Various

Who Bears the Burden of Proof in Domestic Violence?

7 June, 2021

On May 11, 2021, the media portal "Georgia and the World" published an interview with Dimitri Lortkipanidze, the director of the Primakov Georgian-Russian Public Center. The article titled “Dimitri Lortkipanidze: This Law doesn’t Protect So-called Vulnerable Groups But Instead Serves as a Punitive tool against Traditional Society” is dedicated to the 7th anniversary of anti-discrimination law in Georgia and this is precisely what Lortkipanidze assesses in the interview. According to him, anti-discrimination law is the start of unprecedented dictatorship in the name of minorities, whereas the so-called Istanbul Convention is the beginning of all evil since currently in Georgia “approximately 4 000 people-spouses are serving sentences on absurd charges” due to standards imposed by the convention. That’s why Georgia should leave the convention. Lortkipanize says that Istanbul Convention allocates the burden of proof to men.

The program “Alt-analytics” cohost Zura Makharadze voiced the same opinions on May 20. As he claims, according to the feminist laws, when a woman accuses a man of violence, the burden of proof shifts to man. A man has to prove his innocence, otherwise, he will be sentenced to prison.

In the post published on May 29, Beka Vardosanidze notes that it was after the ratification of the Istanbul Convention that men started to get arrested for any domestic violence in Georgia and no bail or other forms of measures of restraint is used in this process.

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Alt-info host and Dimitri Lortkipanidze’s statements about Istanbul Convention are a manipulation. Istanbul Convention does not allocate the burden of proof to man, it aims to prevent and eradicate violence against women. Beka Vardosanidze’s claim alleging that after the ratification of the Istanbul Convention men are arrested and imprisoned for domestic violence without bail or other measures of restraint is not true.

  • Istanbul Convention doesn’t imply that the burden of proof is shifted to man

In the Council of Europe Convention on preventing and combating violence against women and domestic violence, better known as the so-called Istanbul Convention, there is no mention of the burden of proof shifting to a defendant in case of violence.

Dimitri Lortkipanidze and Zura Makharadze speak about shifting the burden of proof to a man if he is accused of violence against woman, which is not true.

In case of violence against women or domestic violence, law enforcement officers assess the situation on the spot and in case of imminent threat, act in accordance with the Articles 10 and 10(1) of the Law on Violence against Women and/or Elimination of Domestic Violence, Protection and Support of Victims of Violence: they issue protective or restraining orders, and under certain circumstances, might subject the abuser to electronic monitoring.

Both, the victim and abuser, can appeal the restraining order within the 3 days after it's received, however, if signs of criminal cases are revealed during the process of appeal, case materials will be simultaneously submitted to make a decision on the criminal prosecution.

Domestic violence (Criminal Code, Article 1261) is a criminal case, during which the prosecution constantly bears the burden of proof. The standard of proof is higher due to the presumption of innocence and severity of the possible sanctions and it’s a prosecutor who has to prove the discriminatory nature of the defendant's actions.

Eliso Rukhadze, attorney at NGO "Safari", explains that in case of any violence, the prosecutor bears the burden of proof, and therefore, it doesn’t shift to a male abuser in any case.

  • In what cases of gender discrimination can the burden of proof be shifted to the defendant?

The role of victims in presenting evidence differs between criminal, administrative, and civil cases.

Victims have a more active role in civil cases and administrative proceedings on sex/gender discrimination when each party presents evidence. This is where the issue of shifting the burden of proof to the defendant comes up.

This implies facilitation of proof for the applicant, however, interpreting it as if the burden of proof is shifted to a man only on the basis of "woman's accusation" is false. In this case, the applicant has to demonstrate the discrimination, present evidence on the basis of which she believes to have been subjected to gender discrimination. Afterward, the burden of proof is shifted to the defendant and he has to prove that there was no discrimination.

  • What are the real statistics on arrests and other measures of restraint after the ratification of the Istanbul Convention?

Beka Vardosanidze’s claim alleging that all men accused of domestic violence are imprisoned and no bail or other forms of measures of restraint are used in those cases because of the Istanbul Convention is not true. Ministry of Internal Affairs' Registered Crime Statistics shows that 5 204 criminal charges have been brought on the basis of domestic violence in 2020, the same year 10 321 restraining orders were issued in the cases of domestic violence.

The report by “Network of Centers for Civic Engagement” describes specific cases in 2016-2018, when the court issued bail, provisional detention, and community service as a measure of restraint in cases of domestic violence.

Punishments that differ from imprisonment are also provided in the Criminal Code of Georgia. According to Article 126(1), a person charged with domestic violence might be sentenced to up to 2 years in prison, as well as community service.


By Mariam Topchishvili


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