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Arbitrary Prisoner

28.06.2012

Natia Danelishvili, Gela Mtivlishvili
Information Center of Kakheti

On June 24, police detained Head of Coalition Georgian Dream’s Akhmeta office and member of the district municipal board from the Republic Party Zakaria Kinkladze. Telavi District Court sentenced him to 25-day administrative imprisonment. Evidence collected by the Information Center of Kakheti and witness statements prove that Zakaria Kinkladze had not committed the alleged crime.

Detention and Lawyers’ Refusal to Defend Him

Akhmeta district police officers detained Zakaria Kinkladze at 13:00 pm on June 24 in the Georgian Dream’s office. “Five police officers came and requested my father to follow them to police station. They put him in the car and drove away. When he absent for three hours, we started calling to find out why they kept him in the police station for so long. Then, we learned father had requested somebody not to park car in front of the Georgian Dream’s office in the morning and the citizen had sued him at the police alleging my father had insulted him. We could not get through the father’s personal number because he was not allowed to take his cell phone into the interrogation room. I called Akhmeta based lawyers Vazha Terterashvili and Davit Akhalauri and told them my father had been in police station for several hours and asked them to take up his case; but, they refused,” Levan Kinkladze told ICK.

Lawyers working in Akhmeta explained their refusal to defend Zakaria Kinkladze by being busy.

“I was busy and I do not know why others refused,” Vazha Terterashvili told news agency INFO 9.

“I was busy. It is not correct of you to ask similar questions to me,” Davit Akhalauri said.

Georgian Dream invited lawyer Keti Zardiashvili from Telavi to take up Zakaria Kinkladze’s case; she is also member of the Georgian Dream.

Case N 017240612001

Lawyer Keti Zakariashvili met Zakaria Kinkladze in Akhmeta district police office at 16:36 pm. “Zakaria Kinkladze is arrested for the crime envisaged under Article 239 Part I of the Criminal Code of Georgia. They will inform us about the result of witness interrogation. I have an impression that they are confused what to do with the detainee. Investigator told me they would notify me as soon as Kinkladze needs lawyer. They have no witnesses at all. I talked with Zakro and he said no incident had occurred between him and the suitor. Police officers were standing 50 meters away from the place they conversed and he did not deserve to be arrested for that incident,” lawyer said after she left the police office.

According to official information, investigation based on Paata Sukhishvili’s lawsuit filed to the Akhmeta district office of the MIA under Article 239 Part I of the Criminal Code of Georgia on June 24.

Conclusion of the Prosecutor’s Office reads: “Investigation carried out on the case concluded the following: on June 24 at about 8:30 am Paata Sukhishvili, specialist of the Kistauri village territorial entity in Akhmeta district was in Akhmeta and he parked a car in the free territory near the agricultural market in front of the Georgian Dream’s office as the worker of the auto-park showed him; and he entered the market. Having left the market, Zakaria Kinkladze, head of Georgian Dream’s Akhmeta office drove up to his car and insulted Paata Sukhishvili; he demanded him to remove the car from the area. Afterwards he got off the car and started shouting and cursing Paata Sukhishvili; simultaneously he was opening and closing door of Sukhishvili’s car. Afterwards, Zakaria Kinkladze entered office and continued cursing Sukhishvili. The incident lasted about 15 minutes and caused public disorder. Paata Sukhishvili, his mother Medea Sukhishvili and witnesses Zurab Maisuradze, Trsitan Berdzenishvili and Beka Khvedaguridze were interrogated as witnesses of the incident. They confirmed the abovementioned allegation and stated that Zakaria Kinkladze had not physically assaulted Paata Sukhishvili. Zakaria Kinkladze was also interrogated who confirmed his disagreement with Paata Sukhishvili but claimed he had neither verbally nor physically assaulted Paata Sukhishvili.”

“Carried out investigation demonstrated that Zakaria Kinkladze insulted Paata Sukhishvili and breached public order; in parallel to it investigation proved that Zakaria Kinkladze had not committed any violence act. So, his behavior is punished under Administrative Law and does not contain signs of criminal offence. There are no signs of gross crime and the investigation process is dropped,” prosecutor Levan Gvedashvili of the Telavi District Prosecutor’s Office stated in the conclusion and added that materials shall be forwarded to Telavi District Court for farther procedures under administrative law.”

After this resolution of the Prosecutor’s Office Akhmeta district police qualified the offence as violation of Article 166 of the Administrative Law that is minor hooliganism. “Minor Hooliganism, i.e. cursing in public places, insulting citizens and actions that cause public disorder and undermines public safety – will be punished either by 100 lari or if this punishment is considered to be irrelevant to case circumstances and violator’s personality, administrative imprisonment up to 90 days shall be imposed on the offender.”

After 7-hour interrogation Zakaria Kinkladze was taken out of the police office so that family and Georgian Dream’s members and journalists could not notice him. Kinkladze’s lawyer Keti Zakariashvili was not informed about the changed qualification of the accusation and her client’s transportation to Telavi district court. Neither Zakaria Kinkladze was allowed to get in touch with the lawyer.

