General Analysis of Violations of Human Rights during and following the Dispersal of May 26, 2011 Protest Rally

Transcription

1 General Analysis of Violations of Human Rights during and following the Dispersal of May 26, 2011 Protest Rally This report prepared by GYLA is a preliminary and brief evaluation of general trends of human rights violation that were identified during and after the dispersal of May 26, 2011 rally, during detention of protesters or other persons that were present at the rally site and review of their cases by court. This analysis is based on statements obtained by GYLA from eye-witnesses and persons under its legal protection, as well as video and photo material disseminated by open sources. This document focuses on the following issues: 1. General overview and legal evaluation of tactics and techniques used by the riot police in preparations for and in the beginning of the rally dispersal; 2. Facts of apparent use of excessive force by the police and legal analysis of the facts; 3. Interference of the police in journalistic reporting during and following the dispersal; 4. Killings allegedly as a result of excessive use of force by the police during the dispersal; 5. Facts of violation of human rights in the process of detention; 6. Review of court proceedings and the relevant legal analysis 7. Detainees in Temporary Detention Isolators (TDI) subjected to ill-treatment 1. General overview and legal evaluation of tactics and techniques used by the riot police in preparations for and in the beginning of the rally dispersal Evaluation of proportionality of the force used by the riot police during the rally dispersal requires illustration of how the police planned operation for the dispersal, the type and amount of forces used by the police during the operation, as well as the special means it utilized during the dispersal and quality of force used in consideration of risks at different stages of the dispersal and legitimate aims of the police. During the early stage of planning and carrying out the operation, the tactics and techniques utilized by the police from the very beginning caused and defined the frames of lawfulness and proportionality of the intrusion by the police. In this context, there are several important circumstances that from the very beginning caused disproportional use of force by the police: 1. numerous forces of the riot police blocked all possible exits from the rally site; therefore, the rally participants were unable to follow the instructions of the police on self-dispersal; 2. the police used disproportional number of law enforcement officers that 1

2 could not have been necessary for dispersal of the protesters; 3. during the dispersal the police simultaneously used several special means without differentiating between the use of different types of special means in consideration of existing threats and its legitimate aims The Police Officers Blocking Exit Corridors for the Rally Participants As it is confirmed by the information obtained by GYLA from eye-witnesses and open sources, at 12:00 midnight and earlier the police blocked all streets and roads that allowed rally participants and other persons to leave the territory outside the parliamentary building. Specifically, parallel streets of Chitadze and Chichinadze on the right and left sides of the parliamentary building were blocked by cordons of officers of Special Forces 1. According to the statements obtained by GYLA from Interpressnews journalist Malkhaz Chkadua and Netgazeti journalist Tazo Kupreishvili, there were around 50 officers of Special Forces stationed at Chitadze Str.; there was a water canon machine as well. Malkhaz Chkadua states that considering the protesters had nowhere to go before and during penetration of the territory by the police officers, they sought shelter at the gate of the parliamentary building, where they were later forced out of by the police. Furthermore, the police had fully blocked the whole parameter of the highway to the Freedom Square. Eye-witnesses are not sure about the exact number of police officers stationed in this sector of the scene but according to one of the eyewitnesses, Tazo Kupreishvili, there were numerous officers of Special Forces by the Freedom Square, probably dozens of them, forming a condensed and orderly cordon. As Kupreishvili clarifies, there were other police officers and men in civilian clothing by the Pushkini Square. According to one of the protesters, Boris Kalandaze, before he fled to the building of Rustaveli Cinema for a shelter, he saw up to one hundred people that had toward the Freedom Square coming back to the parliamentary building due to absence of exit and force of the police officers. The noted fact completely ruled out an opportunity for protesters to flee toward the Freedom Square. According to the same witness, Boris Kalandaze, police officers had blocked Purtseladze Str., an exit from Rustaveli Cinema to Tabukashvili Str., as well as its parallel street right across the Tavisupleba subway station. Therefore, the protesters were forced to seek shelter in the cinema 2. Officers of the Special Forces had blocked the road (stairs) next to the Tavisupleba subway station that led to the State Chancellery building 3. The central avenue of Rustaveli was also blocked by a cordon formed by numerous officers of Special Forces. This is where the police was using water canon machine from 4. The police had blocked Jorjadze Str. right by Kashveti church. It should be noted that the opportunity to leave the premises of the Freedom Square was restricted for the people at the rally scene before the dispersal was started. According to a journalist of Pressage.tv, Nino Mikiashvili, at 23:40, when she was coming out of the subway station, light went off at the station. There were around 6 police officers at the station. They declared that due to certain technical problems at the station, the subway could no longer transport passengers. Therefore, the police did not allow people to go down the subway. According to the OSCE guidelines on freedom of peaceful assembly, participants should have been given reasonable time and safe exit to disperse prior to the intervention by the police. The participants 1 See ITV.ge video footage, 45th, 01.01th second, available at: 2 See map of the territory outside the parliamentary building, report of the Human Rights Watch Crossing the line, December 2007 p. 19. Available at: 3 Statement of Netgazeti journalist Tazo Kupreishvili 4 See video footage of BBC after the 00:06 mark. Available at: 2

