The Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic violence (hereinafter the Istanbul Convention) is the first regional tool, which allows both member and non-member countries of the Council of Europe to join and establish effective mechanisms of combating violence against women and domestic violence.
The specificity of crimes - violence against women and domestic violence lies in the fact that its main cause and result is the historically unequal distribution of power between men and women. Violence is a social mechanism used in a patriarchal society, which puts women in a subordinate position in relation to men. Violence against women is based on the idea of their secondary role and inferiority in society.
In 2017, Georgia ratified the Istanbul Convention and developed an accompanying legislative package. This important news, as a rule, should have been a turning point in court practice as well, but it did not happen. Along with the positive changes, there is a number of tangible problems and challenges in practice.
The article analyzes the justification of judgments on criminal cases published in the 2020 unified base of court decisions by the Kutaisi City Court. A total of 39 judgments were studied, among them: 7 decisions by judge Nikoloz Margvelashvili, 21 decisions by judge Tatia Gogolauri and 11 decisions by judge Nana Jokhadze.
“Fate” of the offender depending on the testimony of the victim
The Istanbul Convention (Article 55) states:
“Parties shall ensure that investigations into or prosecution of offenses shall not be wholly dependant upon a report or complaint filed by a victim
if the offense was committed in whole or in part on its territory and that the proceedings may continue even if the victim withdraws her or his statement or complaint
According to the Criminal Procedure Law of Georgia, “A victim shall be assigned all rights and obligations of a witness”, among them, their testimony is considered evidence if it meets the criteria for admissibility. they have the right not to give evidence that implicates them or their close relative in committing a crime.
As a result of the analysis of Kutaisi city court decisions, it was revealed that if the victim does not testify against the accused at the stage of case consideration in the court, the court issues an acquittal decision. The judge, as a rule, does not take into account the whistleblowing testimony given by the victim at the stage of the investigation.
Judges ignore the specific nature of domestic crime: The victim and the accused have a joint household/cohabitation or had one in the past, and the victim has a social and emotional connection with the perpetrator; often they have common children or are family members; in addition, in many cases, the victim does not have economic independence and fearing that their child(ren) will be left without a breadwinner, tries to avoid prosecution of the abuser; the victim does not feel safe and is vulnerable towards the perpetrator. Due to these factors, it is very common when the victim, who called the law enforcement officers for help, refuses to give evidence confirming the accusation during the court hearing.
Kutaisi City Court usually bases its decision on the testimony of the victim and justifies this approach with the Supreme Court practice.
The trend, seen as a result of the analysis of the justifications of Kutaisi City Court fundamentally contradicts the above-mentioned standard and spirit of the Istanbul Convention.
We met an exceptional case as well, when Kutaisi City Court relied on the interview of the victim as part of the evidence, however, this did not happen because the court took the interest of a victim into consideration, as obliged by the Istanbul Convention. In this case, the accused pleaded guilty and the judge issued a guilty verdict.
“The accused repents the crime”
The Istanbul Convention (paragraph 2 of Article 49) reinforces this obligation and requires states to effectively investigate and prosecute crimes defined by this Convention through the court. This implies establishing relevant facts, interviewing all available witnesses, forensic examinations using multidisciplinary approaches, and managing criminal proceedings using modern investigative methods for the purpose of a complete analysis of the case.
In the court decisions we examined, there are frequent cases when the perpetrator’s repentance of the crime is considered a mitigating circumstance and, taking it into account, is given a suspended sentence or community service.
Even more, in one of the cases, evidence of such an essential nature as the medical report of the court was completely ignored:
“The case also includes medical examination conclusion No. ---, according to which – based on presented medical documentation (copy of the ambulance call card N327): in regards to the received injury, citizen M--- G--- was provided emergency medical assistance on 25.10.2018 and was diagnosed: with an open head injury. Personal examination of citizen M--- G---’s body conducted on 25.10.2018 at 20:16-20:25 showed an external injury in the form of an irregular cut (see description and exact localization on the personal examination data). As the result of the aforementioned, the injury had been developed as a result of the impact of some dense-blunt object and belongs to the light degree of body injuries, not affecting health.”
Since the accused did not plead guilty and the victim changed her testimony in his favor at the trial, the judge issued an acquittal verdict despite the medical report confirming body injury.
Such practice is not compatible with the fundamental principles of a comprehensive investigation of the fact of violence against women and criminal prosecution of the perpetrator, which the Istanbul Convention obliges the state to fulfill.
“Sanction with proportionate and dissuasive effect”
According to the Istanbul Convention (Article 45) “Parties shall take the necessary legislative or other measures to ensure that the offenses established in accordance with this Convention are punishable by effective, proportionate and dissuasive sanctions, taking into account their seriousness. These sanctions shall include, where appropriate, sentences involving the deprivation of liberty...
