The Human Rights Education and Monitoring Center (EMC) hereby issues a final assessment on the case of Temirlan Machalikashvili's murder and, after thoroughly reviewing the case, points again to the ineffectiveness of the investigation, as well as the lack of substantiation and the politicization of the decision to terminate the investigation.

Introduction

On January 25 of this year, the Tbilisi Prosecutor's Office closed a two-year investigation into Temirlan Machalikashvili's murder case for lack of evidence of criminal activity. At the press conference held on January 27th, the Prosecutor's Office explained to the public that during the special operation carried out at the house of Temirlan Machalikashvili in the village of Duisi on December 26th, 2017, the member of the Special Forces Unit of the State Security Service subject to the investigation did not abuse his power and acted within the limits of legitimate, reasonable self-defense; the danger was real, immediate, and the goal of his action was merely to protect his own life and the lives and health of his fellow colleagues from the threat.

The Prosecutor's Office confirmed that Temirlan Machalikashvili had a hand grenade and attempted to activate it, which led to the shot being fired at him. According to this decision, the Prosecutor’s Office sought to secure this conclusion by taking account of the results of the various investigative and procedural processes, while at the same time deliberately neglecting important circumstances confirmed by the very same investigative and procedural processes, which, contrary to the conclusion of the investigating body, cast doubt on the possibility of Temirlan Machalikashvili possessing the hand grenade, and which would therefore exclude the possibility that the special agent was acting from legitimate and reasonable self-defense.

In the present assessment document, we wish to demonstrate, by analyzing the full facts of the case and the full materials of the investigation, the groundlessness of the prosecution's decision to terminate the investigation on the pretext of a legitimate self-defense argument, and to point out the inconsistencies and contradictions inherent in the case.

• The planning stage of the special operation

One of the important issues in the investigation of Temirlan Machalikashvili’s murder was the evaluation of the risk assessment, operation coordination and management processes within the planning of the special operation in Pankisi Gorge on December 26th, 2017, specifically in terms of their compliance or otherwise with human rights standards as well as determining the criminal liability of particular state officials.

EMC applied to the investigating body at the initial stage of the investigation. However, the matter was assessed in August 2019 only within the context of the questioning of the State Security Service (SSSG) officials. This questioning was in the nature of a formality and it was clear that the inquiry did not intend to carry any legal force. Specifically, the protocols of the State Security Service officials showed that the special operation was conducted without either proper risk assessment and analysis, or appropriate supervision and monitoring. The State Security Service did not have specific and reliable information on the persons to be detained, including Temirlan Machalikashvili's ability to resist, and the Special Operations Department's decision to participate in the investigation was made solely on the basis of an abstract threat associated with a special operation on November 21st-22nd on Monk Gabriel Salosi Ave. In addition, the persons interviewed indicated that a written plan for the special operation had not been drawn up and that the participants were involved in oral consultations only. The former head of the SSSG, Vakhtang Gomelauri, acknowledged directly to the investigation that he himself took the decision to participate in the investigative activities of the Special Operations Department after consultation with the heads of the relevant units, and there is no special act or standard upon which the decision to participate in the investigative action of the Special Forces Unit may be made. The activities of the Special Forces Unit are based solely on the law and regulations on state security. Gomelauri here confirms that no written decision was issued on the planned operation on December 26th in Pankisi Gorge, including instructions outlined during the planning and implementation of the special operation, and he only explained the case to his colleagues orally. It should also be noted that the officials of the State Security Service explained that no written report had been drawn up after the end of the special operation.

Despite the identification of the inappropriate planning of the special operation and those responsible for it, the investigating authority did not take any legal action. On the contrary, the Tbilisi Prosecutor's Office did not consider the fact that the special operation was carried out without seeking, collecting, and verifying information on the risks of armed or other resistance, although human rights provisions apply high standards to the regulations on using weapons by law enforcement agents.

