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Injustice Leaked from a Scandalous Pipe(part II)

April 7, 2009

 Court was counting these pipes for 8 days

Why Was Not An Inspection Arranged Under the Earth?

The Judge, the experts and the attorneys were discussing the details of the conclusion (#4580/18) of the numerous experts for two days and very often they were in a curious situation. The experts gave such strange answers to the questions that everybody suspected those experts may not have attended the examination; and suspected no expert examination really had been conducted. Finally, it was clear that the experts studied only the work that was performed above the soil while the most part of the work had been done under the soil. The trial witnessed the dialogue between attorney Aleksandre Baramidze and Mamuka Kalandadze, a specialist who participated in the repeated expert examinations.
The Attorney: How did you find out that the specified work complied with the actual work?

Expert: based on the financial estimate provided.

Attorney: Did you examine the actual work at the place?

Expert: We examined the part of the actual work that was over the soil but we could not check the work under the soil.

Attorney: You were obliged to examine the actual work that was performed.

Expert: How could we dig out such a huge pipe?

Attorney: Nobody digs out the pipe. You had to dig the soil in some places and check whether it was installed 4 meters below the soil-surface or 6 meters or 2 meters below.

Expert: No, we did not check the work performed under the soil.

Attorney: But you were ordered to do exactly that. You had to check what was done in accordance with the project. Maybe, there is no pipe under the soil?

Expert: No, there is pipe under the soil

Attorney: Well, now just tell us, according to which project was the work performed over the soil: was it according to the initial project that was announced by the competition or according to the alternative one?

Expert: According to the alternative project.

Attorney: You, as an expert, please tell us did the initial project enable the company to carry out the work in the area?

Expert: No, they could not do anything according to the initial project.

The curious finished here. The experts confirmed that the work was to be done according to the alternative project and it was done. The court concluded after 8 month’s work that Kutsnashvili had not done anything willfully. The work performed complied with the project and contract demands; consequently, the state funds were not wasted. In favor of the court we should say that it discharged Omar Kutsnashvili from the appropriation of the state funds.

But What Does the Word “Fabricated” Mean?

On February 19 Tbilisi City Court with Judge Maia Jvarsheishvili as chairperson, passed judgment. According to the resolution part of the judgment, Omar Kutsnashvili was found not guilty of appropriating the state funds.

However he was found guilty of fabricating the financial documents (Article 210, Part b of the Criminal Code of Georgia). Omar Kutsnashvili was sent to prison for four years.

However, the point is what the court considered in reaching its judgment. The court decided that the documents were fabricated because Goingineering recorded the dates in the documents which were envisaged under the initial project and not in the alternative project.

Nino Andriashvili, a lawyer for the Human Rights Center, thinks that the court defined the law incorrectly.

Nino Andriashvili: “A tax document is prepared by the bank. According to the article, under which Kutsnashvili was charged, the activity is considered a crime if a person personally creates, realizes and uses the above-listed documents. Besides that, the document is considered fabricated if it is confirmed by false seal and signature. In this particular case such activities were not observed. The court confirmed that. The court defined that Omar Kutsnashvili introduced wrong data in the tax documents.”

JD Otar Gamkrelidze, head of Criminal Law and Criminology Department of the Tinatin Tsereteli State and law Institute, assessed the judgment of the court as follows:.

“According to the Article 210 of the Criminal Code of Georgia fabrication of the documents does not mean “introduction of the altered data in the document”. The article envisages preparing the fabricated document in order to use it in the future and this is the activity  punished under the law.”

According to Nino Andriashvili, since the court has complaints about wrong data introduced into the financial documents the case should have been launched under Article 204, Part I of the Criminal Code of Georgia (creation, usage or registering of wrong or incomplete financial document by a person who is in charge of accountancy).

Why Did Not the Court Use the Appropriate Article?

The answer is simple: because, Article 204 was removed from the law in 2006 and it was restored only on March 14, 2008. The rehabilitation work was done in 2007-2008 – when this article was not in force.

 Process of the construction of pipe-line

In short, if Omar Kutsnashvili was charged under Article 204, he could not have been imprisoned. The court knew that the introduction of wrong data in the documents at that moment (if they confirmed such fact), was not considered to be a crime and Kutsnashvili could not be charged. According to the current Tax Code, a period was given to a person to correct a crime s/ he had committed crime. If s/he failed to correct the committed crime, only after this could s/he be charged.

