Attacks on the Judiciary
The legal system in Georgia has been tinkered with on numerous occasions since independence. In 1999 a new system of exams was introduced which had to be taken by both new and serving judges. Judges told BHHRG at the time that this was a way of sacking people who offended the government.
Perhaps, observers assumed that Mikheil Saakashvili’s legal training would impact positively on the rule of law, but, according to observers: “The level of justice has seriously deteriorated since the rose revolution”. Lawyers told BHHRG that Sakkashvili knew nothing about the nuts and bolts of Georgian law - his courses in the US were most likely the typical, content-less melange of ‘modules’ in subjects like human rights and international justice.
The president has attacked the judiciary on numerous occasions and lawyers told BHHRG that the level of competence and trust was at its lowest level. In 2004, the law was changed and the president now puts forward the names of all judges, including the 15 constitutional court judges, which have to be approved by 3/5 majority in parliament. The president also heads the Council of Justice which not only selects judges but also deals with disciplinary issues. In the circumstances, it is unsurprising to learn that the two presidents of the Supreme Court appointed by Saakashvili – Konstantin Kublashvili and Kote Kemularia - are his associates and members of the National Movement. The president’s lawyer was appointed president of the Georgian Association of Advocates.
Judges no longer serve until retirement but are subject to renewable terms of office which means that their independence may be compromised by the prospect of dismissal if they fail to reach the right conclusions. In February 2005, amendments were passed to the criminal procedure law so that a person charged could simultaneously have his property seized. The legislation can also be applied retrospectively – the burden of proof is on the defendant. The law applies to crimes committed by public officials.
According to lawyers spoken to by BHHRG there has been a “mass sacking of judges” who are required to write letters of ‘resignation’. Since 2003, financial support for the nation’s courts has decreased by 1.5 m. lari. There are now three courts in Tbilisi were once there were five, meaning that one judge often has to handle 400-500 cases. Trials can go on for several years. The criminal law is amended almost on a daily basis – they cited one week when there were 200 amendments. These can be reversed a week later. According to his lawyers, the judge in Mr. Molashvili’s case was appointed one month before the case started. This is his first case. Several days before the trial commenced he was given 25 bundles of material.
In 2004, the EU set up a 7 month rule of law mission to Georgia which came to an end one week before Molashvili’s trial commenced. Belgian judge, Sylvie Pantz, was less than complimentary about the state of affairs she witnessed saying that “The sacking of judges in Georgia appears to be politically motivated” … “every day she was informed about someone being asked to resign”. The capricious nature of the system is well illustrated by the case of the Arbitration Court established to settle issues between businesses and the authorities in January 2005 but abolished two months later “after it made several decisions in favour of businessmen”. USAID has spent $2.6 m. on Saakashvili’s ‘rule of law’ campaign but it has not yet promoted a stable, predictable system.
The Prison System: BHHRG visited Tbilisi’s main prison (No.5, previously No.1) in 1992 and again in 1996. In 1992 they met Zaza Tskiklauri, a supporter of former president, Zviad Gamsakhurdia, arrested on terrorism charges who had been tortured at the hands of the police. In 1996 they toured the prison, including the prison hospital. Over 40 men were held in the same filthy, airless cells; TB was rife. Conditions in the hospital were, if anything, worse. Food ( which has to be provided by patients’ families) was left, half-eaten, in bowls on the floors of the wards where it attracted flies in the searing heat. Emaciated men lay dying in bedshaving been provided with the minimum amount of medical care – many were beyond it. The smell of urine and unwashed bodies was so pervasive that a prison official who showed BHHRG around nearly vomited himself as he left the building.
Six years later, Georgia’s prisons and law enforcement bodies have got, in many respects, worse. Since 2002, the number of prisoners has doubled. According to officials at Prison No. 7 (in the Ministry of Interior) “there have never been so many people in prison”, due, according to an official in the public defender’s office, to the country’s “woeful social situation”. It appears that Victor Hugo’s hapless hero, Jean Valjean, condemned to years in the galleys for stealing a loaf of bread, is alive and well in Georgia. BHHRG was told of one boy who received an 11-year sentence for stealing a bottle of beer.
