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Be aware, Georgian Justice awaits you!

August 5, 2009

The story of one court crime

Maia Gogoladze

This is how the story begins: On the night of October 29, 2005 Nikoloz Jakeli and Giorgi Azmaiparashvili,  patrol police officers from the Second Platoon of the Vake- Saburtalo District Patrol Police; were patrolling near May 26 square, while citizen Giorgi Mikiashvili and his friends were celebrating his birthday in the friend’s house located at the beginning of Dolidze Street close to May 26 square. Giorgi Mikiashvili left the party early, sat down in a car and waited there for his friends . The others slowly were leaving the party. Some came out of the apartment building where the party was, talking loudly. Ilya Jamaspishvili was the first to come out of the building. He was talking on the phone. His wife was following him with the wife of his friend. The women were talking loudly. They were trying to attract Jamaspishvili’s attention and tell him something. This is when the patrol police noticed them. The group of young people  raised some suspicions in the police. The officers assumed that the stranger (Ilya Jamaspishvili) was holding a stolen mobile phone and that the womenbehind him were trying to catch him to get back the stolen phone

Ilya Jamaspishvili came to the car where Giorgi Mikiashvili was sitting. The patrol police officers stopped Ilya there and  not very politely asked whose phone he was holding and who were the ladies following him. Ilya Jamaspishvili answered that the phone belonged to him and one of the ladies was his wife. Suddenly he felt nauseous and unexpectedlystarted vomiting . He stepped aside leaving the women facing the police officers. The patrol police officers continued clearing up with them the matter of the telepone. Giorgi Mikiashvili came out of the car because he heard the conversation between the wife of his friend and the police officers and did not like the incorrect tone of the police officers. As a result  a conflict sparked between Giorgi Mikiashvili and the police officers. One of the police officers pushed Giorgi away and ordered him to leave the area. Giorgi says the police officer used foul language against him. Giorgi did not leave. The police officers radioed for support. Crews # 207 and 217 came to the scene very soon. Giorgi Mikiashvili fell down during the fight. The police officersbeat him with their feet and truncheons for about 10 minutes. He was beaten in the head with butts of their guns.. Then the police officers handcuffsedhim.

Davit Baramidze, Giorgi Mikiashvili,s friend also was  arrested. Davit was trying to calm the situation between Jamaspishvili and the police. Giorgi Mikiashvili and Davit Baramidze were arrested and placed in a pre trial detention cell. The police officers informed the Minister of Internal Affairs that the “Lotkini gang” (“Lotkini” is the name of a small district in Tbilisi) was detained and the Minister was required to go to the alleged crime scene at 3 a.m. He had to see the results of an “important operation”. In fact when he came on the scene he saw only three patrol police crews, two beaten students and Guram Donadze, the head of the MIA Press Department with  video cameras and a filming group instead of so the called “Lotkini gang.” Guram Donadze is a person who has not slept for who knows how many nights to film how  crime is suppressed,  criminals detained, how strong the patrol police and state are and what happens to anyone who tries to resist the patrol police…. It is interesting to consider what would have happened if the patrol police had waited for a while. It would probably have been seen that the alleged crime suspect and victim would have sst down in the same car; that nobody was escaping and that the suspicion was groundless. What would have happened if the patrol police had been polite and hadapologized in front of Jamaspishvili who with no grounds was suspected of a robberly  and then left the place? What would have happened if the police officers had received sufficient training to tell students from gang members and to avoid  beating them and calling for two police crews for support? Isn’t it a crime and a sign of a lack of professionalism when a police officer tryies to provoke a crime instead of preventing it? Does all this serve public order, legality, security and the welfare of society? Who should explain to a patrol police officer that he does not have the right to do everything, moreover he does not have the right to arrest citizens illegally and provokeconflict?

***

Starting from the conflict with the patrol police officers, law enforcers in all the institutions of the law enforcement system were humiliating, beating and torturing Giorgi Mikiashvili for a year and a half: patrol police officers during his arrest; law enforcement officers in his pre trial detention cell; a detainee guard and the court administration representatives in the court house before the trial and the medical staff in the psychiatric department of the prison hospital where he was put due to serious physical ( he was beaten in the head, a cup was broken over his head in the pre trial detention cell) and psychological traumas he received during the detention and investigationby various prison administration members and prison staff members. Prisoners, encouraged by the prison staff also harassed Giorgi Mikiashvili.

