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The Perception of Selective Justice

By Oto Kakhidze
"Tabula" magazine, 27 January '13


The United National Movement (UNM), which swept to power on the wave of Rose Revolution, ran Georgia for nine years. The legacy that the team of young, ambitious and Western-oriented reformers inherited in 2003 was heavy. There was rampant corruption in law enforcement and tax systems, a high level of general and organized crime, a large informal economy awash with contraband, and a broken energy system. In short, the UNM inherited a failed state.

The initial inexperience of UNM representatives and their desire to fix problems quickly made the process of tackling already difficult challenges even more complicated. Insufficient institutional control, weak civil society, and various internal and external crises further compounded those difficulties. Although the UNM certainly had its achievements, the difficulties they faced also led to a number of mistakes, failures and unanswered questions.

Some of the more serious claims voiced against the previous government include the use of excessive force by police during both the conduct of special operations and the break-up of protest rallies; the infringement on private property; and the inhumane treatment and torture of prisoners.

The latter issue in particular caused uproar just two weeks before the October parliamentary elections, after appalling footage featuring the abuse and torture of inmates in the Gldani Prison No. 8 was released. The understandable indignation of society became manifested in a surge of protests that certainly affected the outcome of the elections (perhaps decisively).

After the elections, society has naturally stepped up its demand for justice to be restored, expecting that the new government will carry out impartial investigations to bring the culprits to justice.

Upon the approval of the new government by Parliament, Prime Minister Bidzina Ivanishvili echoed that expectation, declaring: “We do not want to punish someone but those who made violations will be held accountable to the law."

Yet within a month of this statement having been made, the Prosecutor’s Office of Georgia had detained more than 20 high profile people, including the Chief of Joint Staff of the Armed Forces, the Deputy Mayor of Tbilisi, the former interior minister, and the former head of General Inspection and other employees of the Constitutional Security Department of the Ministry of Internal Affairs.

Progress and Perception of the Investigation Process

Domestic and international reactions to the recent high-profile arrests of former public officials in Georgia have not been uniform.

"[There’s] no reason to hide that I am extremely concerned about the development we have seen since [the elections], not least related to recent arrests of political opponents in Georgia," said NATO Secretary-General, Anders Fogh Rasmussen.

“NATO Parliamentary Assembly expresses concern over the reported pressure on local self-government institutions and particularly the Georgian Public Broadcaster and calls upon the new government of Georgia to refrain from politically motivated arrests," the 58th NATO Parliamentary Assembly wrote in its resolution.

“Democracy is about the rule of majority but also about the respect of minorities... In this respect, situations of 'selective justice' should be avoided," noted the President of the European Commission, José Manuel Barroso.

“I also stressed how important it is to avoid both the reality and the perception of selective prosecution and the absolutely critical importance of ensuring full transparency and due process to anybody who is under suspicion or investigation. Nobody wants to see what looks like selective prosecutions or retributions. That wouldn’t serve Georgia well," the US Assistant Secretary of State for European and Eurasian Affairs, Philip Gordon, emphasized.

“There should be no selective justice; no retribution against political rivals. Investigations into past wrongdoings must be, and must be seen to be, impartial, transparent and in compliance with due process," declared the EU High Representative for Foreign Affairs and Security Policy, Catherine Ashton.

It is important for “the West to see continued progress in the political sphere which will confirm the development of democracy in the country," said Eric Rubin, US Deputy Assistant Secretary of State for the Bureau of European and Eurasian Affairs. That’s why it is important for Georgia how the arrests are perceived in the West, he added.

"[W]e are deeply troubled by reports of detentions, investigations, imprisonment and alleged prosecution of political figures associated with the opposition party in Georgia. We write today to express our growing concerns about the possibility that these moves are politically motivated and designed to settle political scores in the aftermath of the recent election. We urge you to ensure that your administration does everything necessary to avoid even the perception of selective justice against members of the previous government," reads the letter sent to Bidzina Ivanishvili by a US Senators’ bipartisan group.

The process of arrests did not go unnoticed by the international media either, including comments made from the influential editorial board of the Washington Post, the Financial Times, the New York Times, the Wall Street Journal, the Economist, Libération, Le Figaro, amongst others. Their assessments towards the ongoing developments in Georgia largely coincide with the skeptical opinions of the Western politicians.

It should be noted that the former government was no stranger to criticism from the West either. The Council of Europe’s Commissioner for Human Rights often railed against the use of excessive force by police in dispersing protest rallies, and US State Department reports expressed dissatisfaction about human rights violations and the lack of independence of the judiciary, amongst other important issues. The previous government always took such criticism very seriously and tried to take steps to deal with these issues.

