Introduction:
Human Rights Education and Monitoring Center (EMC) assesses the investigation proceedings at State Security Services of Georgia against Temirlan Machalikashvili under article 3311 of the Criminal Code of Georgia (aiding and abetting terrorism) and the relevant decision not to initiate criminal prosecution.
As publicly known, on December 26 of 2017, State Security Services of Georgia carried out a large-scale special operation in several villages of Pankisi Gorge to detain several persons, including Temirlan Machalikashvili. Due to gunshot fired by an officer of Special Forces, 19-year old Temirlan Machalikashvili died. The said operation was preceded by the counterterrorist operation at Monk Gabriel Salosi Street in Tbilisi on November 21-22, during which one person was detained and others were neutralized.
According to the Security Services of Georgia, detained and neutralized persons were members of the “Islamic State”. Akhmed Chataev was also present at Salosi Street, who committed suicide. According to the Security Services, investigation started around those events, which revealed that several persons living in Pankisi Gorge, including Temirlan Machalikashvili had links with detained/neutralized persons at Salosi street, namely these persons had facilitated their crossing of Georgian border, accommodation and provided them with different kinds of necessary resources. Accordingly, the Security Services of Georgia made the decision to detain these persons. Allegedly, during arrest, Temirlan Machalikashvili attempted to activate the grenade, because of which the officer used proportional force and fired in the direction of Temirlan Machalikashvili. Investigative division of Tbilisi Prosecutor’s Office started inquiry in relation to his killing on alleged exceeding of powers by an officer of Security Services of Georgia, while Security Services of Georgia continued investigation in the case concerning aiding and abetting of terrorism by Machalikashvili.
Despite the fact that on December 26, 2017, Security Services of Georgia confirmed in its official press conference that Machalikashvili was detained, that already granted him the procedural status of a defendant and rights to effective realization of defense, due to formal arguments related to absence of resolution on charges, defense counsel of Machalikashvili were not allowed to get familiarized and be provided with case materials. In this context, the Security Services was spreading information about links with Chataev and other persons affiliated with terrorist organization through different media outlets and pointed to commission of the crime of aiding terrorism by Machalikashvili in circumvention of legal procedures, so that Machalikashvili family was not even allowed to have access to this information.
The purpose of such decisions and information campaign was to portray Temirlan Machalikashvili as a criminal and weaken public criticism and solidarity related to his death.
The assertive portrayal of Machalikashvili as a criminal in the statements of Security Services of Georgia without any legal explanations or reservations was particularly salient, violated presumption of innocence and prejudiced his dignity.
Killing of Temirlan Machalikashvili in a lying position in his own bed as a result of special operation carried out on December 26 in the middle of the night is the most severe case of human rights violation in the past years, which carries clear signs of rights violation by Security Services in planning and executing the special operation. EMC assessed the case critically for a number of times and at this point the European Court of Human Rights is already considering the case in relation to killing of Machalikashvili.
Despite numerous criticism and doubts related to the special operation and the investigation in the case concerning the killing of Machalikashvili, on January 27, 2020, the Prosecutor’s Office unexpectedly terminated investigation of the case. On the same day, the Prosecutor’s office decided not to initiate criminal prosecution against Temirlan Machalikashvili on the grounds of change of circumstances. After this decision was rendered, defense counsel and the family of Machalikashvili were given the possibility to get familiarized with the case materials, which according to the agency, is the essential basis for the decision.
It is noteworthy that, the case materials did not present essentially new information or evidence, which were not used before by the Security Services of Georgia and certain media outlets for supporting Temirlan’s guilt publicly. According to case materials, the core factual circumstances held sufficient by the Security Services to discuss Temirlan’s guilt, were the following:
- According to the Security Services, after crossing the Georgian border Akhmed Chataev called Machalikashvili;
- Machalikashvili’s bank account number was found in the apartment on Beri Salosi avenue and Chataev’s surrounding circle of people had transferred money to this account.
- Machalikashvili lived in Tbilisi with Sh. Borziev and A. Soltakhmadov in a rented apartment, the Wi-Fi password in the apartment was “Temirlani” and Machalikashvili helped them buy mobile phones.
