Georgian Muslim Relations and Others v. Georgia – A bleeding pig’s head and other expressions of religious hatred with no police intervention

by dr. Cathérine Van de Graaf¹

On 30 November, the Fifth Division of the European Court of Human Rights ruled in the case of Georgian Muslim Relations and Others v. Georgia. The Court ruled that Georgia had violated its positive obligations under Articles 8 and 9 of the Convention in conjunction with Article 14 as the applicants were not afforded the required protection against overtly religiously biased acts of violence. In addition, the Court found a violation of Article 1 of Protocol No. 1 since, on the one hand, the applicants were denied access to their building due to unlawful acts of private individuals and to the failure of the authorities to take adequate measures against them, and, on the other hand, since their use of the building was impeded by the failure to connect the school building to the sewerage system. This last element will not be tackled in the blogpost.

The Facts of the Case

The application was submitted by a non-profit organisation whose main objective is to promote support for religious education and provide free education to socially vulnerable children, along with seven Georgian nationals belonging to the Muslim minority. In August 2014, the ‘Georgian Muslim Relations’ organisation obtained the right to use a piece of land under a lease agreement and decided to open a boarding school for Muslim children at that location. Already in June of that same year (when they had learned about the upcoming plan), members of the local Orthodox Christian population started protesting against the possible opening. During these protests, barricades were constructed to prevent the applicants’ access to the building (including on the day of the school’s opening) and insults were hurled at them on several occasions. On 10 September, the protesters slaughtered a pig in front of the school building and nailed the bleeding head to the entrance door. At the same time, a metal cross was fixed in front of the building. One of the protesters stated during a television interview that this was done ‘because Muslims hate pigs’.

On the day of the pig slaughter, criminal proceedings were initiated based on threats received by the seventh applicant that the school building would be set on fire and vandalised. In the following days, several applicants were interviewed, who confirmed the events as well as previous altercations. The local residents interviewed stated that they had nothing against Muslims, but that opening a Muslim school was not necessary as the area was mainly home to Orthodox Christians. Several other proceedings ran parallel to the criminal proceedings. The applicants’ legal representative repeatedly wrote to the Georgian Minister of the Interior and the chief prosecutor about the events around the school and complained about the ineffective police response. It was stated that the police had patrolled the area from 15 September but had never intervened. Several additional hate statements were also reported. Among other things, protesters stated that the applicants were participating in Turkish expansion, that one applicant was ‘a son of Turks’ for which there is no place there, they were ‘Tatars’, that if he was a Georgian he should go to church and also that they did not need a religion with foreign money in the area. In addition, they were denied service in a local grocery shop because they were Muslims. After reporting another incident in June 2015, an investigator found two bullet-like fragments on the ground and damage to a window. Forensic expert examination determined that they were shell casings from a pneumatic rifle that did not constitute ammunition.

In 2019, the prosecutor issued a decision changing the qualification of the alleged crime from ‘threat’ to ‘persecution on religious grounds’ and denied a legal basis to grant procedural victim status to any of the applicants. Additional investigative measures were taken in 2019 and 2020, and the applicants regularly voiced complaints about the inadequacy of the investigation and police misconduct. The criminal investigation is still ongoing.

In November 2014, some applicants filed a civil suit against the Ministry of the Interior and three private individuals, asking the Batumi court to order the defendants to stop their ongoing discriminatory acts against the applicants. The Ministry’s representative explained that it was not part of their responsibility to remove barricades on private property. On 19 September 2016, the Batumi court granted the applicants’ claims and concluded that the attitude of three private individuals was Islamophobic. However, the Kutaisi Court of Appeal found that there was no evidence that the Ministry had failed to perform its duties and that it had done so on discriminatory grounds. Furthermore, it considered the applicants’ argument that the police’s inaction was motivated by religious bias was to be unconvincing. Since the Kobuleti police had not received any complaints about a possible interference with the functioning of the boarding school in the period between 1 January 2016 and 1 January 2019, there was no reason to believe that there was any interference with the functioning of the boarding school.