At the same time, despite the fact that the state security service does not have the necessary legal standards for making a decision on planning and conducting a special operation, the law “on state security” directly determines that a special written report should be submitted to the prosecutor immediately upon the use of lethal force by a State Security agent. No such report was prepared by any of the staff of the State Security Service, and this matter did not appear problematic to the prosecutor's office.

• What happened in the bedroom of T. Machalikashvili on December 26, 2017? – The version offered by the investigative body

According to the investigative body's version, which is fully based on the testimony of the special agent who fired the gun, the State Security Service planned a special operation in several villages of the Pankisi Gorge on December 26, 2017, including in T. Machalikashvili’s home.

Prior to the special operation, the members of the Special Forces Unit were instructed orally by their authorities, who ordered them to take alive the people in question, but were warned that because they had links to A. Chataev and his companions, resistance might be reasonably expected. According to the explanation of the agent who fired the gun, he walked up to the second floor of Machalikashvili’s house together with his colleague, entered the first room where the light was on and the door was shut, but not locked. He simply opened the door, made two steps into the room and saw that Temirlan Machalikashvili was lying in bed with his duvet on, so that his hands were not visible. He suddenly pulled aside his duvet when the agent asked him to show him his hands, leaned to his right side, pulled out a hand grenade from his bed, then reclined back to left and tried to activate the grenade, at which point the special agent had to shoot in order to protect his own life as well as the lives of his colleagues. According to the explanation of the special agent he removed Temirlan’s duvet after the gunshot for security purposes and checked if there was any other dangerous object, then relocated the hand grenade himself, and called the bomb disposal agents.

According to the investigating body, the statement of the Special Forces agent is supported by the fact that the forensics confirmed the existence of Temirlan Machalikashvili’s genetic profile (DNA) on the hand grenade; the search protocol also confirms that the grenade was found in the bedroom and the court ruling on arrest and private search warrant indicates that there was a reasonable assumption that the persons to be detained may be keeping a firearm or an explosive device in their home. It was precisely on this ground that the investigative body based its conclusion that Temirlan Machalikashvili tried to resist using the hand grenade, which forced the special agent to shoot him in the area of his head, ultimately causing his death.

• Why does the investigation version contradict the results of the investigative /procedural actions taken within the framework of the investigation?

As noted above, the conclusion of the Prosecutor's Office claiming that T. Machalikashvili certainly had a hand grenade is essentially based on the testimony of the agent who fired the shot, the forensic report, and the search protocol. Yet, the conclusions based solely on this evidence contradict the circumstances confirmed by the other investigative / procedural actions in the case, which are contrary to the statements of the Special Forces Agent who fired the shot, and call into question the validity of his testimony.

According to the Special Forces agent, he saw that the light was on in T. Machalikashvili's bedroom, he tried the door handle by hand and saw that it was not locked; so he opened it sufficiently slowly that the members of Machalikashvili's family would not hear the sound. According to the conclusion of the trasology examination, Machalikashvili's lock on the door revealed traces of breakage, and a trace of mechanical damage was found on the bolts. According to the forensic report, the special agent broke into the bedroom of T. Machalikashvili by the door, which excludes the possibility of its slow, silent opening and confirms the claim of the family members that they had heard the sound of the door breaking, followed immediately by the sound of a gunshot.

