Archil Kbilashvili

Archil Kbilashvili: Turning from Saul yesterday into Paul today

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Since the October parliamentary elections, the Prosecutor’s Office of Georgia has been at the center of attention. It has arrested several dozen people on various charges, including the Deputy Mayor of Tbilisi, the Chief of Joint Staff of the Armed Forces of Georgia, the former interior minister and other senior officials. These arrests resonated both inside and outside the country. Doubts have also been voiced about these being used as a form of political retaliation.

Tabula interviewed the Chief Prosecutor of Georgia, Archil Kbilashvili, about these arrests and other related issues. The Chief Prosecutor also talked about broadening the jurisdiction of jury trials and a possible amnesty on cases concerning the abuse of official authority.

The arrests of representatives of the former government after the October parliamentary elections have raised concerns both inside the country and from the West. Statements about political motives being behind the arrests were made by the NATO Parliamentary Assembly and the Secretary General. Deep concern was voiced by a group of US Senators and a number of critical articles have been published in respected Western media outlets. In response to all this, the new government has responded only by saying that such criticism is the result of lobbying from the former government. Do you think so as well? Do international organizations and leading print media outlets see events from one side alone?

When we prosecute someone we always do so on appropriate legal grounds. In every separate case we have relevant evidence against the public officials whom we have prosecuted, hence the arrests are not politically motivated.

To prove that our treatment of criminal cases is open and transparent, we release the evidence concerning any case. We also use every available venue to express our opinions and arguments. In this regard, we are communicating not only with Georgian society, but have also held a number of meetings with the diplomatic corps and representatives of international organizations. We provide information to everyone. Moreover, we have put forward an initiative to have jury trials consider these cases as well and also to allow audio and video recordings of the court hearings in order to ensure access to them.

As regards the opinion of certain persons that these are political prosecutions aimed at oppressing the political opposition, society is diverse and has different opinions and I see nothing unhealthy in the fact that a minority segment [of society] holds such an opinion.

We are talking about statements made by international organizations and Western politicians, as well as about a significant amount of criticism in the Western media which, one cannot say, represent the minority. What has caused such a perception?

Those people who ran the country before naturally reacted to defend their positions when we exposed the negative sides of that administration. That they assess those arrests as being politically motivated is understandable and normal. By normal I mean logical, not commendable.

As regards the attitudes of certain international circles, my explanation for their belief that the criminal prosecution [of members of the former government] should be based on stronger proof is that this can be attributed to a lack of information.

Another explanation for this concerns the well-established information-communication system which existed before the change of the government. We remember that Western states and international organizations were basically happy with the developments in Georgia under the previous government and that they perceived this or that action of that government less critically. That established system of communication has not changed since 1 October and through this they [the West] are, perhaps, being fed opinions that exist among only the minority of Georgian society. That explains their critical assessments. I do not see a tragedy in this either. Our business is to ensure that those states and international organizations friendly to Georgia are fully and adequately informed, with maximum openness.

Whom or which international organizations are you referring to when you say that “they” were less critical about the former developments in the country? Numerous critical reports, statements or articles can be recalled. Can you be more specific?

In general it was perceived that the government of Georgia was effective, was engaged in building a legal state in which human rights were more or less protected and democratic reforms were being implemented. Such was the opinion formed.

Which you disagree with…

Not only I disagreed, the entire Georgian society disagreed with that opinion. During the election campaign we put the topic of injustice high on our agenda. We said that there was total injustice, a repressive machine in the country, that human rights were not protected with lots of innocent people being convicted and imprisoned. Georgian society supported that opinion, which means that the largest segment of the population did not agree that everything was fine in the country.

Or that that segment simply longed for greater development…

Of course.

You mentioned the issue of jury trials. When are you going to initiate the amendments to the law? Whom, in particular will these amendments apply to? Do you intend to speed up the overall implementation of jury trials?

A legislative initiative, which envisages cases of high public interest being tried by jury, has already been submitted to parliament. The cases which this qualification relates to are those which concern public officials. I think in either late January or early February this initiative will become law and the upcoming court hearings will thus be conducted in this format.

In general, jury trials will be enacted within those terms as specified in the law.

