Bermudian Triangle: Police- Prosecutor’s Office- Court

Gamtsemlidze’s body was put in front of this dental clinic.

Unfair Justice

Salome Gogokhia

The concept of unbiased and independent court failed on January 16, 2009. Vakhtang Abuashvili, 28 a patrol was sentenced to two years of prison term for the murder of Giorgi Gamtsemlidze, 31 by Judge Eka Gabrichidze of Collegium for Criminal Cases within Tbilisi City Court. The voice of the judge was trembling when she was reading the final verdict out loud but this will not console the family of deceased Gamtsemlidze. The justice did not prevail for the family. The only hope for them is to appeal the court verdict in the Strasbourg Court and find the truth there.

The victim’s family had left the court room before the judge read out the judgment. This was because they believed that the prosecutor would have his own way and justice would not prevail. The family stated that they knew the court would fail to execute justice. Therefore, they did not wish to become the part of the court hearing which they called staged farce.

When the attorney of Gamtsemlidze’s family declared that the victim’s side wanted to leave the court hearing the judge asked: “you are not prophets how do you know what the final judgment will be?” Probably the judge did not take into consideration that the victim’s relatives had been disappointed several times before that: three prosecutors worked on this case at various times; the prosecution worked hard for a long time to convince the key witness and what is most important the case was not returned for investigatory review even though there were many gaps in the case.

Inga Arakhamia, the attorney of the family of Giorgi Gamtsemlidze had written a statement explaining why the victim’s side was leaving the trial. However, the judge did not let the attorney read the statement completely because the judge considered that the statement was disputable and she simply refused to listen to it.

When the judgment was declared the audience in the court room realized that the case was in fact settled in favor of the murderer. Vakhtang Abuashvili was sentenced to two years of prison and 2 years on probation which had been requested by Prosecutor Kote Nikatsadze. It is fair to say that two years of prison term for killing a person is very light punishment amid the zero tolerance politics that was declared by the president of Georgia against criminals.

This judgment justified the nihilistic approach of the victims’ family, associates and big part of the society to the court. Guliko Gamtsemlidze, the mother of the deceased said that everyone who wants to commit a crime can join patrol police. Being a patrol guarantees everyone two years of prison term in case of committing murder.

“If my son had kept a gun illegally he would have been arrested and punished very strictly. You know why because he was not a police man. This person killed a man and he was sentences only to two years of prison term,” said the insulted mother who is convinced that the judge filed the verdict under the prosecutor’s pressure.

***

After having studied the case materials one will understand that Guliko Gamtsemlidze’s words are not only emotions. It is obvious that the judge closed eyes on many blunders in the case.

The crime qualification was disputable. Initially, the case was launched based on Article 114 (murder of a suspect by using excessive force during the arrest) of the Criminal Code of Georgia; However, then the case was qualified under Article 116 (murder with gullibility) of the Criminal Code.

The family of the deceased had been demanding from the very beginning of the investigation that the charge against Patrol Abuashvili became much graver than it was. However, their demand was not upheld. The prosecutor neither burdened the charge nor returned the case for investigatory review.

The fact that the judge did not return the case for investigatory review has its justification: the current legislation does not allow a judge to return the case for investigatory review. However, the prosecutor has the right based on Part V of Article 446 of the Criminal Procedural Code of Georgia (the court had had the right of returning the case to the investigation for the revision before March 25, 2005 based on Part I and II of Article 452 of the Criminal Code of Georgia until the amendments were introduced. The experts say that this is a serious problem of current legislation because a judge is unable to return the case if a prosecutor does not want to.) However, a judge can still try to convince the prosecutor to return a particular case to investigation for the revision. The judge did not try to convince the prosecutor to return the case to investigation on so called Gamtsemlidze’s trial.

***

Giorgi Gamtsemlidze was the activist of the National Movement. He was killed by the patrol on May 8, 2008.
This is how the incident of May 8 is described in the case materials: On the night of May 8 Vakhtang Abuashvili and Levan Jinikashvili, patrols were patrolling in Vera district, Tbilisi. They noticed a BWM car that was driving fast. The police officers demanded that driver stopped. The driver did not obey. The driver was first driving to Chonkadze Street but then changed the rout and drove to Zandukeli Street.  He clashed into a pavement border near McDonald’s. The driver rushed out of the car and climbed on the roof of a nearby standing garage in the yard on 2 Zandukeli Street. The patrols (Abuashvili-Jinikashvili) followed the driver and when he rushed out of the car Abuashvili ran after Gamtsemlidze.

Why did the patrol use weapon against an unarmed citizen?

