Abstract
On 8 July 2021, in Tkhelidze v. Georgia, the European Court of Human Rights (ECtHR) added to its growing body of jurisprudence on domestic abuse. This case is noteworthy as being the first decision of the ECtHR on this issue since the Grand Chamber issued its judgment in Kurt v. Austria, the only domestic abuse case to date which has been heard by the Grand Chamber. In its judgment, the Grand Chamber set out a number of general principles to be applied in such cases, and these principles were subsequently applied in Tkhelidze. The decision in Tkhelidze also highlighted that a procedural breach of article 2 can be established by a lack of an effective investigation into the failings of state authorities to respond sufficiently to domestic abuse.
1 Introduction
The European Court of Human Rights (ECtHR) has now built up a substantial body of case law on domestic abuse.1 It is now firmly established that failure on the part of state authorities to respond in a sufficiently effective manner to this issue may constitute breaches of articles 2,2 3,3 84 and 145 of the European Convention on Human Rights 1950 (echr). In Tkhelidze v. Georgia,6 the ECtHR has again added to its jurisprudence on domestic abuse. This case is of particular note as it is the first decision of the ECtHR on this issue since the Grand Chamber issued its judgment in Kurt v. Austria,7 the only domestic abuse case to date which has been heard by the Grand Chamber. In its judgment, the Grand Chamber set out a number of general principles to be applied in domestic abuse cases, and these principles were subsequently applied in Tkhelidze. Also, the judgment in Tkhelidze highlighted that a procedural violation of article 2 can be established by a lack of an effective investigation into the failings of state authorities to respond sufficiently to domestic abuse. This serves to emphasise the importance placed by the ECtHR on the need for state authorities to respond in an effective manner in cases involving domestic abuse.
2 The Facts of Tkhelidze v. Georgia
In August 2013, the applicant’s daughter, referred to in the judgment as M.T., moved into a flat with a man referred to in the judgment as L.M. The flat was also occupied by L.M.’s parents, and M.T.’s daughter who was then aged six. In April 2014, L.M.’s father called the police to the flat as L.M. was abusing M.T. L.M.’s parents told the police that their son suffered from pathological jealousy and became particularly aggressive while intoxicated. L.M.’s father also stated that his son’s violent behaviour and death threats against M.T. were frightening, and that he wanted the police to make L.M. leave the property. According to the police report, M.T. feared for her life and asked the police to take all measures necessary to prevent her partner from behaving in a similar way again. However, no criminal investigation was opened into the matter, and no restrictive measures were issued regarding L.M.
On 22 September 2014, M.T. contacted the police to say that L.M. had abused her, both physically and verbally. A police officer attended the scene and drew up a report stating that M.T. had been physically assaulted by her partner, in an act classified as criminal battery, and that she had consequently called an ambulance and received medical assistance. The report also stated that M.T. had been subjected to systematic verbal abuse and threats. The police officer questioned L.M., who admitted that he had made death threats against M.T. on multiple occasions. However, he told the officer that he would never harm or assault M.T. again. On the same date M.T. was interviewed by an investigator from the criminal police unit. After the interview, the investigator issued a report which reclassified the incident as a less serious ‘shove’. The police advised M.T. that it was not possible to arrest L.M. or for any other restrictive measure to be implemented, and again no investigation was opened.
M.T. then moved in with her mother (the applicant), whereupon L.M. began sending her messages in which he threatened to kill both M.T. and her young daughter. M.T. reported these threats to the police, and a police report stated that she asked the police to help her finally end the aggression. However a police officer advised M.T. that no restrictive measures could be imposed in respect of L.M. as his violent behaviour had not been witnessed by the police.
On 27 September 2014, M.T. filed a criminal complaint against L.M. in relation to further threats against both herself and her daughter. In particular, she reported that the previous evening L.M. had attempted to break into the flat which was occupied by the applicant, M.T., and M.T.’s daughter, and had threatened to kill them and to set fire to M.T.’s car. L.M. was subsequently interviewed by the police. According to the interview record, he stated that he wished to re-unite with M.T., and the police investigator then reclassified the reported death threats as verbal abuse. No criminal investigation was opened, however a formal warning was given to L.M. to refrain from engaging in any type of dispute with M.T.
On 28 September 2014, M.T. was accosted by L.M. on her way home. She managed to reach her flat safely, and immediately called the police. The police report stated that for the three previous days M.T. had been receiving text messages containing death threats from L.M., regarding which she had already lodged a complaint. A police officer informed M.T. that L.M. could not be arrested for making threats, in the absence of a physical assault.
