Analysis of the additional observations submitted by the Government

The Social Justice Center (formerly EMC) assesses the final position of the Government of Georgia submitted to the European Court of Human Rights on the case of encroachment on the life of Temirlan Machalikashvili and points out that even before the European Court of Human Rights, the government continues to try to discredit the victim and his family and appeals to obviously unsubstantiated and fabricated information.

As it is known to the public, the European Court of Human Rights started hearing the application of the Machalikashvili family on October 23, 2019 in an expedited manner. On November 21, 2020, the Social Justice Center sent its response to the Government's observations. A few weeks ago, the Government of Georgia submitted its final position to the European Court, ending the contentious phase between the parties.

Although the circumstances of the case of Temirlan Machalikashvili's support of terrorism are not the subject of the dispute in the application submitted by the family to Strasbourg, much of the Government's comments to the court at all stages of communication focus on demonstrating the guilt of Temirlan Machalikashvili and attempts to connect him to the threat of terrorism. Unfortunately, the government is still trying to discredit Temirlan Machalikashvili and his family with one-sided and distorted information and arguments, and thus justify the decisions made during the planning and execution of a large-scale illegal special operation in the Machalikashvili family.

In this statement, we would like to draw the public's attention to some problematic, unsubstantiated and clearly fabricated views presented by the Government of Georgia (represented by the Ministry of Justice of Georgia in the European Court) in the European Court.

Unfounded allegations of the Government of Georgia on the support of terrorism by T. Machalikashvili

1. Instrumentalisation by the Government of B.Ch.'s testimony taken under suspicious circumstances

In the additional and final observations submitted in response to the submissions by of the Social Justice Center, the Government of Georgia again made an appeal to unsubstantiated allegations of support of terrorism by Temirlan Machalikashvili. To this end, the Government submitted to the European Court of Human Rights the testimony of B.Ch., convicted in the case of supporting terrorism, in which the convict spoke about alleged connection of Malkhaz Machalikashvili and Temirlan Machalikashvili with A.Chataev and members of his gang and alleged knowledge of their affiliation with a terrorist group.

It should be noted that the Social Justice Center has not had access to this testimony so far. Although the State Security Service gave us an opportunity to get familiar with the materials of the case related to T.Machalikashvili after the termination of the investigation against T.Machalikashvili, for some reason the State Security Service did not let us get familiar with the indicated testimony. As is well known, B. Ch was found guilty of supporting terrorism in a criminal case, but three years later the Prosecutor General's Office signed a plea bargain with him, according to which he left the penitentiary institution in December 2020. It is noteworthy that the hearing of the case of B.Ch. and another person, G.Z., was separated in the first months, which gave rise to the expectation that the investigation tried to cooperate with these individuals from the very beginning.

In the above testimony B.Ch. notes that he knew two persons in the Pankisi Gorge (Seifula and Abdullah), he knew they were members of A. Chataev's group (and fought in Syria) and assisted by Ramaz Margoshvili and Malkhaz Machalikashvili. According to B.Ch.'s questioning protocol, Temirlan Machalikashvili possessed information about Seifula’s and Abdullah’s affiliation with A. Chataev and he opened a bank account to help them, and when A. Chataev entered Georgia, one of the convicts R.A. personally warned B.Ch. about the non-disclosure of this fact and pointed out that he would warn T. Machalikashvili and others himself.

It should be noted that during a special public hearing with Malkhaz Machalikashvili in the Pankisi Gorge, B.Ch. completely denied the information provided in this testimony and he pointed out that he had signed the protocol of the interrogation without knowing the content, because persons who visited him in the penitentiary institution had assured him that nothing unusual had been written in the testimony. B. Ch. also pointed out to Malkhaz Machalikashvili that he had never had any information about the Machalikashvilis' involvement in the case.

Simultaneously with this explanation, several other important circumstances indicate the unreliability of B.Ch.'s testimony. They are,