Gamtsemlidze’s mother assumes that her son ran over this garage to escape from the patrol

It is said in the bill of indictment that Abuashvili was suspecting that Gamtsemlidze was armed. Therefore, he took out his gun, charged it and then tried to arrest Gamtsemlidze. He shot a Makarov hand gun imprudently once. As a result of this Gamtsemlidze was shot in neck. The wound turned out to be deadly. Gamtsemlidze died before he was be taken to the hospital.

There was an attempt to prove that Gamtsemlidze was armed during the preliminary investigation. First law enforcers alleged that they discovered a hand gun at the crime scene. They decided that this gun belonged to Gamtsemlidze; on the night when Gamtsemlize was killed the main division of the patrol police received this notification: “At about 1:35 a.m. May 8, 2008 Giorgi Gamtsemlidze who possessed a hand gun illegally was discovered at 1 Zandukeli Street, Tbilisi. Vakhtang Abuashvili, a patrol chased him and wounded.” Soon after this, Giorgi Gegechkori, the head of Patrol Police Division said in an interview: There is a video record that proves that Gamtsemlidze was armed. (We met Mr. Gegechkori during our journalistic investigation and asked him where the video record was and why it was not presented on Abuashvili’s trial. He said that his words were not delivered in the right way).

To cut the long story short, the investigation declared Gamtsemlidze as a suspect without any justification. However, the expertise of the gun allegedly discovered by law enforcers near the crime scene did not have Gamtsemlidze’s finger prints. As a consequence of this, Gamtsemlidze was not considered as a suspect any more.

It should be noted at the benefit of the prosecutor’s office that the prosecutor did not agree with the investigation and considered that Gamtsemlidze was not armed during the incident. Only the accused stated on the trial that the victim was armed. Despite all this the charges against the patrol were not burdened; no one asked why the patrol used weapon against unarmed citizen. Why did the patrol take out the weapon and charge it? Only because Gamtsemlidze took his hand to waist as the accused said on the trial?  Was it only gullibility or more serious crime?

Did the Patrol Have the Right to Chase a Citizen?

This is what defendant Abuashvili said during the preliminary investigation and on court: he and his partner Levan Jinikashvili started implementing their duties at 10 p.m. in Vera district.  After 1 a.m. they drove from Gogebashvili Street to Makashvili Street; Abuashvili was driving the patrol car. He stopped the car for a few seconds and looked left at a psychotropic drug store because drug addicts often gather near this store. They did not notice anything interesting there:

“Suddenly a car that was driving very fast entered Makashvili Street from Chonkadze Street. The car was driving so fast that the driver could not control the wheel and went to the opposite side of the street.
 He violated the traffic rules and we had full right to order him to stop. Jinikashvili ordered the driver to stop immediately. He did not obey and drove on Makashvili Street with high speed. We followed him.”

Then started the chase. Abuashvili stated that at some point they were catching up the car but then they were losing it from sight. The patrols lost the car because they could not pass between small posts that are standing at the entrance of Barnovi Street. Before that Jinikashvili demanded again that the driver stopped the car but with no success. The car drove to Dzmebi Kakabadzeebi Street…

Abuashvili said that his colleague tried to inform another patrol car about the model and plate number of the fleeing car but with no success. Abuashvili explains in his testimony why: “radio station Rioni covered our frequency and we failed to contact our colleagues.” The judge did not doubt this testimony even thought serious grounds for the doubt appeared on the trial. In particular, the testimony of Zaza Kakashvili, another patrol.

Kakashvili said that he was patrolling the same night when Gamtsemlidze was killed. He stated that he and his colleague heard on a two way radio that crew # 104 (Abuashvili-Jinikashvili) was chasing a car on Makashvili Street. Kakashvili’s crew decided to drive to Kostava Street. If the disobedient driver went to this street they would block the road:

“The car did not go to Kostava Street. We drove to Laguna-Vere swimming pool. Hardly had we passed the swimming pool when crew # 104 reported that they needed help immediately because a citizen was wounded. As we were close to the ER we rushed into the emergency and informed that their help was needed.”

Davit Todua, Kakashvili’s fellow worker gave the same testimony. He also confirmed that they received information from crew # 104.

If the court took into consideration these two testimonies the fact of chasing Gamtsemlidze’s car could not be justified. However, the court did not see any inconsistencies between the testimonies of Abuashvili and the police officers from other crew.

Another crew received information from crew # 104 that night.  Davit Amashukeli, a police officer that was replacing Robert Paniev (the case of Sharadze’s assassination), platoon leader that night stated on the trail that his crew received notification as well. The crew # 104 asked who was patrolling on Rustaveli Avenue through the two-way radio. Amashukeli’s crew did not respond because “when this question is asked, we ask where the car is heading to. I could answer this question only after having received the information to what direction the car was moving.” Amashukeli stated that his crew did not answer crew # 104 because they “did not know what was going on.”