Between late September and mid-October 2014 the applicant reported to the police on three occasions that L.M. had been stalking and threatening M.T. every day, and urged the police to provide protection. The applicant also reported that L.M. had once gone to her daughter’s workplace with a hand grenade which he had threatened to detonate. However the police took no action. On 15 October 2014, M.T. contacted the police, stating that L.M. had come to her workplace, and that she was extremely frightened of him. A police officer took a statement, however no further steps were taken, and the police officer reiterated that an aggressor had to be caught ‘red-handed’ before an arrest could be made or any other restrictive measures could be imposed.
On 16 October 2014, M.T. again contacted the police and reported that while she had been driving to her daughter’s school, she had been followed by L.M., who had attempted to stop her and had almost crashed into her car. Again no further action was taken by the police. On the same day, the applicant reported to the police that her life and that of M.T. had become unbearable as L.M. had been terrorising them daily. The applicant stated that M.T. had been carrying defence pepper spray and a taser at all times. The applicant pleaded for protection, however the police only drew up another report. According to the various police reports, neither M.T. nor the applicant were at any time advised of their procedural rights or the legislative and administrative measures of protection which were available to them under national law. On 17 October 2014, L.M. went to M.T.’s workplace with a gun, shot her dead and then committed suicide.
An investigation was opened into the homicide and unlawful possession of a firearm by L.M. However, the investigation was discontinued in December 2014 as the person liable for the crime was deceased. In April 2015, the applicant filed a criminal complaint with the district public prosecutor’s office, requesting that an investigation for negligence be opened against the police officers who had dealt with M.T.’s case. No reply was received, and so the applicant reiterated her complaint, further specifying that the inactivity of the police officers in question could amount to gender-based discrimination. The applicant lodged her complaint on at least four occasions between August and December 2015 for the attention of either the Chief Public Prosecutor’s Office, which was the authority competent to launch criminal inquiries against police officers, or the General Inspectorate of the Ministry of the Interior (mia), which was the unit in charge of disciplinary supervision of those working for the Ministry. The Chief Public Prosecutor’s Office did not reply to the applicant’s complaints, however the mia replied in January 2016, stating that it had no general jurisdiction to open an investigation into a crime allegedly committed by its officials without the consent of the Chief Public Prosecutor of Georgia. In September 2016, the applicant’s representative again contacted the Chief Public Prosecutor’s Office requesting that a criminal investigation be launched against the police officers in question, however no reply was received. In April 2017 the applicant enquired of the Chief Public Prosecutor’s Office as to whether it had received her complaints and the reasons for the lack of response. The Chief Prosecutor’s Office subsequently confirmed that it had received the complaints, but still did not provide any response to these.
3 The Decision of the European Court of Human Rights
The applicant argued before the ECtHR that the state had failed to fulfil its positive obligations to protect the right to life of M.T. under article 2 of the echr, and that the state had also violated the article 14 non-discrimination provision. She alleged that, despite being aware of the danger posed to M.T.’s life by L.M.’s violent behaviour, the police had failed to take the necessary preventive measures. The applicant complained that they had insufficiently and inaccurately gathered and recorded evidence when dealing with the allegations of domestic abuse, and also that the relevant authorities had failed to investigate the circumstances which had contributed to M.T.’s death and to hold all those involved criminally responsible.
Following consideration of the facts of the case, the ECtHR held that there had been a violation of article 2, in both its substantive and procedural aspects, taken in conjunction with article 14.
4 Applying the Principles from Kurt v. Austria
it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.11
In the Court’s earlier case law on domestic abuse, there had been some uncertainty as to how these principles, which were first established in Osman v. the United Kingdom,12 should be applied in the context of this issue. Essentially, domestic abuse is a scenario which differs very significantly from that which had been at issue in the Osman case itself. The facts of Osman involved a teacher who had wounded a student to whom he had developed an inappropriate attachment, and had killed the student’s father. Prior to this incident he had carried out attacks on the family’s property and threatened the deputy head teacher who had expressed concerns in relation to his behaviour. This scenario was substantially different from the context of domestic violence, which rarely consists of a single incident, but normally involves an on-going cycle of abuse. Thus even if the risk to life in such a case does not appear to be immediate, there is a substantial possibility that this could escalate at any point.