3 should have been informed about exit(s) and notified that if they choose not to disperse they may be subject to detention 5. Despite the noted standards, the police officers had already blocked all exits from the rally scene and the participants did not have an opportunity to follow the instructions of the police on willful self-dispersal, which made the warnings completely pointless. Considering the aforementioned, GYLA maintains that ensuring public order (or any other legitimate cause) could have been the purpose of the dispersal by the police, which could have been achieved by means of driving the protesters away from the disputed territory; correspondingly, the police officers not giving the protesters an opportunity to leave the rally scene, as well as elaboration of a preliminary plan of the operation that blocked all exits from the scene, constituted unjustified and disproportional means of intrusion from the very beginning. Furthermore, the police did not make any clear announcements for the protesters on which exits to use to leave the territory Description of Police Forces that Participating in the Rally Dispersal According to the information that we have, it is difficult to define precise number of police officers that took part in the dispersal. According to one of the eye-witnesses, Tazo Kupreishvili, at around 11:00 pm he saw 10 yellow busses, 10 micro-buses and 15 pick-ups at the Freedom Square. The vehicles were full of Special Forces officers. Clearly, this information does not demonstrate exact number of police officers. According to journalist of Pressage.tv Nino Mikiashvili and journalist of Interpressnews Malkhaz Chkadua, officers of Special Forces as well as men dressed in jeans and civilian footwear but wearing red police coats and fabric masks or helmets participated in the dispersal. Police officers were referring each other with nicknames. It should be noted that uniforms of police officers and officers of the Special Forces did not have any kind of identification badges (f.e. numbers) on them. Under provision 7 of the UN s Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, governments shall ensure that arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law. Lack of opportunity to identify the noted individuals makes it impossible to identify perpetrators and conduct effective investigation into the case. Furthermore, the aforementioned fact makes it difficult for a victim to realize his/her right of compensation according to the civil procedure Disproportional use of special measures by the police at the very beginning of the dispersal During the dispersal of May 26 rally, approximately 2 minutes after the warnings were made by the police, the police started moving toward the protesters without giving them reasonable time to disperse and live the territory. The police did not give any instructions to the participants about the exit that they could turn to for leaving the territory. The unit of Special Forces broke through the fences set up by the participants around the territory outside the parliament. The police were simultaneously attacking the participants from several different sides, specifically, from Rustaveli 5 See OSCE guidelines on freedom of peaceful assembly, p 63. Available at: 3

4 subway station, as well as Chitadze Str. and Rustaveli Cinema 6. According to eye witnesses Malkhaz Chkadua and Tazo Kupreishvili, officers of Special Forces were throwing gas containers, shooting rubber bullets and at the same time they were using water canons as well. The police used aforementioned measures in parallel, from different sides and simultaneously. According to the international standards, the police shall not use disproportional, excessive and unlawful force during dispersal of protestors. Use of force shall be regulated by law. The law should provide for cases when use of force is justified, as well as degree of use of force which is allowed in consideration of different risks. Under provision 2 of the UN s Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, governments and law enforcement agencies should develop a range of means as broad as possible and equip law enforcement officials with various types of weapons and ammunition that would allow for a differentiated use of force and firearms 7. Under Article 3 of the same document, the development and deployment of non-lethal incapacitating weapons should be carefully evaluated in order to minimize the risk of endangering uninvolved persons, and the use of such weapons should be carefully controlled. Law enforcement authorities shall, as far as possible, apply non-violent means before resorting to the use of force and firearms. Considering the aforementioned circumstances, GYLA maintains that during the dispersal the police used several different types of special means simultaneously and such use did not seem necessary. Considering the amount of police forces and range of their gear in the process of the dispersal, it is safe to conclude that the situation was completely subject to an effective control of the police. Number of the participants amounted 1,000 by 12:00 midnight. Furthermore, they were mostly unarmed [some had metallo plastic sticks and wooden shields]. It seems that the police could disperse the protesters by using water cannons and e.g. teargas, driving them away from the territory through a concrete exit. If any of the protesters resisted and/or used force, the police would have been authorized to use adequate force envisaged by law (physical coercion, truncheons, rubber bullets, etc.). It should be noted that the law on police and the December 30, 2009 decree N1586 on adoption of procedures and conditions for storage, carriage and use of special measures by officers of the Ministry of Interior Affairs do not provide for gradation of special measures. Under paragraph 1, Article 4 of the decree N1586, police is authorized to use special measures if other measures are ineffective to achieve the purpose. At the same time, the law does not provide for gradation of special measures according to the criteria of ineffectiveness in a given case. Under paragraph 3, Article 10 of the law on police, type of a special measure is defined according to a concrete situation, nature of violation and individual characteristics of an offender. Such formulation of the provision allows for a broad discretion of the police and fails to provide for a hierarchy between special measures in terms of restricting their use. Furthermore, the law does not prohibit simultaneous use of several different special measures by the police. Noted flaw of the law creates problems in terms of control and prevention of disproportional use of force by the police and allows for a high possibility of arbitrary actions by the police. In addition to the aforementioned, during the first stage of dispersal as well as its subsequent stages, including detention, police officers violated conditions for use of measures that may harm life and health of a person. According to the international requirements, the standards that apply to the use of 6 See video footage of ITV.ge, (seconds) interval, as well as 02:42-03:40 interval (seconds) available at: 7 See 4

