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Judge Tabaghua: “Question Is Declined... Question Is Declined...”

October 19, 2009

Gela Mtivlishvili, Kakheti

Telavi district court is discussing the criminal case against Kote Kapanadze, supporter of the political party the New Rights. Judge Besarion Tabaghua is conducting the trial in the smallest room of the court so that the interested people cannot attend the process. Although the audio-recording is not prohibited at trial by the Law of Georgia, the bailiffs do not allow journalists to use Dictaphones in the courtrooms.

Law enforcement officers arrested Kote Kapanadze on June 23, 2009. According to the chief prosecutor’s office of Georgia the preliminary investigation started on May 23, 2009 by the Kakheti office of the investigation division of the Department of Revenues within the Ministry of Finances. The criminal case was launched against the individual entrepreneur “Aidin Mailov”, which avoided paying taxes in 2007 and 2008.

Materials of the Investigation

Chief prosecutor’s office of Georgia holds the following documents on Kapanadze’s case.

Individual entrepreneur “Aidan Mailov” was importing and selling household items in 2004-2007 in Georgia. It rated the imported and sold goods from corrected custom price and not from the invoice; so it hid the entity that was to be rated and in doing so the individual entrepreneur avoided paying taxes to the budget. Consequently, the enterprise did not pay tax of 126, 045 GEL to the state budget in 2005-2006.

Chief inspectors of the Telavi Tax Inspection Department Teimuraz Iarajuli and Konstantine Kapanadze premeditatedly neglected the incorrectness and illegality in the purchase documents of the individual entrepreneur Aidin Mailov. They did not expose the crime committed by the “Aidin Mailov”. More precisely, on August 7, 2007 the inspectors did not impose 39 685 GEL as tax for revenues, 86, 360 GEL as a social tax and fine of 82, 363 GEL on the entity and the total sum amounted to 208, 408 GEL.

On June 15, 2009 the department issued the resolution and accused Kote Kapanadze in crime. Initially he was hiding from investigation but on June 23 his was found and taken to the investigation department.

On June 23, 2009 Kote Kapanadze was accused under Article 332 Part I of the Criminal Code of Georgia though he did not plead guilty and preferred to keep silence. The investigation department and the prosecutor’s office motioned to the Telavi district court to impose two-month pretrial detention on Kapanadze. On June 24, 2009 the court bailed the detainee with 20 000 GEL and imposed two-month-detention as a guarantee of the bail. On June 29, 2009 based on the suit of the prosecutor Tbilisi Appeal Court sentenced Kapanadze to two-month pretrial detention.

Teimuraz Iarajuli was accused on June 23, 2009 under Article 332, Part I of the Criminal Code of Georgia and he pleaded guilty; on the same day he was arrested. On June 24, 2009 he was bailed with 15, 000 GEL.

“Preliminary investigation exposed that Kote Kapanadze and Teimuraz Iarajuli committed crime envisaged under Article 332, Part I of Criminal Code of Georgia (abuse of power by public servant against general interests).

Bailiffs: “We Are Instructed So”

On October 15, trial was scheduled at 12:00 pm. The bailiffs did not allow people to enter the court room before 11:58 am. The journalists tried to enter the hall in order to occupy seats. There are 20 seats in the hall. 4 of them are for bailiffs and the rest are for the relatives of the accused and audience. Despite many attempts, the bailiffs let us into the court room when all 16 seats were occupied. “You can see there is no place for you. You cannot stand in the hall so please leave the room,” said the bailiff. At that time, a secretary entered the room and said the judge was coming and everybody stood up. It was not time for arguments and journalists asked the relatives of the accused to give some place to sit. We stayed in the hall. The judge was already in the hall when the bailiff warned us against audio-recording and if we did not obey they could send us out of the court-room. It was not first fact when bailiffs warned journalists against audio-recording in the courtroom. So we were demanded to leave Dictaphones in the corridor.

-The law does not prohibit audio-recording in the court room and why are you prohibiting me to take Dictaphone in?

-We are instructed so, - said the bailiffs.

Before the discussion started the judge Tabaghua said. “I know journalists are in the hall. We remind you that photo and video recording is prohibited in the court. If journalists breach these requirements, they will be punished under the law.” Although the judge did not say the journalists were prohibited to audio-record the hearing, we could not enjoy this right. The bailiff did not allow us to use the Dictaphone. If we did not obey them, the bailiff could start argument and consequently the judge could send us out of the courtroom.

“Protest Accepted, Question Is Declined”

At the hearing, former deputy head of Kakheti tax inspection department Tamaz Chuniashvili and accused Temuraz Iarajuli were interrogated.

“The order on examining the individual entrepreneur “Aidan Mailov” was signed by me. Specialists of the Tax Inspection Department Kote Kapanadze and Teimuraz Iarajuli were ordered to examine the enterprise. As far as I remember the individual entrepreneur was examined, the documents were checked at the department and they were provided to the administration of tax inspection. The inspectors examined the individual entrepreneur legally and they did not breach the law,” said Tamaz Chuniashvili.

Prosecutor Khvicha Begiashvili asked the witness: “When did you learn that Kapanadze and Iarajuli did not expose unpaid taxes of the individual entrepreneur “Aidan Mailov”?

-I do not know why these people are arrested for. The examination was legal. If the board of the inspection suspected anything about their activities, we would have demanded the inspectors to write explanation letters.”