In addition to that, signatures of the accountant are on the documents. The signature of Omar Kutsnashvili is only on one tax document. According to the lawyer, Nino Andriashvili, if they even found mistakes in financial documents, this could not be considered as Omar Kutsnashvili’s crime. A tax document is considered to be an important registration document, but the data, about which the court has complaints, are found not in the tax document, but in the annex to the invoice, which is not an important registration document.

As for the data in the annex, they are according to the initial project, not to the alternative one. This was the desire of the fund. The fund and “Geoenginering” held negotiations to leave the initial data in the documents. Neither the fund nor “Geoenginering” paid attention to this fact, because it did not deal with important documents and besides that, the sum was fixed. They could use such documents only for the relationship with each other.

We should consider one more fact: that nobody was victimized by introducing wrong data into the invoice annex. Finally the court recognized that nobody was victimized. But, despite the absence of a victim, Omar Kutsnashvili is still imprisoned.

Why They Wanted to Arrest Kutsnashvili

There is only one version of the reason they wanted to arrest Omar Kutsnashviliv and this version is of Mr. Omar’s son – Zakaria Kutsnashvili. According to him, on 22 December, 2007, Omar Kutsnashvili was called from the “National Movement” and was asked to go to the central office of the ruling party. He did not go. On 24 December he was called again and was asked the reason for his nonappearance. Omar Kutsnashvili answered that he was not used to going to the party offices and if they wanted anything, they could come themselves. Omar Kutsnashvili was requested to appear at the party office willingly.
The reason why he had to go to the party office was either so they could extort money from him  or pressure him to stop his son fighting against the “current political regime”. Zakaria Kutsnashvili does not rule out that both were the reasons.

Zakaria Kutsnashvili: “In March, 2008, Khatuna Gogorishvili, who was one of the members of the “National Movement” election headquarter, was finding out among my friends if I was going to run for the parliamentary election on 21 May as a single mandate candidate in the 19th election district. I said I had quitted politics 5 years ago. It seemed they did not trust this information and on 25 March my father was put on trial to ensure themselves.

“On 28 March I was informed by the Financial Police about the second demand of the government: I was forbidden to take part in the election. Also I had to stop criticizing the government. If I did so, my father would only be interviewed and will not be arrested”.

Zakaria Kutsnashvili stated that the 19th election district was in his native district, Tianeti, where everybody knew him and his family and if he had participated in the election, he would have had a real chance of success. According to Zakaria Kutsnashvili the government was afraid of his winning the polls. “Geoenginering”, which is a big company, had never given financial donation (like other big companies did) to any governmental fund and was not going to do so in future. Maybe, in this case arrest was one of the ways to extort money.
What Did the Court NOT Take into Consideration?

The court did not take into consideration the age of the accused (66 years old)  According to the Criminal Code of Georgia men over 65 can be imprisoned only in case of special occasions, when they are dangerous for society.

The court did not take into consideration the record of the accused.  The accused did not have a criminal record. Besides that, he is a professor and he is a famous specialist. 16 colleagues-professors of Omar Kutsnashvili applied to the interim General Prosecutor, Giorgi Tsabadze, and personally guaranteed by paying the bail that the accused should be set him free until sentenced.

The court did not take into consideration the solicitation of the lawyer – to sequestrate the office of the accused, which would cost much more than the sum about which he was charged, instead of depriving him of his freedom.

The court did not take into consideration the appeal made after public hearing. On 23 December, 2008, the case of Omar Kutsnashvili was discussed at a public hearing and after the hearing 74 people demanded to set the accused free.

The court did not take into consideration public request.  The “Young Lawyers Association”, “Article 42 of the Constitution” and other NGOs studied Omar Kutsnashvili’s case and prepared the conclusion that: “We think that Professor Omar Kutsnashvili is under illegal prosecution. We demand the Georgian Prosecutor’ Office and the Court to carry out their duties – to find out the truth and to drop the prosecution of Professor Omar Kutsnashvili. Otherwise we, Georgian human rights defenders, independent experts and NGOs have the right to use all measures to assist Professor Omar Kutsnashvili to be released from arbitrary detention”.

We, of course, ask a counter question to the question above: What did the court take into consideration while discussion the case? However, it is a rhetorical question and does not need a reply. The answer is that a groundless judgment was passed by the court.

Lia Toklikishvili
Leader of Investigation Team
The investigation is carried out within the project “Monitoring of Judiciary System in Georgia” implemented by the Human Rights Center and magazine “Sitkva” with the support of the “Eurasian Partnership Foundation”