The Human Rights Education and Monitoring Center (EMC) publishes preliminary legal observations on the criminal case of Malkhaz Machalikashvili’s nephew – Moris Machalikashvili.

It’s been more than a year since Moris Machalikashvili has been accompanying his uncle who lost his son and he has been trying to support and defend him through tough conditions. On 20 June, 2019, during the anti-occupation demonstrations, he was also assisting his uncle and trying to protect him.

On 26 July Moris Machalikashvili was arrested. Tbilisi City Court applied detention as a preventive measure. The investigative body argues that during the mass rallies of 20-21 June in front of the Parliament building, he took part in a group violence which is sentenced under Article 225(2) of the Criminal Code of Georgia. The Prosecutor’s office claims that Moris Machalikashvili was in front of the Parliament building and along with other persons exercised violence against Police officers. Namely, he was beating them and participated in other violent activities.

Despite this formulation of the charges, the criminal case materials presented by the Prosecutor’s Office up to now does not create a reasonable doubt that Moris Machalikashvili participated in group violence, not even that he was attacking on Police officers. In order to prove that a person participated in a group violence, the Prosecutor’s Office shall possess such evidence that manifestly demonstrates intent of a person to be part of group violence, to attack Police officers or otherwise actively contribute to group activities.

Moris Machalikashvili’s criminal case materials presented by the Prosecutor’s Office is composed of the following information: 1. One video-recording; 2. Police Officer report; 3. Examination records of the potential witnesses, that does not have any linkage with Moris Machalikashvili case. The materials presented by the Prosecutor’s Office will be analyzed in details below.

Video Recording

Video recording presented by the Prosecutor’s Office displays Moris Machalikashvili at the rally in front of the Parliament building. He is standing with his uncle Malkhaz Machalikashvili and it is easily perceptible that he is simply trying to stay next to his uncle and he does not have any criminal intent. The video recording shows how Moris Machalikashvili is trying to get his uncle out of the Parliament territory due to the situation there and to ensure his security. In such situation Malkhaz Machalikashvili faints and the protesters and Police officers help him detach from the mass of people. While getting Malkhaz Machalikashvili out of crowd, Moris Machalikashvili gets stuck among the demonstrators, he is unable to move forward, he instinctively raises hand which accidentally hits the Police officer’s shield. At that moment, Moris Machalikashvili is so strongly pushed from behind, that he leans his face against the shield. However, approximately in three seconds, he crouches down and tries to get rid of this group, he manages to do so and After that, video recording does not display Moris Machalikashvili anymore.

The episode of video tape showing Moris Machalikashvili lasts approximately 4 minutes and throughout the episode he does not demonstrate any intent to be the part of the violent activities. He neither tries breaking the Police cordon nor trespassing in Parliament building. His actions are not intense, purposeful, attacking and violent. He tries to stay beside his uncle and to ensure the security of Malkhaz Machalikashvili. He leaves the territory simultaneously with Malkhaz Machalikashvili.

Police Officer report

The criminal case materials contain the so-called report drafted a day earlier of his arrest by the employee of Ministry of Internal Affairs. In this report, the employee notifies his superior that based on the information received, he became aware that Moris Machalikashvili was taking part in various violent actions and he asks his superior to react. The report drafted by the employee of the Ministry of Internal Affairs does not contain information on particular actions allegedly committed by Moris Machalikashvili and does not make a reference to the source of information. This information is absent from other case materials as well.

In general, according to the established practice, the information provided by so called “confident” (operative information) to employees of the Ministry of Internal Affairs is considered as a source of information. The Court does not exercise control over the process of providing information and over the identity of the “confident”. Examination of the “confident” before the Court is prohibited and there is no legal mean to verify whether this person exists in reality and whether he/she truly provides employee of the Ministry of Internal Affairs with the information mentioned in report. Hence, the certainty of evidence is doubtful and its quality is not even equivalent to indirect evidence, as case of indirect evidence, in that case it is possible to verify the source of the information while in this case it is impossible to do so. The report presented by a Police employee is a mechanism that enables the investigatory body to create such evidence, that cannot be verified by the Court.

In case of Moris Machalikashvili, this kind of report was edited the day before the arrest and the case material does not contain any other information that would indicate to his illegal acts.

Information provided by the potential witnesses to the investigatory body

The case materials involve the examination records of different persons. However, it must be noted that the absolute majority of the witnesses are employees of the Ministry of Internal Affairs. The information provided by them is identical and does not contain any specific indications concerning the criminal actions committed by Moris Machalikashvili. The examined witnesses merely describe the situation in general in front of the Parliament building and indicate that a group of citizens were violent against them. However, not a single examination record mentions whether Moris Machalikashvili himself participated in violent acts, they do not specify the identity of the Police Officer who was attached by him and broadly, in what kind of violent acts he was involved.

Legal assessment

EMC observes, that the information presented by the Prosecutor’s Office does not prove that Moris Machalikashvili has committed an act prescribed under Article 225 of the Criminal Code of Georgia. Namely, the presented evidence does not create a reasonable doubt to state that Moris Machalikashvili had an intent to act violently against Police and that he exercised offending, attacking, repeating and intense violence for that purpose. The video recording, which is the main and the only evidence, shows that he is trying to be next to his uncle, he is substantively in passive position and when he gets crushed as a result of pushing between the Police and the protesters, he tries to escape from the crush. That time he moves his hand and accidentally, only once, touches the Police shield. The video tape does not show that he is attempting to break or attack the Police cordon, to exercise violence against the Police, to grab police equipment or even to attempt the self-defense.

Having the manifestly ill-founded accusations, it evidently creates legitimate doubts that arresting him and applying imprisonment as preventive measures may serve as a weapon to influence on Malkhaz Machalikashvili’s protest.

Using the competence of the prosecution in an arbitrary manner represents a grave violation of human rights, substantively diminishes the credibility towards law-enforcement bodies and causes institutional destruction. Application of such methods is particularly problematic in relation to the Machalikashvili family, considering that they had to go through the toughest tragedy and hard dehumanization experience due to violation of right to life of their son by the State.

• EMC calls the Prosecutor’s Office to apprehend the manifest problematic nature of the charges brought against Moris Machalikashvili and to take legitimate and fair decisions. It is essential that the Prosecutor’s Office not to allow politization of its activities and not to exceed the legal framework.
• EMC also calls the Tbilisi Court of Appeals to take into consideration the manifest problematic nature of the charges in Moris Machalikashvili’s case and unlike the First Instance Court not to allow application of arbitrary, unjustified and blanket pre-trail detention.

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