Realistically speaking, at the stage of an ‘immediate risk’ to the victim it is often too late for the State to intervene. In addition, the recurrence and escalation inherent in most cases of domestic violence makes it somehow artificial, even deleterious, to require an immediacy of the risk. Even though the risk might not be imminent, it is already a serious risk when it is present.14
A ‘real and immediate risk’ in the context of domestic violence infers that the risk, namely the batterer, is already in the direct vicinity of the victim and about to strike the first blow. Were the test to be applied in such a manner, two concerns arise. Firstly, any protective action offered by the State would be too late and secondly, the State would have a legitimate excuse for not acting in a timely manner, since it is implausible to assume that the victim will be constantly accompanied by a State agent who may jump in to help. Hence, the ‘immediacy’ of the Osman test does not serve well in the context of domestic violence.16
It is widely recognised that domestic violence often constitutes not just an isolated incident, but rather a continuous practice of intimidation and abuse. Therefore the State authorities should react, with due diligence, to each and every act of domestic violence and take all necessary measures to make sure that such acts do not lead to more serious consequences. It follows that the duty to prevent and protect comes into play when the risk to life is present, even if it is not imminent. In other words, in a domestic violence case, the positive obligation to protect life can be violated even where the risk to life is not immediate.18
However, clarification on how the Osman test should be applied in cases involving domestic abuse was provided by the Grand Chamber in Kurt v. Austria. In this respect, the Grand Chamber asserted that, ‘The existence of a real and immediate risk to life … must be assessed taking due account of the particular context of domestic violence’, and then proceeded to set out ‘what it means to take into account the specific context and dynamics of domestic violence under the Osman test’.19 The Grand Chamber stated that ‘an immediate response to allegations of domestic violence is required from the authorities’,20 and that ‘special diligence is required from the authorities when dealing with cases of domestic violence’.21 The judgment asserted that ‘in order to be in a position to know whether there is a real and immediate risk to the life of a victim of domestic violence … the authorities are under a duty to carry out a lethality risk assessment which is autonomous, proactive and comprehensive.’22 In relation to the interpretation of the term ‘immediate’ in the Osman test, the Grand Chamber commented that ‘the application of the immediacy standard in this context should take into account the specific features of domestic violence cases, and the ways in which they differ from incident-based situations’ such as that which was at issue in the Osman case itself.23 In particular, ‘consecutive cycles of domestic violence, often with an increase in frequency, intensity and danger over time, are frequently observed patterns in that context’.24
However, although the Grand Chamber seemed to be in unanimous agreement as regards the general principles which should be applied in domestic abuse cases, it is notable that the Court was divided on the question of how these principles should be applied to the facts of the case in question. Whilst the majority of the Grand Chamber held that there had been no breach of article 2, seven of the 17 judges disagreed with this finding and issued a joint dissenting opinion in which they stated that, ‘The judgment … risks being seen as not taking sufficiently seriously the general principles laid out regarding risk assessment in cases of domestic violence.’25 Therefore, whilst the articulation by the Grand Chamber in Kurt v Austria of the general principles to be applied in cases involving domestic abuse was certainly welcome, the fact that there was such a sharp disagreement as to the application of these principles to the facts of the case itself meant that a measure of uncertainty still persisted. How the ECtHR would apply the principles set out by the Grand Chamber in subsequent cases was therefore a matter of considerable interest, and the fact that Tkhelidze v. Georgia is the first case to address the issue of domestic abuse since the Grand Chamber’s judgment in itself serves to make this case of particular note.
In its judgment in Tkhelidze, the ECtHR, citing the judgment of the Grand Chamber in Kurt, stated that, ‘Whenever there are any doubts about the occurrence of domestic violence or violence against women, an immediate response and further special diligence is required of the authorities to deal with the specific nature of the violence in the course of the domestic proceedings’.26 The ECtHR commented that it was satisfied that there existed in Georgia an adequate legislative and administrative framework designed to combat domestic abuse. However, the manner in which this framework had been implemented by the law- enforcement authorities raised ‘serious concerns’.27 Citing the Grand Chamber’s judgment in Kurt, the Court identified three questions to be addressed in assessing this matter – ‘whether a real and immediate danger emanating from an identifiable individual existed, whether the domestic authorities knew or ought to have known of the threat, and, should the above two questions be answered in the affirmative, whether the authorities displayed special diligence in their response to the threat’.28
In relation to the first two of these questions, the ECtHR noted that within a period of around six months, M.T. and the applicant had requested assistance from the police at least 11 times. On each of these occasions, they had clearly explained the level of violence involved in L.M.’s conduct. L.M. himself had admitted that he had been threatening to kill M.T., and his parents had confirmed to the police the dangerousness of their son’s behaviour. In addition, the police knew that L.M. suffered from pathological jealousy, and that M.T. experienced extreme fear at seeing L.M. approaching either her home or her workplace. The ECtHR stated that, ‘Where there is a lasting situation of domestic violence, there can hardly be any doubt about the immediacy of the danger posed to the victim’,29 and concluded that the police knew or ought to have known of the real and immediate threat to M.T.’s safety.
