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Tamar Chugoshvili: It is very difficult to prove that voter bribing is a corrupt crime

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“Voter bribing” is a phrase frequently heard bandied about these days in discussions about the upcoming elections. In recent months, Georgian Dream political coalition leader Bidzina Ivanishvili has been fined several times for bribing voters. The most recent case of alleged voter bribery resulted in the seizure by law enforcement authorities of thousands of satellite antennas of the Maestro TV company in July. A group of non-governmental organizations, including the Georgian Young Lawyers’ Association (GYLA), claims that impoundment of the satellite antennas was illegal and constitutes a violation of the election law. In mid-August, Tabula interviewed Ministry of Justice Analytical Department Head Otar Kakhidze and Georgian Young Lawyers’ Association Chairperson Tamar Chugoshvili to solicit their respective views on use of government administrative resources, bribing of voters and seizure of Maestro TV’s satellite antennas.

The Georgian Young Lawyers’ Association (GYLA) closely watches ongoing processes. How would you evaluate the election environment by now and what are the challenges?

Our election-monitoring program has been underway since January. We have already released one report while another is being prepared. One can say that, so far, election processes are conducted in a very tough regime; the environment is rather tense and that tension is increasing with the date of elections approaching. Unfortunately, multiple violations have been observed, such as voter bribing, abuse of administrative resources, breach of the legislation on political party financing, and so on and so forth. The most problematic issue, however, is certain selective approaches on the part of public institutions. Even though many political parties breach the law, the state, as a rule, reacts to breaches by opposition parties and does not display a similarly efficient reaction toward violations by the ruling team or the United National Movement.

I think that most alarming are those court decisions of late which have been delivered with regard to penalizing [Georgian Dream member] Kakhi Kaladze and Bidzina Ivanishvili, which, in my opinion, absolutely exceed all limits. If talks before were about dispute and certain burden of proof, these cases go entirely beyond the legal framework.

In your statement on the Kaladze and Ivanishvili cases, you said that they affected the election environment while both persons claim that those amounts have nothing to do with the election and were intended for personal use. How can an amount intended for personal use affect the election environment?

No one asserts whether those amounts were spent properly. The problem is another thing. If a wrongdoing took place and a person used an amount in an illegal action, the burden of proof lies with the government. Now we deal with an absolutely different case where the burden of proof has shifted onto a physical person. That is impossible. In the case of satellite antennas of Global Contact Consulting, we also had some legal remarks, but in that case some material was shown which made such a doubt substantiated. The Kaladze and Ivanishvili cases, however, do not contain any evidence or testimony which would corroborate those doubts. We, accordingly, deem the court decisions and imposed penalties absolutely illegal. If it were the case that only the opposition violates applicable law and other parties do not, the situation would be different. We observe violations on all sides. We remember instances of bribing with regard to Georgian Dream and several people were prosecuted. At the same time, we observe facts of bribing on the part of a governor, employees of self-governance, such as distribution of sacks of flour, which I believe is pure voter bribing, and no one shows interest toward that. No one investigates that, let alone establishes whether or not a violation took place. Someone has to investigate to establish the truth. All that is conducive to an unfair election environment.

Several proceedings have been instituted against representatives of the ruling party. What are those cases?

There was one case of distributing wine and sheep in Rustavi and that person was penalized with a GEL five-thousand fine, and there was another case too. But the amounts were such – compare, GEL one-hundred-fifty million and GEL five-thousand; it is absolutely disproportionate. Even if we look at them quantity-wise, we have made many applications about violations to the state audit service and interagency commission, but those public agencies, as a rule, do not react to them even though some violations are grave. For example, there was a case reported on Maestro TV Company’s program “Without Accreditation” in which a lady said that she was a coordinator of the ruling party for years and she speaks about a very serious scheme of how public resources and budget amounts are used for financing coordinators. That could be true or could be a lie. But to find that out, the relevant public agency must become interested in it, study that fact, and establish whether or not such a thing happened. The interagency commission said outright that it would not study that case and was not interested in it. When we decided to study that information ourselves and establish whether it reflected the reality, it proved to be very difficult for us because state agencies did not provide us with the information for quite a long time although that was public information and should have been provided either immediately or within a maximum ten-day span. The information was provided with a big delay and was incomplete.

You mentioned voter bribing. If we recall the most recent case – Maestro’s satellite antennas and their seizure – according to the Ministry of Justice, antennas were impounded because their distribution was voter bribing which is a corrupt crime. You say that seizure of antennas was illegal. With what do you disagree in the analysis of the Ministry?