There are plans to build two new modern facilities in Kutaisi and Rustavi and to close prison No.7. But, for now, the population of prison No. 5 has doubled. There is a new remand prison for women, something of a show case for the Georgian authorities but conditions for most inmates – as in all jurisdictions, most prisoners are male – have not improved.
No one denies that suspects are mistreated, often tortured, usually during and immediately after arrest. Officials in prison Number 7, told BHHRG that the police were the culprits although they hadn’t heard of any cases for one and a half months! Torture was “100% prohibited” in their facility but they “look after them when they’ve been tortured”. The public defender, Sozar Sobari, a former National Movement activist, and, therefore, a government employee also confirmed that suspects were tortured. But Sobari and others rightly point out that the conditions of detention are torture in itself. It seems incredible that after years of Western assistance, including involvement by Council of Europe experts, universally accepted standards for the running of a humane and efficient prison system are ignored.
For example, 98% of those arrested are held in custody; bail is almost non-existent and few people are acquitted. “No one gets off” said the officials at Prison No. 7, adding that “they weren’t as tough on people under Communism”. The law was changed early in 2005 to reduce the period of pre-trial custody from 4 to 3 months. But BHHRG met prisoners who had been in jail for a much longer period. There seems to be no quick, efficient means of dealing with petty offenders so that, for example, a first time offender who steals a carrot will spend at least three months in custody before receiving a minor penalty, usually a small fine – sometimes more. Nor is there any kind of probation system whereby offenders can be reintegrated under supervision into the community. In fact, BHHRG was told that elderly prisoners transferred to civilian hospitals can be stuck there indefinitely as there is nowhere in the outside world for them to go. When the Group questioned staff about the need to incarcerate elderly men, several of whom were staggering around the prison hospital yard on walking sticks, they were told that these prisoners were ‘murderers’ and not as old as they looked although they admitted that some were “in their seventies” ! Prisoners on remand are not allowed any visitors further dislocating relationships with the outside world.
Following Council of Europe recommendations, supervision of prisons in Georgia has been removed from the Ministry of the Interior to civilian control under the Ministry of Justice. In April 2005, BHHRG interviewed the new director of prison Number 1, Merab Chachaia. Whatever the shortcomings of the old system, the previous (uniformed) governor had facts and figures at his fingertips, unlike Mr. Chachaia who had to make several phone calls before confirming that there were 3,500 prisoners in custody at that time, 80% of them were on remand. Convicts spend an average of 10 days there before going on to serve their sentences in colonies. The main offence seems to be street robbery although he did mention the presence of ‘mafia bosses’.
Cells are horribly overcrowded and the facilities are what the British would call ‘Victorian’: brick walls, iron bedsteads, wooden floors and basic toilet facilities . In winter they are freezing cold and in summer unbearably hot. Prison officials told BHHRG that it is impossible to enter the cells when the temperatures soars– during BHHRG’s July 2005 visit the thermometer in Tbilisi never dropped below 32◦. No doubt, the fact that they are only allowed one shower per week adds to the squalor. At the time of BHHRG’s visit there were 66 juveniles in the prison kept apart from adult males - in one cell holding 27 youths, the youngest was 15.
But, there were even worse situations: 57 inmates were crammed into a 3x3 m. cell designed to accommodate 27 (there were 27 bunks). This means that inmates have to take it in turns to sleep. No doubt, if normal camaraderie prevailed, the system might function but, BHHRG was told that a pecking order exists whereby the more ‘senior’ or ‘influential’ prisoner gets to sleep when, and for how long, he likes, regardless of how tired the other prisoners might be. So it came as no surprise to hear that fights and other acts of violence are regular occurrences and that many attempt suicide. Mr. Sobari said that deaths in custody had dropped to 43 (2004) from 52 (2003). However, others pointed out that sick prisoners are transferred to civilian hospitals and their deaths are not recorded in the prison statistics.