Unfortunately, perhaps because of inexperience, the new government’s reaction to criticisms from the West has been inadequate when, instead of entering into debate based on facts and evidence, it merely questions the integrity of its critics. Claims that statements made by the highest representatives of the European Union, NATO and US Deputy Assistants of State, or that critical letters from the editorial boards of highly respected media outlets, are the result of lobbying from the Georgian President’s advisor, Raphael Glucksmann, or a UNM Member of Parliament, Giorgi Kandelaki, simply cannot be taken seriously and are counterproductive.

To start with, embassies from the member states of NATO and the EU operate in Georgia and each has their own public relations or press services. They are all aware of any materials published or broadcast by local media outlets, they are supplied with media monitoring reports and are thus themselves capable of seeing and assessing any political event or legal step.

Moreover, those positions are too high a hurdle for lobbying activities to overcome and voicing such “accusations” means offending influential figures such as the NATO Secretary General and the President of the European Commission.

The same holds true for claiming that a letter from the editorial board (and not an individual journalist) of the Washington Post was somehow commissioned by Saakashvili. Such comments, made by the Chairman of the Parliamentary Committee for Foreign Affairs, Tedo Japaridze, prompted Washington Post journalists to compare him to “an old-style Soviet apparatchik."

Instead of attempting to unmask the invisible hand of lobbyists in articles of the Washington Post and other influential papers, we should be attempting to analyze in detail the reasons why we are drawing criticism from our Western friends and partners.

One important thing must be noted outright –Western politicians and media representatives have never said that we must not investigate wrongdoings committed in the past. On the contrary, they have said that the delivery of justice and the punishment of offenders are absolutely legitimate. At the same time, however, they underscored several crucial points:

• Justice must not be selective

• Political retribution must not be allowed

• Procedures established under the law must be observed

• Investigations must be transparent

• Investigations must be fair and be perceived as such

Possible Reasons for Negative Perceptions

Let us look at those reasons which may make the recent high-profile arrests be perceived as politically motivated:

Reason 1:

The use of pre-trial detention

If pre-trail detention is deemed necessary then, according to the Criminal Procedures Code of Georgia, first the Prosecutor’s Office and then the court must corroborate why they believe an accused person might not appear in front of court at an appointed date, or on what grounds they assume a person may prevent justice from being served.

When pre-trial detention is requested after such corroboration, there is a need to prove why detention is necessary and why a more lenient measure, such as release on bail or on personal guarantee, cannot insure against the above risks. Neither the former interior minister Bacho Akhalaia, who had also served as defense minister, nor the Deputy Mayor of Tbilisi, Shota Khizanishvili, attempted to hide from the investigation and, as each no longer worked in the executive branch, there was little risk of their influencing witnesses. Moreover, several members of parliament and the Mayor of Tbilisi himself assumed the liability of being guarantors of both accused persons.

Despite these points, both men were ultimately remanded in pre-trial detention instead of being released on bail or on personal guarantee. This creates an impression of excessive severity in the display of force.

In the West, pre-trial detention is not usually applied towards accused senior officials. Such figures are instead normally released on bail. The most high-profile case of late in this regard was that of Dominique Strauss-Kahn, former Managing Director of the International Monetary Fund. Strauss-Kahn, who was accused of sexually assaulting a hotel maid, was released on bail by the court. Yet another example is the case of former Italian Prime Minister Silvio Berlusconi who has not been remanded in pre-trial custody for even a single day after being charged with fraud.

One should note that the degree of corroboration for pre-trial detention was also quite low during the rule of the previous government. It would be a pity if that tendency were to continue.

Reason 2:

Signs of the fabrication of evidence

The former head of General Inspection of the Interior Ministry, Tengiz Gunava, was detained on two counts: 1) for carrying an unregistered weapon and 2) for using and keeping drugs. Doubt has been cast on both charges. The weapon found was of Soviet vintage,
which was considered strange as he has two modern firearms officially registered to his name. Meanwhile heroin was found in his pocket and a trace of morphine was detected in his blood.

Just recently the defense published expert opinions on this matter, according to which no trace of narcotic substances were found in Gunava’s blood.

This clearly fabricated case resulted in scathing criticisms against the new authorities and Tengiz Gunava was released on bail only to then be arrested on new charges – for allegedly misusing 3,000 liters of petrol.

The Minister of Justice has admitted that some questions exist in regard to the fabrication of evidence in this particular case and has stated that an investigation is under way. So far, however, no information has been released on either the progress of this investigation or the results thereof.

