Judge Declares Investigative Actions in Gori Activist's Case Illegal

"This is a purely political settlement, and this fact confirms that I am on the right path. The Russian repression, the Russian regime, will end soon. This operation was led by someone with the nickname Tlapo, whose real name is Arvitz. He has been around since Shevardnadze's time and even earlier. He is used to making mistakes and has grown up making people miserable. Everything that these 'law enforcement officers' did that night is recorded on their own phones. I have proof that will destroy them.

They were breaking my car windows. Why are you breaking them? What's wrong with you? I recognized Misha as a policeman and opened the door. They chased me like prey, threw me down, put handcuffs on me, stood on top of me, and jumped on me. They were shaking my head, then kicking me. I have bruises, and they were taking photos. They recorded everything on video and sent it to their head, Tlapo.

When I did not give them my clothes willingly, they got angry and forced me. In the department, they even took my underwear. They told me to stay naked. Stay now," Ioseb Babayev said at the court session.

The detainee described how the policemen put down their weapons. "When they threw me and put handcuffs on me, I felt at that time, between the belt and the underwear, they put some iron thing on me. At that time, everyone was beating me at the same time, hitting me on the head. I did not say a single obscene word. They raised themselves, hit me, and took me with them. I was asking if they liked hitting me. One employee came, with a gun, but he is not here now. I was shackled. He grabbed my armpits with force and I couldn't let go for at least 20 seconds. Then sweat started to accumulate on my head. I was waiting to be caught, I am critical.

I don't have more countries than Georgia. I am Assyrian, I have nowhere to run. I don't like this Russian regime, I don't like this Russian law," Babayev said.

Judge Levan Darbaidze asked the policemen why they did not invite an absent person or take a video during the search.

"I was on duty at work. I was driving outside when the supervisor informed me that information had been received at work containing a possible threat to human life or health. Soon after the notification, we went to the indicated place. The information stated that the person was moving with a firearm, had a conflict with the party, and might open fire. We stopped the car. It was me, Mikheil Kabelishvili, and Soso Dadashvili. I don't remember that moment, whether he opened it himself or how the car opened. He resisted us, saying, 'What do you want from me, leave me alone,'" said one of the policemen.

"The detainee alleges that you beat him. There is also damage. You claim that you used proportional force. What did this entail? What effort was required to bring this action to its conclusion?" asked the judge of the arresting police officers.

"It's sportsmanship; there are exercises, and we used that proportional strength; we really didn't exceed it.We laid him down, and the investigator conducted a search, during which a personal search was conducted, and a weapon was recovered from his back. I don't remember if it was the right side or the left side; he had a knife in his underwear. We took it from the exchange, from inside," said another policeman.

"Did you make him take off his pants?" the judge tried to clarify.

"No, no, when we took out the weapon again in the shaking, a knife was also found, and we took out the knife as well."

The judge reminded the police officers of the decision of the Constitutional Court of Georgia, which established a new standard for conducting investigative actions. In particular, the police are obliged to create neutral evidence that must reflect the entire course of the investigative action. "Why was it not possible, even after the arrest, to at least take pictures of the search of the vehicle, the removal of the clothes, and the vehicle?" asked the judge.

"I am aware of this issue, but there is an exceptional case. The threat indicated in the received information was real. It would have harmed both us and him," answered the policeman.

"After the arrest, we ask you, when you arrested the person and he was already in your custody, where did this threat come from afterward? Was the opposing person at the scene?" the judge asked the policeman.

"No, but they could have appeared at any time," said the policeman.

After recognizing the investigative actions as illegal, Judge Levan Darbaidze explained to the detainee that he has the right to request and receive compensation for the damage caused. The judge briefly explained why he did not approve the prosecution's motions:

• Investigative activities were conducted in violation of the requirements of procedural law. In conditions where there was a need to support the legality of investigative actions with neutral evidence, to reflect each action with a video recording, or without the presence of a person, there was indeed an objective possibility of this. This request was violated.
• Additionally, the circumstances revealed in the personal search protocol during the trial are doubtful. Obviously, a specific phrase has been added to the protocol, which was not in the document previously presented to the court. It is theoretically impossible for a photocopier to take pictures without some specific phrase being there.
• Furthermore, when the clothes were removed, it was revealed that at that time, inhumane treatment of the accused may have taken place, which could not be disproved by either the presented materials or the circumstances described in the investigation report.

The Prosecutor's Office can appeal the decision of the Gori Court to the Tbilisi Court of Appeal within 48 hours.

Ioseb Babayev, the owner of Resto Bar and an active participant in anti-Russian actions, was arrested in Gori late in the evening on June 4. He is accused of committing a crime under Article 236 of the Criminal Code, which means illegal purchase, storage, or carrying of a weapon, and is punishable by up to 2 years of imprisonment. Babayev is in the temporary detention center of Gori. The prosecutor's office has not charged him yet. They have until the end of the day to do so.

Levan Darbaidze is one of the small group of judges who is not a member of the so-called judicial clan, and the government cannot interfere in his activities. He has been a judge since 2014 and holds office for life, or until he reaches the legal age.