- Photos of Sh. Borziev and A. Soltakhmadov were found in Temirlan’s mobile phone, he also talked to her girlfriend about “Istishhad” and links of Sh. Borziev and A. Soltakhmadov to the “Islamic State” in a chat through a mobile app.
- Propaganda photos and video footage of the “Islamic State” was seized from Temirlan’s mobile phone.
However, after familiarizing with and working on case materials and information presented in that, it became clear that this evidence and information is fragmented, uncorroborated, imprecise and it clearly lacks sufficient factual and legal preconditions for supporting Temirlan’s guilt. The present document is precisely presenting the criticism of these case files and is trying to critically analyze each piece of information shared and publicly indicated by the Security Services of Georgia.
It is noteworthy, that after getting familiarized with case files, EMC addressed the General Prosecutor’s Office with clarification questions and requested additional and specified information about these significant factual and legal details, which as we believe is questionable, imprecise and uncorroborated. However, the General Prosecutor refrained from answering the specific questions posed and again limited the response to general remarks about case materials. This again creates the impression, that Security Services are deliberatively linking Machalikashvili with the facts of aiding terrorism, to evade legitimate and critical questions of the public regarding lawfulness of killing Machalikashvili.
In this reality, there are no legal avenues and appropriate procedures for discussing culpability of Temirlan Machalikashvili, which became particularly complicated at the initial stage of investigation due to the decision not to grant defendant status to Temirlan when he was still alive, which deprived him of his defense rights. However, information collected by Security Services during the past 2 years in sum indicates that it cannot prove Temirlan’s guilt in accordance with the appropriate standard and shows clear signs of serious violation of rule of law and fundamental rights standards during investigation and public representation of the case. Information available to investigative bodies, may have constituted sufficient legal basis for detention (presented in the ruling on detention), which requires low evidentiary standard (aggregate of information and facts (not evidence)) foreseen by Criminal Procedure Code for carrying out investigative actions and/or use of preventive measures, however they are evidently insufficient and unsubstantiated for establishing guilt in accordance with standards of high probability and beyond reasonable doubt.
Considering the above, below we present detailed critical analysis of information and evidence shared by Security Services of Georgia. We reiterate that due to inability to realize defense rights of Temirlan Machalikashvili though legal avenues and accordingly, absence of opportunity for her defense counsel to timely verify/refute information obtained by Security Services and to collect new evidence, our present assessment is essentially limited to information and evidence shared by the Security Services of Georgia.
- Whether Akhmed Chataev called Temirlan Machalikashvili while crossing the Georgian border?
Before terminating investigation, Security Services of Georgia spread information, according to which on October 28, 2017, Chataev unlawfully crossed the Kirnati-Maradidi border to enter Georgia and using the mobile phone under his possession with the number XXX XXX X20 contacted this number XXX XXX X29. As Security Services claim the number ending with 29 is registered on the name of Temirlan Machalikashvili, accordingly either Machalikashvili had telephone conversation with Chataev or gave his mobile number to persons engaged in terrorist activities in this way aiding terrorism.
The information regarding registration of the number on Temirlan’s name and possible telephone communication with Chataev was shared by the Security Services in an assertive way one-sidedly, however, the case materials itself include significant information, which makes it questionable whether Machalikashvili used this number, more so whether he had telephone communication with Chataev.
Namely, according to case materials, information were obtained from cellular network company regarding demographic data of phone numbers XXX XXXX20 and XXX XXXX29, also RMA codes of mobile phones in which each of these numbers were placed, and in which period, as well which other SIM cards were placed in these mobile phones apart from these SIM cards. According to obtained information, number XXX XXXX29 is registered on the name of Machalikashvili, however, instead of his, another person’s identification number is indicated (the owner is unknown to us, neither has investigation ascertained it). Apart from that, it is established that this telephone number at different times was placed in mobile phones with different IMEI codes and on October 28, 2017, when according to Security Services Chataev crossed the Georgian border, the said number was placed in a mobile phone with the IMEI code 356100061510250, which does not coincide with IMEI codes of any mobile phones in the possession of Temirlan or other members of his family (which was seized from Temirlan’s home by Security Services on December 26, 2017). Apart from that, in the case files provided to us, there is no information about who possessed the mobile phone with IMEI code 356100061510250 on October 28, 2017. Despite multiple requests, General Prosecutor’s Office did not answer whether investigation had established who possessed the mobile phone with the said code. However, as noted above, the case files do not confirm possession of this phone by Machalikashvili. According to information obtained during investigation, periodically other detained persons used this phone, however, nothing is mentioned about Temirlan Machalikashvili in this regard.