Prime Minister Bidzina Ivanishvili said that the government intends to issue an amnesty on the abuse of official authority. What do you think about this issue and have any concrete steps been taken in this direction?

The law says that the activities of the prosecutor’s office must follow the principle of political neutrality. Therefore, giving my assessment of that political statement would be incorrect. The law also says that the policy of criminal law is approved by the Justice Minister. Thus the policy outlined by the Prime Minister, if that concerns criminal law, is to some extent a basis for action for us. If the amnesty is announced, the content of which is unknown yet, we will, of course, obey it.

My attitude in this regard is positive. I think that the actions implemented during running the state [under the previous administration], in most cases, occurred outside the law. However, every person involved in that process to a certain degree cannot be punished, expelled or unpardoned. That contradicts the principles of humanity and logic. Therefore, I deem the approach that mid- or low-level public servants should be amnestied as justified.

Officials in this structure [the Prosecutor’s Office] have been mainly been replaced only at the higher levels. We must be tolerant towards ordinary actors.

You have noted that in politically sensitive cases a stronger proof of guilt has been demanded from you. Are there grounds for such demands? One hears criticism that the criminal cases rely on the testimonies of witnesses alone and not on factual evidence. Moreover, one of the witnesses in the case of the former Interior Minister, Bacho Akhalaia, said that he was coerced into giving his testimony and, after making that statement, that witness was arrested. What do you have to say on that criticism?

The testimony of a witness is one – but not the only – form of proof. Such testimonies have a specific value and their importance increases when used in combination with other evidence and vice versa. Those cases which we made public shortly after coming to power mainly involved beatings, torture and inhumane treatment – such charges were brought against Akhalaia and [the former Chief of Joint Staff of the Armed Forces] General Kalandadze. They were committed some two years ago. For these types of crime, the role of witness testimony is, naturally, primary. When soldiers or officers declare that they were subjected to such treatment, the proof is mainly in the testimonies that they give.

We also investigate factual circumstances, which [in such cases] are of secondary importance. For example, when a soldier says that he was in Senaki [in Western Georgia], that can be verified by even a phone company statement. One of the soldiers has claimed that he wanted to kill himself because of abuse he suffered. This can also be verified by a message he sent to his close friend reflecting his thoughts. The same would be true if he had visited a priest to make a confession. Verification of facts can be a supporting aspect to witness testimonies.

In other types of criminal cases, for example, financial crime, testimonies are less important than such data as when a commercial structure was established or what financial transactions have been performed. Financial-economic topics are complicated. Therefore, we have not made such important cases public, besides just one case involving bribery. An intensive investigation in this direction is underway. But since it has not yet reached the criteria of reasonable suspicion, we have not made it public.

However, when speaking about sensitive cases factual evidence is also very important along with the testimonies of witnesses. Don’t you think you are rushing things? Normally, it takes years to investigate cases against public officials in the West, while here several dozen of people have been arrested within a very short time-span.

From the minority’s standpoint, it has been more than two months since the government has changed and up to 30 people have already been arrested. If we take that [time] as a reference point then it will be seen as having happened in a rush. Conversely, if the attitude of that segment of society who believed that the state was mainly run by illegal processes is taken as the reference point, it will appear that things have happened slowly.

Neither the former nor the latter must be taken as a reference point for speed. The reference point is the existence of a base of evidence. Do you have proper evidence? Only then must you prosecute. As means of comparison, in the pre-election period last summer more than 100 supporters of the Georgian Dream were prosecuted. This is not a reference point either; we must not make comparisons with something bad.

You often respond to the criticisms about the speediness of prosecutions by referring to the long queues of complainants at the door of the prosecutor’s office. What are the priorities you follow in initiating an investigation

on this or that case? The cases over which the Georgian government is criticized concern the Prime Minister’s property – be it the equipment of Channel 9 TV company or Cartu Bank – and the Prime Minister’s reputation following the so-called illegal secret recordings. What do long queues at the prosecutor’s door have to do with these cases?