Reason 3:

Suspiciously fast tempo of investigations and the low standard of evidence

The expectation in the West when criminal proceedings concern sensitive political issues is of an investigation supported by comprehensive, carefully-selected and solid evidence. This was a point that the Foreign Minister of Georgia, Maia Panjikidze, faced criticism on when visiting the Marshall Fund in Washington in early December. One participant commented that, within the first month of coming to power, the new Georgian government had arrested more people than the authoritarian government of Ukraine did over the course of two years. The Georgian Foreign Minister was also reminded that the arrest of high officials in democratic countries takes, as a rule, between two to three years, whereas in Georgia the new government’s investigation took only 20 days to arrest such people.

When there is a suspicion of political motivation behind a criminal case, it is essential that every stage of an investigation be entirely based on compelling, high-quality and convincing evidence. Thus far, a large number of the investigations that have been conducted have relied upon witness testimony rather than documentary evidence. One of main witnesses in the case of Bacho Akhalaia, the former interior and defense minister, later declared that he gave his testimony under coercion. After that declaration was made, the Prosecutor’s Office arrested the witness.

Reason 4:

Violation of the presumption of innocence

“Cohabitation [with the opposition] is very important, but it doesn't mean that we have to ignore that these people are criminals and guilty. There is no influence from the prime minister or from other members of the government... These people are simply criminals," the Foreign Minister of Georgia said of representatives of the former government.

It was not the “lobbyists of Saakashvili” that made the Foreign Minister of Georgia speak during her visit to the Marshall Fund. She herself made the statement that raised concern among Western leaders. The letter that the group of US Senators sent to the Georgian Prime Minister underscores this point, reading: “Guilt and innocence should be determined by an impartial court, to do otherwise undermines the rule of law."

The presumption of innocence was breached by the Justice Minister, Tea Tsulukiani, as well. She branded the former interior minister as “a killer or commissioner of contract killing," while saying about the former Chief of Joint Staff: “General Kalandadze managed to offend and degrade the dignity of soldiers being under his personal subordination. With actions similar to those by General Kalandadze we head not towards NATO but towards the abyss." It should be obvious that someone in her position must abstain from speaking about alleged offences as if they were established facts until after the court has delivered its judgment. Failure to do so would place direct or indirect pressure on both the investigation and the court.

Reason 5:

Signs of selective justice

The discriminatory detention of a person based on political motives is one of the criteria defining a political prisoner, according the Parliamentary Assembly of the Council of Europe’s Resolution 1900 that was adopted on 3 October 2012.

The Prosecutor’s Office terminated prosecution proceedings for detainees accused of bribing voters in favor of the Georgian Dream on the grounds of insufficient evidence, even though video evidence existed that suggested signs of a crime. UNM supporters involved in pre-elections incidents, on the other hand, remain in detention.

Interestingly, the Minister of Justice also considers the recent criminal cases of a stabbing and an attempted murder, alleged to have been committed by sons of loyal Georgian Dream supporters Levan Gachechiladze and Eka Beridze, as being less important than a brawl at a party involving the UNM party’s Zestafoni governor which occurred more than a year ago.

Yet another indicator of selectiveness and inconsistency in delivering justice is that representatives of the government seem to only remember their declarations to fight against crime when a case involves a representative of the former government. It is only on these occasions that such decisive statements as “crime must not go unpunished” or “those who made violations will be held accountable to the law” get made.

Such uncompromising statements, however, are alien to discussions on other cases. On these occasions one will hear a starkly different – and often strange-sounding – form of rhetoric: “little Gachechiladze” (as the Minister of Justice referred to a 23-year-old man accused of stabbing a person); an “act of humanism” (as the Chief Prosecutor dubbed an amnesty for people convicted of grave crimes); “hundreds of political prisoners” and “universal amnesty” (coming from members of the parliamentary majority); “treating the rise in crime with understanding” (from the Prime Minister), et cetera.

In parallel with the painstaking search for signs of crime in the activities of former government representatives and the series of ongoing arrests, the parliamentary majority is also deliberating the issue of a large-scale amnesty. According to one of the articles in the draft law on such an amnesty, no criminal prosecution will be sought regarding offences committed before 6 November normally punishable by up to five years in prison. This is an open declaration of tolerance towards crime and encourages a sense of impunity. Against this backdrop, the rhetoric that “crime must not go unpunished” looks more like a joke; this again points to the selectiveness of justice.