The special agent claims that he took two steps into the room after opening the door and entered the room; only after this did he see Temirlan Machalikashvili. Contradicting this testimony, the ballistics report confirms that the gun was fired from the central point of the doorway itself. Besides, considering the dimensions of Machalikashvili's bedroom, there is so little distance from the front door to the bed that in the event of taking two steps, the special agent would immediately find himself close by T. Machalikashvili’s bed and would have to shoot him from a much shorter distance. However, the same experts conclude that there was no evidence of a close-range shooting. From his own testimony we learn that the special agent, after entering the bedroom, called Temirlan Machalikashvili to show him his hands and he fired the gun only after Temirlan Machalikashvili did not obey his command. Regarding the time of shooting, the family members of Temirlan Machalikashvili, especially his sister, Nata Machalikashvili indicate that they heard the sound of the door breaking and it was immediately followed by the sound of a gunshot. It is worth noting that Nata Machalikashvili slept in the other bedroom next to her brother’s, and she tried to come out of her room at the moment after she heard the sound of breaking and that is precisely when she heard the sound of shooting; had there been any oral communication between the special agent and Temirlan Machalikashvili, she would certainly have heard it. Besides, it is also worth noting that within the investigation framework, the two special agents who stood outside the bedroom of Temirlan Machalikashvili at the moment of shooting, did not refer, in their statements, to any oral warning before the gunshot at all; and yet, had there been any warning, they would have been able to perceive it, considering their location at the time. It should also be kept in mind that the interrogation protocols contain some inconsistencies over the timing of the shooting. In particular, some of the special agents reported that the gun was fired within a few minutes of the start of the special operation, within about the first 10 minutes, and, according to the other agents who were standing in the yard, the gunshot was heard within seconds after the main group ascended to the second floor; they learned later, on the handheld radio, that the target was wounded.

According to the interrogation protocol of the special agent, Temirlan Machalikashvili unexpectedly pushed aside his duvet, leaned to his right side, pulled out a hand grenade from his bed, then leaned back to his left again and tried to activate the hand grenade. Obviously actions such as these would require some time and is unfathomable why the special agent did not actduring this time. If he believed that T. Machalikashvili had pulled out a hand grenade from the right side of the bed, why did he wait until Machalikashvili resumed his initial position and only after this fired the gun? At the same time, the special agent also indicates in the protocol of his testimony that he took away the duvet from Temirlan Machalikashvili’s body, yet, initially he said that T. Machalikashvili pushed away his own duvet, and only then did he pull out the hand grenade.

The Prosecutor's Office draws its conclusions on the basis of the fact that a hand grenade was removed by the State Security Service from Machalikashvili's bedroom and the traces of Machalikashvili’s DNA were left on it. Despite such evidence, the prosecution overlooked the fact that, for about three hours after the shooting at Temirlan Machalikashvili, the Special Forces agents did not allow family members to enter the bedroom; and the most important evidence – the hand grenade, was moved by the shooting agent himself and this grenade was placed in a package which for some reason was dated not to December 26th, 2017, but to November 21st – the date when the earlier special operation was carried out at Monk Gabriel Salosi Ave.

It is a matter of fact that Malkhaz Machalikashvili, when he entered the room, found the hand grenade on the floor without its fuse, yet the question remained: how did the grenade find its way into the bedroom of T. Machalikashvili? Also, keeping the family members locked in separate rooms for about three hours, while only the Special Forces agents had access to the bedroom of T. Machalikashvili should have prompted the Prosecutor’s Office to question the testimonies of the Special Forces agents, since the opportunities for falsifying the evidence were all too obvious. Yet, the investigating body had no doubts.

Naturally, transferring Machalikashvili’s DNA to the hand grenade during the three hour period when the agents controlled the bedroom would not be particularly difficult, especially as visual material communicated by media reports shows that T. Machalikashvili's room is full of traces of his blood. Yet, it is worth considering that no expert found Machalikashvili’s fingerprints on the fuse itself. The report of the Dactyloscopic Examination clearly indicates that the fingerprints on the hand grenade were not suitable for identification, and fingerprints on the fuse were not found at all.

The agent who fired the shot, and other colleagues, categorically deny the existence of headphones in the bed of Temirlan Machalikashvili. They also deny that there was an electric mattress on the bed. Yet, the cable of the electric mattress is clearly visible on the photos made during the crime scene investigation.