shortcomings in the gathering of evidence in response to a reported incident of domestic violence 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.30
Citing the Grand Chamber’s judgment in Kurt, the Court stated that, ‘It is also significant in this connection that, when recording the incidents, the police officers do not appear to have conducted a “lethality risk assessment” in an autonomous, proactive and comprehensive manner’.31 The police did not attach sufficient importance to potential trigger factors, such as L.M.’s pathological jealousy further fuelled by the fact that he and M.T. had separated, and failed to take into account M.T.’s extreme fear. In addition, although the domestic legislative framework provided for the issuing of protective and restraining orders and for the possibility of isolating the abuser in a special rehabilitation centre, the police did not consider such options. Likewise, the police failed to advise M.T. of her procedural rights and of the various legislative and administrative measures of protection which were available. Indeed, it seemed that M.T. was misled by the police referring to their inability to arrest the abuser or to apply any other restrictive measures. The Court was of the view that there was, in fact, plenty of evidence which would have warranted the institution of criminal proceedings against L.M., thus opening up the possibility of pre-trial detention. According to the ECtHR, it was ‘deplorable that the law-enforcement authorities did not do so.’32
The Court proceeded to comment that ‘the inactivity of the domestic law-enforcement authorities, in particular the police, appears to be even more unforgivable when assessed against the fact that, in general, violence against women, including domestic violence, has been reported to be a major systemic problem affecting society in the country at the material time.’33 The authorities responsible therefore ‘knew or should have known of the gravity of the situation affecting many women in the country and should have thus shown particular diligence and provided heightened State protection to vulnerable members of that group’.34 The ECtHR therefore concluded that ‘the general and discriminatory passivity of the law-enforcement authorities in the face of allegations of domestic violence, of which the present case is a perfect illustration, created a climate conducive to a further proliferation of violence committed against women’.35
the law-enforcement authorities demonstrated a persistent failure to take steps that could have had a real prospect of altering the tragic outcome or mitigating the harm. 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.36
It was therefore held that the state had violated its substantive positive obligations under Article 2 read in conjunction with Article 14.
It can be seen therefore that the ECtHR in Tkhelidze certainly made use of the principles which had been laid out by the Grand Chamber in Kurt, particularly in terms of the need for ‘special diligence’ in responding to cases of domestic abuse and the necessity for a lethality risk assessment to be carried out in an autonomous, proactive and comprehensive manner. However, it is worth noting that the facts of Thhelidze demonstrated particularly major failings, which were described by the ECtHR as ‘deplorable’37 and ‘unforgivable’.38 Even if the Osman test had been applied in the traditional manner in this case, a violation would doubtless still have been found. The potential impact of the Grand Chamber’s judgment in Kurt may therefore be seen more fully when a domestic abuse case involving less extreme failings comes before the ECtHR.
5 The Duty to Conduct an Effective Investigation
in the light of the relevant circumstances of the case, namely the existence of discriminatory overtones associated with violence committed 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.40
There had thus also been a violation of the procedural positive obligations under article 2 read in conjunction with article 14.
In Durmaz v Turkey,41 a 2014 decision of the ECtHR, it was held that the state had breached its procedural positive obligations under article 2 by failing to carry out an effective investigation into the death of the applicant’s daughter who had been a victim of domestic violence However, it is notable that the decision in Tkhelidze expands the jurisprudence of the ECtHR on the issue of domestic abuse by highlighting that a procedural breach of article 2 can also be established by a lack of an effective investigation into specifically the failings of the state authorities themselves. This serves to emphasise the value placed by the Court on the need for state authorities to respond in an effective manner in cases involving domestic abuse.