5 lethal weapon equally apply to the use of non-lethal means that may harm life and health of an individual. For example, due to the fact that rubber bullets may be lethal under certain circumstances, they should only be used strictly in accordance with the law for use of firearms, as well as basic principles of the UN and applicable human rights conventions, in established limited cases 8. Despite the aforementioned standard, the police used rubber bullets during the initial stage of the dispersal without exhausting any other more efficient means. Furthermore, the police used force without evidence of an extreme necessity. Specifically, in certain cases the police used rubber bullets without distinction, while in certain cases it aimed at people that were not posing a threat to police officers or life and health of others or resisting police officers in any way. In consideration of the aforementioned circumstances, GYLA maintains that the type and degree of special measures used by the police at the very beginning of the dispersal constituted excessive use of force. 2. Facts of apparent use of excessive force by the police and legal analysis of the facts During the dispersal of May 26, 2011 protest rally, the police excessive use of force by the police was apparent. Actions of the police frequently contradicted domestic standards of protection of human rights and the stipulations of the law on police in particular. The aforementioned legislative act lays out detailed regulations in terms of necessity and proportionality of use of force Use of force against an allegedly underage person The First Caucasian TV aired video footage that shows officers of Special Forces physically abusing an allegedly underage person. At Rustaveli Avenue, by Rustaveli Cinema an allegedly underage person was crossing the carriageway. He was surrounded by dozens of officers of Special Forces, knocked down by them and started kicking him and beating him with truncheons. The video footage clearly shows that the allegedly underage person was not resisting to the police 9. Subparagraph a of Article 37 of the Convention on the Rights of the Child prohibits inhuman and degrading treatment of children. In its general comment N13 the committee on the right of the child notes that the noted prohibition first and foremost applies to the police and law enforcement officials. In its N8 general comment the committee notes that we should know the difference between a protective physical action and a punitive assault. The force used against children should be necessary and not punitive Disproportional use of truncheons It should be underlined that the protest rally was not always peaceful. There were some people among the peaceful protesters that were putting up resistance to the police by means of plastic sticks and 8 See the report of Human Rights Watch Crossing the line, December 2007, p. 33. Available at also, see: The report of the independent commission on policing for Northern Ireland, September, Available at:

6 thick wooden shields after the dispersal started. Nevertheless, it should be noted that use of force by the police even against protesters that resorted to such violent actions was disproportional. One of the participants armed with a shield that has Misha Will Leave written on it and a flag handle is engaged in a battle with law enforcement officers. The police manage to knock him down and prevent him from using the shield and the flag handle. After the protester is no longer posing the threat of violence, officers of the Special Forces form a circle around the protester who gas been knocked down, kicking him and beating him with rubber truncheons 10. Furthermore, there were cases of use of force against protesters that did not put up any resistance against the special unit. In some cases, the participants were beaten by truncheons, although they did not pose any threat but were under effective control of the police 11. In such cases protesters did not have any physical ability to put up a resistance against a special unit. Nevertheless, the police are using rubber truncheons, although there is no necessity to resort to such measure. The special unit was using rubber truncheons against all persons that were at the site of the rally dispersal. These are the following characteristics of actions of the Special Forces officers: they ran after 12 or sneak up on 13 a person who is trying to flee from Rustaveli Avenue and beat him with truncheons. In some cases they resort to using rubber truncheons against a person who is trying to flee 14. There were also cases when several Special Forces officers were kicking a participant who had been knocked down 15. Under the provision 3 of the UN Basic Principles on the Use of Force and Firearms adopted on the eight congress, the development and deployment of non-lethal incapacitating weapons should be carefully evaluated in order to minimize the risk of endangering uninvolved persons, and the use of such weapons should be carefully controlled. According to the guidelines on freedom of peaceful assembly, persons involved in violence should be isolated from peaceful protesters and coercive measures should be used against them. Under Article 11 of the law on police, a police officer has the right to resort to physical coercion or special measures in compliance with the principle of proportionality and necessity. Under paragraph 4, of Article 4 of the December 30, 2009 decree N1586 on adoption of procedures and conditions for storage, carriage and use of special measures by officers of the Ministry of Interior Affairs, type of a special measure, intensity of physical coercion shall be defined according to a For example, one of the protesters fell into a fountain outside the parliament. Taking advantage of the fact that the protester is unable to resist, a special unit officer beats him with a rubber truncheon: 12 Several Special Forces officers beating a citizen outside the youth house: 13 Special unit officers beating a person accompanying journalist of Maestro TV 14 People fleeing the territory outside the parliamentary building beaten with rubber truncheons: 15 A citizen beaten by several special forces officer outside the youth house: 6