The alleged beatings and torture of Giorgi Mikiashvili can be proven by the numerous official documents we have obtained: the protocol on external body examination of Giorgi Mikiashvili made in the Tbilisi # 2 Temporary Detention Isolator dating October 29, 2005; medical notification of a doctor on duty in Tbilisi Prison # 1 made on October 30, 2008; the forensic expert repord issued by the Ministry of Justice of Georgia dating February 1, 2006; the conclusion #4/11datined in theyear 2005 by Psycho – Rehabilitation Centre for Victims of Torture, Violence and Pronounced Stress Impact – EMPATHY and other conclusion of EMPTHY; the official report on the inspection of prisoners in a prison hospital made by doctor L. Labauri, the representative of the Public Defender of Georgia dated August 15, 2006 and the conclusions from  an independent forensic expert centre “Vector”. All these documents show that  signs of beating, violence and torture appeared on the body of Giorgi Mikiashvili after he was detained and was placed in various penal institutions. In particular there were large hematomas/hemorrhages, excoriations, traces of bleeding, closed skull trauma, bruises in the area of spine, chest and back, the signs of intracranial hypertension… The most disturbing is the conclusion from Doctor L. Labauri on the condition of Giorgi Mikiashvili:

”According to Giorgi Mikiashvili, yesterday between midnight and 1 a.m. about 6 or7 representatives of the prison, including Goga Butliashvili, the deputy head of the prison, beat him” (Giorgi Mikiashvili) “ ruthlessly in front of the so called ‘cell for thieves’... First he was abused verbally, then thrown on the floor and beaten with kicks ruthlessly. He had not lost his consciousness. His nose started bleeding.

Various kinds of damages were identified during the examination of his body: bruises in the area of back with diagonal excoriations. Bruises and excoriations in the area of right shoulder. The left sinciput and the right part of forehead bone hurt seriously if touched; bumps are observed on the head… He is placed in a punishment cell; the conditions there are unbearable… He says that he is very hungry. He is not given water and food. He is not allowed to go to the toilet. He was lying on the floor.. He asks for help; transportation into another penal institution otherwise, he thinks he will be murdered here.”

All the official medical conclusions on the medical condition of Giorgi Mikiashvili were presented to the courts of various instances: to Tbilisi City Court, Tbilisi Court of Appeals and Supreme Court of Georgia. None of the courts discussed the fact of violence committed against Giorgi Mikiashvili i.e. none of courts became interested in who, where, when and why officials beat and tortured Mikiashvili.

On October 31, 2005 theTbilisi City Court filed a pre-trial detention verdict of a three-month prison sentence  without showing any interest in why and who beat him even though the signs of beating could be vividly observed. The judge did not notice hemorrhages and bruises on his face. The same thing happened on the trial of June 22, 2006. The court filed the verdict of guilty according to Part II of Article 353 of the Criminal Code of Georgia - resistance to the patrol police and abusing physically and verbally the patrol police officers. The judge did not pay attention to the signs of beating that could be observed visually. The Mikiashvilit was beaten by the guards ruthlessly in the court house prior to the trial.

Tbilisi City Court violated Article 3 of the European Convention on Human Rights because it did not pay attention to the violence used against Giorgi Mikiashvili. According to Article 3 of the European Convention, “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”. This article obliges states to refrain from this kind of illegal activities and take responsibility for the actions of all law enforcement bodies. The state must be hold accountable for the criminal action of the patrol police representatives who tortured Giorgi Mikiashvili which resulted in violation of his psychological integrity. The court did not impose any responsibility over anybody for the torture and beating of Giorgi Mikiashvili. The courts of higher instances violated Article 3 of the European Convention because they did not react adequately to the numerous pieces of evidence of Giorgi Mikiashvili’s torture.

