In Georgian Muslim Relations and Others v Georgia [2023] ECHR 949, the presenting issue was the Government’s alleged failure to take adequate measures to protect the applicants from unlawful mob action, hate speech and other discriminatory actions in the context of their being prevented from opening a Muslim boarding school [1].
In 2014, the first applicant, Georgian Muslim Relations (“GMR”), leased a plot of land with a building in Kobuleti for a Muslim boarding school [5]. They alleged that when the local Orthodox Christians learned of the plan, they started holding protests against the opening of a Muslim school in the neighbourhood. Between July and November 2014, locals barricaded the entrance of the building to stop GMR from finalising the necessary renovations. The applicants alleged that their attempts to open the school were repeatedly blocked with the connivance of the police and other local authorities – with the result that the school was never opened [6].
On 23 July 2014, the fourth applicant (the head of GMR) called the police and asked them to intervene at the site. On the same day, the Kobuleti police department interviewed the fourth applicant: he told them that there had been no verbal or physical abuse and explained that he was simply asking the police to help them to take the school supplies inside the building. Neighbours told the police that they were against the opening of a Muslim school in their neighbourhood and had prevented the applicants from taking the items inside the building [7&8]. The police concluded that the matter had been resolved and that there was no basis for a criminal investigation [9]. There were three further incidents, in one of which protesters slaughtered a pig and nailed its bleeding head to the school entrance door; one of the applicants lodged a complaint with the local police about that incident – unsuccessfully – and alleged that he had received threats that the school building would be set on fire and destroyed [14].
The parties’ submissions
Relying on Articles 3 (prohibition of inhuman or degrading treatment), 8 (respect for private and family life and 9 (thought, conscience and religion), alone and in conjunction with Article 14 (discrimination), the applicants alleged that the Government had failed to take adequate measures to protect them from unlawful mob action, hate speech and other discriminatory actions and that the police had failed to intervene when they should have done so. GMR also complained separately under Article 1 of Protocol No. 1 (protection of property) that the authorities had failed to ensure that it could use the school building, notably because it had not connected it to the Kobuleti sewage system, though the Court noted that the “the focus of the applicants’ grievances before the Court is the allegedly inadequate reaction of the authorities in the face of an illegal mob action” [85]. The parties did not dispute that the opening in September 2014 had been disrupted because of the protests organised by the local Orthodox Christians [87].
The Government contended that it had met its positive obligations as far as GMR’s property rights were concerned. The domestic courts had found a violation of the Discrimination Act on account of the actions of private individuals and had ordered the latter to cease preventing the functioning of the Muslim school. It also referred to the Kutaisi Court of Appeal’s decision of 12 March 2019 in which it had been found that the fact of continuous hindrance to the opening of the school had not been proven [106].
The judgment
As to the alleged breaches of Articles 3, 8 and 9, taken alone and in conjunction with Article 14, the Court noted that there were 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. None were absolute rights: “All three Articles provide that the exercise of these rights may be subject to restrictions, inter alia, for the protection of the rights of others”. The Convention did not establish any a priori hierarchy between them and they had to be balanced against each other. It was incumbent upon the State to ensure that – “in so far as is reasonably possible” – both sets of rights were protected, there had to be a legal framework to safeguard those rights from third parties and effective measures to ensure that they were respected in practice. While the Court’s task was to verify that the authorities had struck a fair balance between them, it should not act with the benefit of hindsight nor simply substitute its own view for that of the national authorities who, in any given case, were much better placed to assess where the appropriate balance lay and how best to achieve it [83].
The cumulative effect of the police not intervening to stop the discriminatory behaviour and of the shortcomings in their investigation was that the applicants had not been given the required protection against interference with their private life, dignity and religious beliefs. There had therefore been a breach of Georgia’s positive obligations under Articles 8 and 9 taken in conjunction with Article 14 [100].
As to the alleged breach of A1P1, it was not disputed between the parties that GMR had a right freely to possess the building it had rented – as established by the domestic courts in two separate sets of proceedings. Because of unlawful actions by private individuals and the authorities’ failure to take sufficient action to remedy the situation, and as a result of the failure of Kobuleti Water Ltd and the Kobuleti municipality to connect the school building to the sewerage system, GMR had been unable to use the building for a significant period of time [108]. The Court was unconvinced by the Government’s submissions on the matter and held that there had been a violation of Article 1 of Protocol No. 1 [110].