HATE CRIMES

GEORGIAN LEGISLATION
Giorgi Mikava
OSCE member states have 2 types of hate crime laws
Substantive Hate
Crime Laws
Bias motive is an integral part of
criminal provision
Penalty Enhancement
Law
General penalty
Bias motive is Aggravating
enhancement applies to
circumstance of criminal
all crimes, when it
offence
includes bias motives
Georgian Legislation – hate crimes law

Applies Both

Substantive Hate Crime

Penalty Enhancement Law
Laws
 CRIMINAL CODE OF GEORGIA
AND HATE CRIME
I GROUP – hatred is the inherent element of corpus delicty:

 (Article 155) Unlawful interference with the performance of divine service - Unlawful interference with the performance of divine service
or other religious rites or customs using violence or threat of violence, or if accompanied by an insult to a believer's religious feelings,

 (Article 156) Persecution - persecution of persons because of their speech, opinion, conscience, confession, faith or creed, or political, social,
professional, religious or scientific activities

 (Article 142 ) Violation of human equality - on the grounds of language, sex, age, nationality, origin, birthplace, place of residence, material
or rank status, religion or belief, social belonging, profession, marital status, health status, sexual orientation, gender identity and expression,
political or other views or of any other signs that have substantially breached human rights

 (Article 142-1) Racial discrimination - i.e. an act committed to incite national or racial rivalry or discord in order to degrade national honor
and dignity, as well as direct or indirect restriction of human rights or giving advantage to the person based on race, colour, national or
ethnic belonging, which has substantially breached his/her right, s
 CRIMINAL CODE OF GEORGIA
AND HATE CRIME

II GROUP – hatred is the aggravating circumstances of the

criminal act:

• Murder under aggravating circumstances (article 109) - due to racial, religious, national or ethnic
intolerance
• Intentional infliction of grave injury (article 117) - due to racial, religious, national or ethnic
intolerance
• Intentional less grave bodily injury (118)- due to racial, religious, national or ethnic intolerance
• Violence (article 126) - due to racial, religious, national or ethnic intolerance
• Torture(Article 144-1) - by violating the equality of persons, or due to their race, colour, language,
sex, religion, belief, political or other views, national, ethnic, social belonging, origin, place of
residence, material status or title;
 CRIMINAL CODE OF GEORGIA
AND HATE CRIME

III GROUP – General penalty enhancement applies to all crimes in

the penal code

Article 53’’’ - Principles of Sentencing

Commission of a crime on the grounds of race, colour, language, sex, sexual

orientation, gender identity, age, religion, political or other beliefs, disability,
citizenship, national, ethnic or social origin, material status or rank, place of
residence or other discriminatory grounds shall constitute an aggravating
circumstance for all the relevant crimes provided for by this Code
 CONSTITUTION OF GEROGIA - ARTICLE 14

 Everyone is born free and is equal before the law,

regardless of race, skin colour, language, sex, religion,
political and other beliefs, national, ethnic and social
origin, property and title of nobility or place of
residence.
 It does not cover Sexual Orientation and Gender

Identity but …
 CONSTITUTIONAL COURT OF GEORGIA – JUDGMENT 2014

 CONSTITUTIONALITY OF THE WORD “HOMOSEXUALITY” IN ARTICLE 24 OF APPENDIX

NO.1 “ON REGULATION OF MEDICAL CHECK-UP OF DONORS OF BLOOD, PLASMA
AND BLOOD CELLS”, WHICH PROHIBITS FOR HOMOSEXUALS TO BE THE DONOR
PERSON DUE TO HIS BELONGING TO HIGH RISK GROUPS.

Protected characteristic –
Sexual Orientation
 DECISION OF CONSTITUTIONAL COURT OF GEORGIA

Court proved the constitutional complaint and found that arguable

provision is not compatible with the article 14 of the Constitution of
Georgia
 LAW – ON THE ELIMINATION OF ALL FORMS OF
DISCRIMINATION

 THE LAW WAS ADOPTED ON 2 MAY 2014

 Purpose of the law is to eliminate every form of discrimination and to

ensure equal rights of every natural and legal persons under the
legislation of Georgia, irrespective of race, skin colour, language, sex,
age, citizenship, origin, place of birth or residence, property or social
status, religion or belief, national, ethnic or social origin, profession,
marital status, health, disability, sexual orientation, gender identity and
expression, political or other opinions, or other characteristics.