7 concrete situation, nature of violation and individual characteristics of an offender. The aforementioned situation did not require use of force by the law enforcement authorities, as threat had already bee neutralized in one case, whereas in rest of the cases protesters did not pose any threat to the law enforcement authorities. Furthermore, under subparagraph b of paragraph 1 of Article 12 of the law on police, rubber truncheons can be used for repulsing an attack against a citizen, a police officer and/or a protected object; during detention of a perpetrator, a person that has violated public order if he or she is resisting lawful instruction of a police officer; for suppressing mass or group violation of public order. In all of the aforementioned cases, people beaten with rubber truncheons either were not attacking police officers or by the time of the use of rubber truncheons such attack had already been suppressed, a person that has violated public order is already detained and is not putting up any resistance against the law enforcement authorities Use of Rubber Bullets According to the Israeli Human Rights organisation B Tselem, in consistent with the Open Fire Regulation, using rubber bullets is prohibited within the distance of 40 metres. 16 First of all, it should be underlined that even unlike Israel, the Georgian legislation does not define use of rubber bullets as an extreme special mean when the goal is not fulfilled by using gas, acoustic facilities or by warning shot in the air. In a problematic region like Palestine occupied territory, specific distance is determined for use of bullets; there are no such restrictions in Georgian legislation. Though, in compliance with the Law of Georgia on Police, rule of inevitability and proportionality must be pursued, which implies that certain distance should be taken while using rubber bullets, in order not to mutilate a person or in case aggressor approaches the police not to use rubber bullets, but other facilities, such as for instance rubber truncheon. Unfortunately, during dispersal of manifestation on May 26 these rules have not been considered. According to citizen Besik Tabatadze, who was participating in manifestation, policemen shot rubber bullets from the distance of 5-6 metres. Besik Tabatadze was shot with 8-9 bullets in the face and body. As a result, Besik Tabatadze lost sight in one eye 17. There are other cases of using plastic bullets from 5-6 metres, which indicates that the case of Besik Tabatadze was not an isolated incident Inhuman and degrading treatment of demonstrators Georgian Young Lawyers Association obtained an explanation of Giorgi Gogashvili, one of the participants of the demonstration. According to Mr. Gogashvili, after Special Forces started dispersal of the manifestation, he ran away towards the National Museum at Rustaveli Avenue. By that time the 16 en&ei=7_nktad2bmvzgal8r3ibg&sa=x&oi=book_result&ct=result&resnum=2&ved=0cc0q6aewaq#v=onepage&q=the%20rules%20on%2 0the%20use%20of%20rubber%20bullet&f=false