Long queues merely indicate that many people who were afraid to complain before are doing so now. Naturally, given such an inflow of complaints, it is impossible to promptly and duly study all the cases. Resources are limited. A prosecutor cannot deal with 500 cases at once. Therefore, the issues are classified. Priority is given to such issues which involve a violation of human rights, physical mistreatment and actions offending human dignity.

The second priority is the investigation of financial and economic crimes. That, however, is a silent and long-drawn-out process. The relevant departments, services and the investigative unit of the Finance Ministry are working hard on these matters. These are the two main directions which the public expects us to investigate first.

I have heard people saying regarding [former head of the General Inspection of the Interior Ministry Tengiz] Gunava that it is ridiculous to prosecute him for 3,000 liters of gasoline. The expectation was such that we should have found offenses the size of icebergs and presented them to society. They are unhappy about the smaller issues. For example, I have read a lot regarding the passport of [former Prime Minister Vano] Merabishvili, saying that this issue was not worth the attention it received. So big is the expectation of society.

Let’s put aside the issue of expectations. Important and serious topics require serious work. We work on serious topics. I can tell you – and the preconditions for saying this indeed exist – that we are working on such cases which probably involve the illegal spending of millions of laris of public money. But these cases are too premature to publicize yet because they require appropriate evidence, which we are now working on obtaining and organizing.

However, to go back to the question, the cases related to the Prime Minister were also prioritized. The Cartu Bank case and also the first arrests linked to eavesdropping…

The case concerning Cartu Bank is important, not in as much that it was connected to Bidzina Ivanishvili, but in that it is a very good example of the concerted action of state institutions in achieving a goal. Although in this case, that goal was not healthy. If you look through the ruling of the Strasbourg court on the Sandro Girgvliani case, you will see that that court is amazed about the concerted actions of state institutions, including the judiciary, to conceal any trace of that crime.

In the Cartu Bank case, the interesting thing is that all the branches of power – the legislature, executive and judiciary – were involved in the implementation of illegal actions against the bank. In this case, the important thing is to expose the systemic nature of these violations, rather than to announce that Cartu Bank or Ivanishvili’s property sustained damages.

However that was not the only case that was related to the Prime Minister…

What was the other? Eavesdropping concerned everyone and everything; the entire [pre-election] opposition. That vice was yet another important issue. Diplomats, clergymen, political opposition, and representatives of the government itself were all eavesdropped upon and everyone and everything was filmed. We have come across such instances when even the most private topics have been filmed and audio-recorded. It was ghastly. Everything was done to subjugate this or that person.

For example, one of the methods planned and implemented by the former government involved luring of public figures into relationships with hired homosexuals. They were then taken to safe houses where they were surreptitiously filmed. There are hundreds of such instances. Therefore, what we have revealed – the use of eavesdropping via computer software – is just one fragment, one form of manipulating people, which is unacceptable.

The Minister of Justice contended that the cases of the son of politician Levan Gachechiladze and the son of the journalist Eka Beridze, which involve an attempted murder and a stabbing, respectively, were less important than a brawl involving a self-government official. How important is the position of a suspect in deciding about pre-trial detention? Is such an approach selective justice?

The decision whether or not to detain Gachechiladze’s son was taken by the city prosecutor who conducted the case. This case was not sent to us. I learned about the case of Gachechiladze’s son when the video footage of the incident was released by the media. In general, do you know what is important in that case? Regardless of whether or not the decision was correct, it was significant that the city prosecutor made that decision for himself and not on the order of someone from above. I thereafter inquired about this case in order to find out how correct the assessment made was regarding pre-trial detention. In that particular case, the prosecutor who took the decision believed that there was no threat of the suspect going into hiding because he had presented himself for questioning. Another prosecutor may have considered otherwise and may have been able to substantiate that decision as well. Both positions could be substantiated, but the important thing is that it was the prosecutor who took the decision.

How important, in general, is what the Justice Minister said?

I personally know Gachechiladze only from a distance, as a member of society and a public figure. I owe him nothing, either morally or otherwise, so have no cause to assist him. Moreover, it is not within my principles to help anyone in such a manner. I heard about the incident post-factum. As regards Eka Beridze’s son, as far as I know he fled, but wanted to return to Georgia and he did so. What is the aim of pre-trial detention? To prevent a person from fleeing and going into hiding.

