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People Punished Because They Were to Lead or Join the Protest on April 9

May 25, 2009

Punisher – Georgian Court

Saba Tsitsikashvili

The following story is about a person who is an IDP from Tskhinvali and who was sent to prison for 27 days by the Gori district Court for having a different political opinion. He was also bailed for 276 GEL. With the great effort of the Judiciary System of Georgia about 10 boxes of apple rotted and the person remained without any source of income. During the war in August, 2008some of his relatives died and some were injured; his house was destroyed and the government left him without compensation. This person was punished by the war and the governments of his native country and foreign countries.  His party members they did not even provided him with drinking water during his pre-trial detention.

***
Prosecution of members of political parties in Gori started with the detention of Aleksandre Tevdorashvili, originally from Tskhinvali, on March 15, 2009. Together with him in detention was Kakha Kareli from Tkviavi village in the Gori district and Tamaz Makashvili, a resident of Gori. According to detainees, the reason for each was to prevent people from joining the protest rallies on April 9. The reason for detention was having insulted, cursed and scolded policemen---surprisingly every activist of opposition parties started insulting the policemen simultaneously before the April 9.

Aleksandre Tevdorashvili spent the most time – 27 days ---in detention. He left detention on April 11; two days after the mass rallies had started. Kakha Kareli was detained on March 17 for 25 days. Consequently he left detention on April 11.

We decided to study only the case materials on Aleksandre Tevdorashvili because he is an IDP from Tskhinvali, his relatives died during the war in August, his house was destroyed (the court fined such an impoverished person because of a groundless charge) and Tevdorashvili started to protest the activities of the government after the war. In February 2009 he managed to bring about 40 people from his village when the regional organization of the political party Democratic Movement for the United Georgia was founded.

Aleksandre Tevdorashvili was born in 1982 in the village of Mamisaantubani in the Tskhinvali district. 16 years ago, because of the first Georgian-Ossetian conflict his family had to move to the village of Karbi, the native village of his mother, and he still lives there.

Everything Upside Down

The Gori district court began to hear the administrative charge against Aleksandre Tevdorashvili. Although according to Article 261 of the Administrative Code the hearing of the administrative crime was to be conducted at the scene of crime (in the village of Karbi where he was declared a suspect) the policemen from the Gori Department of the Ministry of Internal Affairs decided to hear the case at Gori district court. The reason for their decision was the resistance of Tevdorashvili during detention. The policemen claimed he prevented them from drawing up the protocol on the crime and insulted law officers.

Grigol Eluashvili, inspector-investigator of the police station #1, reported about the incident that:

“On March 15 I was patrolling in the village of Karbi, Gori district and we noticed that a car was zigzagging along the road--it was “Moskvich”-412. We ordered the driver to stop the car. Aleksandre Tevdorashvili got out of the car and started to curse us without any reason. He was aggressive toward us. We called upon him to calm down and behave properly but he did not obey. Just the opposite, he went on and he called us “Dogs”. We started to write the protocol but he pushed away our papers; he resisted us and did not obey. Consequently, we had to arrest him. We made him sit down in the car and took him to the police station. He continued cursing us at the station as well. We drew up the administrative protocol on him--we requested to impose an administrative imprisonment on Aleksandre Tevdorashvili.” (These were his exact words.).

The case against Tevdorashvili has one incredible controversy: as the readers already have noticed Grigol Eluashvili acted as a witness in the court and testified against Tevdorashvili. In the second case, in the protocol of the trial, he is the attorney for Tevdorashvili and this document was the basis for the judgment prepared by the Judge. The protocol states: “Representative of the accused for the administrative crime – Grigol Eluashvili--has appeared to the court” (in fact the accused did not have any attorney; he was not allowed to have one). On the same page of the protocol (it has only two pages) the same person –inspector-investigator Eluashvili is represented in a way that seems comical-- he is mentioned there as an accused: “Grigol Eluashvili, accused of an administrative crime, is making the testimony at the trial” (this   is copied from the protocol).

