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In the expectation of non-guilty verdict – the Appeal Court is discussing the case of a convicted woman for more than one year

08.03.2018

 
Natia Gogolashvili

Convicted K.Kh has been serving her term in prison # 5 for more than two years. She is convicted under Article 179 – 25 of the Criminal Code of Georgia, which refers to assisting the robbery. She does not admit the charge and has been trying to prove her innocence at the Appeal Court for more than one year. 

Lawyer of Human Rights Center Eka Kobesashvili defends interests of K.Kh at the Appeal Court. The lawyer said the Appeal Court held only several sessions. “We could not reach the stage of introductory speeches either. Only several hearings are enough to finish the case hearing but the Appeal Court is dragging out the process. We do not know the reason why they drag out the process. The court clarified it is because of busy schedule,” Eka Kobesashvili said.

The advocate said the investigation was not conducted properly and it is evident that the law enforcement bodies did not aim to estimate the truth. In addition to that, the first instance court relied on the faulty investigation results when passing the verdict.

“During the detention, law enforcement officers verbally and physically assaulted K.Kh and other persons, who were arrested together with her. Akhaltsikhe district prosecutor’s office launched investigation against those investigators, who conducted preliminary investigation against K.Kh and other convicts,” Eka Kobesashvili said.

Four more persons were convicted together with K.Kh. Only one of them, I. G admitted the charge and he signed plea-agreement with the prosecutor’s office. The other convicts do not plead guilty like K.Kh and are trying to prove their innocence at the appeal court. 

“It is interesting that the only convicted person, who admitted the crime, did not became subject of violence from the side of law enforcement officers. He spoke about unreal facts with the investigation and then signed agreement with the prosecutor’s office. However, it is noteworthy that at the stage of the investigation, the convicted I. G had not admitted the crime yet and it is curious: why the law enforcement officers treated him differently, while they were verbally and physically abusing others?!” Eka Kobesashvili said. 

What does the investigation say – what happened on January 13, 2016?

On January 13, 2016, at about 19:30 pm, 5 persons broke into the house of B.S in Charentsi Street # 17 in Ninotsminda to rob it. According to the case materials, K. Kh falsely made the flat owner to open the door. During the incident, mother of B.S resisted the robbers and one of the robbers started beating her; the woman was killed with knife. The court acquitted the persons, who participated in the robbery. Investigation claims the convicted K. Kh was selected purposefully because K. Kh was from Tkemlana village and did not know the family living in Ninotsminda; at the same time she was a woman and could easily gain trust of the flat-owner woman. 
The court found K. Kh guilty and sentenced her to 9-year-imprisonment on October 4, 2016.
The evidence based on which the court found K. Kh guilty

The court relied its guilty verdict only on two evidence: the confession statement by the convicted I. G and recognition of K. Kh by the victim person. 

The court relied on the statement of one of the witnesses, who also participated in this crime and was convicted for the same action. Finally the prosecutor’s office signed plea-agreement with him. However, it is important to note that I. G was several times charged and convicted for false testimony. 

“It is incredible that the statement of this person became basis for the court judgment while the Article 13 Part 2 of the Criminal Procedure Code of Georgia states a judgement of conviction shall be based only on a body of consistent, clear and convincing evidence that, beyond reasonable doubt, proves the culpability of a person.  In accordance to the Article 40 of the Constitution of Georgia, a judgment of conviction shall be based only on the evidence beyond a reasonable doubt. An accused shall be given the benefit of doubt in any event,” Eka Kobesashvili said.

It is also important to note that at the trial the victim person could not recognize convicted K. Kh and she pointed at the different woman in the courtroom.

“The statement of the victim E.S is not properly reflected in the judgment. At one of the hearings the victim person confirmed that the woman accused in her robbery was sitting in the courtroom. She pointed at different person, who stood up and then the victim said it was the person, who asked her open the door; but if it is not that woman, then at least she is the twin of the robber,” Eka Kobesashvili said. 

During the investigation, the procedure of recognizing the robbers by victims was conducted through violations. Before the trials, in January 2016, the victims were brought to the police office and showed the photos of alleged participants of the crime, K Kh’s photo was among them. Consequently, before the recognition procedure the victims were already shown whom they had to recognize in the courtroom.

Some other violations were observed in the process of recognizing K. Kh. The victim was informed that the woman, participating in the crime, was ethnic Georgian and only K. Kh was ethnic Georgian among those persons, whom the victim had to recognize. At the same time, physical and visual description of K. Kh did not coincide with the features of the robber. It is noteworthy, that another woman, who was among the women, whom the victim had to recognize as robber, was from the same village as the victim and they knew each other.

The evidence which were neglected by the court when passing the verdict
At the trial, several witnesses confirmed that in the moment of robbery K. Kh was in Tkemlani village and not in Ninotsminda.

Witness # 1
The statement of the witness A. Sh was not mentioned in the court judgment but he confirmed that: 
  • K.Kh’s house was searched in the evening and not in the morning of January 16, 2016. K. Kh was arrested in the morning, she was brought home in the evening and the house was searched;
  • On January 13, 2016, on the day of robbery, K. Kh was in her house in Tkemlani village, Akhaltsikhe municipality together with A.Sh and D.Sh.
Witness # 2
The statement of D.Sh is not included in the court judgment either; he stated that:
  • During the detention and afterwards, the police officers physically abused and inhumanly treated K.Kh;
  • On January 13, 2016 K.Kh was in her house in Tkemlana village, Akhaltsikhe municipality together with D.Sh and A.Sh;
  • They had never spoken about the robbery or any other crime before January 13, 2016 or after her detention
Witness # 3
The husband of the convicted woman G.Sh was questioned at the trial; neither his statement was considered when passing the verdict. He said:
  • Police officers intimidated him and his underage son. As a result of this oppression, their son made his first statement. They even appealed the Chief Prosecutor’s Office and requested his repeated interrogation at the trial.
  • During the detention of K. Kh and afterwards, law enforcement officers physically abused and inhumanly treated his wife. He personally saw that his wife had finger injured
  • They provided the court with medical conclusion, which was not mentioned in court judgment. According to the medical conclusion, K. Kh had minor injuries on the body.

Witness # 4
The statement of witness M. T was not considered in the court judgment, who confirmed that during the incident K. Kh was in Tkemlana village. M. T said that on January 13, 2016 K. Kh had to come to his house. Although the meeting failed but the convicted woman really was in Tkemlana village that was proved by their phone conversation with K. Kh at 18: 00 pm on January 13. The convicted woman had told M.T that she was in the village.

“It is clear that when discussing the case of K. Kh the court breached the requirements of the Criminal Code of Georgia, violated the principles of fair trial and compatibility. The recognition procedure was conducted through violation. The court accepted the statements of the police officers as direct evidence,” Eka Kobesashvili said.

According to her statement, it is necessary that the Appeal Court timely, effectively and impartially considered the case. It is noteworthy that before the arrest K. Kh was civil activist and was head of one of the nongovernmental organizations in Samtskhe-Javakheti region.

The article was prepared in the frame of the project – “Monitoring Conditions of Juvenile and Female Prisoners in Georgian Penitentiary”, which is implemented by Human Rights Center with the Bulgarian Development Aid. The views in the article does not necessarily express the views of the donor and it is responsible for the content of the article. 

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