15-Minute Long Court Hearing

Judge Labaza Duishvili from Telavi district court discussed the protocol on administrative law violation. Zakaria Kinkladze and police officer Mikheil Berdzenishvili, who had drawn up the protocol, attended the trial. Despite Kinkladze’s request his lawyer was not notified about the court hearing.

The trial protocol states that hearing started at 19:30 pm and lasted 15 minutes. According to the protocol, inspector-investigator Mikheil Berdzenishvili clarified during the court hearing (in fact Berdzenishvili is officer of the Akhmeta district MIA office): “On June 24, Paata Sukhishvili applied to Akhmeta district MIA office and reported that in the morning Zakro Kinkladze had insulted him; the incident had lasted 15 minutes. We started investigation of the fact under Article 239 of the Criminal Code of Georgia. We also interrogated witnesses: Tristan Berdzenishvili, Zurab Maisuradze, Beka Khvedaguridze, Paata Sukhishvili, and Zakaria Kinkladze. Two of them – Tristan Berdzenishvili and Zurab Maisuradze are attendants at the car-parking service in Vazha-Pshavela Street in Akhmeta; they supervise parking of cars in the area. They confirmed that at 8:30 am they heard noise – loud cursing from the parking-area and approaching the place they say Zakaria Kinkladze sitting in his car and cursing driver of the black BMW parked in the area; Kinkladze was demanded him to immediately get off the area.”  Interrogation of witnesses showed that Zakaria Kinkladze had really insulted Paata Sukhishvili.”

Zakaria Kinkladze denied accusation about verbal assault of Paata Sukhishvili at the trial. “At about 9:00 am we had meeting in the Georgian Dream’s Office. Having arrived at the office, I found BMW parked on my parking-area. I told the driver to take the car away because it was my parking place. His car was parked diagonally and had blocked the entrance to the office. He started arguing with me claiming it was not my business where to park his car. I explained to him that he was blocking the road and asked to stop the car properly. He took his cell phone out and said he was going to call Koba Maisuradze (Akhmeta district governor). We did not quarrel. Our conversation lasted several minutes. I entered the office and opening the windows I saw a woman got into the car and they drove away. Everything lasted only 7-8 minutes. I did not curse him. I am member of Akhmeta municipal board. I can suggest a citizen to protect public order. He had parked car in wrong place. I did not breach any law. His car could have hindered visitors to park near our office. If I had breached anything, why he had not called patrol police officers who were standing nearby during our conversation,” Zakaria Kinkladze said and it is written in the trial protocol.

The protocol reads that police officer Mikheil Berdzenishvili stated: “witness interrogation proved there was verbal assault;” after that Judge Labaza Duishvili asked the police officer: what he thought was relevant punishment for the offender if they charged him under administrative law?

The police officer requested 30-day imprisonment for Zakaria Kinkladze. According to the protocol, judge studied case materials though the protocol does not mention concrete case materials and then the judge left court room to pass judgment at 19:45 pm. According to the protocol, at 20:05 pm the judge read resolution part of the judgment: “Having discussed the provided protocol and materials on law violation, having heard explanations of the parties, the Court concluded that violation of the law was proved by the provided case materials and statements of the parties. Consequently, Zakaria Kinkladze was found guilty under Article 166 of the Administrative Code of Georgia and was sentenced to 25-day administrative imprisonment.” Zakaria Kinkladze is serving the term in Kvareli pre-trial detention setting.

The judge wrote in the judgment that “witness statement is used as source of allegation in this administrative case. Court can invite police officers or any law enforcement officer as a witness in any case. The eye-witnesses play the key role in the process because their testimonies and clarifications contain significant information and are the most important sources for evidence. Group of similar witnesses is small [in this particular case] and only police officers were interrogated as witnesses,” the judgment reads.

The judge did not question any witnesses during trial. He relied on the statement of the police officer Mikheil Berdzenishvili, who had drawn up the protocol but had not witnessed the incident personally.

It is noteworthy that Judge Labaza Duishvili had lived in Akhmeta for many years and he knows the surrounded territory of the agriculture market and location of the Georgian Dream’s Office; so he knows that the area is always crowded particularly on weekends and if somebody breaches public order, many people could have witnessed the incident. Despite that, the judge did not request interrogation of witnesses.

Moreover, there was no witness testimony in the case materials provided by Akhmeta police. Lawyer Keti Zakariashvili told ICK: “When we decided to appeal the verdict, we requested the case materials from the Telavi district court on June 25.  Having not discovered witness statements in case materials I again applied to the Court and requested them to hand witness testimonies to us. I was told I had to apply to Akhmeta district police to get witness testimonies because they did not have one at the court. Akhmeta district police refused to provide us with the witness statement; we have indicated this fact in our appeal statement,” the lawyer clarified.

Witnesses Do not Prove Law Violation and “Victim” Is Hiding

Court judgment states that Akhmeta residents Tristan Berdzenishvili and Beka Khvadaguridze were interrogated as witnesses in case materials and prove Zakaria Kinkladze had committed crime. “They confirmed that at 8:30 am they had heard noise – loud cursing from the parking-area and approaching the place they say Zakaria Kinkladze sitting in his car and cursing driver of the black BMW parked in the area; Kinkladze was demanding him to immediately get off the area,” the trial protocol provides the statement of police officer Mikheil Berdzenishvili and judge believed them and completely relied on them when passing judgment.