8 Special Forces ran him down, hit him with a rubber truncheon in his head and knocked him down. Afterwards, the riot police allegedly had Giorgi Gogashvili and eight other persons pass the corridor. The police used so-called Corridor of Shame first time back in 2009 against the protestors of summer rallies. The main point of this action is that several policemen divide into two lines facing each other, creating a human corridor. Demonstrator passes between these lines, getting hit by fists and truncheons of the policemen. Giorgi Gogashvili and other eight persons have allegedly passed the Corridor of Shame ; in the meantime they were assaulted verbally and presumably ill-treated in Rustaveli Cinema. While dispersing the manifestation all the places to escape was closed down, hence some of the demonstrators found a shelter in Rustaveli cinema. In fifteen minutes Special Forces of the Ministry of Interior Affairs entered the Rustaveli cinema. Special Forces chose 30 persons who had had the tickets and allowed them to leave the hall; as for the remained people, Special Forces kept them in and started physical abusing. In the beginning, Special Forces allegedly used rubber truncheons against the leaders of the manifestation, and then they made people who were in the hall seated. Around 100 policemen approached them and consistent with the row, questioned which regions they were from, after getting responses they were beating rubber truncheons into face. 19 According to Boris Kalandadze, some of the people who were detained in Rustaveli cinema were laid down on the stage and police forces started walking on them. The most obvious episode of disproportionate treatment was the physical abuse towards the people taken out from the cinema. Video footage made by the internet-television Palitra-TV shows how Special Forces are striking demonstrators in the area of head, face and back, also by rubber truncheons in the area of breast and back. It also has to be underlined that person taken out of the cinema is detained and coherently is already under the state control. None of them show resistance to police forces. They are following policemen obediently and the aforementioned actions are taking place by that time. Leading out demonstrators from Rustaveli cinema is the most evident and actual inhuman and degrading treatment among other violations that occurred by the night of 26 th of May The above-mentioned cases clearly indicate the inhuman and degrading treatment of police towards the detained persons, which is absolutely prohibited by the article 3 of European Convention on Human Rights. 3. Hindering media representatives from performing professional duties by police in the process of dispersing demonstration and afterwards. Based on the information acquired by GYLA, more than 20 different types of incidents occurred gainst journalists. These cases can be categorized according to the the following criteria: Journalists injured physically (by rubber bullets or by other means), physically and verbally abused (by today 15 verified cases) 20 ; 19 ა ი ს ს -და შ ლი ლი -ა ქ ც ი ი ს -ე რ თ/?fb_ref=fbrefferal&fb_source=home_oneline 20 e.g. Tamaz Kupreishvili, Konstantine Stalinski, Nino Kakhiashvili Netgazeti (web source) Darejan Paatashvili, Malkhaz Chkadua, - Interpresnews (News Agency), Zaira Mikadze Rezonansi (Daily Newspaper)

9 Seizing or damaging cameras or other recording equipments, also deleting recorded materials and destroying the memory cards (by today four verified cases, it should also be underlined that journalists have never got back their cameras or recording devices) 21 Illegal detention of journalists (two verified cases by now) 22 Hindering journalists from performing professional duties in different ways, which in this case implies creating impediments to recording the events (two verified cases by now) 23. Also, it should be emphasized that in most of the cases the aforementioned incidents had cumulative link to certain journalists. According to the Article 24 of the Constitution of Georgia freedom of expression is guaranteed, which implies to the free access to information and possibility of disseminating it by journalists. According to Article 3, paragraph 2, subparagraph c in the Law of Georgia on Freedom of Speech and Expression Every person has the right of expression, which entails freedom to obtain, receive, create, keep, process or disseminate any kind of information and ideas. As regards to the grounds for restricting these rights, according to Article 6, paragraph 1, Any restriction of a right guaranteed and protected by this law shall be legitimate only if it is introduced by a clear and foreseeable, narrowly tailored law, and the public interest served by the aim of the restriction exceeds the damage to freedom of expression caused by the restriction, that was not pursued in this particular case. According to the paragraph 2 in the same Article it is necessary to have a purpose for restriction and the actions should be proportionate to the aim of the restriction. In our case this has been disregarded. None of the reasons will explain the impediments that journalists faced when covering the events. Therefore, it is safe to conclude that freedom of expression was violated and other crimes envisaged by the Criminal Code of Georgia were evident. 4. Killings allegedly as a result of excessive use of force by the police during the dispersal; It is officially confirmed that two people died at the rally dispersal and two more deaths are also linked to it The death of Mr. Mansurashvili and Mr. Tskhadadze The Georgian Ministry of Internal Affairs (MIA) confirms the death of two persons at the rally dispersal 24. One of them was Lieutenant Vladimir Mansurashvili and the other - a protester - Mr. Nodar Tskhadadze html); Nato Gogelia - Guria News (weekly regional newspaper), Diana Khoferia ( - Obiektivi (Internet TV and Radio) Roman Kevkhishvili ( - GTN news agency, Beka Sivsivadze, Giorgi Mamatsashvili Asaval-Dasavali (weekly newspaper) Khatuna Gagnidze ( Telara Gelantia ( - Pirveli (news agency); Davit Mchedlidze ( - Media.Ge (web portal) 21 eg. Darejan Paatashvili and her camera man Interpressnews, Nato Gogelia Guria News, Avtandil surmava ( Palitra TV (Internet TV) 22 e.g. Malkhaz Chkadua Interpressnews, Ana Gabunia Expressnews 23 e.g. Nestan Tsetskladze Netgazeti, Davit Mchedlidze - Media.ge 24 The MIA web-site: accessed at 25 The MIA web-site: accessed at 9

