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Labyrinths of Georgian Judiciary

29.09.2009
Nona Salaghaia

On June 18 2009 the Tbilisi City Court imposed a 23-year prison sentence on Orest Bokhonko, a citizen of the Ukraine. Bokhonko was arrested at the Tbilisi International Airport on September 27, 2008. While he was detained the Georgian law enforcement officers blatantly violated his human rights guaranteed by the Law of Georgia and international conventions.Without witnesses and experts, by force the young man was compelled to take off his clothing and his anal channel was examined in front of the policemen. The examination process was recorded by photo and video-cameras. The detainee was not in conscious at that moment. When he recovered, it was explained to Bokhonko that the narcotic substance “Metadon” was withdrawn from his anal channel and wrapped in a polyethylene bag. Then he was ordered to get dressed and the policemen promised him to get in touch with the Ukrainian Embassy in Georgia. The detainee was taken to the police station in irons. The court partly admitted that policemen had broken the law during his detention and the preliminary investigation. That, however, did not prevent the court from imposing strict punishment on him. However, admitting the fact that the evidence was obtained through violation of the law, cast doubt on the fact that it was withdrawn from the body of Bokhonko. If the court left without clarification the issue of how the evidence was obtained how it could determine the guilt of Bokhonko. The court could not claim that the detainee had brought a narcotic substance to Georgia from the Ukraine. In addition to that, there are more unanswered questions in this case.

On that day, Orest Bokhonko arrived in Tbilisi to visit his friend from Senaki Zaza Saminava. We got in touch with the brother of the convicted who said Zaza Saminava visited them in the Ukraine three years ago. Zaza was starting a nut-business in the Ukraine. The Georgian friend invited Orest to Georgia many times but he could not come. Last year the war in August prevent him from coming to Georgia. Finally Bokhonko was invited to the wedding of Saminava’s relatives and since the Ukrainian man was interested in Georgian traditions and famous hospitality he arrived in Georgia.

Saminava was to wait for the guest in the airport as it was agreed previously. When Orest Bokhonko was looking for his friend in the hall a stranger approached him and said Zaza would be there in half an hour. Saminava really did arrive in the airport half an hour later and led his friend to his car. At that moment about ten men in civil clothes approached and demanded that they obey their orders. Then they started beating Bokhonko and Saminava but as Orest Bokhonko recalled only he was dragged back into the airport.

Zaza Saminava was arrested in the yard of the airport. Several days later a narcotic substance was discovered in his house and he was judged based on this accusation. However, the point is that the episode of Bokhonko is not mentioned in case materials on Saminava and neither is Saminava’scase mentioned in Bokhonko’s case materials. Apparently, the court determined the guilt of Bokhonko and sentenced him for bringing a particularly large amount of narcotic substance (93.299 grams) into Georgia but did not inquire who was waiting for him here. Why was not Zaza Saminava mentioned in his case materials? Why did the investigation and the court miss the opportunity to clarify this very important issue? The investigation did not find out where Bokhonko had purchased the narcotics and who had sold to him it. The investigation did not cooperate with the Ukrainian law enforcement bodies. Thus, today we do not have a reply to this question: is Orest Bokhonko really a drug-dealer? If he really had narcotics he could not get it in the sky. Drug-dealing means purchase and selling of narcotics. However, we cannot find either seller or purchaser of the narcotics in Bokhonko’s case. The investigation and the court do not know where the narcotics first were obtained and where it had to finish its travelling.The means of transportation is estimated through the violation of the law – it was found in the anal channel of the person and the court judgment relied on this channel.

Now we can discuss in details how the investigation got hold of the evidence based on which the court imposed a 23-year prison sentence on Bokhonko. Here is an extract from the “motion letter” of the accused Bokhonko to the judge Lela Shkubuliani. “They (the policemen) searched me. They did not find anything illegal; then they requested me to take off my clothing. They were recording the process by video-camera and about ten policemen in the room was recording the examination process by mobile-phones. I was told that the policemen were not investigating anything but they were degrading and laughing at me. One of them introduced himself as the head of the operative team, his name was Kokhta. He put on rubber gloves and made me lean forward; then he searched my anal channel though it finished without any results...” As Bokhonko recalled his torture did not end then. After searching his anal channel without any results several policemen left the room; those who remained continued to insult and degrade the detainee. A short time later, the policemen returned and started to search his anal channel again by a physical assault. “They were torturing and strangling me; I fainted and when I recovered they said they had withdrawn the narcotic substance “Metadon” from my anal channel.” The law enforcement bodies detained and searched Bokhonko through violation of the law in one of the buildings of the airport. The search was carried out without any witnesses who could be an employee or the security personnel of the airport. As we were told at the airport in the case of investigation operations they do not interfere in the activities of their colleagues if they do not ask them for help. In the evening of September 27 law enforcement officers were torturing the citizen of the Ukraine “in accordance to the law” and the security policemen of the airport were protecting the passengers in the hall.