Meanwhile, the parliamentary majority has endorsed a list of so-called political prisoners, who are likely to be released, which include, amongst other convicts, a murderer of a police officer; members of an illegal paramilitary organization; and representatives of a radical religious organization, the Public Orthodox Movement, which offended members of other religions and manhandled journalists during a live TV program. It must be noted that the process of compiling this list lacked transparency and the cases of those who appear on it were not studied with sufficient thoroughness. That prompted several non-governmental organizations, which had initially been part of the working group lobbying for this list, to distance themselves from the process.

Given all these issues, it is easy to understand why concerns about the perception of the selectiveness of justice have been raised among our Western partners.

Reason 6:

Stopping the arrests in return for an acquiescent opposition

Prime Minister Bidzina Ivanishvili has openly declared that the termination of arrests will depend on the actions of the opposition. In particular, he argued that if the UNM stops “the rhetoric of deception and violence," then the arrests will stop too.

Reason 7:

The government seems to be targeting entities not under its direct subordination

There appears to have been possible political motives behind the arrests of the Chief of Joint Staff of the Armed Forces, the Deputy Mayor of Tbilisi and the governor of the city of Zestafoni. It is noteworthy that in the case of the Chief of Joint Staff, a representative of the Georgian Dream, Gia Volski, has virtually confirmed that the arrest was on political grounds. The governor of Zestafoni, meanwhile, was arrested after he did not yield to pressure to resign.

It must also be noted here that the process of arrests has been carried out against the backdrop of permanent pressure placed on local self-government bodies from people associated with the Georgian Dream (recent events have seen the storming of a municipal building, damaging furniture and disturbing the normal rhythms of operation). The police have watched such incidents listlessly. Many of the heads of local municipal bodies from the UNM party, who were appointed to those positions after having won their seats in the 2010 local elections, have already stepped down under such pressure.

Reason 8:

Signs of repressive action

Even though the arrests have generally been undertaken in a civilized manner, the arrests of the Chief of Joint Staff and the Commander of the Fourth Brigade both took place very late at night, without any apparent need for such a dramatic approach.

Especially worrisome was the early morning raid conducted on the house of the parents of Goga Kgachidze, an MP from the opposition UNM party, on the premise of searching for weapons. Such behavior, reminiscent of the tactics of repression, give an objective observer the impression of intimidation and coercion.

Reason 9:

Bidzina Ivanishvili finds it difficult to cohabitate with his political opponents

Regardless of their polarized and problematic election campaign, generally speaking the former government ensured that the October parliamentary elections were conducted in accordance with international standards and that, in defeat, the reins of power were handed to the victor in a civilized manner in which all the rules were followed.

In response, Bidzina Ivanishvili not only called upon the President to step down, but also hinted that the arrests will stop if this happens. This is the second declared condition for putting an end to the criminal prosecutions, the first being the development of a more acquiescent opposition.

Conclusion

It is important to underline once again that the fight against crime, including against the abuse of official power, as well as the correction of previous mistakes is an absolutely legitimate interest. Society awaits justice being served on the counts of prison torture and in other high-profile cases. The rule of law does not differentiate people by the positions they held in the past and politicians.

But in order to prevent the pursuit of justice from becoming a weapon to wield against political opponents, each and every politically sensitive case must be treated with the utmost caution. The entire investigation process must be conducted in a highly qualified and fair manner. It is also essential that it is perceived as having occurred as such by both Georgian society and the international community.

We must treat statements and recommendations from our Western partners with extreme seriousness. The example of Ukraine gives us a chance “to learn from others’ mistakes." For the reason of comparison, let’s remember the statement made by EU High Representative Catherine Ashton and Commissioner Stefan Füle on 5 August 2011, following the arrest of Yulia Tymoshenko, the leader of the opposition in Ukraine: “The EU and other international partners of Ukraine have repeatedly underlined the need for fair, transparent and independent legal processes to avoid any perception of a policy of selective justice. Today's events are therefore a cause for concern about the state of the rule of law in Ukraine."

That and other statements were, unfortunately, not reacted upon. That resulted both in the slowdown in Ukraine’s EU integration (even though the government of Yanukovych was just a step away from that) and taking the issue of NATO integration off the agenda.

The democratically held elections and the peaceful transition of power in Georgia have provided a chance to rectify mistakes made in the past and to continue the process of reform with a renewed energy.

Failing to use that chance and making new mistakes on top of old ones may cost Georgia dear. It may damage the country’s image; cause a suspension of negotiations on free movement and trade with Europe and the United States ,as well as on NATO and EU integration; lead to decrease in foreign direct investments and a slowdown in economic growth; and leave us without allies vis-a-vis our Northern neighbor.

Can we afford to abandon the future of Georgia to the whims of fate?

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