As it is known, IMEI code is a unique number for a specific phone and does not change when any SIM card is activated in the phone. Accordingly, to determine whether Machalikashvili had telephone conversation with Chataev, it has to be established whether the mobile phone with IMEI code 356100061510250 was possessed by Machalikashvili on October 28, 2017. This factual circumstance cannot be confirmed in case files, more so, it is noted that at different times different persons used the phone with this IMEI code, however, in none of these cases could it established that Machalikashvili used the phone. Also, case files show that Machalikashvili used a different phone number XXX XXX X00 and neither is it established that the said number was placed in the mobile phone with the IMEI code 356100061510250.
Further, inference by General Prosecutor that registration of the mobile number XXX XXXX29 on the name of Machalikashvili and the call by Chataev to this number may indicate purchase of this number by Machalikashvili and its transfer to the possession of persons in the circle surrounding Chataev, assessed as aiding terrorism, has to be discussed. Contrary to that inference, it needs to be emphasized, that case files do not indicate purchase and transfer of this number to someone else’s possession by Machalikashvili. Namely, there is no information to whom and when Machalikashvili transferred this number. Besiders, as it is known to the public, in Georgia often mobile numbers were sold on the street without presenting identification document. Accordingly, merely the fact that the number was registered on the name of Machalikashvili, does not indicate that it was bought directly by him. In case investigative body obtained evidence, which unambiguously indicated purchase of the number and its transfer to someone else’s possession by Machalikashvili, for establishing the fact of aiding terrorism the investigative body had to further demonstrate that Machalikashvili certainly knew about links of this person to terrorist organization and that it was perceived by him to whose possession he was transferring the number. None of these factual circumstances are ascertained through case materials provided to us.
- Whether money was transferred to Machalikashvili’s bank account by persons in the circle surrounding Chataev?
During ongoing investigation, Security Services for a number of times spread information, that Machalikashvili opened an account in TBC bank, information regarding this account happened to be in the apartment on Beri Salosi street, which established that persons affiliated with the terrorist organization received or planned to receive money through this account. At the same time, high-ranking officials of the Security Services indicated during the interview, that there were money transfers on Machalikashvili’s name and that those sums of money were transferred directly by Chataev’s relatives. Contrary to this, case files indicate that information was requested about transactions on Machalikashvili’s account from TBC bank and according to the letter dated January 8, 2018, no transactions or money transfers are identified on the account of Machalikashvili, allegedly details of which were found in the apartment №49 on Beri Salosi street. Accordingly, we addressed the Prosecutor’s office and requested that information was obtained about other money transfers on the name of Machalikahvili outside this account, however, the Prosecutor’s office did not allow us get familiarized with the evidence stating that intensive investigation was ongoing and these files could not be presented to third parties. Accordingly, case files do not appropriately support the indication by Security Services, that money was transferred by persons linked to terrorist activities to Machalikashvili’s account. Certainly, in this regard for assessing such fact the investigative authorities still needed to establish the mental element of comprehending the fact of aiding terrorism and the intention, which was not done so either.
- Facts of living with Sh. Borziev, A. Soltakhmadov and purchasing the mobile phone.
According to Security Services of Georgia, Machalikashvili rented an apartment in Tbilisi, Varketili and lived there together with Sh. Borziev and A. Soltakhmadov (members of the “Islamic State”) neutralized on November 21-22 and provided them with different household resources, among others on November 10, 2017, he helped them buy a mobile phone in the vicinity of Station Square. Apart from that, according to Security Services, photos taken together with Sh. Borziev, A. Soltakhmadov were found in Machalikashvili’s mobile phone. According to the investigative body, these facts indicate that Machalikashvili aided persons linked to terrorist organization.