Since these cases are of higher public interest, they can be made public in order to enable people to read the evidence and shape their own opinions about them.

Why then does the prosecutor’s office so often demand pre-trial detention for other cases? Were, for example, the Deputy Mayor of Tbilisi, Shota Khizanishvili, the General Director of the Rustavi 2 TV company, Nika Gvaramia, and others going to flee or interfere with investigations?

I can provide you with statistics – if memory serves me well, half of the people detained have since been released on bail. As regards those cases where detention was demanded – if we take, for example, the cases of those you have named – [former finance minister Aleko] Khetaguri and Gvaramia – do you know where the specifics lie here? The types of crime we accused them of were so-called white-collar crimes. These are crimes involving high intellectual capacity. When a crime involves financial and economic topics, when there is the likelihood of creating or altering evidence by using computer equipment and when the intellectual capabilities of a person to do so are high, this changes the situation…

What documents could Gvaramia and Khetaguri create? Do you not believe that you had sufficient evidence to prove the crime?

I understand, but does that exclude the existence of yet another document, the nature of which, for instance, could nullify or weaken the existing evidence to a certain extent?

If there is something that can nullify your evidence that means that your position is not solid, does it not?

But that must be evidence that exists before a person is charged and not newly created evidence that is backdated. That is what I am talking about. We started the investigation on 14 November and the arrest took place in late December. Before that, we observed instances where certain documents had been modified.

After we charged them we handed over the entire case as required by law. Given the information these people received in the form of the case materials and that gained during their interrogations and in interactions with one another – and given that in the course of our investigations we observed instances where certain evidence had been created – there was a possibility that documents could be created to eliminate flaws in their defense. In such cases these are grounds for pre-trial detention, in general.

I remember that one MP said that the prosecutor was heard saying in court that Gvaramia must be detained because he is intellectual.

Correct, because of his high intellectual capacity – that is what the prosecutor said…

This is what that MP heard. In reality, that is a peculiarity of white-collar crime. That was the reason for that pre-trial detention.

As regards Khizanishvili, why did you demand his detention?

He was the First Deputy Interior Minister [before becoming the Deputy Mayor]…

He was Deputy Mayor when he was arrested …

Yes, I know, i.e. a person with the capacity to influence. Plus, given his past activity and position where many people were subordinated to him, one can naturally objectively assume that he would have used his influence had we released him on bail.

Influence on what?

On witnesses and other people. He was the Deputy Interior Minister and possesses information…

Are you saying that he would prevent the investigation?

Yes, there is a prerequisite for making such a logical conclusion. I do not remember precisely, and therefore I cannot say this categorically, but if Khizanishvili was involved in the illegal detention of [Bidzina Ivanishvili’s bodyguard Beso] Surmava or that was done on Khizanishvili’s instruction, then not only is that a very grave crime in itself, but it also points to the threat of granting him bail.

What do you think about the violation of the presumption of innocence seen when the Justice Minister as well as the Foreign Affairs Minister repeatedly referred to representatives of the previous government as criminals? Before the elections the current Justice Minister herself criticized Mikheil Saakashvili for calling accused persons criminals before the rulings of court.

When we charge a person with a crime we write down that that person committed a crime and the prosecution, which is represented by the prosecutor and the Justice Minister, can then say that this or that person committed a crime because that is what is written in black and white. Before the ruling of the court that is, naturally, only a presumption; a reasonable suspicion.

In contrast to me, the Justice Minister and the Foreign Affairs Minister are politicians. Politicians make political assessments and in these assessments one may say that a regime or a team was such [criminal]. That does not acquire a legal connotation. Whether or not such political statements are acceptable, is down to a matter of taste. In this case, I will not give a legal assessment.

We have talked about certain cases being based more on the testimonies of witnesses and less on factual evidence. There are videos available on YouTube featuring the newly appointed prorector of the Police Academy, Luka Kurtanidze, threatening the governor of the territorial unit for the village of Kabali, Jemal Niyazov. This video footage contains signs of a crime, a direct threat…

To tell the truth, since I have been appointed to my current position, no victim or anyone else has filed a complaint concerning this incident. I have not watched that video. If that happened before the elections, the former government did not make any effort to institute criminal proceedings on that case.