10 Officially it is upheld that both were killed by the escort car of one of the opposition leaders, Ms. Nino Burjanadze. The video on MIA web-site shows the person under the wheels of what is allegedly the escort car 26. This person is said to be Mr. Mansurashvili. The assistant of Mr. Burjanadze, who was driving the car, was arrested. He stated that probably he hit the person by the car mirror, but at that moment he did not notice anything 27. Video footage shows riot police trying to stop escort cars and a certain person jumping on the back of the car 28. The MIA alleges that Mr. Tskhadadze was also killed by escort cars 29. The video footage shows several riot policemen beating a person at the place where the body of Mr. Tskhadadze was found 30. The colleague of Mr. Tskhadadze, Mr. Eric Arutinian, stated that he was together with the deceased at the rally dispersal; the latter was being beaten by riot police and was shouting: "Don't beat me, my heart aches" The death of Mr. Kvintradze and Mr. Asatiani In the morning of 27 May 2011 the police declared to have found two male bodies on the roof of the shop near the Metro station "Tavisuplebis Moedani" ("Freedom Square") - within the area of the rally dispersal 32 ; near the territory under MIA control 33. Later it turned out to be Mr. Nika Kvintradze, 49, from Tbilisi and Mr. Suliko Asatiani, 62, from Vani (Western Georgia) 34. The MIA announced that the death of both was caused from touching the wire of high electric force on the roof. Police were also investigating the link of these persons to the protest rally 35. Official forensic examination proved the preliminary observations of the investigation about the electric wire 36. The family of Mr. Kvintradze refused to have the alternative forensic examination conducted 37 ; but they confirmed the presence of the deceased at the protest rally The MIA web-site: accessed at 27 Web-site of the TV Company "Maestro": accessed at 28 Web-site of the TV Company "Maestro": accessed at 29 The MIA web-site: accessed at 30 Web-site of the TV Company "Maestro": at 22:29; accessed at 31 Web-site of the TV Company "Maestro": accessed at 32 The MIA web-site: accessed at 33 Web-site of the TV Company "Maestro": accessed at 34 Web-site of the information agency "InterPressNews": accessed at Web-site of the Broadcasting Company "Rustavi 2": accessed at 1 June The MIA web-site: accessed at 10

11 The witness statement by a childhood friend of Mr. Kvintradze - Mr. Avtandil (Rezo) Rekhviashvili - states that his friend was with him on Rustaveli Avenue during rally dispersal, where he saw Kvintradze for the last time 39. Riot police detained both of them. They fastened the hands of Mr. Rekhviashvili with plastic hand-cuffs and made him lay down on the ground 40. Later he was taken to the police department 41 and he is not aware of what happened to his friend 42. Mr. Rekhviashvili identified Mr. Kvintradze on one of the photos taken during the rally dispersal: the photo shows several men (more than ten), with their hands bound, lying on the ground on the street in front of the Parliament building. The person identified as Mr. Kvintradze has his hands bound by plastic hand-cuffs and is lying on the ground with the others 43. Mr. Rekhviashvili remembers the clothes his friend was wearing and identified them on the photo as well 44. Mr. Rekhviashvili questions how Mr. Kvintradze could get to the shop roof while being detained by riot police forces with his hands fastened on his back 45. The journalists showed the same photo to other friends of Mr. Kvintradze. One of them - Mr. Akaki Svanidze - is reported to have identified Mr. Kvintradze 46 ; two of them responded "probably yes", one friend was dubious 47. The official MIA video does not show the body of the deceased. Some claim that his clothes could clarify the cause of Kvintradze's death, but these clothes are in the hands of the investigation Web-site of the Broadcasting Company "Rustavi 2": accessed at 1 June Information available through GYLA lawyer in Tbilisi. 38 Web-site of the information agency "InterPressNews": accessed at 39 Web-site of the TV Company "Maestro": accessed at 1 40 "Palitra TV" web-site: accessed at 41 Web-site of the TV Company "Maestro": accessed at 1 42 Web-site of the TV Company "Maestro": accessed at 43 "Palitra TV" web-site: accessed at Web-site of the TV Company "Maestro": accessed at 44 Web-site of the TV Company "Maestro": accessed at 1 45 "Palitra TV" web-site: accessed at 46 Web-site of the TV Company "Maestro": accessed at 1 47 "Palitra TV" web-site: accessed at Web-site of the TV Company "Maestro": accessed at 1 11