I find it very difficult to agree with the Ministry of Justice because I believe that its arguments are too weak. There are three grounds in criminal law for applying a lien. The first is that there must be an accused person, which is absent. The second is that there must be a very grave crime, which is also absent. And the third is there must be a corrupt crime in its essence. Here we deal with a certain flaw of the law. The Code of Criminal Procedure mentions a corrupt crime, but the Penal Code which describes crimes does not contain at all any notion of what a “corrupt crime” means. Voter bribing is under the chapter dealing with crimes against fundamental human rights and freedoms, which include giving and receiving bribes – although it is not in the section where the Code deals with a public service crime but is somewhere else. There are classificators which, true, had been adopted before the law was amended. But I do not understand why the Justice Ministry makes reference to the law’s amendment because voter bribing has long been a punishable action and those classificators existed too. They do not indicate clearly either that voter bribing falls under the category of corrupt crime. There is also a UN anticorruption convention, which lists corrupt crimes and does not contain any provision on voter bribing either. In short, nothing indicates that, save the hypothetical explanation of the Justice Ministry that it, for some unknown reason, considers it to be a corrupt crime. That determination is not substantiated by anything.

According to your explanation, voter bribing is not a corrupt crime?

According to my explanation, it is very difficult to prove that that is a corrupt crime and that constitutes the ground for impoundment. We can enter into legal discussions and argue whether or not that be regarded as a corrupt crime and whether the international practice should be directed toward identifying it as a corrupt crime.

But today, according to our legislation, when the case involves a media organization, we can say that all looks more like a restriction of freedom of speech than an attempt to prevent voter bribing, and we must use a higher standard; it cannot be defined on the level of rumors.

The case of the impoundment in June of satellite antennas distributed as unlawful political gifts by Global TV was a different one while the Maestro TV case fits into nothing, if anything because Maestro did not even start distributing antennas. There was a promotional campaign which was reported on TV; one or two antennas were installed and everyone saw that there was no voter bribing. I remember when [newspaper editor] Lasha Tughushi was installing antennas, he did not say that that was a gift of a political party.

There was a doubt that, since Global was involved in voter bribing and there was a link between Global and Maestro – i.e., a sham deal between them was established – voter bribing would continue with the same scheme which Global had used before.

We are talking now about very hypothetical things that Global would bribe voters through Maestro. But the information that that was connected with a political force would not reach voters. Then, what kind of bribery is that? Criminal liability implies a very high standard of evidence. This case does not correspond to any standard of evidence.

According to the Justice Ministry, the legislation on voter bribing is in line with international standards. They refer to GRECO recommendations, as well as to criteria of your counterpart non-governmental organization, Transparency International, according to which voter bribing is a corrupt crime. Do you not agree with your counterpart organization?

I am not aware of Transparency International criteria. GRECO is by no means sufficient to prove that a voter bribing constitutes a corrupt crime. If we are talking about a legal framework and international law because our legislation does not provide any definition, we must apply those international laws which we have joined. First of all, that is the UN Convention against Corruption and it does not mention voter bribing at all. The Convention is mute about that topic. Consequently, that classification of “voter bribing” as a corruption crime does not rely on anything but some opinions and theories.

Speaking of media, the leader of the Georgian Dream coalition actually threatened media when he was in Poti and you did not react to that with an official statement. Why so?

I made a very sharp assessment of that on Maestro TV. We make statements in various forms in various cases. Quite often we limit ourselves to comments; sometimes we release a statement that might be only on Facebook, etcetera. There is a controversy over that issue as well, but I believe that a politician making comments which contain a threat is absolutely incorrect and unjustified, and I stated that clearly.

On 5 April, you, along with other non-governmental organizations, released a statement saying that you would condemn xenophobic or homophobic statements from politicians. Still, critics say that you react only to such statements from the government while you do not react on that scale to xenophobic statements of the opposition. How would you explain that?

We always comment about xenophobic statements and clearly express our position. Such an accusation about us is a bit surprising. How could we have any other reaction to xenophobic or homophobic statements?

For instance, one of the Georgian Dream speakers at a rally in Batumi was distinguished by his anti-Turkish statements. Did you react to that?

An official statement may not have been released and our local representative made a comment. I cannot say for sure. We may have overlooked concrete cases. There is a chance of that because cases of hate speech are quite frequent.

Regarding that rally, you declared in advance that you would monitor the rally to avoid infringement of the right to assemble. Did you not pay attention to the content of speeches made there?

Monitoring does not imply the monitoring of speakers and, even more so, manifestos. As regards homophobic statements, the position of our organization is crystal clear – we have always condemned and will condemn such instances. I deem the use of xenophobic statements absolutely unacceptable, especially from politicians and for political aims. A monitor is simply physically unable to control the content of speeches made at rallies.

That means that you did not react to the Batumi case?

Our local office may have made a comment. I was not in Georgia at that time. A formal statement on behalf of the organization was not released. I will declare now that any demonstration, especially of hate speech for electoral aims, is absolutely unacceptable and we will always condemn that.

These interviews first appeared in Tabula Georgian Issue # 112, published 3 September 2012.

Otar Kakhidze: Voter bribery is one of the forms of political corruption 

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