Does that matter?

No. The logic matters. If a victim requests it, we will necessarily launch an investigation.

Jemal Niyazov was detained for two days and even had a heart attack. If memory serves me well, he was detained by the financial police. That is what the Interior Ministry told us when we inquired about that arrest. That video with Luka Kurtanidze contained signs of a crime. Factual material exists. Will you start investigating this case?

We will watch that video and if there is a statement containing violence or the threat of violence, then we will start an investigation.

I want to ask you as a former defense attorney – to what extent was and is the right of a person to be protected from an illegal search, eavesdropping or detention exercised in practice? Critics contend that in reality neither the prosecutor’s office nor the court observes the requirements of the law, with permits being issued automatically. Please, assess this situation. To what extent should the prosecutor’s office be a sort of filter to prevent such things from happening?

It must be a filter, of course. We declare that illegal eavesdropping will no longer be practiced. I can show you material evidence of how that was practiced. Whenever the prosecutor’s office sought authorization for eavesdropping – many instances also happened without seeking such authorization – it did the following: a motion was made to the court saying that a man named Hassan was involved in a drug crime. Hassan contacted someone called Giorgi and Giorgi used a mobile phone with some 10 or 15 phone numbers listed. When we saw those phone numbers we identified them. The court did not ask anything and used to issue permits on any phone number. That was called legal eavesdropping, but of course it was illegal. Such “legal” eavesdropping will be practiced no more.

In general, all eavesdropping is illegal unless it is conducted for a legitimate aim, which is an action allowed under the law. Today, judges do not issue permits [on eavesdropping] without studying corresponding cases. Turning from Saul yesterday into Paul today might be a bit irritating, but there is nothing bad in that. Quite the contrary, it underlines our higher responsibility and preparedness.

To cite concrete examples – the case of eavesdropping on Nika Gvaramia. As you explained, the sanction was issued to eavesdrop on a man called Giorgi. Everyone knew that Nika Gvaramia used that phone, didn’t they? Especially considering that that was a number belonging to the prosecutor’s office. What should be done to avoid all that – the issuance of a sanction on the eavesdropping on another person like Giorgi?

Decrees have been published on this issue, they are dated 12 November and you can find them to read. The investigation wrote whatever it knew at that time. For example, the decree contains the name of [former deputy economy minister] Kakha Damenia. If we indicated the name of Kakha Damenia there, who was a former deputy minister, why would we not have indicated Nika Gvaramia who was a former minister? Was there anyone else? Nika Gvaramia was not the owner of that phone. That phone number is registered to a limited liability company and whatever data we had, we submitted to the court. It was not known at that stage that Gvaramia used that phone.

I want to ask you about crime statistics. What are the trends? Will the crime situation deteriorate as a result of the recent amnesty?

Statistically, some deterioration was observed in September and October because in that pre-election and power-transfer period less attention was paid to crime. As of November, the situation has stabilized.

As regards the amnesty, I share the opinion that a prisoner must serve his/her sentence within the rights provided by the law. But when the degrading treatment of inmates is a daily routine, these people must be given some relief for what they have experienced.

As regards those fears that the crime situation will deteriorate because of some of the people who have been released, there is logic to that. When 3,000 inmates leave penitentiary institutions, that may indeed happen and, naturally, we cannot avoid that. On the other hand, however, what prompted the adoption of the amnesty? The courts did not work and everyone – guilty or innocent – was sent to prison. The amnesty is a sort of restoration of justice towards those people who were illegally detained in prisons. Unfortunately, not only the innocent enjoy the benefits of amnesty. We are forced to take such a step which might involve the release of real criminals. But the reverse side of the coin is the virtue that those innocent people who were imprisoned will also be released.

The reverse side of the coin is also public security, which is being put at risk. The Prime Minister said we should treat the increase in crime with more understanding. How correct is that and what will you do to make the environment safe again?

The Interior Minister made a clear statement. The Justice Ministry works on the re-socialization of inmates and, in parallel with that, we will pay attention to these people to prevent their relapsing into crime.

 

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