6 Conclusions
In conclusion, it is notable that in its judgment, the ECtHR made reference to the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence 2011 (the Istanbul Convention), Recommendation 2002(5) of the Committee of Ministers of the Council of Europe, Concluding Observations of the UN Committee on the Elimination of Discrimination against Women (cedaw Committee) and of the UN Human Rights Committee on periodic reports submitted by Georgia, and a report on Georgia by the UN Special Rapporteur on violence against women, its causes and consequences. The willingness on the part of the ECtHR to make use of such material to inform its judgments is certainly meritorious. Also, as discussed above, the decision in Tkhelidze serves to highlight that a lack of an effective investigation into the failings of the state authorities in a domestic abuse case may constitute a violation of the state’s procedural positive obligations under article 2. In addition, the case is noteworthy for being the first case on domestic abuse to be considered by the ECtHR following the judgment of the Grand Chamber in Kurt. Although the potential impact of the Grand Chamber’s judgment may be seen more fully when a case involving lesser failings is considered by the ECtHR, use of the principles set out by the Grand Chamber can nevertheless be observed in Tkhelidze. Overall, Tkhelidze is certainly a strong judgment which constitutes a valuable addition to the Court’s jurisprudence on the issue of domestic abuse.
See for example, Bevacqua and S. v. Bulgaria [2008] echr 498; Opuz v. Turkey (2010) 50 ehrr 28; E.S. and Others v. Slovakia, [2009] echr 1282; A v. Croatia [2010] echr 1506; Hajduova v. Slovakia [2010] echr 1908; Kalucza v. Hungary [2012] echr 756; Valiuliene v. Lithuania [2013] echr 240; Eremia and Others v. Republic of Moldova (2014) 58 ehrr 2; Talpis v. Italy [2017] echr 224; Volodina v. Russia [2019] echr 539. For an overview of the jurisprudence of the ECtHR on domestic violence, see R McQuigg, The Istanbul Convention, Domestic Violence and Human Rights (Routledge, Abingdon, 2017) 60–67.
Article 2(1) states that, ‘Everyone’s right to life shall be protected by law.’
Article 3 states that, ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’
Article 8(1) states that, ‘Everyone has the right to respect for his private and family life, his home and his correspondence.’
The relevant part of Article 14 states that, ‘The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex …’.
[2021] echr 614.
[2021] echr 508 (Grand Chamber judgment). For discussion of Kurt v. Austria, see R McQuigg, ‘Kurt v Austria: Applying the Osman Test to Cases of Domestic Violence’ (2020) European Human Rights Law Review 394–405 and R McQuigg, ‘Kurt v Austria: Domestic Violence Before the Grand Chamber of the European Court of Human Rights’ (2021) European Human Rights Law Review 550–557.
Tkhelidze v. Georgia, supra (n 6) at para. 48.
Ibid.
Ibid.
Ibid.
[1998] echr 101.
See (n 1). For detailed discussion of this case, see RJA McQuigg, ‘The European Court of Human Rights and Domestic Violence: Valiuliene v Lithuania’ (2014) 18 International Journal of Human Rights 756–773.
Valiuliene v. Lithuania, (n 1), Concurring Opinion of Judge Pinto De Albuquerque at para. 31.
See (n 1). For detailed discussion of this case, see RJA McQuigg, ‘The European Court of Human Rights and Domestic Violence: Volodina v. Russia’ (2021) 10 International Human Rights Law Review 155–167.
Volodina v. Russia, supra n 1, Separate Opinion of Judge Pinto De Albuquerque, joined by Judge Dedov at para. 12.
[2019] echr 527 (Chamber judgment), Concurring Opinion of Judge Huseynov at para. 3.
Ibid. Concurring Opinion of Judge Huseynov at para. 4.
Kurt v. Austria (Grand Chamber judgment), (n 7) at para. 164.
Ibid. at para. 165.
Ibid. at para. 166.
Ibid. at para. 168.
Ibid. at para. 175.
Ibid.
Ibid. Joint Dissenting Opinion of Judges Turković, Lemmens, Harutyunyan, Elósegui, Felici, Pavli and Yüksel at para. 41.
Tkhelidze v. Georgia, (n 6) at para. 48.
Ibid. at para. 52.
Ibid. at para. 52.
Ibid. at para. 53.
Ibid. at para. 54.
Ibid.
Ibid. at para. 55.
Ibid. at para. 56.
Ibid.
Ibid.
Ibid. at para. 57.
Ibid. at para. 55.
Ibid. at para. 56.
Ibid. at para. 60.
Ibid. at para. 60.
[2014] echr 1213.