1. B.Ch. has been questioned several times by the State Security Service on the case of supporting terrorism and the testimony submitted has been received only once on March 15, 2018 at the initial stage of the investigation. It is interesting that 7 days after the mentioned testimony, on March 22, 2018, it became known that B.Ch’s and Z.G.’s case was separated from that of the other defendants’ and was considered separately. This circumstance, of course, raises the suspicion that getting testimony may be related to the interest in concluding a plea bargain. The State Security Service had an interest in obtaining such testimony, especially in the context of the fact that during the investigation it could not find any evidence that would in any way prove Temirlan Machalikashvili's support for terrorism. The artificiality of the information given in the testimony is also indicated by the fact that it does not contain any other particular evidence that would confirm the authenticity of the circumstances indicated in the testimony, Machalikashvili's illegal actions. The testimony is presented in such a way that it seems as if T.Machalikashvili and M.Machalikashvili had full information about Chataev's plans and B.Ch. was told about this by another convict R.A. The convict does not name any other source of information. However, no questions and instructions of the investigation are found in the interrogation protocol, as to whether or not B.Ch. was convinced of the accuracy of the information. However, it is unknown to us whether the State Security Service questioned R.A. about these issues and whether he confirmed T.Machalikashvili's participation in the case and providing information about it to B.Ch.;
2. The circumstances of getting the testimony itself must be taken into account. In particular, B.Ch. indicates that he does not read and write in Georgian, nor can he speak Georgian fluently, which is why an outsider person and an interpreter should have been invited during the questioning. The outsider was obliged to read the testimony in Georgian to him, which the interpreter would interpret into the language he understood. However, the protocol of the March 15, 2018 interview and the apparent defect in the inscription made on the protocol by a third party raise suspicions that the third party does not know the Georgian language properly and it is unclear how he/she would be able to read the testimony thoroughly and convey to B.Ch. The inscription on the protocol indicates that the third party incorrectly wrote the letters, words, which raises the suspicion that either the testimony was not read to B.Ch. at all, or its content was not conveyed properly. It should also be borne in mind that the testimony read by a third partyhad to be interpreted by B.Ts., interpreter into the Kist's language which B.Ch. understands, invited by the State Security Service, however this interpreter has been noticed by us in many cases of incorrect interpretation. In the framework of the current investigation, the translation of T.Machalikashvili's correspondence in the Kist dialect was done by B.Ts. incorrectly, which became clear in the conditions of the alternative translation organized by us. Serious mistakes were made in the translation process and many words were translated with opposite meanings, which clearly indicated the incompetence of the translator.
3. In terms of the reliability of the information recorded in the testimony, it is noteworthy that the State Security Service allowed us to familiarize with the said testimony neither at the stage of investigation nor almost three years after receiving the testimony, even after termination of investigation of T.Machalikashvili case. There is a suspicion that the State did not want to make the testimony known to us before the investigation was terminated, as in such a case we would require to carry out additional investigative actions, including interviewing R.A., requesting video camera data from the penitentiary institution (to see the circumstances of getting the testimony) and verification of accuracy of information indicated in B.Ch. testimony.

In these circumstances and in the absence of answers to the questions, the indicated testimony seems unreliable and is essentially speculative.

2. Other fabrication and speculative considerations of the Government in the European Court

The Social Justice Center has repeatedly highlighted the fragmentation of other evidence presented by the government and the groundlessness of the allegations in its public statements. [2] Below we will touch upon a few more circumstances that are distorted in the Government's final submissions to the European Court.

2.1. Opinions that are not supported by any evidence

1. The government initially indicated that allegedly a loan agreement in the name of Temirlan Machalikashvili had been seized from an apartment on Beri Gabriel Salosi Street. The Social Justice Center disputed this fact in its response to the government's observations, as the Machalikashvili family did not familiarize with such document in the presented criminal case file. The government did not manage to present any documents confirming the loan agreement in the name of Temirlan Machalikashvili in its final observations sent to the European Court.
2. The government also points to possible suspicious transfers to Temirlan Machalikashvili's bank account, however, a document that appears to confirm these transfers is presented in Excel format only, without any official details issued by the bank, which obviously raises questions about the authenticity of this information.
3. To prove that Temirlan Machalikashvili knew Sh. Borziev’s and A. Soltakhmadov’s real identities, the government refers to the testimony of a girl, Z.K. close to Temirlan, according to whom Temirlan wrote to her via WhatsApp, as if he knew these people as soldiers who had been to Syria. However, the existence of such correspondence is not actually confirmed by the material obtained from Temirlan Machalikashvili's telephone, and this evidence has not been submitted by the Government to the European Court either.

2.2. Opinions that are clearly inaccurate and intentionally incomplete

1. The government indicates that Temirlan Machalikashvili rented an apartment in Varketili, Tbilisi, where Sh.Borziev and A.Soltakhmadov lived. However, the protocol of interrogation of both the Machalikashvilis and the owner of the apartment reveals that the apartment in Varketili was rented not by Temirlan Machalikashvili but by Ramaz Margoshvili, a neighbor of the Machalikashvilis in the village of Duisi, currently, he is convicted of supporting terrorism. At the same time, the government indicates that Temirlan has stayed in the apartment rented by Ramaz Margoshvili from the fall of 2016 to the fall of 2017, which is not true. The Machalikashvili family has repeatedly explained that Temirlan stayed in Varketili's apartment for only three months from March to May 2017, and in the fall of 2017 he lived in a rented apartment on Vazha-Pshavela Avenue with two friends.