The judge did not ask why patrols of various crews received various pieces of information. Which witness lied? Why Amashukeli did not hear the information that others heard. Maybe he backed up Abuashvili’s testimony who said that the frequency of his crew was hushed up by another frequency, they failed to contact other crews and consequently, they continued chasing the car (an interesting detail: Amashukeli was appointed the platoon leader after Gamtsemlidze’s murder. We asked Giorgi Gegechkori to comment this fact. He said that Amashukeli’s appointment had been decided before the incident. There had also been an official, written order on the appointment. Only it was approved after the incident.)
The court neglected the contradictory testimonies and consequently, refused to determine if crew # 104 continued chasing disobedient car fairly enough.

Flea – Contradictory Versions!
The most interesting and fatal moment starts now: Gamtsemlidze’s car bumped into a pavement border. Gamtsemlidze could not start the car engine and left the car. There are two versions on how he escaped:

1. The patrols from crew # 104 say that Gamtsemlidze ran down the street and rushed into a yard to the right. He ran into an impasse behind the garages. He found no way out and returned and came across Abuashvili.
2. It is indicted in the bill of indictment that Gamtsemlidze “ran over the garages and tried to hide in the yard of 2 Zandukeli Street.”
The judge did not pay attention to this contradiction as well.

A Gunshot

The patrols say that they drove into the yard. First Abuashvili got out of the car. He charged a Makarov hand gun and ordered the fugitive to stop. Abuashvili claims that he warned Gamtsemlidze to stop. If he did not, Abuashvili shouted that he would take “subsequent measures”.

If Abuashvili had proved that he had warned the fugitive before shooting the judge should have accused him of not following the procedures prescribed by Part V of Article 13 of Law on Police. It is indicated in the law that “before using a hand gun a police officer shall give verbal warning about the usage of the weapon. A warning shot can be made if necessary.”

There was no warning gunshot in this case. Why?
The case materials also do not show that the patrol police had turned either beacons or siren during the chase. So a patrol can shoot at a citizen in any case? If it is true what is the use of the laws on professional behavior?

Another interesting detail from Abuashvili’s testimony: when Gamtsemlidze was caught in a deadlock and he could not escape, he returned and went to Abuashvili’s direction with a gun in his hand. He said: “Suddenly Gamtsemlidze ran out of the impasse. He rushed to me. We had a sort of a fight. I grabbed his right shoulder with my left hand and made him turn. Now I was looking at his back. I again demanded that he surrendered. However, he continued resisting and tried to slip off. Suddenly I heard the sound of a gun shot. He stopped resisting and fell down.” The judge did not pay attention to this detail.

Abuashvili alleges that the shooting was caused by the fight and the fight by the fact that Gamtsemlidze had come out of the impasse and found himself in front of Abuashvili.

The version of Gamtsemlidze’s mother contradicts Abuashvili’s testimony. The prosecutor also agreed with Guliko Gamtsemlidze’s version. Mrs. Guliko Gamtsemlidze stated that her son knew the yard very well. He knew that there was an outlet from the garage roof. Therefore, he climbed on the garage where he was shot.

We conducted an experiment in the yard. The experiment proved that when a person knows the place and wants to run away he will definitely climb on the garage and not go into the yard because the outlet is right behind the garage roof. It is very easy to climb on the roof. So why would Gamtsemlidze go into the yard? Why would he use difficult way? If he did not enter the yard but climbed on the garage how could he come across Abuashvili? Fighting would not start and he would not be shot.

The court failed to answer the abovementioned questions. The judge did not even want to make the experiment that would show which version was right. It is regrettable that journalists are often called dilettantes in the court but it were we, journalists who decided to make an experiment and not “professional defenders” of truth.

The alternative expertise that was conducted with the initiation of the family of the deceased for ascertaining the details of shooting recommends that court experiment is conducted. Independent experts agree with the recommendation. They think that this is the only way to restore relatively correct disposition of the shooter and the victim. Both investigation and alternative expertise have shown that the shooting was from 5 cm distance directed from down to up but the question is where. In the yard (as Abuashvili states) or on the garage roof (as the mother suspects). There is a chance that Abuashvili followed Gamtsemlidze on the garage roof. However, the court did not establish the real facts in this regard.
 

Witness Changes Testimony

Otar Teneishvili lives in one of the apartment buildings in the yard where Gamtsemlidze was shot at. During preliminary investigation he testified that when he heard shooting he rushed to the window. The crime scene was well lighted by lamp posts and he saw vividly a body lying in front of a garage. He said that the yard was so well lighted that law enforcers even wrote a protocol in this light without any problems on that night. Therefore, his testimony should be considered as convincing.