What do these circumstances demonstrate? The officials of the judiciary system and the Government of Georgia should decide. We think this protocol indicates not only the irresponsibility of the law officers but also that of the formal trials and formal judgments.

For those who like comedy we will add that according to the trial protocol Judge Nino Kordzaia sentenced both Aleksandre Tevdorashvili and policeman Grigol Eluashvili to be imprisoned for 27 days..

Irrelevance of the Articles

The incident in the village of Karbi was not witnessed by anyonr. Tevdorashvili’s story about the incident is quite different from the one of Grigol Eluashvili.

“On March 15, 2009 I purchased 10 boxes of apples from Tiskar Aghapishvili in the village of Karbi and I was going to take them in my car and sell in Gori agricultural market. I was sober. Because the road is damaged in the village I was moving slowly and tried to avoid the holes in the road. Suddenly policemen blocked my way by car, and “Opel”, and signaled me to get out. I obeyed their order and when I was out they held me under the arms and took me to their car. They inquired about my driving license but since I did not have it with me, the policemen drew up the protocol on that fact and I signed it. Then they prepared another protocol as well and I signed it as well. After that the policemen made me sit in the car for testing me for alcohol. They took my mobile phone, IDP card and ID and took me to the police station in Tkviavi. A policeman sat in my car and drove the car. The policemen cursed me on the way to the station and asked why I did not like the current government. I said I had lost my relative; my house was destroyed and asked how anyone with similar problems could like the government. They answered me with cursing and insulting and said it was the fault of Russia and not of our government. I was brought to the Tkviavi police station. Although the alcohol test did not show that I was drunk, they took me to the Gori district court for imposing a fine on me. I do not know the laws and I thought they were right. During the trial the judge did not look up at all. They were negotiating with each other and finally sent me to prison for 27 days. I did not protest the decision. Policemen threatened me with three-year-imprisonment if I protested the decision. Surprisingly, I learned at the court that I had breached the public order, had cursed and resisted the policemen.”

There are two completely different protocols and Aleksandre Tevdorashvili has signed both of them. Grigol Eluashvili wrote both protocols.

Judge Nino Kordzaia based the decision on the second protocol which does not indicate where the protocol was drawn up. The crime is charged under Articles 166 and 173 of the Administrative Code. The first article envisages minor hooliganism and the second disobedience to the legal demands of law enforcement officers.

Hooliganism of a Citizen or of Law Enforcement Officers?

According to Article 166 of the Administrative Code of Georgia using foal language, cursing, insulting citizens and similar activities in public place are considered a minor hooliganism.

The two protocols demonstrate one and the same facts: Aleksandre Tevdorashvili did not breach public order at the scene of the incident. The protocols do not state whether people were nearby during the public disorder. Only the policeman claims that Tevdorashvili was cursing policemen. And it is strange why the court relied on only one out of two testimonies which the policeman made. We cannot find the answer to this question in the case materials. Furthermore, the protocol N 1, .does not indicates that Tevdorashvili had cursed or insulted the law enforcement officers. This protocol states (no words have been changed):”On March 15 A. Tevdorashvili was driving by his car ‘Moskvich’- 412 in the village of Karbi. We stopped him and the driver did not have a driving license. He was not drunk. Consequently, he was charged under Article 121, of the Administrative Code (driving a car without a license) and was fined 200 GEL. The protocol was drawn up in the village of Karbi on March 15, 2009.” The protocol is signed by Grigol Eluashvili, inspector-investigator of Gori police station N 1 and law-offender Aleksandre Tevdorashvili.

The court did not consider depriving Tevdorashvili of his car and taking it to the penalty yard in Gori was a crime committed by the policemen. There were 10 boxes of apple in the car and besides that the “law-offender” was fined 76 GEL for having the car stored at the penalty yard.

Article 249 Part IV of the Administrative Code of Georgia clearly defines those circumstances when an owner shall be deprived of a thing or a document —including a car. “In order to compel the offender to pay a fine imposed under Article 58 ' 2, Article 86 Part V and VI, Article 114 ', Article 153 ', Article 155 ' I, Article 155 ' II, Article 157, Article 190 ' and Article 193 [before the owner can be deprived of] the thing or car… a protocol shall be drawn up on deprivation of documents or things; or a corresponding note shall be made in the protocol on administrative detention.”