12 Journalists took the photo of the body of Mr. Kvintradze in the dissecting room and showed it to the independent expert. It seems clear to the latter that the person on the photo died three or four hours before the photo was taken 49. The neighbours and relatives of Mr. Kvintradze reportedly stated that the hands and legs of the body were bound when discovered 50. The investigation did not respond to any of the allegations given above. The son of Mr. Kvintradze currently serves his sentence for burglary. He must be freed in a year. Some attribute the silence from Kvintradze family to the fear for the safety of the mentioned person in prison 51. The father of Mr. Kvintradze received a heart attack and died on 29 May 2011, two days after the dead body of his son was found 52. The bodies of Mr. Kvintradze and Mr. Asatiani were allegedly placed together in the prosectorium 53. When journalists asked the prosectorium representatives about the other body - the one that was not that of Mr. Kvintradze -reportedly they were told that the body was brought from the town of Mstkheta 54. The opposition members and several journalists recall that the state security forces always examine carefully the vicinity of the President's public appearance places. The President was present in front of the Parliament building on May 26 for several hours from 11 a.m. to celebrate Georgia's Independence Day with the military parade. There are doubts as to how could the state security forces not check the nearby shop roof where bodies were found and not discover them already in the morning of May 26th Web-site of the TV Company "Maestro": accessed at 1 49 Web-site of the TV Company "Maestro": accessed at 50 Web-site of the TV Company "Maestro": accessed at 1 Web-site of the TV Company "Maestro": accessed at 51 Web-site of the TV Company "Maestro": accessed at 1 52 Web-site of the information agency "InterPressNews": nika-kvintradzis-mama-gulis-shetevith-gardaicvala.html?ar=1, accessed at 53 Web-site of the TV Company "Maestro": accessed at 54 Web-site of the TV Company "Maestro": accessed at 55 Web-site of the TV Company "Maestro": accessed at 1 12

13 5. Facts of violation of human rights in the process of detention The Ministry of Interior has officially stated that on May 26, 2011, as a result of the dispersal by the Ministry forces 90 protesters were detained. List with the detainee names was published by the Ministry on May 27, According to the data collected by the GYLA lawyers, the following facts took place during the dispersal of May 26 manifestation: Beating up the detainees (including disabled ) 57 Example: One of the protesters Murman Dumbadze appeared on Euronews video citing the manifestation dispersal, where already detained Dumbadze is accompanied by two policemen and is absolutely with no evidence of injuries. GYLA lawyers saw Murman Dumbadze in Telavi temporary detention centre brutally beaten. According to the information from GYLA Gori office lawyers, a person with disabilities was beaten with a bottle full of water. However, the person who informed GYLA with the fact decided to remain anonymous for personal safety reasons. According to the information of GYLA Rustavi office lawyers, brutal beating at Tbilisi Headquarters of the Police is demonstrated by the fact that Nika Samkharadze, currently in Gardabani Isolator says he got a toe hit in his face at Tbilisi Police Office. Detention of persons who state they were just coincidently passing by the dispersal scene 58 Examples: Khvicha Kvaracxelia, Elguja Papunashvili, Giorgi Bujiashvili, Givi Kurdiani hold in Ozurgeti Isolator and Vepkhvia Devnozashvili, Gocha Lashkhia, Tariel Pluidze, Tengiz and Gela Mamniashvilies in Lanckhuti Isolator say they were not May 26 manifestation participants but absolutely coincidently appeared to be passing by the territory. However, the abovementioned persons were detained without any explanation from the side of police. Protocols of misdemeanor allegedly committed by the detainees drawn up by police were entirely identical. Detention of persons who took part in the manifestation but left the demonstration scene before the midnight (May 25 24:00) 59 Example: Giorgi Kolbaia held in Lanckhuti Isolator stated that he was fully aware the demonstration was supposed to finish by the midnight and went home by taxi. However, near to Tbilisi Circus masked policeman stopped the taxi and detained him. Facts of beating up already detained persons gives evidence that Article 17 of Constitution of Georgia and Article 3 of European Convention on Human Rights have been violated official information published by the Ministry of Interior 57 E.g.: %E1%83%93%E1%83%A3%E1%83%9B%E1%83%91%E1%83%90%E1%83%AB%E1%83%94- %E1%83%9C%E1%83%90%E1%83%AA%E1%83%94%E1%83%9B%E1%83%98%E1%83%90- %E1%83%93%E1%83%90%E1%83%99%E1%83%90%E1%83%95%E1%83%94%E1%83%91%E1%83%98%E1%83%A1- %E1%83%A8%E1%83%94%E1%83%9B%E1%83%93%E1%83%94%E1%83%92-murman-dumbadze-police-tbilisi-26-may-crime-lawrally.htm ; Information provided by GYLA Gori, Rustavi, and Telavi office lawyers. 58 Information provided by GYLA Ozurgeti lawyers. 59 Example according to information provided by GYLA Ozurgeti lawyers. 13

