Equal Protection

ECHR Awards Damages Based on Religious Discrimination Claim against Georgia

By: Tina Perez

Journal of Global Rights and Organizations, Associate Articles Editor

STRASBOURG, France — The European Court of Human Rights (ECHR) found that Georgia discriminated against, mistreated, and used excessive force against four Muslim men who were arrested for protesting a decision of Adigeni Municipality (the local government) to renovate a former mosque in the Village of Mokhe into a library. In Mikeladze v. Georgia, police alleged that the four men were resisting arrest at a protest on October 22, 2014 and sustained injuries while resisting. The four men complained that police verbally and physically assaulted them during and following their arrests. The men claimed, with several witnesses also reporting, that the authorities acted with discrimination because the officials used degrading racial slurs. ECHR awarded damages of 3,900 euros to the man who was the most severely injured and 1,800 euros to each remaining man.

Muslims gather in prayer outside the Disputed Building, Mokhe. Photo courtesy of Dato Parulava and Liberali.

The ECHR’s findings in this matter include that the injuries reported were not consistent with resisting arrest because one of the protestors was injured but no police were injured. Additionally, the report of the man’s injuries was not an adequate investigation because it did not investigate the origin of his injuries.

ECHR also found that the four men did not need to pursue all available remedies within Georgia if those remedies were ineffective. The men made official complaints related to physical and verbal abuse they received but Georgia conducted no official investigation. Georgia instead claimed that the criminal investigation against the men was sufficient to uncover and address their mistreatment. This matter was brought to ECHR and ECHR found that the state criminal investigation was not sufficient because it was not independently conducted. ECHR further noted that the criminal investigation of the men failed to make any inquiry into the racial slurs used against them. Additionally, in the seven years since the incident the internal investigation had made no conclusive findings.

This matter grabbed the attention of human rights organizations because Muslims are a religious minority within Georgia.  Although the majority of the population of the Village of Mokhe is Muslim, the local officials are not and discrimination against Muslims in the region goes back decades.  The disputed building was constructed as a mosque between 1927-34 but in the 1940s, Joseph Stalin expelled Muslims from the region. From the 1940’s until 2007 when Adigeni Municipality took ownership of the building, it was used first as a warehouse and later as a village club.  However, the Orthodox Church of Georgia also asserted ownership over the building claiming that a church stood on the location during the sixteenth century. Following the protest, the Muslim community of Mokhe continued to pray inside the ruins of the building until October 2016 when the building was blocked off with yellow police tape. An official commission was created to determine the origins of the ruin and in May 2017, the commission determined that the building “couldn’t be attributed to either” religion. The ruins have been declared a cultural heritage site named “Disputed Building.”

For further information, please see:  

Agenda.ge – European Court finds Georgia guilty of discrimination against four Georgian Muslims – 17 Nov. 2021

European Court of Human Rights – Forthcoming Judgments and Decisions – 10 Nov. 2021

European Court of Human Rights- Judgment, Case of Mikeladze and Others v. Georgia – 16 Nov. 2021

OC Media – Mokhe’s ‘Disputed Building’ to be Sealed off for Conservation – 14 Sept. 2017

Tolerance and Diversity Institute – Analysis of Recent Occurrences in Mokhe Village – 3 Nov. 2014

European Court of Human Rights Dismisses Age Discrimination Claim

By: William Matthew Krueger

Impunity Watch News Staff Writer

VILNIUS, Lithuania – On October 26, 2021, the European Court of Human Rights ruled that the Housing Act was reasonable and did not discriminate based on age.

The Supreme Administrative Court of Lithuania. Photo Courtesy of Lithuanian Courts.

On January 1, 2015, the Housing Assistance Act came into effect. The Act provided three types of housing assistance: subsidies that would cover a portion of a home loan, a right to rent housing from the State, and partial rebates of rent payments. Article 8 of the Act defines two general conditions for an individual or family to qualify for subsidies to cover a portion of a home loan.

First, the annual income of the individual or family must not exceed the threshold provided in other provisions of the Housing Assistance Act. Second, they must be seeking their first home in Lithuania or alternatively, should not have owned residential property during five years prior and did not previously receive this form of assistance; that the residential property currently owned falls underneath a legally established threshold; or the individual or family member(s) have a disability and the home is not adapted to fit the individual’s needs.

Furthermore, the applying individual had to fit in one of many categories just to qualify for the home loan.

In 2016, Loreta Šaltinytė, a single mother with a four-year daughter, applied for a housing subsidy available to lower income “young families” who were buying their first home. Šaltinytė’s application was denied by municipal authorities on the grounds that she was thirty-seven at the time of her application.

Soon, Šaltinytė filed a complaint with the administrative courts, alleging that the refusal of the housing subsidy was age discrimination, which was prohibited by Lithuania’s Constitution and the Charter of Fundamental Rights of the European Union. Šaltinytė also asked for her claim to be referred to the Constitutional Court, which was dismissed. In addition, the Vilnius Regional Administrative Court dismissed Šaltinytė’s complaint on the grounds that legislature has discretion to limit who qualifies for welfare benefits.