The court violated Article 5 of the European Convention on Human Rights when it filed the verdict on the pretrial detention of Giorgi Mikiashvili when there was no need to do it. According to European standards imprisonment is the last resort and it can be applied on the basis of these four circumstances: the possibility that the accused might flee; he might hinder the exercise of justice; he might commit a new crime or violate public order. The prosecutor failed to present  evidence that any of these circumstances applied to the accused (Mikiashvili). Despite this the court rendered the verdict of incarceration. The Chief Prosecutor’s Office violated Paragraphs I and II of Article 18 of the Criminal Code of Georgia by not ascertaining who used violence against Giorgi Mikiashvili.

It is unnecessary to name the paragraphs and article of the Criminal Code of Georgia which were violated when the court neglected the documents proving the allegation that Giorgi Mikiashvili was tortured; when the court ignored the fact that the accused showed up at the trial beaten; when judge did not punish an investigator who did not demand the compulsory medical expert’s report to ascertain the health condition of the accused and did not  grant the motion of Zaza Khatiashvili, Giorgi Mikiashvili’s attorney, tohave a medical expert examination of Mikiashvili.

Every judge knows these articles and paragraphs but very few follow them. Even fewer are held accountable for violating them. Let’s continue the story of the accused who later became the convict (Mikiashvili)… On November 9, 2005 Giorgi Mikiashvili’s, attorney Zaza Khatiashvili, appealed to the Court of Appeals the decision of the investigator  refusing to conduct compulsory medical expert examination of Mikiashvili. The court was obliged to discuss the appeal within 24 hours after the submission of application. However, it was discussed 45 days later, only when the sister of the accused applied to the Supreme Council of Justice of Georgia with the demand to punish the judge who was procrastinating the discussion of the appeal. Neither the investigator (G. Gedenidze) nor the judge (L. Murusidze) was punished.

 A forensic expert examination of Giorgi Mikiashvili was conducted on February 1, 2006. However, none of the courts took into consideration the results of the expertise. The attorney sent motions, appeals, demands and statements to the Chief Prosecutor’s Office, Supreme Council of Justice, in various court level… demanding to protect the rights of Mikiashvili, to file awell-grounded court decision, to protect the articles of national legislation and the European Convention…..

Giorgi Mikiashvili’s sister applied to the Council of Europe’s Anti - Torture Committee; the embassies of the USA, Germany, France and Great Britain in Tbilisi; the UN and OSCE missions to Georgia the EU and CoE delegations in Georgia; Matias  Iorsh; Mikheil Saakashvili, the President of Georgia—demanding an examination of her brother by psychiatric experts  and then his subsequent treatment. This took time. Meanwhile, the condition of Giorgi Mikiashvili deteriorated. The violence, beating and humiliation continued. The psychiatrists of Psycho – Rehabilitation Centre for Victims of Torture, Violence and Pronounced Stress Impact – EMPATHY issued the following diagnosis of him: acute affective-delirious condition, closed skull trauma and concussion of the brain. Giorgi Mikiashvili was transferred to the prison hospital and then back to the prison, then again to the Psychiatric Department of the prison hospital where he was beaten and humiliated again…

The investigator was procrastinating on the investigation of the case. The Chief Prosecutor’s Office was demanding to prolong the pretrial prison term by a month. The judge was obliged not to satisfy the demand of the prosecutor since the investigation did not proceed during the last month of the investigation.  However, Judge Mikheil Bebiashvili granted the prosecutor’s request on January 25, 2006. Giorgi’s attorney appealed the judgment. The Chamber on Criminal Cases within Tbilisi Court of Appeals did not grant the appeal but agreed that the investigator was procrastinating the investigation and that he had not investigated anything during the last month i.e. the court agreed that the investigation was being procrastinating and issued a subsequent official document on this but did not uphold the attorney’s appeal and left the decision of the previous court unchanged… This court decision is absurd and and the reason for it isobscure. Moreover, Articles 163 and 140 of the Criminal Code of Georgia were rudely violated by this decision.

Publicizing the case of Giorgi Mikiashvili; numerous applications to international organizations and Georgian society;public statements of the Public Defender of Georgia brought one result: the Chief Prosecutor’s Office was obliged to initiated and investigation of the allegation of torture of Giorgi Mikiashvili. The prosecutor’s office called the case as one exceeding their authority by patrol police officers.