14 6. Review of court proceedings and the relevant legal analysis In court GYLA lawyers faced serious difficulties in terms of obtaining information about the detained persons. Additionally, they were not given permission to defend the detainees in front of court. The court chancellery refused to provide with the information whether the detainees were brought to court building. Lawyers had the opportunity to meet with the detained persons only before the actual proceeding in court room. GYLA lawyers were not given a chance even in a single case to meet the persons under their defense outside the court room and thus plan the adequate defense strategy. The lawyers were given 15 minutes before the proceedings to study the case files. Given the fact that Tbilisi City Court had to deal with 90 cases of convicted persons, it is obvious, the court worked in a stressful environment motivated by the law provisions where it is obligated to process the case in 24 hours period. We take into consideration the fact that reason for such a rush may be leading to Administrative Offence Code. However, we suggest, the shortage in time does not justify the violation of the right of defense, since the Convention on Human Rights and European Convention on Fundamental rights Article 6, paragraph 3, paragraph B states that everyone should have enough time and opportunity to prepare for the own defense. Detainees were observed to be physically injured. Judges usually did not pay attention to these facts they expressed no interest to investigate the circumstances injuries were caused by. Only the GYLA lawyers were pointing at the injuries of convicted detainees. However, judges usually ignored remarks from GYLA lawyers. Deriving from the European Convention on Human rights Article 3, the court is obligated to clarify the circumstances in which the detainee got injured. The police officer explanations were the only evidence the court relied on during the proceedings of the Administrative Offence cases. The court never required further clarification and additional evidences regarding the issue. In many cases the court did not clarify on the particular facts of malice disobedience committed by the detainee. For example, one of the convicted persons who refused to have defense was asked by the judge before court whether the factual circumstances stated by the police were the evidence of his guilt. Prior to posing this question patrol police responsible for protocol was using the following template statements: detained person resisted lawful orders of the police that caused his detention. However, policeman had no mention of either concrete actions committed by the person, or the concrete request of police to which the person did not obey, or the evidence of malice disobedience to police. Since the policeman did not present and suggest any factual circumstances in his explanation, question directed to the convicted person on whether he confessed the guilt in the factual circumstances stated by the police was rather peculiar. The detainee answred yes to the noted question, which served as enough of the basis for the judge to sentence him to 30 days of administrative detention. The detainees were sentenced u Article 173 of Administrative Offence Code of Georgia that envisages legal liability in cases of disobedience to lawful orders of the law enforcement officers. The article envisages a fine in the amount of GEL 400 and administrative detention for up to 90 days. Protocols on administrative offences drawn up and presented before court by the police officers, which constituted important piece of evidence, were absolutely identical and differed from one 14

15 another only with the detainee names and personal identification data. Often, policemen themselves gave unclear explanations, e.g. in the case of detained Leri Bitsadze, statement of the police officer indicated that the defendant behaved aggressively and disobeyed instructions of the police officer to stop acting aggressively. Therefore, he was detained. This is a typical explanation for rest of the court proceedings in all other cases. In on of the cases judge Giorgi Tkavadze undertook the responsibility to specify factual circumstances himself. The judge independently from the patrol police concluded that Leri Bitsadze participated in an unlawful demonstration (as the number of demonstrators was insufficient to serve as the basis for blocking carriageway and furthermore, the instruction term had been expired); police demanded the protesters to dispers and open the road. Leri Bitsadze, one of the protesters did not obey to this request and therefore, he was detained and sentenced to administrative responsibility. It should be underlined that police protocol made no mention of an unlawful demonstration, whereas this particular circumstance guided the judge at the court proceeding. The judge acted on the basis of inquisitive principle. Based on the same principle the judge did not investigate the circumstances where convicted person had no chance to act according to the lawful request from police, since all the possible ways were blocked by police forces. In number of cases, it has been identified that the detainees were not treated equally: in particular, at the beginning the detainees even if confessing their guilt were sentenced to 30 days of administrative detention while later on the similar cases the only sanction used by the court was fine. The abovementioned circumstances suggest that persons could not use their right to fair trial where right to defense has to be protected by competitive proceeding principle (Requirement deriving from European convention Article 6). 7. Detainees in Temporary Detention Isolators (TDI) subjected to ill-treatment GYLA got actively engaged in protecting interests of detainees. As a result, number of problems has been identified and can be grouped in a following manner: Detainees were not given possibility to communicate with relatives and lawyers; 60 No information was released on the location of detainees; 61 In most of the cases detainees were not provided with food and medical treatment; 62 Example: Information provided by GYLA Telavi office lawyers suggests that relatives of Kakha Buachidze suffering from diabetes and hold detained in Telavi Isolator provided him with the medicines. Another detainee from Telavi Isolator Ramaz Lataria also suffering from diabetes said 60 E.g. GYLA Statement; Ombudsman recommendation to the Ministry of Interior 61 E.g.: GYLA statement on detainee rights violation; - Ombudsman recommendation to the Ministry of Interior 62 E.g: Infromation provided by the GYLA Telavi and Rustavi office lawyers. 15