According to the Government, Temirlan Machalikashvili not only knew Sh. Borziev and A.Soltakhmadov, but also shared their terrorist aspirations. To confirm this, the government points to a photo found in Temirlan's phone, where Sh. Borziev is depicted against the background of the flag of the “Islamic State”. However, the government ignores the fact that the mentioned photo was uploaded on Temirlan Machalikashvili's phone on November 24 and 25, 2017, i.e. after the disclosure of the identity of Sh.Borziev who was detained as a result of the special operation conducted on Beri Salosi Avenue. The government also indicates that his photo was found in Temirlan Machalikashvili’s phone together with Sh.Borziev and A.Soltakhmadov, a screenshot of a TV program about the special operation of November 20-21, 2017, which shows A. Soltakhmadov's corpse. The mentioned material shows only the interest of T.Machalikashvili in the circumstances related to the special operation conducted on November 20-21, 2017.

3. According to the government, Temirlan Machalikashvili clearly expresses intention to commit so-called “Istishkhad” in correspondence with his friend Z.K. Without any additional evidence, citing an excerpt without overall context and making an appeal to the terrorist intent indicates the government's biased attitude and attempts to mislead the court. [3]
4. The government makes another inaccurate allegation that Ramaz Margoshvili said in a telephone conversation with Temirlan Machalikashvili that he sent $ 900 to him to cover the living expenses of members of Ahmed Chataev's group, which is also not true. From the telephone recording, which the government also submitted only at the final stage of the proceedings, it is impossible to directly extract such content. In this record, according to the Machalikashvili family, R.Margoshvili, given his difficult social situation, demanded that the rent for an apartment in Tbilisi be transferred to another person's account in order to maintain social assistance.
5. The government also indicates that telephone calls between Temirlan Machalikashvili and members of Ahmed Chataev's terrorist group are identified. In particular, the government indicates that on October 27, 2017, a call was made from a number used by a member of Ahmed Chataev's group to a number registered in the name of Temirlan Machalikashvili, whose location was recorded in Varketili.

The Social Justice Center has repeatedly stated that registering a number in Temirlan's name does not in itself prove that he used the number. According to the inspection report submitted by the government, one of the numbers registered in the name of Temirlan (ending "-29") was periodically used by various persons who may have lived in Varketili area during October 2017.

• Opinions that illegally aggravate the accusations of Temirlan Machalikashvili

In addition to distorting the evidence obtained in the ongoing investigation against Temirlan, the government even went beyond the scope of the national investigation, which included allegations that the terrorist group was provided only with material resources. In particular, the government is misleading the Strasbourg court when it mentions the possible involvement of Temirlan in the transportation and delivery of weapons to members of terrorist groups. However, such involvement is not indicated by any evidence in the case.

• Non-recognition of the legal interests and struggle of the Machalikashvili family by the government

In its submissions to the Strasbourg court, the Government also clearly misrepresented that the applicants had not disputed the results of the ongoing investigation against Temirlan Machalikashvili, while during the course of the investigation, the applicants had repeatedly demanded the right to access to the case materials and the right to defense. The Machalikashvili family was given access to the case materials only after the investigation was terminated, at which time, naturally, it would have been impossible to ask additional questions and file motions.

Conclusion

The Social Justice Center reiterates that the substantiation of the allegations against Temirlan Machalikashvili is not the subject of a dispute in the Strasbourg court and that this reasoning goes beyond the scope of the Machalikashvili family application. That is why we believe that it was fundamentally inappropriate for the government to present extensive arguments on this issue and to build the defense strategy largely by trying to discredit Temirlan Machalikashvili.

The Social Justice Center has strongly criticized these unsubstantiated positions of the Government in its response to the Government's observations. That is why the Government, at the final stage of the communication, decided to present additional materials, including the testimony of B.Ch. discussed above, which had not been used nationally or internationally before. In the circumstances when none of the accused persons has testified against Temirlan Machalikashvili and the circumstances and context of getting the testimony itself are clearly doubtful and unreliable, the seriousness and credibility of the information presented is questionable. Unfortunately, in accordance with the procedure of the European Court, we do not have an opportunity to comment on the finalobservations of the Government. Therefore, it is especially important for us to inform the public about this irresponsibility of the government and to present our criticism.

Unfortunately, instead of acknowledging the serious crime committed and conducting an effective and fair investigation, the authorities have been trying to persecute and dehumanize the Machalikashvili family from the very first days. Authorities did not even allow Temirlan Machalikashvili's family to participate in the ongoing investigation against their son and prove his innocence at the national level. State agencies have never acted based on the principle of the rule of law and respect for human rights in the case of Temirlan Machalikashvili, and this case remains the most severe and serious case of human rights violations in recent years. Unfortunately, the government has also used the strategy of presenting misleading and obviously fabricated, speculative and inaccurate information to an authoritative court such as the European Court of Human Rights. Clearly, we are confident that the European Court of Justice will make a critical legal assessment of these views of the Government and consider the key arguments and claims of our dispute over the case of Temirlan Machalikashvili.

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