 Public Defender of Georgia is responsible for monitoring issues regarding

elimination of discrimination and ensuring equality .
 Compatibility with International Standards

COUNCIL OF EUROPE - OSCE – 2009 Ministerial EU – Framework Decision on

ECHR Council Decision on Combating Combating Racism and
Hate Crimes Xenophobia (28.11.2008)

ensure
ensure that
that racist
racist and
and xenophobic
xenophobic
Criminal
Criminal justice
justice system
system Obligation
Obligation to
to conduct
conduct Prompt
Prompt
Legislation
Legislation and
and motivation
motivation is
is considered
considered an
an
to
to identify, recognize
identify, recognize prompt
prompt and effective
and effective Collect
Collect Investigation
Investigation
professional
professional aggravating
aggravating circumstance, or such
circumstance, or such
and
and appropriately
appropriately punish
punish investigations
investigations into
into Database
Database and
and motives
motives
trainings
trainings motivation
motivation considered by the courts in
considered by the courts in
racist-motivated
racist-motivated crime
crime violence
violence crimes
crimes condemned
condemned the
the determination
determination of of the
the penalties
penalties
 Problems – Dispersal of LGBT Demostration!
ECHR
IDENTOBA AND OTHERS V. GEORGIA 2012

Bias Motivation – Sexual

Orientation and Gender
Identity

The case concerned a peaceful demonstration in Tbilisi in May 2012 to mark the International
Day against Homophobia, which was violently disrupted by counter-demonstrators
outnumbering the marchers.
Instead of attackers – police arrests peaceful
demonstrator
 Decision of the Court

violation of Article 3 (prohibition of inhuman or degrading treatment)

taken in conjunction with Article 14 (prohibition of discrimination)

Physical injury, Authorities had failed

Discriminatory serious threats and Failed to conduct a
to provide adequate
overtone was clear fear proper investigation
protection
 Decision of the Court

 violation of Article 11 (freedom of assembly and association) in

conjunction with Article 14.

Failed to ensure
Undisputable Negative Authorities had not
applicants participation
attitudes towards used period for in march from bias
sexual minorities careful preparation motive violence
And now in 2017 – Peaceful Demonstration
Prosecutorial Guideline of Chief Prosecutor’s
Office of Georgia

 Elaborated by Human Rights Protection Unit of POG

 Revised by CoE consultant – Paul Giannasi

 Dissaminated among employees of POG in January, 2016

Structure of Guideline
 Definitions of terms such as “Lesbian”, “Gay”, “Bisexual”,
“Transgender”, “Sex”, “Gender”, “Gender identity”

 Legal Qualification of Hate Crime

 provides rules for indicating the hate motive in criminal case

files
Structure of Guideline
 Investigation Process and Collection of Evidence

 Indicators that independently or in conjunction with other

facts constitute the basis for hate crime.

 Examples: individual characteristics, function of property,

links to organized hate groups, gestures, statements, time, no
other motive
Bias indicators
Investigation Process and Collection of Evidence

 possible evidence types that may approve existence of bias

motivation motivation
Evidentiary information Source
 Statements during incident victim, witness
 Statements before incident victim, witness
 Statements after incident victim, witness, search of

 Links to organized hate groups

Collection of Hate Crime Statistics
 

 After identification of bias motivation in criminal proceedings

the information with the use of special form is sent to the
Human Rights Protection Unit via e-mail
Statistical Data – Homophobic/Trasphobic
crimes
 Number of indictments where bias motivation according to
Article 53 § 3’ is emphasized

10

6
sexual orientation
4
gender identity
2

0
2016 2017
Statistical Data – Religious Crimes
 Number of prosecutions on crimes committed with religious
intolerance
number of prosecutions
20

15

10

0
Challenges
 Lack of evidence (mainly no witnesses are found, only victim
proves bias motivation)

 Victim refusal on cooperation

 Ineffective tool of collection statistical data

 No special provision in Criminal Code which should be used

by prosecutors in the process of determination legal
qualification
Recent developments/positive aspects
 Guideline (from 2016)

 Memorandum of Understanding with OSCE ODIHR

 Trainings (including with the use of CoE HELP Platform)

 exchange of experience with prosecutors and investigators

from UK

 Analysis of hate crime cases (in process)

Thank you for your attention!