur, and held as a prisoner of war in adherence to the 1949 Geneva Convention.

“This case highlights the innocent victims of the ongoing tensions between Azerbaijan and Armenia, and the endemic issue of ill-treatment by law enforcement and military in Azerbaijan for which there is no accountability.”

Despite a ceasefire agreement in 1994, at the time of Mr Khojoyan’s capture, tensions between Armenia and Azerbaijan remained high. However, the applicants submitted to the ECtHR that their father was a civilian and had not been involved in the conflict between the two countries.

The Court stated that the Azerbaijani government had provided no information to show Mr Khojoyan “was to be regarded as a prisoner of war”, and ruled that his right to liberty and security guaranteed under ECHR Article 5 had been violated.

Furthermore, noting the “general context of hostility and tension” between Armenia and Azerbaijan, the Court ruled that the Azerbaijani authorities should have carried out an investigation into “whether ethnic hatred had played a role in the treatment of Mr Mr Khojoyan which had put his life at risk”.

The post Azerbaijan found responsible for death of Armenian man who was tortured in detention appeared first on European Human Rights Advocacy Centre (EHRAC).

The judgment, in the first successful case against Georgia in the area of legal gender recognition, covers three separate cases where the Georgian Civil Status Agency (CSA) refused to amend the official records of transgender men because they had not undergone sex reassignment surgery.

The Court found that Georgia’s approach had violated both Article 8 of the European Convention on Human Rights – the applicants’ right to respect for private and family life – and the country’s Convention obligation ‘to provide quick, transparent and accessible procedures for legal gender recognition’.

“The main positive in this judgment is that the State is forced to admit that the absence of law for trans people creates problems for us. The State now has to recognize us as citizens and adopt a law that will more or less fix our problems related to gender recognition. What the law will be like and what benefits Georgian transgender people will get from this law, will be part of our next struggles, because homophobia is flourishing in Georgia.”

Nikolo Ghviniashvili, applicant.

Keti Bakhtadze, a lawyer from EHRAC’s Georgian litigation partner, the Women’s Initiatives Supporting Group (WISG), said: “This judgment supports what we have been saying to the Georgian Ministry of Justice for years, and confirms that Georgia’s current system for legal gender recognition is incompatible with the requirements of the European Convention on Human Rights.

“We hope Georgia will now develop a regulatory system for gender recognition based on self-identification and that the Georgian Government will take into account the other decisions made by the European Court on this issue and remove its preconditions for trans people seeking to change their gender marker.”

“This is an important judgment which delivers a powerful platform from which to advocate for the quick, transparent, and accessible procedures for legal gender recognition that all parties to the Convention are obliged to provide.”

Jessica Gavron, Co-Director Legal, EHRAC

A lack of clear procedures

In its judgment the Court noted, ‘the key problem in the present case is that it is not clear at all what the legal regime for the change of the sex/gender marker actually is in Georgia.’

It added, ‘The imprecision of the current legislation undermines, in its turn, the availability of legal gender recognition in practice and, as was illustrated by the three applicants’ individual situations, the lack of a clear legal framework leaves the gatekeepers – the competent domestic authorities – with excessive discretionary powers, which can lead to arbitrary decisions in the examination of applications for legal gender recognition.’

The result: harassment, discrimination and further marginalisation

Georgia’s failure to establish clear procedures in this area has served to compound systemic discrimination against trans people in the country and contributed directly to their further marginalisation. In their April 2021 report, the country’s Public Defender noted “Without legal gender recognition, transgender people face discrimination in all spheres of life, including employment, housing policy, and social protection, resulting in social exclusion and violence, as well as restrictions on their freedom of movement.”

The authorities’ refusal to change the gender marker on the three applicants’ ID cards meant that they routinely faced harassment and discrimination in their daily lives. The applicants were frequently targeted with insulting and humiliating comments and asked to ‘explain themselves’ in a range of everyday settings, including when accessing essential services or crossing borders.

This ‘forced outing’ led to the applicants’ further marginalisation. They often lived in isolation, in fear or even in hiding, with consequences for their psychological, social and economic well-being.

A right enshrined in Georgian law

The Court noted that the country’s own laws ‘clearly enshrined… a right (to have one’s sex marker changed) in law (which) was also interpreted to form part of the relevant constitutional right to free development of personality.’