The Court’s Decision

First, the Court held that it was not satisfied that the contested acts were so serious that they caused the applicants – all adults – the kind of anxiety, fear or feelings of inferiority necessary to reach the threshold of Article 3. The Court did accept the applicants’ claim that acts were intended to publicly mock, humiliate or frighten the applicants. It went on to state that an individual’s ethnic and religious identity may fall within the personal sphere protected by Article 8, as ‘any negative stereotyping of a group, when it reaches a certain level, is capable of impacting on the group’s sense of identity and the feelings of self-worth and self-confidence of members of the group’ (par. 78). The Court further noted that all the individual applicants were Muslims who were active members of the Muslim religious community in the region concerned and involved in the establishment of the boarding school, an activity related to education within the meaning of Article 9 of the Convention. One applicant was the head of Georgian Muslims Relations and two applicants were khojas (Islamic teachers). The Court decided to assess their complaints simultaneously under Articles 8 and 9 of the Convention in conjunction with Article 14 on the basis that the acts were caused by religious hatred and prejudice. The applicants’ complaint was not about direct involvement of the police or other public authorities in the hate campaign, but rather their inadequate response to it. The Court ruled that the public authorities had a positive obligation to safeguard the applicants’ rights without discrimination and thus to take prompt and adequate measures to stop unlawful ‘mob action’, hate speech and other discriminatory acts on the part of local people. They were therefore expected to take proactive steps that would ‘realistically’ enable the applicants to exercise their religious rights.

Where there are conflicting rights, the Court’s role is to examine whether the authorities have tried to strike a fair balance between the two. In this regard, the Court noted that the State did not examine how a balance could be struck between respecting the rights of the applicants and those of the protesters. It added that ‘attacks on persons committed by insulting, holding up to ridicule or slandering specific groups of the population can be sufficient for the authorities to favour combating xenophobic or otherwise discriminatory speech in the face of freedom of expression exercised in an irresponsible manner’ (par. 89). The tension at the boarding school did not arise so spontaneously that it could justify that the police could only avoid physical confrontations. With the religious hostility present, the authorities should have anticipated that the opening of the school would be obstructed. The Court thus held that by failing to identify and punish the perpetrators and restore public order, the police allowed the protesters to engage repeatedly and for lengthy periods of time in what was later qualified as discriminatory treatment by the national courts. Faced with police indifference, the applicants had no choice but to simply tolerate these acts. In addition, the Court also took note of the length of some procedures. It stressed that since the anti-discrimination proceedings against the Ministry of Interior lasted almost eight years, the effectiveness of the remedy was undermined. Certain other proceedings were completed only six years after the events in question.

In conclusion, the discriminatory behaviour, which consisted mainly of hate speech, threats, and degrading treatment, coupled with the inaction of the police, created feelings of fear and insecurity among the applicants and prevented them from opening a boarding school. The Court held that there were clear grounds to believe that the applicants had been insulted and threatened because they were Muslim. It was therefore essential that the relevant national authorities took all reasonable steps to unmask the role of possible religious bias in the events and protect the applicants from it.

Discussion

When does deep humiliation and traumatisation become degrading treatment?

In an earlier case on hate speech and violence against a Muslim minority (Mikeladze and Others v Georgia) from 2021, the European Court did conclude that there was a violation of procedural guarantees under Article 3, taken alone or together with Article 14. However, this difference is not surprising since, in this case, the applicants were in police custody and had been abused by the police both physically and verbally. The Court tackled this case from a procedural angle because, despite repeated complaints about the use of derogatory language by the police, such allegations were not addressed in the criminal investigation (par. 67). In the earlier case law cited by the Court, we find some factors (present in the current case) that contributed to the threshold of Article 3 being met after all. For example, the relevance of protracted actions by protesters involving daily verbal violence as opposed to a one-off action of short duration, a climate of religious intolerance (which the Court recognises in par. 90), and serious psychological distress. However, in all the cases mentioned, physical violence was present additionally.

The nailing of the pig’s head was characterised by the Court as an ‘especially hostile expression of hate speech, which caused the applicants deep humiliation’ (par. 88). At the same time, the Court stated that the impugned acts were not so severe as to cause the applicants fear, anguish or feelings of inferiority that are necessary for the Article 3 threshold to be reached (par. 77). The Court seems to suggest that it would rule differently on the Article 3 complaint if the events had been witnessed and  complained about by children attending the boarding school. Additionally, it agreed with the Georgian authorities (in par. 72) that the level of threshold of Article 3 had not been met since none of the applicants were present during the pig slaughtering or shooting at the building. The question is therefore whether the Court would have ruled differently if the slaughtering had taken place in front of the door while the applicants were forced to watch it. Whether this was necessary to make the incident humiliating (enough) for the applicants and instil sufficient fear in them is questionable. The slaughtering of pigs and placing a pig’s head in front of religious buildings is a very humiliating but common expression (see here, here and here) of deep-rooted Islamophobia (and anti-Semitism as well). In the days before the terrorist attack at a mosque in Christchurch (New Zealand) in 2019 in which 50 Muslims were shot dead, pig heads were also left in front of the entrance by neo-Nazis. It is therefore clear that these acts serve to humiliate Muslims, give them a sense of inferiority, and instil fear. The half-hearted response to this by the Georgian authorities clearly indicates that the situation was not taken sufficiently seriously and that the applicants were not afforded equal protection of their rights.