The court did not grant the motion of the attorneys for Bokhonko to refuse to the evidence that was obtained during the search without witnesses. The court also heard the motion of the attorneys to declare as inadmissible evidence the narcotic substance because it was  withdrawn  from the anal channel of Bokhonko by a policeman and not a specialist . An attorney for Bokhonko, Nino Andriashvili, a lawyer for the Human Rights Center, stated at the trial that the search of the anal channel is not a search envisaged by the Code and it could not have been mentioned as a ‘search” in the documents and protocols. “The action is an examination rather than search. A personal search can be carried out on the clothes, personal items or on the body of the detainee. However, we cannot find a “search in the body” in the code. According to Article 350 of the Criminal Procedural Code of Georgia Bokhonko was to be examined and not searched. The examination, according to the law, was to be carried out by a doctor though it did not happen in this particular case.”

The court did not obey the law which states that in case of necessity only a specialist shall examine the anal channel of the suspect and in the medical center; the law prohibits the policemen to carry out this procedure. The court did not admit that the Georgian law enforcement officers blatantly breached the rights of the Ukrainian citizen and that a medical examination was carried out by certain Kokhta Kodua, the head of the operative team. The prosecutor explained that the law was breached because of urgent necessity of the search though it is unreasonable explanation.

If the suspected was carrying the narcotic substance by his body, the policemen could take him to the corresponding medical center and examine him in accordance to the law.

Orest Bokhonko stated to the court that he was shown yellow bag and the powder in it after he recovered. They were on the table separately. The policemen clarified that the powder in the bag was narcotic substance “Metadon” which was in Bokhonko’s body wrapped in the yellow balloon. However, nobody explained where the yellow balloon disappeared. Today, there is only polyethylene bag as evidence in the case materials. According to the law enforcement officers they got rid of the balloon because it was dirty and stinky. If the policemen from Zugdidi district had been aware of the Georgian legislation as well as the proctology, they could have understood that they were losing precious evidence while throwing away the balloon; with this proof they could estimate that the narcotic substance was really withdrawn from Bokhonko’s body. On the one hand, according to the law, the evidence cannot be considered legal if it is not sealed and preserved as soon as it was obtained. On the other hand, destroying the yellow balloon, which was the main proof in the case, makes it impossible to prove whether it was really in Bokhonko’s body or not.

As a rule, the court had to refuse to admit the evidence obtained through breaking the law during the preliminary investigation. But the court did not do that. The same court (with Lela Shkubuliani as a judge) found the detention and search of Bokhonko carried out by the investigator Janashia illegal and requested the prosecutor’s office to continue the investigation to take all necessary measures. “With the judgment the court pleaded that the investigator had obtained the evidence through breaking the law that means the court accused Janashia in the criminal offence. However, the court refused to declare the evidence illegal; and it is unclear,” said Nino Andriashvili, a lawyer from the Human Rights Center. Finally, although the attorneys for Bokhonko managed to prove that the evidence was obtained through breaking the law, the judge Shkubuliani accepted the evidence. It really means accepting unacceptable evidence.

***
Orest Bokhonko, who was sentenced to two-month pretrial detention by Judge Jeiran Morgoshia at Zugdidi district court, was repeating one and the same permanently: “Is this a country which wants to join the European Union?” First he asked this question during the detention and repeats it now too. However, he knows that nobody answers the questions in this country. He does not hope the Appeal Court will reply to him because it is also part of the judicial system which searched him in the body. The attorneys are about to appeal to the Human Rights European Court, though that appeal  will take years. Only one thing is important for Bokhonko: he wants to leave this country soon and forever. He appeals to the Ukrainian Embassy to Georgia and requests the government of his country to allow him to serve his prison term in the Ukraine.

Lia Toklikishvili
Head of the journalistic investigation
The article was prepared by the Human Rights Center and Magazine “Sitkva”
within the project “Monitoring of Judiciary System in Georgia”
with financial support of the Eurasian Partnership Foundation
   

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