The Court noted that ‘despite the fact that such a right has existed in the country since 1998, not a single case of successful legal gender recognition has been reported to date.’

Three cases

The judgment relates to three cases brought by EHRAC in partnership with Georgian NGOs. The first two cases, concerning Mr A.D and Mr A.K., were heard anonymously and brought with the Women Initiative Support Group (WISG). For the third case, concerning Mr Ghviniashvili, EHRAC partnered with the Georgian Young Lawyers Association (GYLA).

All three applicants had applied, in 2014 and 2015, to the CSA to have their gender changed on official records. Despite having undergone a psychological assessment and being in possession of a certificate of ‘gender identity disorder (transsexualism)’, their applications were denied.

The Georgian courts accepted arguments by the CSA that, to amend their official records, they first required proof that the applicants had completed a surgical sex change procedure of ‘irreversible impact’. Despite this requirement, the authorities have failed to detail the exact nature of the required procedure. In addition, no suitably qualified surgeons are available to perform such an operation in Georgia. The ECtHR has previously found that for a State to require an individual to undergo medical and surgical intervention in order to change their gender in official documents is a violation of Article 8 of the European Convention on Human Rights.

EHRAC, WISG and GYLA argued that Georgia’s treatment of the applicants constituted a violation of their right to privacy and family life, that it resulted in them suffering degrading treatment, and that they were subjected to discriminatory treatment on the basis of their trans status. The Court found in the applicants’ favour on the first of these issues.

Jessica Gavron, co-director of EHRAC: ‘While this is a step in the right direction, the issue of discrimination is central to this case and it is disappointing that the Court found “no need” to examine our complaints under this point, particularly given the marginalisation of trans persons in Georgia.’

The Court awarded the applicants 2,000 EUR each in damages.

You can also read our case summary.

Main picture: Nikolo Ghviniashvili, one of the applicants in this case.

The post Court says Georgia must establish clear procedures on legal gender recognition and finds existing approach breached trans citizens’ rights appeared first on European Human Rights Advocacy Centre (EHRAC).

On July 7, 2022, the European Court of Human Rights (ECtHR) ruled that the domestic investigation into the fatal stabbing of columnist Rafig Tagiyev in Azerbaijan was ineffective.

In its judgment in Tagiyeva v. Azerbaijan, the Court found that Mr Tagiyev’s wife’s rights under the European Convention on Human Rights (ECHR) were violated after she was denied access to case files and to information about the investigation.

“This judgment highlights a deeply systemic problem in Azerbaijan’s criminal justice system in which victims are denied access to investigation materials until the case is closed, effectively allowing zero scrutiny of law enforcement’s actions,” said Ramute Remezaite, EHRAC Senior Legal Consultant and Implementation Lead.

“The law allowing this practice to continue should be changed without delay.”

Writer killed after religious fatwa issued

Rafig Tagiyev was a columnist who wrote on various social issues including the role of religion in society. In his writing, he was highly critical of Iran’s influence in Azerbaijan and around the world.

In November 2006, following the publication of an article in which he criticised Islam, one of the most prominent religious figures of Iran issued a religious fatwa calling for his death.

“Unfortunately, this is not the first case in Azerbaijan in which a journalist has been attacked and the perpetrators have remained unpunished.”

Mr Tagiyev and his family were placed under police protection and forced to move house. Criminal proceedings were issued against him and the newspaper’s editor over the publication of the article.

In May 2007, Mr Tagiyev was found guilty of public incitement to ethnic, racial, social or religious hatred and hostility and sentenced to three years’ imprisonment.

His conviction was the subject of the ECtHR’s judgment in Tagiyev and Huseynov v. Azerbaijan, in which the Court ruled that Mr Tagiyev’s right to freedom of expression (ECHR Article 10) had been violated.

In its decision in the case, the Court was required to consider whether there was a violation to Mr Tagiyev’s right to freedom of expression while balancing any interference with the religious rights of others.

The Azerbaijani government had argued the article had been an abusive attack on Islam, while the ECtHR deemed it to be about the role of religion in society, which it considered a matter of public interest. The Court therefore ruled that there was ‘no dispute’ that Mr Tagiyev’s criminal conviction amounted to an interference with his right to freedom of expression.

Six months after he was convicted, Mr Tagiyev received a presidential pardon and was released from prison. Following his release, he continued to write for various newspapers and journals.

