emcwisgAfter two years of review, on October 23 of 2015, the Tbilisi City Court made a Ruling of Acquittal on the case of May 17, 2013, and acquitted the defendant clergymen, I.B. (Father of the Mtskheta St. John Nunnery), T.D., B.S., and G.B. The mentioned persons were accused of committing crimes under Section 1 of Article 161 of the Criminal Code, which covers illegal interference into the enjoyment of the right to organization or participation in a manifestation by using threats of violence or official position.

The Women’s Initiatives Supportive Group (WISG) and the Human Rights Education and Monitoring Center (EMC) present legal analysis of the ruling of acquittal of the Tbilisi City Court and argue that the state failed to ensure the conduct of effective investigation on the facts of demonstration crackdown and violence towards participants. The court decision fails to comply with the standards of proof and includes biased argumentation. In relation to the case of May 17, 2013, the organizations believe that the state failed to fulfill its positive obligations with the aim of protecting the freedom of assembly and security of the participants of the demonstration dedicated to the International Day against Homophobia and Transphobia (IDAHOT) on one hand, and failed to take adequate measures with the aim of investigation of the facts of massive violence from counter-demonstrators and identification and punishment of responsible persons on the other, which points to its loyalty towards the majority and the dominant religious institution. It is worth noting that, after the crackdown, the public statements of the representatives of both legislative [1] and executive branches of government, including the current Prime Minister, openly expressed loyalty to the participants of the violent demonstration and included indicators of marginalization of the LGBT community [2].The decision of the Committee on Human Rights on the assessment of the events of May 17 was likewise biased[3]. Considering the scope and nature of violence demonstrated on May 17, 2013, the ineffective performance of the investigation agency, as well as the court ruling of acquittal creates the impression of impunity and encourages hatred and violence towards the LGBT community. Due to inexistence of security guarantees after May 17, 2013, in 2014, the LGBT community was unable to enjoy the freedom of assembly. The several parallel demonstrations in 2015 were limited in terms of time, participation, and space.

Thus, at the moment, the members of the LGBT community and their supporters are unable to fully enjoy their freedom of assembly and manifestation. The ineffective response of the state towards the most serious case of violence and the crackdown further strengthens their fear and deepens distrust towards state institution.

The signatory organizations present the evaluation of the performance of the Prosecution and the Court on the case of May 17, 2013. In addition, it is worth noting that the evaluation is mainly based on the court ruling and the monitoring of court hearings, and due to the absence of the opportunity to access the criminal case files, they do not have the possibility of comprehensive and detailed evaluation of the case.

  1. Evaluation of the Performance of the ProsecutionRegarding the Case
  • The Problem of Identification of Accused Persons

After the ruling of acquittal, the responsibility on the case of May 17, 2013 was shifted to 4 persons only, for committing offenses under Article 166 (Petty Hooligan Actions) and Article 173 (Disobedience to the Legal Orders or Instructions of Law Enforcement or Military

Officers) of the Administrative Code[4]. Litigation of the case of one of the 5 persons, a clergyman, accused on the basis of Article 161 of the Criminal Code, was discontinued in the court due to the failure of the Prosecution to present sufficient evidence. As for the other 4 persons,the court made a ruling of acquittal with the argument that, during the hearing, the plaintiff failed to present a package of evidences that would prove beyond reasonable doubt that the alleged fact of offense was committed by the defendants.

The assessment of the investigation process shows that on the case of May 17, 2013, the investigation failed to comprehensively identify the network of violence. The identity and number of the defendants identified by the investigation does not reflect the violent crackdown of the demonstration and other serious offenses and is disproportionally small. The investigation did not study the most important episodes of the crackdown and violence, including the breakthrough of the police cordon by the leaders of the counterdemonstration, the violent attack on the minibus of the participants of the IDAHOT demonstration on Vachnadze Street, and individual cases of violence towards the members of the LGBT community and affiliated persons during the crackdown of May 17 or the aftermath. During the investigation, the Prosecution did not identify the key individuals who organized the violent breakthrough of the police cordon by the counterdemonstrators and merely identified the individuals participating in particular violent episodes. As for these individuals, the Prosecution failed to collect sufficient evidence and present it to the court in compliance with high standards, thus facilitating the ruling of acquittal. It is also worth noting that the police mobilized on the demonstration area failed to arrest or identify the individuals committing offenses, which, as the case materials show, further complicated the identification of offenders during the investigation stage.

  • The Problem of Insufficiency of Evidence of the Prosecution

The ruling essentially points to the problem of collection and formation of evidence during investigation, as well as the problems of contradictory and fragmented evidence.

  • The Prosecution did not present the most important and tangible evidences (including video recordings of violence and victim injuries) before the court in an orderly manner, thus enabling the court to consider the mentioned evidences as unacceptable. For example, the video materials showing the concrete violent episodes and the alleged participation of defendants in these episodes was presented by the Prosecution before the court without expert opinion proving their authenticity. This created the risks of the court considering the most important pieces of evidence as unacceptable. In the process of evidence collection, the Prosecution also failed to collect the fragments of crushed windows of the minibus in the episode when B.S. crushed the front window of the minibus and to document the injuries on the body of the defendant, thus complicating the process of proving the accusation. Considering the mentioned shortcomings, it is clear that, in relation to the most significant evidences, the Prosecution failed to take effective and adequate measures for high standard of proof, seriously affecting the process of proof of guilt.
  • The Prosecution failed to collect sufficient evidence on the case. As shown in the proceedings, the Prosecution did not question important neutral witnesses, including the persons attending the demonstration for monitoring purposes, including journalists and camera operators on site, who could have given important information for the investigation.
  • The witness testimonies presented by the Prosecution were counterproductive for the plaintiff. Specifically, the fact of damaging the bus going in the direction of KoteAphkhazi Street (previously Leselidze Street) by I.B. and the fact of attempted removal of the bus driver from the vehicle was not confirmed by the driver, who was questioned during the hearing through the plaintiff’s initiative.
  • The Problem of Clear Identification of Hate Motive