Such notes/remarks have not been made either in protocol I or in protocol II. Furthermore,  Aleksandre Tevdorashvili is not charged under those articles.

How Can the Aggression of the Policemen Be Confirmed?

“According to the law, the protocol on an offence shall be drawn up on the scene. But if it is impossible, the policeman has to detain the offender, take him/her to the police station and draw up the protocol there. In the case of Tevdorashvili it was not necessary draw up the protocol at the police station because he did not resist the policemen while writing the protocol. The first protocol which was drawn up in the village of Karbi is complete and it is signed by Tevdorashvili. If the detainee was not against the protocol, why had he signed it? The policemen claimed the detainee threw away the papers. If it really happened the policeman should have made a special note in the protocol about the disobedience of the detainee,” said Bakur Zurabashvili who started to protect Tevdorashvili later at the court..

This protocol was not shown at the trial at all. The judge passed judgment based on the second one which also is signed by the offender. However, the lawyers explained that the court did not have right to use this protocol because it does not indicate the place where it was written. According to Article 240 of the Administrative Code “The protocol on crime shall contain the date and place of the drawing up of the document…”

The Laws Unfamiliar to the Judge

The judge opened the trial at 3:30 PM, 2 hours after the detention.

According to Article 260 of Administrative Code on the preparation of the crime for a court hearing: “While discussing the administrative crime the institution is entitled to discuss the following issues: 1) whether the case is within the competence of the institution; 2) whether the protocol and other documents on the administrative offence are correctly drawn up; 3) whether the participants in the case were informed of the time and place of the hearing; 4); whether additional materials necessary for hearing the case have been requested.

Judge Nino Kordzaia did not take into consideration that the protocol incorrectly had been drawn up and she did not request additional documents.

According to Article 8 of the Administrative Code, “The administrative offences shall be heard based on the strict demands of the law.”

The court was obliged to find out whether Aleksandre Tevdorashvili was or was not an offender because according to the Article 40, Part II of the Constitution of Georgia “No one shall be obliged to prove his innocence. The burden of proof shall rest with the prosecutor.” The court is obliged to carry out these activities. Part III of the same article states: “An accused shall be given the benefit of doubt in any event.”

According to Article 42 of the Constitution of Georgia, “Evidence obtained in contravention of law shall have no legal force.”

Giorgi Gotsiridze, a representative of the Public Defender, stated that Aleksandre Tevdorashvili is a political prisoner: “This case complies with the criteria of resolution # 1359 of the Parliamentary Assembly of the Council of Europe. According to those criteria a person is considered a political prisoner if 1. A person is carrying out active political activities and the government gets political benefit by his/her detention; 2. If s/he is imprisoned based on inadequate and disputable arguments. Tamaz Makashvili, Aleksandre Tevdorashvili and Severian Kareli were imprisoned based on inadequate arguments. Besides that, by means of the detention the authority prevented them from joining the protest rally on April 9, 2009. Through similar detention of these people the government received a political benefit.”

Aleksandre Tevdorashvili appealed to the higher court against the decision of the Gori district court. The Tbilisi Appeal Court discussed the suit of Aleksandre Tevdorashvili without hearing arguments and passed judgment 8 days later. The Appeal Court did not grant the appeal and the argument for their decision was the following:

“According to Article 25 of the Law of Georgia on Police every person and official shall obey the legal requests of a policeman. Preventing the professional activities of the policeman, insulting, degrading, threatening or resisting, violence or material, physical injuring of the policeman is punished by the Georgian legislation.”

Nevertheless, which of the abovementioned crimes were found to have been committed by Tevdorashvili?

Lia Toklikishvili
Leader of the journalistic investigation
The project is implemented by the Human Rights Center and Magazine “Sitkva” with the support of the Eurasian Partnership Foundation

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