On November 10, 2011, an article of Mr Tagiyev’s was published in which he criticised Iran and its foreign policy. A week later, while on his way home, Mr Tagiyev was stabbed by an unknown person who fled the scene. He died in hospital four days later.

The day after Mr Tagiyev was attacked, criminal proceedings were opened, and investigators managed to question him as a victim several times before his death.

During the investigation into Mr Tagiyev’s death, his wife was repeatedly denied access to case files and information. She submitted several complaints about law enforcement’s practice, but these were dismissed by the authorities on the basis that domestic law allows victims such access only after the investigation is finalised.

“This judgment highlights a deeply systemic problem in Azerbaijan’s criminal justice system in which victims are denied access to investigation materials until the case is closed, effectively allowing zero scrutiny of law enforcement’s actions.”

In 2013, the investigation was suspended indefinitely due to an inability to identify the perpetrator of the crime. Ms Tagiyeva has had no access to the investigatory material on her husband’s stabbing to date.

EHRAC brings case before European Court of Human Rights

EHRAC brought the case before the ECtHR on behalf of Mr Tagiyev’s wife alongside our partner Media Rights Institute (an organisation which has ceased to exist since the 2014 crackdown on civil society in Azerbaijan).

In our submission, we argued that the Azerbaijani authorities had failed to protect Mr Tagiyev’s right to life and to effectively investigate his murder. We also argued that he was targeted for exercising his freedom of expression.

In July 2022, the Court ruled that the investigation into Mr Tagiyev’s murder was ineffective (a procedural violation of ECHR Article 2). The judgment states that it was ‘unacceptable’ for Mr Tagiyev’s wife to be denied access to case materials and information, and highlights several other cases against Azerbaijan in which similar violations occurred.

The Court dismissed our claim that the authorities had failed to protect Mr Tagiyev’s right to life. It found that while the issuance of a fatwa may sometimes trigger a state’s duty to act, the circumstances in Mr Tagiyev’s case were not a sufficient basis for the state to implement protective measures. The Court also noted that Mr Tagiyev did not appeal to the authorities for protection, nor did he say he had faced any direct threats or intimidation.

The Court decided not to consider the violation of the right to freedom of expression separately from the right to life complaint.

“Unfortunately, this is not the first case in Azerbaijan in which a journalist has been attacked and the perpetrators have remained unpunished. Such a situation is detrimental to free media and enhances self-censorship,” said Khalid Aghaly, chairman of Azerbaijan-based NGO Media Rights Group.

“The ECtHR judgment in this case is an important reminder of how important it is to disclose such heinous crimes in order to protect media freedom.”

“As far as states abiding by its obligations are concerned, the Azerbaijani authorities should go back to this case and reopen the investigation. This is very important in terms of building a prosperous, democratic country.”

The ECtHR ordered the state to pay 12,000 EUR in non-pecuniary damage and 2,000 EUR in costs and expenses.

The post Azerbaijan: Court rules investigation into writer’s murder was ineffective appeared first on European Human Rights Advocacy Centre (EHRAC).

The European Court of Human Rights (ECtHR) has found the Armenian authorities failed to protect the owner of the country’s only LGBT+ club from homophobic attacks and abuse, highlighting the need for legislative reform to protect the country’s LGBT+ community.

The judgment – which was handed down on the International Day Against Homophobia, Transphobia and Biphobia on May 17, 2022 – is the first against Armenia concerning discrimination based on sexual orientation.

“The case is an important precedent for Armenia on several counts: the first LGBT rights case, the first hate crime case, the first hate speech case, and the first with a finding of a failure to protect from discriminatory violence, as well as to investigate such violence,” said former EHRAC lawyer Margarita Ilieva.

“Significantly, Oganezova is a European ‘first’ as well: the founding, and currently only, case in the new category of ‘Aggressive homophobic campaigns’ in the Court’s ‘Sexual Orientation Issues’ Factsheet. Oganezova is included in the Court’s 2022 Information Note containing cases ‘of particular interest’.”

2012 attack on Armenia’s only LGBT+ club

In 2011, Armine Oganezova opened DIY Club in Armenia’s capital Yerevan, the only LGBT+ club in the country. Shortly after the opening, she and the business became the targets of homophobic harassment by individuals loosely tied to a neo-Nazi group.

