The criminal offense of domestic violence became punishable under the Criminal Code of Georgia in 2012. It consists of one family member violating the constitutional rights and freedoms of another family member through neglect and/or physical, psychological, economic, or sexual violence or coercion.
Before 2012, domestic violence was not identified as a separate criminal offense in the Criminal Code and was punished as an ordinary offense. Since 2012, the commission of any other offense against a family member has constituted an aggravating circumstance for legal classification and has been subject to a more severe punishment.
Family members include: a mother, father, grandfather, grandmother, spouse, a person in an unregistered marriage, a child, including a stepchild, a foster child, a foster parent, a stepmother, a stepfather, a grandchild, a sister, a brother, a spouse’s parent, the parent of a person in an unregistered marriage, a child’s spouse, including a spouse in an unregistered marriage, a former spouse, a former partner in an unregistered marriage, a guardian, a custodian, a supporter, a person under guardianship, custody, or support, a support recipient, and persons who permanently maintain or previously maintained a joint household.
Since the concept of domestic violence offenses was introduced into Georgian legislation, investigative authorities may be said to have pursued a punitive policy with excessive and disproportionate attention to this category of cases. This has created a threat to the right to a fair trial and the proper administration of justice. In some cases, law enforcement has taken a distorted form, and the evidentiary standard required for a conviction has lost its proper significance. The large number of convictions in domestic violence cases in Georgia is evidence of this problem.
Domestic violence, and violence of any kind, should of course not remain unpunished. However, the standard required for a conviction must not be sacrificed to the state’s strict policy. In practice, there are quite frequent cases in which a person accused of a domestic violence offense is convicted for alleged acts of violence said to have occurred several years earlier, solely on the basis of the victim’s testimony. In some cases, a conviction is entered even though the victim has not testified in court.
According to the factual circumstances of one domestic violence case, R.M. had maintained a joint household with L.B. since 2002. On 5 April 2018, R.M. pulled L.B.’s hair and threw her out of the house. L.B. refused to testify in court.
The court convicted R.M. on the basis of the testimony of a district inspector-investigator and two patrol police officers, despite the fact that none of them had witnessed the alleged act of violence committed by R.M. and the information they provided to the court constituted indirect testimony.
This occurred despite the mandatory requirement of Article 31(7) of the Constitution of Georgia, under which a conviction must be based only on reliable evidence, while any doubt that cannot be confirmed in accordance with the law must be resolved in favor of the accused or convicted person.
The Constitutional Court of Georgia and the European Court of Human Rights have also repeatedly held that a person may not be convicted on the basis of such evidence.
As for what the state should do to reduce offenses in this category, this is a very difficult and extensive issue. At the same time, it is clear that the existing approach is not producing the desired result.
I believe that we should look to the example of developed countries that began addressing this problem much earlier than Georgia and have already achieved certain positive results. In my view, one of the main causes of offenses in this category, as well as of many other offenses, is the low level of legal culture among a large part of society. This is expressed in a lack of knowledge of and respect for the rights and freedoms of others.
The state has substantial work to carry out in this particular direction.
A person accused of a domestic violence offense is not provided by the state with a right to mandatory defense. In many cases, such persons do not consider it necessary to obtain legal assistance, are unable to obtain it, or treat the charge lightly and do not seek qualified legal assistance.
This leads to irreversible consequences, violates the right to a defense, prevents the person from mounting an adequate defense, and results in unjustified convictions.
The information provided by the victim to the investigative authority is not always verified. In some cases, the appropriate expert examination is not conducted. Unconditionally accepting the victim’s testimony violates the state’s duty to ensure a comprehensive, objective, and proper investigation of the criminal case.
The fight against domestic violence is welcome, but the proper protection of the accused person’s rights and the administration of fair justice remain serious challenges in this process. This is only a brief list of the problems accompanying the examination of cases in this category.