During their conversation with the Information Center of Kakheti Tristan Berdzenishvili and Beka Khvadaguridze completely denied information about Zakaria Kinkladze’s cursing and said they had not told similar thing to police officers.

“We are working at the car-parking lounge in Akhmeta from 6:00 am every day. I did not hear cursing there; neither Zura (another witness Zurab Maisuradze) heard it.”

-The resolution of the prosecutor’s office states that Zakaria Kinkladze had verbally assaulted Paata Sukhishvili and demanded him to remove his car from the area. Then he got of the car and started shouting and cursing at Sukhishvili; in doing so he opened and closed the car door several times. Afterwards, Zakaria Kinkladze entered the office and he continued cursing Sukhishvili from there.

-I did not hear similar thing. I do not know if he had cursed him from the office; I could not hear it. I am at the car-parking lounge, earning my living here and how could I waste time standing and listening to them. Zakro arrived and they talked face to face; I could not hear anything. I am not interested what they were talking about.”

According to the verified information, police officer Mikheil Berdzenishvili is relative of the witness Tristan Berdzenishvili and the latter also confirmed it.

Beka Khvadaguridze (secret audio-recording): “I was there from 8:00 am here and witnessed the incident. I saw they were talking. I did not make out their speech because there was a lot of people and noise in the market. I heard Zakro was asking the man to park his car in another place because it was parked in front of the office. Zakro was speaking loudly as he usually does but I heard he was asking the man to park the car in another place. I did not hear any cursing or insulting. I did not hear their conversation clearly except what I have already told you. Then Zakro entered the office and the stranger parked his car in another place. There was no banging of the car-door, shouting or screaming.”

Aleksi Mebagishvili is also a witness; however he and several other people, who might have witnessed the incident, were not interrogated by police; however ICK interviewed them.

“The car was parked there; Zakro Kinkladze came and asked the driver to park the car in another place. The driver initially resisted him but when Zakro told him it was not right place for parking cars and it was office area, the driver started shouting and screaming,” Aleksi Mebagishvili told Ninth Channel.

Pati Khavazurashvili, working in the shop across the Georgian Dream’s office in Akhmeta. “On June 24, I opened the shop at 7:00 am but did not hear anything. By midday I learned police had taken Zakro. I got surprised because I had not heard any noise, any conflict in the area. Their office is 9-10 meters away from our shop. If there was any conflict, I would have heard it. Although it was Sunday and a lot of people move around, I could hear conflict and quarrel by all means.”

Irma Khutsurauli, shop-assistant: “I had already opened the shop at 8:00 am. It was Sunday and opened the shop earlier. I did not notice any conflict here. Although I am standing inside the shop, I sometimes leave shop building when there are no customers. I do not know anything about the incident. There are cases when Zakro is speaking loudly with his collages but it is his manner of speaking. But I did not hear him shouting and cursing at all.”

Shop assistant (secret audio-recording): I did not look out at all. If there was some serious incident, I would have heard and noticed it; but I did not hear anything.”

We visited so-called victim Paata Sukhishvili initially at work and then at home; he is specialist of Kistauri village territorial entity in Akhmeta district and member of the United National Movement. He avoided answering our questions and hid.

Problem of Lacking Grounds

Administrative Code of Georgia regulates rules and character of administrative case proceeding. The principles of the administrative procedural law are the following: timely, thorough, complete and impartial investigation of the case and passing decision in compliant with the law.

Lawyer Lia Khuroshvili said that judge’s decision on imposing administrative punishment shall be passed as a result of effective investigation however the resolution cannot provide full information which concrete evidence were used by the court when passing judgment.

Public Defender of Georgia Giorgi Tugushi believes procedures about administrative law violation facts still remains a problem in Georgian and if this problem is not resolved, it will cast doubts about compliance of the judiciary’s activities with the international standards of human rights.

Tugushi said on the one hand those problems are caused by improper attention of the judiciary system towards those cases that is demonstrated by passing template judgments and neglecting the rights of parties during court discussion.

“Repersentatives of judiciary state rapid discussion of cases is caused by the law which estimated short term for the discussion of similar cases. Although Georgian law estimated limited terms for the discussion of administration law violations, it cannot become basis for the violation of other constitutional rights and human rights,” Giorgi Tugushi said.

Human Rights Watch wrote in its special report that “court hearings on administrative law cases are superficial.” HRW released report about administrative law violations in Georgia early in 2012.
“In the cases Human Rights Watch reviewed, trials were perfunctory, rarely lasted more than 15 minutes, and judicial decisions relied almost exclusively on police testimonies. In cases when detainees could retain lawyers, they lacked time to prepare an effective defense,” the report states.
According to official data, in 2009 6 511 persons were judged under administrative code; in 2010 their number was 8 657 and 3 097 of them were sentenced to administrative imprisonment. According to the MIA, before October of 2011, 2 550 people were sentenced to administrative imprisonments.

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