The examined sentences show that judges generally give probation or hours of community service to those convicted of domestic violence. Such a response from the judiciary to violence deepens the victim’s feeling of helplessness and fear that the abuser will again apply physical or psychological pressure on them.
According to the motivational part of the court decisions, an aggravating circumstance is used in case of domestic crime in the sentencing part in accordance with Article 531 of the Criminal Code. The first part of the mentioned legal norm, among other grounds, concerns the aggravation of responsibility for the crime committed on the grounds of
gender intolerance. According to the second part, Commission of crime by one family member against another family member, against a helpless person, a minor or in his/her presence, with extreme cruelty, with the use of a weapon or under the threat of using a weapon, by abusing the official position shall be an aggravating factor for liability for all respective crimes.
The principle of this provision is as follows: When imposing a fixed term imprisonment for a crime committed with an aggravating factor under paragraph 1 or 2 of this article, the term of a sentence to be served shall exceed, at least by one year, the minimum term of sentence provided for the committed crime under the respective article or part of an article of this Code.Although the court usually discusses the circumstances provided for in Article 531 of the Criminal Code as an aggravating circumstance for the punishment in the motivational part of the judgment, often it is not mentioned in the resolution.
There are cases where the court uses imprisonment as a form of punishment, however, these are mainly the cases where the convict was given a conditional sentence and reoffended - domestic violence.
Observing such cases gives us the basis for an additional conclusion: using lenient sentences, such as probation or community service, increases the risk of reoffending against the victim.
In one of the exceptional decisions, Kutaisi City Court used imprisonment as a sentence. However, the Court of Appeals changed it with a more lenient measure, which is a kind of indication for the lower instance courts in choosing the way of punishment.
According to the statistics
of the Supreme Court, the trend revealed in Kutaisi City Court decisions regarding the use of lenient measures of punishment reflects the overall picture of the Common Courts. During 2020, in the Common Courts, the first instance courts had 225 acquittal verdicts out of a total of 1491 cases, 379 were sentenced to imprisonment, 706 – were conditional sentences, 196 were community service, and 2 - were fines.
Justification of Decisions on Gender-based Offences
The Istanbul Convention
recognizes the gendered nature of violence against women. “Gender-based violence against women” refers to “violence that is directed against a woman because she is a woman or that disproportionately affects women.” Unfortunately, studying Kutaisi City Court decisions revealed that the court does not consider the gendered nature of violence against women, as required by the Istanbul Convention.
As we read in some motivational parts of the verdict, “the implementation of the laws adopted to combat domestic violence is hindered by the existing attitude in the society and deep-rooted patriarchal attitudes and gender stereotypes, leading to a tolerant attitude towards gender-based violence, while domestic violence is considered a very personal and not a public issue in most parts of the country.”
A judge then cites the 2015 decision of the Committee on the Elimination of Discrimination against Women in X and Y v. Georgia, and the case of the European Court of Justice OPUZ V. TURKEY, in the part of the performance of the positive obligation by the state.
Finally, the judge makes the following decision:
“The court believes to determine a fine and community service for K---L---. Regarding the amount of the fine, the court takes into account the nature of the offense committed by the accused, the personality of the accused, and his economic situation, and considering all these, A fine of 5000 (five thousand) GEL is imposed towards K--- L--- as an adequate and proportionate measure, which, on the one hand, will be thought-provoking for him to better understand the nature of the committed action, degree of reprehensibility, to get a sense of law and order and responsibility towards the law, but on the other hand, determination of the above-mentioned fine and community service as a punishment for the accused by the court fulfills the goals of the punishment – the restoration of justice, preventing new offense and resocialization of the offender.”
Although the judge mentioned the principle of applying an adequate measure in the case of domestic violence, as well as several international decisions, he still made a decision taking into account the condition of the accused and did not focus on the presence/absence of gender-based offense signs at all. In addition, it is unclear, how the monetary fine will make an offender think about the “reprehensibility” of his behavior. The risk of reoffending is not assessed in the verdict either.
Model use of European Court Decisions
In the decisions of Kutaisi City Court, we find quotes from the decisions of the European Court of Human Rights, mainly on the infallibility of evidence, relevance, and standards beyond a reasonable doubt. There is no development of justification against gender-based violence based on European standards.
None of the cases show that the application of the case law of the European Court has influenced the final outcome of the case or the resolution of a particular legal issue. A review of the court decisions made it obvious that court resolutions on the cases of domestic violence do not reflect the spirit of the Istanbul Convention and do not correspond its main point – “protect women from any kind of violence and prevent, criminally prosecute and eliminate violence against women and domestic violence.” In order for the benefits of the Istanbul Convention to become tangible for women in Georgia, Georgian judicial practice should also develop in its footsteps.---Georgian Court Watch Project: "Active Citizen Involvement for a Better Judicial System"The article was prepared with funding from the European Foundation, within the framework of a grant from the Danish International Development Agency. The author is responsible for its content. The article does not reflect the official positions of the European Foundation and the Danish International Development Agency.