In May 2012, as Ms Oganezova gained public visibility as an LGBT+ rights activist, two individuals who had previously harassed her set fire to the club, causing extensive damage.

When Ms Oganezova went to the police station to file a report she was told the individuals had admitted their intent to destroy the club to prevent LGBT+ people from gathering there. The police officers made it clear to Ms Oganezova that they supported the actions of the arsonists.

While the investigation was underway, Ms Oganezova was subjected to homophobic hate campaigns in the media and on social media.

At the same time, violent mobs attacked DIY Club, preventing it from being rebuilt and causing further destruction. They maintained a daily presence at the premises and threatened Ms Oganezova, expressing their intent to force her to close her club and leave the country.

The authorities failed to take action to prevent this abuse, aside from a five-day period when Ms Oganezova and her close relations were provided with police protection.

Meanwhile, members of parliament, including the deputy speaker, engaged in high-degree incitement to homophobic hatred and violence, glorifying the arsonists, with one member paying bail for the lead perpetrator.

Ms Oganezova, her sister and many of her friends continued to face online threats, and her sister lost her job as her employer feared being targeted. Due to the lack of protection against this homophobic abuse, Ms Oganezova felt that she had no alternative but to flee the country. Both sisters left Armenia for Sweden in June 2012, and were granted asylum on the basis of persecution due to sexual orientation.

In July 2012, the United Nations Human Rights Committee expressed concern “about the lack of comprehensive legislation on discrimination” and the discrimination and violence faced by the LGBT+ community in Armenia.

Amnesty International directly condemned the attack on DIY club, adding that the conduct of the parliamentarians was “dangerous, fuels discrimination and undermines the role of human rights defenders”.

In 2013, following an ineffective investigation into the arson attack on DIY Club that failed to properly consider the hate motive behind the crime, the perpetrators were handed a lenient sentence and granted amnesty, meaning they never faced any punishment for their actions.

European Court finds multiple human rights violations

Ms Oganezova brought her case before the ECtHR with representation from Interights and Pink Armenia, complaining of the state’s failure to protect her from homophobic attacks and abuse and to effectively investigate the arson attack.

EHRAC later took over conduct of the case from Interights. EHRAC lawyer Margarita Ilieva was responsible for the case at the Reply stage and drafted the substantial submissions on behalf of the applicant, significantly contributing to the successful judgment.¹

On May 17, 2022 the ECtHR unanimously found that Ms Oganezova’s right not to be subjected to ill-treatment or punishment (ECHR Article 3) had been violated alongside Article 14, which prohibits discrimination. This is the first judgment against Armenia concerning a violation of rights on the grounds of sexual orientation.

The judgment found that the applicant had become “the target of a sustained and aggressive homophobic campaign”, and that the arson attack and threats “motivated by homophobic hatred must necessarily have aroused in her feelings of fear, anguish and insecurity which were not compatible with respect for her human dignity” under Articles 3 and 14 ECHR.

The Court also highlighted the authorities’ failure to conduct an effective investigation into the incident, including through a failure to consider the hate motive behind the attack.

In particular, the Court found that domestic criminal law failed to provide that discrimination on the grounds of sexual orientation and gender identity should be treated as a bias motive and an aggravating circumstance in the commission of an offence. The Armenian government had admitted in its submission to the ECtHR that domestic legislation was deficient in this regard.

According to the Court’s judgment, the result was that “the attack on the club, which had been committed with a clearly established homophobic hate motive, was addressed by the investigative authorities and subsequently the courts as an ordinary crime of arson (…) effectively ignoring the hate-based nature of the offence in terms of legal consequences (…) rendering this fundamental aspect of the crime invisible and of no criminal significance”.

The Court noted that treating hate-based crimes on an equal footing with cases involving no bias motive “can be tantamount to official acquiescence in, or even connivance with, hate crimes.”

While noting that domestic law had since evolved to prohibit hate speech, the Court highlighted that sexual orientation and gender identity are still not included in the characteristics of victims of the offence of hate speech.

The ECtHR ordered the state to pay Ms Oganezova EUR 12,000 in damages.

The post Armenia: Failure to respond to homophobic abuse highlights need for legal reforms appeared first on European Human Rights Advocacy Centre (EHRAC).

This case concerns the femicide of M.T., a university professor, by her ex-husband L.M. after a prolonged period of domestic violence. Despite more than eleven reports of violence and threats made to the police by M.T. and her relatives in a six-month period, not a single protective measure was put in place.

