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10 Years and 8 Months – for Stealing Cigarette, Vodka and Beer

November 11, 2010
Gela Mtivlishvili, Kakheti

Chairman of the Telavi district court Mamuka Tsiklauri imposed imprisonment of 10 years and 8 months on 16-year-old Malkhaz Mzekalishvili for stealing cigarette, beer and vodka from the shop. Although specialist state that Malkhaz Mzekalishvili’s mental and physical development stopped at the age of 11, the judge did not satisfy any motion of the attorney on medical expertise of the convicted.

The judge did not get interested in the physical assault and torture of the juvenile accused which the police officers committed against him during the preliminary investigation in order to get his confession.

Malkhaz Mzekalishvili was initially judged on January 27, 2009. He was accused in thievery and possession of side-arms; suspended sentence for 4 years and 8 months was imposed on him. On April 6, 2010 the law enforcement officers detained Mzekalishvili for the robbery in the shop. Since then, Mzekalishvili served his term in Tbilisi prison for female and juvenile prisoners. Mzekalishvili neither admitted nor denied the crime. He said much time has passed since the incident and forgot everything as usually happens with him.

Malkhaz Mzekalishvili received an electro-shock at the age of 11. The doctors say his physical and mental development stopped then. Mzekalishvili is 16 years old now but he looks like an 11-year-old boy. He is a disabled person and receives pension.

Other accomplices in crime said Malkhaz Zekalishvili also participated in the crime. Lasha and Tornike K. stated at the trial that nobody could get through the small window of the shop except Malkhaz; so, he got into the shop and passed several boxes of cigarettes, beer and vodka to his friends. Except Mzekalashvili, every accomplice pleaded guilty and signed plea agreement with the prosecutor’s office.

At the trial Malkhaz Mzekalishvili stated that after detention he was interrogated without attorney; then he was beaten in Telavi police station where the police officers demanded him to plead guilty.

“During interrogation there was only investigator and my teacher in the room. Before my teacher arrived there, the investigator slapped me in the face and demanded to plead guilty. Then several police officers beat me in the police station. I do not remember how many police officers beat me. They were beating me in the head, legs and everywhere. They threatened me with death unless I pleaded guilty and warned me against telling anybody about physical assault. So, initially I was afraid to say something; I dared to speak up only after I was put in prison,” said Mzekalishvili.

The mother of the convicted Manana Ghviniashvili said she knows the police officer who beat her son.

“Nikoloz Javakhishvili beat my son. Malkhaz recognized him. The investigation started but without any results. In May of 2010, I appealed to the prosecutor’s office too but there was no response,” said Manana Ghviniashvili.

The attorney of the accused Ioseb Khatiashvili said that representatives of the Public Defender’s Office and non-governmental organization “The Georgian Center for Psychosocial and Medical Rehabilitation of Torture Victims” took up this case.

“With the support of the representatives of the Public Defender we requested investigation on the physical assault and inhuman treatment of Malkhaz Mzekalishvili. He was beaten in order to get his confession. Telavi district office of the MIA demanded him to plead one more crime which he had not committed at all. After the convicted was delivered to the prison, he said he was beaten by police officers. The doctors examined him and found injuries on the body. The prosecutor’s office started investigation but it were formal procedures only. No actual measures were taken. So, I appealed to the chief prosecutor’s office. The investigation is underway now though nobody has been punished yet and no criminal prosecution was launched against anybody. That means, the state does not punish oppressor police officers,” said Ioseb Khatiashvili.

It is noteworthy that investigators compelled Malkhaz Mzekalishvili to sign the testimony without reading; the attorney did not attend the interrogation either.

Current attorney of Malkhaz Mzekalishvili requested the judge to consider health and mental conditions of his client when passing verdict on him but the court did not pay attention to his request. The judge did not satisfy the solicitation of the attorney on psychological-psychic test of the accused; the attorney claimed that it could demonstrate the mental abilities of Mzekalashvili.

“According to the Istanbul Protocol, the fact of torture shall be documented. Specialists examined Malkhazi and concluded that although he is 16 years old, his physical and mental development is equal to 11-12-year-old child. This fact was concluded by many psychological tests. A person can be punished and convicted for a crime only over the age of 14. Since mental development of Malkhaz Mzekalishvili is equal to 11-12-year-old child, we petitioned to carry out his psychological-psychic expertise; we provided interim conclusion, psychological test, researches, his pension record which indicated that his diagnose was restricted mental development. The court did not consider any documents and did not satisfy our solicitations,” said attorney Ioseb Khatiashvili.

The attorney added that in accordance to the Article 641 of the Criminal Procedural Code of Georgia, during preliminary investigation of juvenile crime, the physical and mental development of the accused as well as domestic conditions shall be studied though the court did not pay attention to it. “Article 642 indicates that if a juvenile has any physical or mental anomaly, psychological-psychic expertise shall be carried out on him/her. The court was entitled to satisfy our motion but did not; that was blatant violation of the law and I will definitely appeal against it,” said Ioseb Khatiashvili.

Lia Khuroshvili, lawyer of the Human Rights Center: “If the judge had satisfied the solicitation of the attorney, the state expertise bureau could also have confirmed restricted physical and mental development of Malkhaz Mzekalishvili. In this case, the verdict imposed on him by Telavi district court would have become doubtful. The new circumstance could become a basis to reconsider the previous verdict which was not acceptable for the prosecutor and the court. This fact could have created many awkward situations.”

Judge Mamuka Tsiklauri sentenced juvenile Mzekalishvili to 6-year-imprisonment under Article 177 of the Criminal Code of Georgia; imprisonment for 4 years and 8 months imposed on Mzekalishvili for the crime committed in 2008 was added to this term and finally it amounted to 10 years and 8 months.

Representatives of the Telavi district court do not comment on Mzekalishvili’s case. It is noteworthy that Mamuka Tsiklauri has been judge at Telavi district court since 2009; before that he worked at the MA and prosecutor’s office.

Prosecutor at the Telavi district prosecutor’s office Elene Turashvili clarified that she used minimal measures of punishment against Mzekalishvili.

“Although suspended sentence was imposed on Mzekalishvili, prosecutor’s office offered him plea-agreement. We could not change previous verdict but we offered him such punishments for three crimes that he would have had to serve only 7 years in total. But the defense side declined our offer. I used all minimal measures of punishment against him but when the previous sentence was added to the current one, it figured out 10 years and 8 months in total,” said Eliso Turashvili.

Attorney Ioseb Khatiashvili said if they had agreed plea-agreement they would not have right to appeal against the verdict. The parents and attorney of Mzekalishvili intend to appeal the verdict of the Telavi district court.

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