According to the Special Forces agents, they had not seen a mobile phone in the bed and it was removed later from the floor. The photos attached to the search protocol show that the mobile phone was removed from that part of the floor where the traces of blood were not noticeable at all. Yet, a trace of blood was somehow found on the phone itself. The facts suggest that the phone was near T. Machalikashvili, and was relocated after the gunshot by the Special Forces agents. This view is supported by the fact that T. Machalikashvili’s last activity on social network is detected at 03:39, coinciding with the time the operation started. Therefore, there can be a reasonable assumption that T. Machalikashvili was holding a phone in his hand and the Special Forces agents later relocated it.

Procedural shortcomings identified during the investigation

The EMC has repeatedly stated that the investigation into Temirlan Machalikashvili's murder was carried out as a formality, and there was no genuine intention of identifying the criminal responsibility of specific individuals. This was indicated by the shortcomings identified at various stages of the investigation. In particular:

• The State Security Service violated the principle of institutional independence and its officers, and not the Prosecutor's Office, removed all important evidence from Temirlan Machalikashvili's room, which made the validity and credibility of the evidence subject to questioning, weakened confidence in the whole investigation process and rendered it a formality. The officers of the State Security Service of Georgia had full control over Temirlan Machalikashvili’s house for about three hours and did not let the family members enter his bedroom. It was the SSSG officers who conducted the investifation and relocated all the important evidence before finally removing them.
• The Tbilisi Prosecutor's Office solicited the results of the investigation conducted by the SSSG only on February 8, 2018 - and during the intervening time the State Security Service managed to detonate a hand grenade taken from Temirlan Machalikashvili's bedroom. Subsequently, it became impossible to conduct alternative examination studies.
• The Tbilisi Prosecutor's Office delayed the interviewing of the agent firing the shot and the other participants of the special operation – according to the case materials the Prosecutor’s office addressed the State Security Service on December 30th, 2017, requesting that the identities of the persons involved in the special operation, including those who carried out the shooting, be revealed. Yet, the request was responded to by the state Security Office only on February 2nd, 2018, while the identity of the special agent who carried out the shooting and the identities of other participants were revealed later. The high-ranking officials of the SSSG were interrogated only in August 2019. Delaying the sharing of information about the agents participating in the special operation indicates the great influence of the State Security Service to the level of unaccountable authority, and on the other hand, it creates a suspicion that the investigative body in fact granted extra time to the shooting agent to prepare a suitable testimony and adjust it to the existing evidence.
• The Tbilisi Prosecutor’s Office did not grant the family of T. Machalikashvili access to the interrogation protocols of the agent who fired the shot and other witnesses. According to the order to terminate the investigation, the purpose of the restriction was to provide security for the Special Forces Agent. Since the beginning of the investigation, the EMC kept requesting access to the interrogation protocol of the shooting agent with due protection of his identity in place. That is how we came to access the interrogation protocols in January 2020. Why access to the same protocols posed a problem in February 2018, on the same grounds of protecting the agents' identities, is beyond comprehension.
• Calling an ambulance to asssist Temirlan Machalikashvili was delayed - investigative actions and a forensic medical examination confirmed that the ambulance for T. Machalikashvili was called only about 20 minutes later and he was then taken to a medical facility. Besides, T. Machalikashvili's wound was surgically treated in such a way that the traces were removed and it became impossible to determine the shooting distance from the wound. The Prosecutor's Office did not respond to these issues either.

Summary

The above criticism of the investigation clearly demonstrates that the investigating authority should not have relied only on the testimony given by the agent who carried out the shooting, since the testimony of the agent and the evidence confirmed by various examinations produce fundamental inconsistencies, which should have naturally led the Prosecutor’s Office towards questioning the testimony of the agent who fired the shot. Yet, the investigative body only carried out interrogations as a formality, and still has not asked the agent who carried out the shooting important questions, refused to carry out an investigative experiment, and unexpectedly closed the investigation.

Considering the argument developed above, it is clear that the decision of the Prosecutor's Office's to terminate the investigation is unjustified, problematic, and indicates a kind of political courtesy awarded to crimes committed by law enforcement agencies.

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