In an appeal, Šaltinytė stated the Vilnius Regional Administrative Court failed to address the potential conflict between the Act, the Constitution, and the Charter of Fundamental Rights. The appeal was dismissed on December 6, 2018 by the Supreme Administrative Court based on precedent from the Constitutional Court that permits legal regulation of certain categories of persons, the State has wide discretion when performing social assistance and has an obligation to service the most vulnerable members of society. The Court also held that the Act was not built solely on age parameters.

In the complaint to the European Court of Human Rights, Šaltinytė alleged a violation of Articles 14 and Article 1 of Protocol No. 1. Article 14 states that discrimination based on sex, race, color, religion, political or other opinion, national or social origin, association with a national minority, property, birth, or other status is prohibited. Article 1 of Protocol No. 1 states that every legal person is “entitled to the peaceful enjoyment of his possessions” except in cases where the public interest is at risk and such a right is subject to other legal conditions. Šaltinytė alleges that Lithuania failed to demonstrate a reason for establishing the cut-off age at thirty-five.

In response, Lithuania stated that the purpose of the relevant portion of the Housing Assistance Act was not as a general form of welfare, but as a way of assisting younger people to acquire property and hopefully reverse the decline of the working population. Finally, Lithuania stated that at the time Šaltinytė had her daughter she could have applied as she met the definition of “young family.”

The Court found that this difference in treatment was legitimate as the Act intended to encourage younger people to have children and reduce potential emigration. Secondly, the Act was based on statistical data gathered by Lithuania and possessed a “reasonable relationship of proportionality” between the treatment based on age and the goal of Lithuania.

The European Court of Human Rights found no violation of Article 14 or Article 6, Section 1 of the Convention.

For further information, please see:

European Court of Human Rights – European Convention on Human Rights – 1 Aug. 2021.

European Court of Human Rights – Case of Šaltinytė v. Lithuania – 26 Oct. 2021.

European Union – Charter of Fundamental Rights of the European Union – 26 Oct. 2012.

Republic of Lithuania – Constitution of the Republic of Lithuania – 25 Oct. 1992.

Supreme Court of India Reinforces the Rights of People Suffering With Mental Health Conditions

By: Camisha Parkins

Journal of Global Rights and Organizations, Associate Articles Editor

INDIA – On September 1, 2021, the Supreme Court of India ordered all states and Union territories of the country to establish a system for facilitating vaccination against COVID-19 of all individuals residing in a mental health facility– including service providers, health care professionals, and all other associated staff. Each state must submit a progress report to the Department of Social Justice and the Ministry of Social Justice and Empowerment on or before October 15, 2021 explaining the steps taken and the number of people who have been vaccinated.

The outbreak of COVID-19 and the lockdown that followed exacerbated the long-standing inadequacies that already existed within India’s mental healthcare system. In the initial weeks of the lockdown, patients and doctors at mental health hospitals and institutions throughout India received very little support from central or state governments in battling the COVID-19 crisis, which placed patients and mental health professionals in imminent danger of the spread of the virus. Throughout the pandemic, hospitals were forced to turn away patients living with chronic mental illnesses who relied on hospitals due to lack of beds, staffing issues and the inability to provide sufficient medication. “Disabled people accessing health infrastructure, especially people with mental illness, were the last ones to be thought about,” said Anjlee Agarwal, founder of disability advocacy organization Samarthyam.

The Entrance to the Institute of Mental Health in Chennai, India. Photo Courtesy of The Hindu.

The Court’s order came in a contempt petition filed by advocate and petitioner-in-person in this case, Gaurav Kumar Bansal. Bansal accused states of disregarding a July 10, 2017 order from the Indian Supreme Court that required states and union territories to set up rehabilitation homes for mentally ill patients who remained in government-run mental health institutions despite being cured and ready for discharge. After reviewing status reports submitted by states and union territories following the July 2017 order, the Court said it “[did] not find that any genuine progress has been made… though different State Governments have indicated varying time lines for setting up the Halfway homes.” Accordingly, the bench of Justices led by Justice D.Y. Chandrachud mandated the establishment of halfway homes and rehabilitation homes for the mentally ill and directed the Ministry of Social Justice and Empowerment to establish an online dashboard that monitors the progress of the states and union territories. Information on the dashboard depicting the availability of institutions, facility provided, capacity, occupancy and region-wise distribution of halfway homes must be updated “on a real time basis.”

The bench, in making such court orders, noted that these problems involving people with mental health conditions “are of serious concern.” While this recent action by India’s Supreme Court counts as a major victory for advocates who work tirelessly in fighting for people with disabilities’ right to equal access to health care in India, ensuring that state governments take “appropriate and timely action” to meet the needs of people suffering with mental illnesses is of utmost importance. As Bansal stated, “We are just at the beginning of the battle… And we will keep fighting, together, until one day, people with psychosocial disabilities can live in dignity.”