The Investigative Unit of the Tbilisi Prosecutor’s Office investigated the case. The investigation found the following: Giorgi Mikiashvili and Davit Baramidze attacked the patrol police officers when they were talking with Ilya Jamaspishvili and his wife to find out the origin of Jamaspishvili’s mobile phone. Mikiashvili and Jamaspishvili  insulted verbally and assaulted physically the police officers. They tore the shirt and sweater that one of the patrol police officers was wearing. The police officers were telling them to calm down and stop acting illegally. However, Baramidze and Mikiashvili continued to insult the police officers. The patrol police officers were forced to call for the supporting force. The police managed to detain them only when two supporting police crews came. They were transported to the temporary detention cell where they continued insulting the police officers. The police officers were trying to calm down the detainees. Giorgi Mikiashvili punched a fist into the face of Avtandil Tsagareli, the investigator who visited him in the cell. He injured the investigator’s eye. Tsagareli left immediately with the help of police officers. Mikiashvili was violent against the police officers while the police were trying to calm him down and calling for order.

The Investigative Unit of the Tbilisi Prosecutor’s Office concluded based on its “full, complete and objective” (from the decision of Prosecutor Lazashvili) investigation: the police officers acted in accordance with the law; the allegation of Mikiashvili’s attorney that the police allegedly beat Mikiashvili cannot be proven.

One can do nothing when the prosecutor proves with testimony the allegation that the detainees beat police officers and the investigator in the temporary detention cell…
 
We decided to conduct a small opinion-poll: we described the incident when detainees beat police officers and an investigator in a temporary detention cell (the prosecutor’s version) to 70 persons in different districts of Tbilisi. Of course, we did not reveal the names of people involved in the incident and the particular criminal case. The people were selected randomly; the poll was anonymous. The respondents named only their professions. There were civil servants, lawyers, 2 district inspectors and several police officers among those questioned. Then we asked if such incident could really have happened in a temporary detention cell. 64 out of 70 said that it was impossible; two only smiled; 4 said that it was difficult to believe. Then we asked if they had heard about Mikiashvili’s case. 37 said that they more or less knew about the case. 35 out of 37 said that they did not trust the police and the court. When we asked them why they stopped trusting these institutions, all of them gave identical answer: after witnessing numerous cases of violence and unfairness.

***

The prosecutor’s office stopped the criminal case against the police officer for using excessive power because it could not find enough evidence. The torture of Giorgi Mikiashvili continued for months. We have gained many pieces of evidence proving that Giorgi Mikiashvili was treated inadequately and he lived in prison in unbearable conditions, but this is another story….

The court ordered an expert psychiatric examination of Giorgi Mikiashvili due to the involvement of international organizations, the efforts of the Public Defender of Georgia and the persistence of the attorney for Giorgi Mikiashvili and his family. The exination was conducted in the first days of December 2006. Based on the decision of the Court of Appeals and the result of the expert examination Giorgi was placed in Kutiri Mental Hospital. However, Mikiashvili stayed in Prison # 6 for two months after the result of expert examinationwas publicized. No psychiatrist served him in the prison.

The law enforcement officer often asked for the transfer of Giorgi to Tbilisi back to prison for alleged court procedures. Due to the persistence of the Kutiri mental hospital doctors and the decency of one judge, Giorgi Mikiashvili remained in a mental instition and avoided more beatins and torture in prison in Tbilisi. 

***

Giorgi Mikiashvili’s case was appealed by his attorney in European Court of Human Rights. The European Court will ascertain which articles of the European Convention were violated by the Georgian court. Then. Georgian state and will file a subsequent verdict. The authorities must think seriously that state officers risk to become the sources of severe crime, violence and unfairness when they have the power and rights that is not strictly controlled by the society and state and when they have not had subsequent moral and mental training. We have seen many such examples after the Rose Revolution. The case of Giorgi Mikiashvili is enough to see that a terrible crime can be committed in the name of the state, law and care for security and welfare of the society.

Lia Toklikishvili
Leader of the Journalist Investigation
The investigation is prepared within the project “Monitoring of Fair Trial”
The Project Is Implemented by the Human Rights Center and magazine “Sitkva” with the support of the Eurasian Partnership Foundation

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