This case is representative of the systemic discrimination by the law enforcement authorities in Georgia in failing to adequately respond to victims of domestic violence.

EHRAC brought the case before the European Court of Human Rights (ECtHR) in collaboration with Union Sapari on behalf of M.T.’s mother.

The ECtHR embedded its consideration of discrimination into right to life complaints for the first time in a domestic violence case, and was robust in its criticism of the authorities’ ‘major failings’, representing a highly progressive judgment by the Court.

What Happened?

M.T and L.M. lived together in a flat with L.M.’s parents and M.T.’s young daughter from a prior relationship. The police attended the flat twice, in April and September 2014, following reports from L.M.’s father and M.T. that L.M. was physically and verbally assaulting M.T. and making threats to her life.

L.M.’s parents reported that L.M. suffered from pathological jealousy, was mentally unstable and became aggressive when drunk. L.M.’s father also reported that the death threats made by L.M. towards M.T. were frightening and that he wanted the police to force L.M. to leave their home. After the latter incident an ambulance was called and M.T. received medical attention, yet the incident was recorded as a minor family altercation, with the physical abuse recorded as just a “shove”.

When interviewed, L.M. admitted to being jealous and making multiple death threats against M.T. The police filed reports but failed to open a criminal investigation or place any restrictive measures on L.M. The day after the second incident, M.T. and her daughter moved into her mother’s home, at which point L.M. began to send abusive messages. The messages included the statements “I can easily make you disappear”; “I’m going to commit suicide, I can’t live without you”; and “No one can stop me, I’m not afraid of the police”. L.M. also made death threats against M.T.’s young daughter.

Over the next three weeks, M.T. reported a further five incidents to the police informing them that L.M. was repeatedly threatening to kill her, that he had attempted to break into her mother’s flat, that he had accosted her outside her mother’s flat and at her place of work, and that he had followed her to her daughter’s school. M.T.’s mother also filed four reports with the police stating that L.M. was stalking and threatening her daughter daily, that he had turned up at her workplace with a grenade which he threatened to detonate, and that her and her daughter’s lives had become unbearable due to L.M.’s terrorising behaviour.

The police repeatedly and inaccurately told M.T. that no restrictive measures could be a taken against L.M. and that they could not arrest him. At one point they said that they couldn’t make an arrest as a police officer had not witnessed the violence. On another occasion they suggested that M.T. tell her brothers about L.M.’s behaviour so that they could take revenge by “breaking his bones”.

On 17 October, the day after M.T. reported to the police that L.M. had followed her to her daughter’s school, L.M. turned up at Ilia State University, Tbilisi, where M.T. was teaching and asked to speak to her in the corridor outside a class of students. When she stepped into the corridor L.M. shot her dead, and then fatally shot himself.

Neither the applicant (M.T.’s mother) nor her daughter were ever advised of their procedural rights or the legislative and administrative measures of protection available to them under the Criminal Code and the Domestic Violence Act.

An investigation was opened into the double homicide on 17 October 2014, however it was discontinued on 31 December due to the death of the perpetrator. In 2015/16 the applicant lodged multiple complaints with the District Prosecutor’s Office and with the Chief Prosecutor requesting an investigation into negligence by the police towards her daughter, which she argued constituted gender-based discrimination. No investigation was opened.

EHRAC brings case to European Court of Human Rights

We lodged the application with the European Court of Human Rights (ECtHR) in 2017, in collaboration with Union Sapari, raising:

• Article 2 (right to life), due to the authorities’ failure to respond with due diligence to threats to life and failure to protect;
• Article 3 (prohibition of torture) due to the state of terror in which the applicant and her daughter lived as a result of the authorities’ inaction;
• Article 14 (prohibition of discrimination), on the basis that the conduct of the authorities and the individual police officers was discriminatory on grounds of gender and reflected systemic failings by the Georgian authorities.

The Court took the unusual step of examining Article 2 in conjunction with Article 14 from the outset, and found violations of both substantive and procedural Article 2 with Article 14.

“This is a very progressive judgment by the Court. The case demonstrates many of the discriminatory failings typical of law enforcement authorities in domestic violence cases and this was recognised by the Court.”