Our investigative group met Mr. Otar several times and took interview from his. He said that he saw vividly not only the dead body but also three men in police uniforms carrying body to a dental clinic. 

Our investigative group conducted an experiment: We looked from Mr. Otar’s bed room and saw the whole yard with a garage and everything around it very well. In case of a good light one could perfectly see an object the size of a human being.

This is what Otar Teneishvili said in his interview: “I went to bed late that night. Had I hardly fallen asleep I heard crashing. I rushed to the window immediately. I saw two men running from McDonald’s up to Zandukeli Street. Suddenly I heard a shot. One continued running and the other tried to climb up the garage roof; he walked a bit and then fell from the roof. I put my clothes on and looked into the window again. When I looked outside I saw that Gamtsemlidze was being dragged by three police officers to a dental clinic.”

Teneishvili said the same on the court hearing but the prosecutor noticed some inconsistencies. He demanded that the first witness testimony was published. It turned out that Teneishvili said in his first statement that a person lying at the garage was slightly moving. He said he did not see the process of moving Gamtsemlidze from the place. He did not say in his first testimony that he saw police officers planting weapon on the garage roof.

You may think that Teneishvili testified in favor of the victim on the trial but you are wrong. In fact changing some details of testimony served as the ground for the judge to dismiss Teneishvili as a witness. Consequently, the victim’s side lost the only witness.

The judge did not pay attention to the fact that Teneishvili was not acting adequately on the trial. On the prosecutors question which of his two testimonies was true he said both of them. When Gamtsemlidze’s attorney asked him when he was interrogated at night or in the daytime, Teneishvili said that he did not remember.

According to Georgian legislation if a witness changes testimony on the trial the side of accusation or the side of defendant must file a motion to the judge to impose criminal liability on the witness. This did not happen in this case. The prosecutor said that the prosecutor’s office would discuss the issue of the witness’s liability. The victim’s attorney said that she would lodge an appeal against Teneishvili after having received the judgment.

Why did the witness change the testimony? There are several versions: One of them belongs to the family of the deceased: Teneishvili and the prosecutor’s office made a deal. The witness changed the testimony for the following reason: Mirdat Kamadadze, the defendant’s attorney would file a motion to declare the witness statement null and void. The prosecutor would agree and the judge would invalidate Teneishvili’s testimony. Everything happened as it had been planned.

The court hearing on Gamtsemlidze murder was canceled many times. Once Abuashvili’s attorney was ill (however he attended other court hearings on the second day), then the defendant had indigestion and no one could help him. To cut the long story short there were always some excuses for the cancellation of the trial.

Why was court hearing procrastinated? Maybe to convince Teneishvili because Teneishvili’s testimony was putting prosecutor into a deadlock.

Sun glasses – Lost Evidence

The judge did not pay attention to the serious mistake of the investigation. According to Georgian legislation when a person is killed the crime scene is inspected by the prosecutor’s office. However, in this case the crime scene was divided into two: the yard which was searched by the prosecutor’s office and the garage roof which was inspected by the representatives of Ministry of Internal Affairs of Georgia. Why? Maybe because the representatives of the prosecutor’s office refused to plan or hide the evidence but agreed to cover the MIA. In any case, Gamtsemlidze’s sun glasses disappeared after the search. The investigator was only reprimanded for this nothing more.

Later the sun glasses together with a cartridge-case were found in front of the dental clinic according to a search protocol. Sun glasses disappeared soon. Why? The judge had the chance to find it but she did not: why did a man need a sun glass at 2 a.m.? The family, friends and associates state that Gamtsemlidze did not have the habit of wearing glasses on his forehead. He always kept the sun glasses in his car. Why were the glasses found in the street beside Gamtsemlidze’s body? Who took the glasses from the car and put near Gamtsemlidze’s body? Does it have any connection with the police officers that illegally inspected the crime scene? Maybe they were instructed to clean finger prints from the sun glasses to cover the fact of taking glasses from the car and planting near the dental clinic in order to prove that Gamtsemlidze was shot in the yard and not on the roof.

Abuashvili’s Attorney

Mirdat Kamadadze together with the audience was listening to the judgment with dissatisfaction. I came to him after the trial and asked: are not you satisfied with the judgment?
- No, not all. I think probation term would be enough. Prisoner term was not necessary at all. However, I have not decided whether I will appeal the verdict or not.

Lia Toklikishvili, leader of journalistic investigation

Investigation was carried out within the project: “Monitoring of Judiciary System in Georgia” implemented by the Human Rights Center and newspaper “Sityva”
Project is supported by “Eurasian Partnership Foundation"