Even though in the presented case the Prosecution made indirect remarks about the hate motive and noted that the interference in the enjoyment of the freedom of assembly by counterdemonstrators was related to negative attitudes towards the LGBT community members, the mentioned comment mainly served the purposes of factual description of events and not the identification of the motive. In the decision regarding the charges, the Prosecution failed to directly and clearly point to homophobic/transphobic motives.

  1. Evaluation of the Court Ruling on the Case

The court ruling firmly criticizes the investigation of the Prosecution and points at the problem of trustworthiness and genuineness of the evidences presented by the plaintiff. However, the court ruling itself includes insufficient substantiation and, in certain cases, incorrectly interprets factual circumstances and legal norms. In the ruling, the court tries to use all, often unjustified, arguments in order to rule out the culpability of the defendants and unreasonably underestimates and disregards the evidences of the plaintiff. Such approach of the court and analysis of the tone of the ruling point to bias on behalf of the judge.

  • Artificial Complication of the Process of Proving Guilt

During the hearing, while assessing the culpability of clergyman I.B., the court introduces the status of manifestation “organizer,” which is not legally related to the essence of the charge brought against the defendant. According to the explication of the court, the “the plaintiff is arguing to charge defendant I.B. for the organization of a counterdemonstration to the demonstration dedicated to the International Day against Homophobia and Transphobia.” The court also mentions that the Prosecution did not present reliable evidence to prove the mentioned status. It should be noted that the court has incorrectly interpreted the decision regarding the charges. In the charges presented by the Prosecution, while describing the interference of clergyman I.B. in the freedom of assembly of persons attending a peaceful demonstration, stressing the status of organizer serves the purposes of factual description of events and not charges against the person for the mentioned fact. Furthermore, Article 161 of the Criminal Code does not envision independent grounds for the liability of the organizing person. Therefore, in this manner, the court artificially complicated the process of proving the culpability of I.B. and used legally unsuitable arguments.

  • Incorrect Interpretation of the Area of Assembly

In the ruling, the court incorrectly defines the area of assembly. Specifically, while assessing the culpability of three persons, the court notes that “even if there were no questions to the authenticity of the video materials presented by the plaintiff and other evidences were presented, the court would be unable to present judicial evaluation of the actions of I.B. (hitting with a chair), T.D. (climbing on a vehicle and hand movement) and B.S. (damaging the front window of a vehicle), since these had not been committed on the area of assembly.” It is important to take into account that the court is thus essentially incorrectly interpreting legislative norms, on the basis of which it limits violent actions with the purpose of interference only to the formal area of assembly and does not consider other spaces where violence was applied with the same aims as areas of assembly. In this regard, it should be highlighted that the violent acts on KoteAphkhazi and Vachnadze Streets represent important episodes of the scheme of interference in the assembly by counterdemonstrators. The attack on Vachnadze Street aimed at prohibiting entry to the formal area of assembly to the participants of the demonstration. Merely the fact that, in order to avoid massive violence from counterdemonstrators, the participants were forced to move from the initial area to nearby territories (to take refuge) does not imply that the counterdemonstrators had no intentions to interfere. The unsubstantiated and formalist approach of the court eliminated the culpability of three defendants in the offense under Article 161 of the Criminal Code, thus clearly illustrating bias and negligence on behalf of the judge.

Conclusion

The Prosecution of Georgia appealed the mentioned decision of the Tbilisi City Court to the Tbilisi Court of Appeals. WISG and EMC will proactively monitor the court proceedings and will call for the application of all possible means by the Prosecution to ensure submission of charges with a high standard of proof. In addition, the Prosecutor’s Office should ensure criminal prosecution of all persons who participated in the crackdown of the peaceful demonstration dedicated to IDAHOT on May 17, 2013 and committed other unlawful actions.

Footnote and Bibliography

[1] იხ. მაგ.  საპარლამენტო უმრავლესობის ლიდერის ჰომოფობიური განცხადებები 17 მაისს. ნეტგაზეთი, 2013.05.17.http://www.netgazeti.ge/GE/105/News/19709/

[2]„ნაციონალური მოძრაობის წარმომადგენლები, ალბათ, ოცნებობდნენ, რომ პოლიციას 17 მაისს დაერბია კონტრდემონსტრანტები. ვინ უნდა დაგვერბია? 300 მოძღვარი, მრევლი და ჩვენი 40 ათასი თანამოქალაქე?!" გაზეთი „ასავალ-დასავალი“, 10-16 ივნისი, 2013 წელი,  #973,  ინტერვიუ ირაკლი ღარიბაშვილთან. ასევე, იხ: http://www.tabula.ge/ge/story/71979-gharibashvili-me-vici-vin-idga-17-maiss-dagegmili-provokaciis-ukan

[3]ადამიანისუფლებათაკომიტეტისდასკვნა 17 მაისზე. ნეტგაზეთი. 23.07.19. http://www.netgazeti.ge/GE/105/opinion/21817/

[4]დისკრიმინაცია და სიძულვილით მოტივირებული დანაშაული, WISG, 2015 წელი, გვ. 35