The Court had taken a similar approach previously in the case of Aghdgomelashvili and Japaridze v. Georgia, in which it ruled that a police raid on Georgia’s first ever LGBT organisation not only violated the applicants’ right to freedom from torture and inhuman or degrading treatment under Article 3 of the European Convention on Human Rights (ECHR) but also their right to protection from discrimination under Article 14.

In M.T.’s case, the Court found that ‘In flagrant disregard for the panoply of various protective measures that were directly available to them, the authorities failed to display special diligence to prevent gender-based violence against the applicant’s daughter, which culminated in her death’ and that this action constituted a systemic failure (57).

The Court also held that, in the light of the discriminatory overtones associated with violence against women, there was a pressing need to conduct a meaningful inquiry into the possibility that gender-based discrimination and bias had also been a motivating factor behind the alleged police inaction (60).

The Office of the Public Defender of Georgia intervened in the case to highlight the work it had done to protect women’s rights and combat discrimination, stating that violence against women was widespread in the country and persisted due to entrenched patriarchal attitudes and gender stereotypes.

The United  Nations  Committee  on  the  Elimination  of  Discrimination against Women expressed similar concerns to the Public Defender, while the UN Human Rights Committee added that violence against women remains underreported due to a ‘lack of due diligence on the part of  law  enforcement  officers’ alongside ‘insufficient  protection measures  for  victims’.

The ECtHR said that the police’s actions appeared ‘to be even more unforgivable’ in light of the Public Defender and international bodies’ statements.

Legal Analysis

This is a very progressive judgment by the Court. The case demonstrates many of the discriminatory failings typical of law enforcement authorities in domestic violence cases and this was recognised by the Court which, for the first time in a domestic violence case, embedded its consideration of discrimination into the right to life complaints – simultaneously examining Article 2 substantive (failure to protect) and procedural (failure to investigate) with Article 14 (discrimination).

This is a significant development in the Court’s jurisprudence, signalling an understanding that discrimination was central to the authorities’ failings. The Court also explicitly clarified the application of the Osman test, asserting ‘[w]here there is a lasting situation of domestic violence, there can hardly be any doubt about the immediacy of the danger posed to the victim’.

The judgment is robust in its criticism of ‘major failings’ by the authorities, including inaccurate and incomplete evidence gathering by police officers, which ‘can result in an underestimation of the level of violence actually committed, can have deleterious effects on the prospects of opening a criminal investigation and even discourage victims of domestic abuse, who are often already under pressure from society not to do so, from reporting an abusive family member to the authorities in the future’.

It further condemned the failure to conduct a lethality risk assessment, to consider significant trigger factors, the failure to resort to any protective measures and on the contrary, the misleading of the applicant and the victim of their procedural rights and downgrading the physical violence.

The Court also considered that the physical violence, the incessant (unspecific) death threats and a threat to blow her up with a grenade warranted opening criminal proceedings that could have justified putting L.M. in pre-trial detention and that it was ‘deplorable’ that the authorities did not do so. Compare this with Kurt v Austria [GC] in which the Court held that repeated death threats and physical violence against the victim and her children, marital rape and breach of a suspended sentence for similar offences did not warrant pre-trial detention.

Again in an apparent first for a domestic or gender-based violence case and constituting a finding under procedural Article 2 that comes close to an Article 46 measure, the Court noted that no steps had been taken to train police officers to respond properly to future allegations of domestic violence and held that there should have been an investigation into the gender-biased motivation behind the police inaction (60).

The post European Court of Human Rights judgment in Tkhelidze v Georgia appeared first on European Human Rights Advocacy Centre (EHRAC).

The Court also found that the authorities’ actions were driven by an ulterior purpose to punish Mustafayev and his NGO for their human rights work.

This is the 11^th judgment concerning 18 applicants – human rights defenders, activists, journalists, political opposition members and NGOs – against Azerbaijan where the Court found the Azerbaijani authorities restricted rights for ulterior purposes, in violation of Article 18 of the European Convention on Human Rights (ECHR).

These restrictions are part of a wider crackdown on civil society in Azerbaijan which began in 2014 and has seen a number of NGOs, human rights defenders and lawyers face criminal prosecution.

The Court ruled that this case cannot be viewed in isolation, referring to a pattern of arbitrary arrests and detention of government critics, civil society activists and human rights defenders through retaliatory prosecutions and the misuse of criminal law.