Contrary to this it has to be noted, that none of these factual circumstances alone (per se) indicate aiding of terrorism by Machalikashvili, as subjective mental element of knowledge that a person through his actions is aiding persons linked to terrorist organizations is necessary for commission of a crime. Case files, including the interrogation records of the apartment owner, confirm that the apartment was rented by Ramaz Margoshvili (one of the convicts, relative and front-door neighbor of Machalikashvili family), not Temirlan Machalikashvili and this person paid rent to him, and only a couple of times did R. Margoshvili hand rent money to him through Machalikashvili. As for the reasons for Machalikashvili’s living with these persons, case files also indicate that family members of Machalikashvili never denied the fact that Temirlan lived in the apartment rented by Ramaz Margoshvili, period of which coincided with the episode when guests of Ramaz Margoshvili - Sh. Borziev, A. Soltakhmadov also lived in this apartment.
Family members of Temirlan Machalikashvili in the statements given to Security Services also noted that the apartment in Tbilisi was rented by their front-door neighbor and as Machalikashvili studied in Tbilisi and due to a recent eye surgery and significant financial expenses related to that did not have the means to cover rent, Temirlan’s family accepted the offer by R. Margoshvili that Machalikashvili could live in that apartment for several months before exams would be finalized. According to the statements of his family members, Temirlan had had an eye operation in November 2016 and after rehabilitation started living in the rented apartment of R. Margoshvili, period of which coincided with 2-3 months when Sh. Borziev, A. Soltakhmadov also lived in that apartment.
In May 2017, Machalikashvili left the apartment in Varketili and continued living with two other villagers in a rented apartment on Vazha Pshavela avenue. According to family members of Machalikashvili, Sh. Borziev, A. Soltakhmadov with completely different names and life stories freely moved on the Georgian territory, were in Pankisi Gorge as well, had communication with local population. All knew them as guests from Chechnya, who had problems with regime of the Chechnya’s President Ramzan Kadirov. Machalikashvili family knew these two persons the same way as any other local with precisely this story. Accordingly, such everyday situations of intersection in personal contacts and communication per se cannot be regarded as crimes.
- Assessment of materials in Machalikashvili’s phone
According to the Security Services, information in his mobile phone also confirms aiding of terrorism by Machalikashvili, namely, texts shared with her girlfriend through a mobile app, photo of Sh. Borziev, where he is depicted with the background of the “Islamic State” flag and other propaganda photos/videos of the Islamic State. According to assessment by Security Services, in his conversation with his girlfriend Z. K. Machalikashvili discussed doing so-called “Istishhad” and after the special operation of November 21-22 he told her that he knew Sh. Borziev and A. Soltakhmadov, also that they fought in Syria and would not surrender to Georgian law-enforcement without fighting. According to the Prosecutor’s Office and Security Services, this information was confirmed by the Temirlan’s girlfriend and is recorded in her interview.
Contrary to this, it has to be noted that information retrieved from the mobile phone of Temirlan Machalikashvili is indeed part of criminal case files, including texts shared with the girlfriend Z. K. and other persons, however, materials shared with us do not confirm that in this communication Machalikashvili referred to Sh. Borziev and A. Soltakhmadov. The interrogation record of Z.K indicate that Machalikashvili and Z.K discussed the special operation on Beri Salosi street and Temirlan told her, that he personally knew one person detained and one neutralized during the operation, that these persons were fighters, had been in Syria and would not surrender to law-enforcement without fighting. However, despite Z.K stating that her and Temirlan had such conversation in WhatsApp chat, in case files presented to us, there is no chat conversation between Machalikashvili and Z.K through WhatsApp or other application. Considering this, after familiarizing with case files, we addressed the Prosecutor’s office once again and requested that they point to the part of communication between Z.K and Temirlan, in which Machalikashvili talks about Sh. Borziev and other neutralized persons. However, the Prosecutor’s office again only formally referred us to the statement of Z.K. which alone without evidence for such communication cannot prove that the conversation about detained and neutralized persons had taken place.
Attention has to be drawn to Borziev’s photo in the phone of Machalikashvili (two identical photos), based on which Security Services claims that Machalikashvili had knowledge of Borziev’s links with the “Islamic State”. Case files indicate that this photo is a screenshot of a photo on Instagram and was uploaded in Temirlan’s phone on November 24 and 25, 2017, thus after Sh. Borziev was detained following the special operation on Beri Salosi avenue and information about him was made public.