A very different state of affairs prevailed in a cell block referred to by the authorities as the ‘hospital wing’. BHHRG knew that this facility was not the main prison hospital which they were unable to visit, despite repeated requests. On the ground floor were smaller cells accommodating three or four men. BHHRG learnt that these were ‘white collar’ (or mafia depending on your point of view) prisoners. The Saakashvili fight against corruption has delivered probably hundreds of former regime officials into the hands of the law as well as corrupt ‘businessmen’. This category of prisoner was not prevalent on BHHRG’s previous visit to the prison – such people were integrated with the other inmates. Presumably, some of them were held in custody for failing to pay the approved sum at the plea bargaining stage of their arrest.
The conditions of detention were very different here. Cells were furnished with the prisoners’ belongings, including TVs. Everyone seemed to have a mobile phone. And, in one cell supper was cooking on a small range. One prisoner invited BHHRG to join him in an empty cell where “they would be more comfortable” to talk. Under a picture of the president and his wife Sandra, he told BHHRG that he was serving a 20 year sentence for murder but had been removed from the colony where he was serving his sentence after Rustavi 2 investigated his case in 2001. In a later interview, in the public defender’s office BHHRG was told about a mafia boss, transferred to the municipal hospital, but still officially in custody, who threw a birthday party for 200 guests.
According to the officials, the upper floor of this block acted as a ‘hospital’ although there was no sign of any medical facilities i.e. doctors’ consulting rooms, nurses etc. These cells contained about 12 beds on which male prisoners were resting, watching the television. Several complained about their ailments, but it was hard not to conclude that they had somehow ‘earned’ their way out of the overcrowded, mainstream facilities. For how long it was impossible to say, but the conditions were vastly superior to the block previously visited and it is easy to believe that a prisoner would pay or do anything to spend some time here.
Having seen this part of the prison, BHHRG was not surprised to learn from NGOs and officials in the public defender’s office that Prison No. 5 is run by the big “thieves-in-law” - to use Solzhenytsin’s terminology - rather than the authorities. One young lawyer called the governor a “marionette” saying that he was too frightened to go out of his office when the big criminals walk around the prison. There is an elaborate system whereby each cell, even the most dilapidated, has a ‘representative’ working for the ‘thieves’. A prison guard will transfer messages between the ordinary criminal and the ‘boss’. The obshchyak (general fund) a prisoner has to pay into has increased since the prison filled up with former Shevardnadze officials who have more cash. Funds of between $200,000 to $500,00 were mentioned to BHHRG.
The officials who showed the Group’s representatives around prison No. 5 displayed no loyalty to the regime. The deputy director who had been co-opted from the civilian sector told BHHRG he hadn’t realised “how horrible the system was”. He is paid 200 lari per month (a block director gets 100 lari) and said that he was leaving as he “wanted to go into business”. No doubt, he has made plenty of contacts to help him on his way. At prison No. 7 the director earns $150 per month and says he has 6 people at home who depend on his salary. BHHRG was told that the treatment of prisoners in itself has not got any worse but the corruption in the system is rampant. Officials from the Public Defender’s office who visit prisons are treated with contempt. Georgi Oniani told BHHRG how his video camera had been torn from his hand and mobile phone broken when he visited prison No. 7 after he received a complaint that a prisoner needed insulin. Oniani went on to explain to BHHRG how the system worked and how crimes were planned in prison.
BHHRG also visited Prison No. 7 located in the Ministry of Interior. At the time, 52 prisoners were being held in custody: 47 were on remand, the rest are prisoners serving their sentences in the colonies who have been sent there for ‘misbehaviour’ as well as ‘troublesome’ prisoners from No. 5. The corridor visited by BHHRG contained two-room cells populated by, among others, several Shevardnadze-era officials charged with corruption, including Zurab Chankotadze, former head of Georgia’s civil aviation administration. 2 prisoners occupied a room with proper furniture, fridges and televisions. No one complained about the conditions and these men looked well fed and their rooms were clean and ‘homely’. However, the Group was not shown the basement cells where suspects are taken after arrest, where there are no windows, seats or beds and torture takes place.
 Ahto Lobjakas, “Chief of EU Justice Mission Leaves Georgia with Mixed Feelings”, www.rferl.org 20th July, 2005,
 “Tax Arbitration Councils Cancelled”, Civil Georgia, 20th April, 2005.