“This judgment is a significant testament to the Azerbaijani authorities’ wide use of tactics to retaliate against human rights defenders for their human rights activities, varying from arrests and detention to travel bans to freezing of bank accounts, effectively paralysing their work,” said Ramute Remezaite, Legal Consultant at the European Human Rights Advocacy Centre (EHRAC).

“The Court did not only refute the government’s allegations of the criminal or otherwise illegal nature of the applicants’ activities as ungrounded but also established the authorities acted with ulterior purpose to put an end to the applicants’ work.”

Mustafayev, a lawyer and member of the Azerbaijani Bar Association, specialised in human rights law, representing a number of applicants in cases before the ECtHR. He is also the founder and chairman of NGO the Democracy and Human Rights Resource Centre, which specialises in legal education and the protection of human rights.

On April 22, 2014, the Prosecutor General’s Office opened a criminal case against a group of NGOs over alleged irregularities in their financial activities, but did not specify which NGOs the proceedings were against.

The bank accounts of a number of NGOs and civil society activists were subsequently frozen, among them Mustafayev and the Democracy and Human Rights Resource Centre.

At the same time, the Azerbaijani authorities arrested several civil society activists and human rights defenders. Some of their arrests and pre-trial detentions have already been the subject of ECtHR judgments, including those of Rasul Jafarov, Anar Mammadli, Intigam Aliyev and Leyla and Arif Yunus, all of whom faced sanctions in retaliation for their human rights work, the Court ruled.

Following this initial crackdown, in July 2014, Mustafayev was invited to the Prosecutor General’s Office, where he was questioned about the activities of the Democracy and Human Rights Resource Centre. Over the next two years, he was questioned again about the NGO and his human rights work on several occasions.

Later the same year, upon arrival to Baku airport, Mustafayev learned that a travel ban had been imposed on him and he was no longer able to leave the country.

“This judgment is a significant testament to the Azerbaijani authorities’ wide use of tactics to retaliate against human rights defenders for their human rights activities.”

In 2014, in response to Azerbaijan’s crackdown on civil society, UN human rights experts called on the government to put an end to its persecution of human rights defenders.

“We are appalled by the increasing incidents of surveillance, interrogation, arrest, sentencing on the basis of trumped-up charges, assets-freezing and ban on travel of the activists in Azerbaijan,” they said. “The criminalisation of rights activists must stop.”

Meanwhile, after a visit to Azerbaijan in 2016, the UN Special Rapporteur on the situation of human rights defenders called on the government “to rethink [its] punitive approach to civil society”.

The Commissioner for Human Rights of the Council of Europe echoed these concerns following a visit to the country in 2019, observing “that dozens of journalists, lawyers, political activists and human rights defenders are banned from leaving the country, in circumstances which give rise to justifiable doubts about the lawfulness of such travel bans.”

Represented by EHRAC alongside two Azerbaijan-based lawyers, Mustafayev brought his case before the ECtHR, submitting that his and his NGO’s property rights and right to freedom of movement had been violated.

Firstly, he claimed that their property rights – protected under Article 1 of Protocol No. 1 of the ECHR – had been violated by the freezing of their bank accounts.

Finding no lawful basis to these restrictions, the ECtHR found Mustafayev’s and his NGO’s property rights had been violated by the state. The Court also found a violation to his right to an effective remedy under Article 13 of the ECHR due to the authorities’ failure to provide an avenue to contest the violation to his property rights, as he was never informed of the court hearing nor a court decision to freeze the bank accounts.

Mustafayev also submitted that the travel ban had violated his right to freedom of movement under Article 2 of Protocol No. 4 of the ECHR. The Court found that the implementation of the travel ban was not “in accordance with law”, and Mustafayev’s right to leave his country had been violated.

Finally, the Court established that the applicants’ bank accounts were frozen and a travel ban was imposed on Mustafayev due to the authorities acting with ulterior purpose to punish them for their human rights work and to prevent them from continuing those activities.

The Court indicated that in order to remedy the violations, the Azerbaijani authorities have to take measures aimed “at eliminating any impediment to the exercise of their activities’ and that they have to be feasible, timely, adequate and sufficient to ensure the maximum possible reparation for the violations”.

The post Lawyer’s rights violated during Azerbaijan’s crackdown on civil society appeared first on European Human Rights Advocacy Centre (EHRAC).