As for the indication by Security Services, that Machalikashvili talked about “Istishhad” (suicide as a sacrifice) and kept propaganda photo/video of the “Islamic State”, the problem of translation and contextualization has to be underlined. This communication with his girlfriend took place one day prior to his detention operation and in that communication, they discussed the video, in which Temirlan Machalikashvili referred to “Istishhad” with self-irony and humor. Such statements are a problem from a social perspective and deserves separate andcomprehensive consideration. However, this fact alone considering the context of the conversation and that special operation on Beri Salosi street had already taken place, cannot be regarded as a credible evidence for preparation or commission of a crime.
- Whether case files provided by Security Services support the subjective element that Temirlan Machalikashvili knowingly aided terrorism?
As we noted above, based on case files the Security Services of Georgia attempts to prove that Machalikashvili supported terrorism. However, as detailed analysis of each piece of evidence reveals, the presented materials neither alone, nor corroborated by other evidence prove possible guilt of Machalikashvili. The information shared by the Security Services, which allegedly show that Machalikashvili had knowledge of Sh. Borziev and A. Soltakhmadov’s links with terrorist organization and Chataev, is unsubstantiated and based on incompletely studied, questionable and fragmented information.
In the context of ongoing investigation against Temirlan Machalikashvili and partial dissemination of information against him by Security Services, family members of Machalikashvili and EMC indicated, that published information did not support Machalikashvili’s guilt, as it is a necessary element of committing a crime under article 3311 that a person 1) knows he/she is aiding terrorist or terrorist organization. If the said person does not know that the person for whom he/she did a regular task, is a terrorist, it is impermissible to impose criminal liability; 2) The act shall be willful meaning a person shall want to support a terrorist or a person linked with a terrorist organization. In case any of these cumulative preconditions are absent, criminal liability cannot be imposed. Here as well, none of the information in the case files indicate clearly and unambiguously that Temirlan in any form had knowledge or wanted to support terrorism. Also, it has to be noted that none of the defendants in the case confirm that Temirlan Machalikashvili knew about real activities and links of Sh. Borziev and A. Soltakhmadov, more do of Chataev and deliberately aided them for those purposes.
Furthermore, it has to be underlined that in files shared with us it was not indicated whether secret investigative measures were carried out by State Security Services in relation to Temirlan Machalikashvili before December 26, 2017, including whether his phone was tapped and whether any information was revealed that would point to commission of a crime by Temirlan Machalikashvili.
Conclusion
Regrettably, in parallel to serious violation of human rights standards in the case concerning the killing of Temirlan Machalikashvili, in the criminal case against him also, legal standards and requirements were ignored, and there were signs of political instrumentalization, which substantively harms the principle of a rule of law state. Instead of appropriately evaluating compliance with legal requirements and rights standards during the special operation planned and carried out by Security Services, investigative bodies without substantiation terminated investigation in the case concerning the killing of Machalikashvili and did not address legitimate questions, doubts and criticism arising with regard to this case. Meanwhile, Security Services continuously attempted to dehumanize Machalikashvili, to discuss him in connection with terrorism and in this way devalue worth of his life. However, familiarizing with case files after 2 years, it became apparent to us that this information is questionable, inadequately studied, and imprecise and in total does not indicate Machalikashvili’s guilt in accordance with an appropriate standard of proof. Here we reiterate, as criminal prosecution and requisite legal procedures were not continued, Machalikashvili (his family and defense counsel) did not have the opportunity to exercise defense rights and legally refute information collected within the unilateral, partial and non-transparent investigation. In these circumstances, we attempt to assess and criticize case files shared with us by the Security Services of Georgia after 2 years.
It is essential that in cases relating to killing and violation of fundamental rights by state officials, state bodies act in observance of due diligence and rule of law principles. Unfortunately, these principles were substantively violated in the case concerning Temirlan Machalikashvili, which exacerbated already existing distrust towards law-enforcement bodies. It is regrettable, that state agencies failed to consider the adverse social effects of ignoring rights and legal principles, which were additionally posed in view of historically developed control and punishment policy in Pankisi Gorge.