Why is this relevant? Well, the Court stresses in the general part of the judgment the importance of balancing the competing rights. It argues that ‘in a case where a religious ceremony has been disturbed by a hostile demonstration’, the State is confronted with ‘the exercise of two sets of competing fundamental rights: the rights of those participating in the demonstration to freedom of expression and to peaceful assembly and the rights of the worshippers to pray peacefully in community together without undue interference’ (par. 83). Yet, the present case is not such a case. It is a case where a local community harassed and degraded members of a religious minority for a long period of time. So, while perhaps in the beginning this was an issue of conflicting rights, the duration and humiliation in the demonstrators’ exercise of their Article 11 rights changed the dynamic. The Court therefore rightly states that ‘attacks on persons committed by insulting, holding up to ridicule or slandering specific groups of the population can be sufficient for the authorities to favour combating xenophobic or otherwise discriminatory speech in the face of freedom of expression exercised in an irresponsible manner’ (par. 89). In the past, it has even gone as far as to invoke Article 17 against an applicant who invoked his freedom of expression to spread the message that Islam had no place in the United Kingdom. Since the Court found that the demonstrators exercised their right in an irresponsible way in the present case, it may also find that exercising it as such did not enjoy the protection of Article 11.

Islamophobia before the Court

In the judgment, the Court condemns in no uncertain terms the negligence of the Georgian authorities, accepts that there were clear grounds to believe that the applicants had been insulted and threatened because they were Muslim, and acknowledges the applicants’ profound humiliation, fear and traumatisation (para. 88). One thing is striking, though. Several times in the judgments of the Georgian courts we find a reference to Islamophobia. It is explicitly stated that the applicants were the target of Islamophobic statements, but also that the behaviour and individual remarks of three individuals stemmed from an Islamophobic attitude. A definition given by the national courts is not included. The term ‘Islamophobia’ refers to prejudice against Muslims and actual intolerant attitudes towards Muslims, ultimately resulting in policies and practices that target Muslims and discriminate against them. However, the European Court of Human Rights does not adopt this terminology in the present judgment. This is not entirely surprising. In previous case law, the Court has often strongly condemned hate speech against Muslims. However, the term Islamophobia was never used by the Court itself.

In S.A.S. v. France, its judgment makes reference to the contributions of certain third-party interveners on Islamophobic statements made throughout the debate on the French full-face veil law. In the recent Grand Chamber judgment in Sanchez v. France, the term seems to have seeped through into the brief summary that precedes the judgment. In the main text – despite the strong prejudice in the Facebook text in question – it does not appear. The Court’s failure to address Islamophobia while it is an important contextual factor in a human rights analysis was previously criticised. In addition, it is also argued that this omission has not been noted sufficiently in relevant human rights research. Taking into account important work on stereotypes, when the Court would observe that in a case a negative stereotype, prejudice, or assumption that adversely affects Muslims as a group has a place, it would have to trigger a disadvantage test without comparator. This could show that the true aim behind certain interferences must perhaps be sought outside of the State Party’s submissions. It is clear that if the Court would always pay attention to the possibility of Islamophobic attitudes as an underlying cause (or at least as a contextual factor) in cases where Muslim minorities are discriminated against on the basis of religion or their religious rights are curtailed, a lot of case law (for instance, this case) may look quite different. Adopting a clear contextual framework could also reveal intersectional aspects of Islamophobic treatment. Additionally, Islamophobia is a multi-faceted problem. Just as scholars like Henrard have noted, it is clear in the present case (and the one mentioned above for that matter) that Islamophobic attitudes are not only about a religious affiliation but also about an assumed ethnicity linked to it. The designation cited as offensive by the applicants in Mikeladze, namely ‘Tatars’, was also hurled at the applicants in the present case. Yet, in this case it was not the police themselves who used this term, but local opponents of the boarding school. The applicants indicate (in both cases) that this insinuates that a person cannot be both Georgian and Muslim. In addition, in the current case, the applicants are labelled as Turks or parts of ‘the Turkish expansion’. However, in their complaint, the applicants only put forward their religious identity as Muslims as a reason for the discriminatory actions and so it is hardly surprising that this is not addressed by the Court.

Conclusion

In the present case, the Court clearly condemns the inaction of the Georgian police and is attentive to the impact of that inaction in a combination with a severe hate crime on the. Yet, it remains unclear how much humiliation and fear third parties can inflict on a religious minority group without  intervention by the police before this reaches the threshold of inhumane and degrading treatment.

1. This post is a reworked and translated version of a post previously published in Dutch on EHRC Updates. ↩︎