According to the procedural law, the witness is initially interrogated by prosecutor, then by defense side and finally the judge questions him/her. The judge Tabaghua did not wait for his turn and asked Chuaniashvili: “Will you mind if we announce the testimony you gave to the preliminary investigation?... It is clear... Write in the protocol that the witness agreed to announce his initial testimony,” said the judge however, the witness did not ask him to announce his testimony.

It was impossible to understand the testimony of Chuniashvili when judge was reading it because he did not finish sentences. The people in the court could not understand anything.

The only document based on which the prosecutor blamed Kote Kapanadze and Teimuraz Iarajuli in abusing the power, is the examination protocol of the individual entrepreneur “Aidan Mailov”. Kote Kapanadze’s attorneys Kakhaber Khvistani and Giorgi Razmadze asked the witness about this protocol.

Kakhaber Khvistani: “Was the administration of the tax inspection department obliged to see the examination protocol?”

Tamaz Chuniashvili: “If we have any doubts about the examination process, we request the protocol and check it. But as I have already mentioned we did not doubt about it at all.”

Judge Tabaghua: “Attorney, what is your aim by asking this question?”

Kakhaber Khvistani: We want to underline the weakness of the accusation. Mr. Tamaz, was the examination protocol valid without the order of the head of tax inspection department and whether the individual entrepreneur could have had imposed tax on the entity without corresponding orders?

Tamaz Chuniashvili:  No, the examination protocol was not valid without order and neither tax could have been imposed.

Kakhaber Khvistani: That means, the inspectors could not impose taxes on the individual entrepreneur without the orders of the administration of the tax department.

Judge Tabaghua: The question was declined, the witness is not expert.

Did the administration of the tax department recommend anybody to examine the individual entrepreneur and to impose taxes on it? Who was in charge to check the examined documents? When the attorney was asking these and other questions, the prosecutor either protested or the judge declined them. He was stating: “The question has no connection with the case; the protest has been accepted; the question is declined.”

One more witness was invited to the trial but the judge refused to interrogate him and started interrogation of the accused Teimuraz Iarajuli.

Teimuraz Iarajuli: ”I worked at the tax inspection for 27 years. I controlled entrepreneurs based on the order of the head of department. I mostly checked exported goods; „Aidan Mailov” was the only case when I checked the imported goods. The head of our department ordered us to check the entity. We arrived in Tbilisi. The enterprise was trading with plastics items. They showed us everything; they provided custom-declarations, but he did not have invoices. I asked Tamaz Gumberidze, the head of the control division of tax inspection department, how to control the entity without invoices. I informed Gumberidze that the enterprise was hiding taxes. He asked me how I guessed it. I said Mailov was importing plastic items in kilograms and was selling them on retail. There might have been several items in one kilogram.”Do not try to invent a new bike”, told Gumberidze to me. Finally we agreed to check as according to our practice.

Two years later, when the investigation started, I learned that we had examined the enterprise incorrectly. It was caused by my ignorance and carelessness. I admit the crime, but we did not do it on purpose. I did not know Mailov. I did not mention if Kote knew him either”, said Iarajuli.

Accused Iarajuli answered several questions of the lawyers of Kapanadze. The judge cancelled most part of questions.” have not you finished questions? They will never finish their questions, they request explanations about everything”, the judge was annoyed about the lawyers of Kapanadze. Besides that, the judge interpreted the words of Iarajuli very often and did not let them finish the conversation. The judge repeated the words of witnesses, the accused, lawyers and prosecutor during the trial. The secretary was writing his interpretations in the protocol. After interrogation of Iarajuli, Tabaghua stated: „He cannot work in this regime, he is tired.”  And the trial was postponed.


Persecuted on Political Grounds

Pikria Chikhradze and Manana Nachkebia, leaders of the New Rights, also attended the trial. After the trial Manana Nachkebia gave interviews to journalists and underlined the partiality of the court.

„The court is as partial as the prosecutor office. Both of them try to charge only Kote Kapanadze and they defend, Teimuraz Iarajuli, the second detainee. The most important for them is to punish Kote Kapanadze, in order to prevent him from political activities, but they do not want to punish Iarajuli, who is also guilty. They are not in equal conditions, one of them has to pay bail and the second shall go to prison”, said Manana Nachkebia. According to her, he was detained because of his political activities in Lagodekhi District.”He was working for the New Rights and Alliance for Georgia. He is one of political prisoners; non-parliament opposition demands to release every political prisoner”, stated Nchkebia.

Vaja Kapanadze, brother of the detainee: ”The prosecutor’s office began to investigate the case on May 23, 2009 based on the examination materials made in 2007. On the same day they fired Nutsa Papava, the head of Lagodekhi District office of the Alliance for Georgia from job. The government did everything to hinder the supporters of opposition political parties to take part in the protest rally on May 26 and then to plan protest rallies. Before launching the case the officials of Constitutional Security Department visited Kote Kapanadze and warned him to leave his political activity, otherwise he would have problems. Kote refused them and several days later he was detained”.

See on the topic:

Judge Who Did not Satisfy the Request of the Persecutor’s Office Is Persecuted
http://humanrights.ge/index.php?a=article&id=3949&lang=en 

Kota Kapanadze Is Persecuted for Supporting the Opposition Parties

http://humanrights.ge/index.php?a=article&id=3890&lang=en 

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