For further information, please see:

Hindustan Times – Vaccinate inmates, staff of mental health facilities in a month, Supreme Court tells states – 2 Sept. 2021

Human Rights Watch – India’s Supreme Court Orders to Vaccinate Patients in Mental Health Facilities – 5 Oct. 2021

India Legal – Supreme Court directs all states to ensure vaccination of mentally-ill persons within 1 month – 1 Sept. 2021

Scroll.in – In India, coronavirus crisis has been particularly hard for mental health patients and hospitals – 3 Nov. 2020

Supreme Court of India – Gaurav Kumar Bansal vs. Mr. Dinesh Kumar & ORS – 1 Sept. 2021

Man In Turkmenistan Is Missing After Revealing Sexual Orientation

By: Melissa Berouty

Journal of Global Rights and Organizations, Associate Articles Editor

ASHGABAT, Turkmenistan — According to Freedom House’s index of basic freedoms, Turkmenistan is rated below North Korea and only above Syria. Under Turkmen law, the government has the authority to regulate behavior in an attempt to “construct the model Turkmen citizen.” Turkmen authorities exercise its control by brutally punishing any form of religious or political expression that does not align with the Turkmen government. Additionally, the Turkmen government limits the nature of print and electronic media available to its citizens.

The Turkmen government has a long history of enforced disappearances, where individuals’ whereabouts or fates serving long sentences in Turkmenistan are unknown. For more than ten years, the Turkmen government has prohibited loved ones, lawyers, and the outside world access to the imprisoned. Prove They Are Alive, a campaign committed to ending enforced disappearances in Turkmenistan, has reported at least 121 cases of enforced disappearances. Of these 121 cases, many are suspected to be detained in the Ovadanepe prison, which has a reputation for extreme conditions.

On October 24, 2019, it was reported that Kasymberdy Garayev was feared to be missing after allegedly revealing his sexual orientation, under a pseudonym, on Radio Free Europe/Radio Liberty. In Turkmenistan, homosexual conduct is a criminal act that can result in up to a two-year prison sentence. Today, approximately sixty-eight countries have laws that criminalize homosexual conduct between consenting adults. According to Human Rights Watch, sentencing in these sixty-eight countries “range from fines to life imprisonment and even the death penalty.” Rachel Denber, the deputy Europe and Central Asia director at Human Rights Watch, expressed her extreme concern for Garayev stating that “given Turkmenistan’s appalling human rights record, including enforced disappearances, we have every reason to fear for his safety and well-being.”

Kasymberdy Garayev is a 24-year-old cardiologist, who was employed at an elite clinic in Turkmenistan. On October 21, 2019, Radio Free Europe/Radio Liberty released a narrative, where Garayev allegedly reflected on his life in Turkmenistan stating that “since childhood, I knew that I was gay and it was hard for me to accept.” In 2018, Garayev was allegedly detained by Turkmen authorities upon a scheduled meeting with an online male love interest, which turned out to be a police officer. Here, Garayev allegedly stated that on the way to the police station, officers beat him, used a stun gun, and demanded that he make a statement on camera confirming his sexual orientation.

On October 24, 2019, Turkmen authorities allegedly requested Garayev’s presence for a background check.  From October 24, 2019 to November 6, 2019, Garayev’s whereabouts were unknown. Radio Free Europe/Radio Liberty was also unable to locate Garayev’s family. According to Human Rights Watch, when an individual summoned by Turkmen authorities goes missing, “there is a real risk they could be the victim of an enforced disappearance.”

On October 31, 2019, Radio Free Europe/Radio Liberty released a video recording of Garayev2 speaking, where he disclosed his real name, expressed his fear of going missing, and begged for his family’s forgiveness.

During the time Garayev was feared to be missing, Gurbanguly Berdymukhamedov, the president of Turkmenistan, visited Rome. During Berdymukhamedov’s visit, several Italian LGBTQ+ activist groups urged Rome to speak out on Garayev’s disappearance. On November 6th, Italian Senator Monica Cirinna released a statement demanding the government press Berdymukhamedov on the details of Garayev’s disappearance. Later that day, Garayev returned home.

Since then, Garayev denies any communication with Free Europe/Radio Liberty. Garayev claims that the video farewell was recorded for a different purpose and sent mistakenly to Radio Free Europe/Radio Liberty. Additionally, after the release of Radio Free Europe/Radio Free Liberty’s narrative, Garayev is no longer employed by the prestigious clinic in Turkmenistan where he once worked. Since Garayev’s alleged return home, several LGBTQ+ activist groups have started campaigns seeking to protect Garayev.

For further information, please see:

Human Rights Watch – Turkmenistan: Gay Man Missing After Coming Out Online – 1 Nov. 2019

Radio Free Europe/Radio Free Liberty – ‘If I Disappear, Forgive Me’: Missing Gay Turkmen’s Plea – 31 Oct. 2019

Radio Free Europe/Radio Free Liberty – Gay man from Turkmenistan wants to make a statement to start a discussion – 21 Oct. 2019

Radio Free Europe/Radio Free Liberty – The Turkmen President Is Alive, But What About His Prisoners? –  20 Aug. 2019

Human Rights Watch – Turkmenistan Events of 2018

Human Rights Watch –#OUTLAWED “THE LOVE THAT DARE NOT SPEAK ITS NAME”