What are the reasons for imposing fines on Bidzina Ivanishvili?
On June 11 2012, Tbilisi City Court (TCC) imposed fines on Bidzina Ivanishvili with total amount of GEL 148,650,131. Cases were heard by Judges Koba Gotsiridze and Nana Daraselia. The Court considered that Ivanishvili made illegal donations to the coalition Georgian Dream - Democratic Georgia.
According to State Audit Office (SAO, formerly known as Chamber of Control), in one case, Ivanishvili provided funds to his brother, Alexander Ivanishvili, via Cartu Bank, money that was then used by Alexander's company, Global TV, for the installation of satellite dishes. The SAO's Financial Monitoring Service of political parties has estimated the market value of the sattelite dishes to be GEL 12,622,019.
In the second case, the companies LTD Elita Burji and LTD Burji rented 239 cars to the Georgian Dream for a symbolic price, while estimated market value of the service was GEL 2,242,000, according to the SAO. The court considered that Bidzina Ivanishvili was behind these two companies.
It took the court two sessions, held on June 8 and June 11, to rule in these cases. We believe that the decision of the court was not based on comprehensive and objective assessments. Analyzing the court sessions, evidences and materials provided by the SAO, the fine imposed on Bidzina Ivanishvili was not in accordance with the law for the following reasons:
1. Restriction of the right of protection.
During the court session, the plaintiff argued that they had only 3 working hours and one night to prepare for th case due to the late provision of relevant materias. The plaintiff argued that this was not enough time to prepare a detailed analysis of the considerably large case, collection of evidence, preparation of adequate mediations and to counterbalance the evidence of SAO through filings to the court.
Despite motions filed by the lawyers to postpone the proceedings and to provide the plaintiff with additional time to study materials, the judges rejected the requests in both cases on the grounds that the parties had enough time to get acquainted with the case and request was made in order to drag the process.
We believe that the motion of the plaintiff to request reasonable time to study evidences and to postponie the hearing was rational, in order to allow the accued to exercise their rights and responsibilities in accordance with article 252 of the Georgian Administrative Code. It should be considered that the time of submission of the protocol did not offer a reasonable assumption that the plaintiff had adequate time for preparation, in accordance with the legislation.
2. The position of State Audit Office on certain issues has not been backed up by appropriate evidence.
The SAO justified ownership of the companies by Ivanishvili, on the grounds of explanations made by certain employees, for example during the hearings several references were mentioned that "It is well known that the Cartu Group belongs to Ivanishvili." Representatives of the SAO noted on both proceedings that, Burji, Elita Burji and Management Service are registered in offshore zones and that the official or beneficiary owners are unknown. The companies' official representative, Kakha Kobiashvili, was identified as a relative of Bidzina Ivanishvili. However in one of the hearings he was described as a nephew of Ivanishvili, on the other as a cousin. Furthermore, in neither case any evidence was introduced to prove that they are in fact relatives.
We believe that the SAO should use more legal reasoning in justifying its opinion and not rely on unconfirmed considerations and assumptions. Weak arguments of the government agency and approving decision of the court – taking into account the statistics according to which vast majority of disputes are ruled in favor of the state – reinforce the public perception that the burden of proof of administrative bodies are at a very low level and their position is shared by the court in any case.
3. None of the significant motions of plaintiff were satisfied.
Similar to Management Service proceedings, discussed in a previous blog, representatives of Ivanishvili introduced a number of motions to postpone the case, in order to obtain reasonable time for case study, to question witnesses, to address the Constitutional Court, to involve disputed companies as third parties and to peremptory challenge judges.
The court has not satisfied any of the requests, except several motions concerning the inclusion of certain evidences. The court only satisfied motions concerning business plan of Global TV and adding registration certificate of political union Georgian Dream to the case. It took the judge almost one hour in the chamber to satisfy this request, which rarely happens in practice for this type of motions.
At the same time, both judges accepted SAO evidence concerning connections of Bidzina Ivanishvili with business companies, which was provided during the debates. The protest was followed by representatives of Ivanishvili. They alleged, that it is not allowed to present new evidence at this stage of proceedings but judge Daraselia explained that although a party has no right to present evidence at this point, deriving from the principle of inquisition, a judge may request certain evidences by him/herself.
It should be noted, that court had not requested this evidence previously and had not studied importance of the evidence for given case as well, however it later served as basis for inclusion. Such actions damage the reputation of the court as an independent referee and rises questions about the objectiveness of Court in general. Even though, in judgments like these, a judge acts on the grounds of inner belief, he/she should take into consideration principle upheld by The European Court of Human Rights, according to which justice must not only be enforced, but it should be interpreted as such.
In addition, the process revealed several significant shortcomings. In particular:
1. Ignoring the procedural issues concerning administrative offence protocol.
Both offense protocols concerning Bidzina Ivanishvili were not accompanied by the signature of Bidzina Ivanishviliand/or his explanations concerning protocol related issues, furthermore, he was not instructed about his rights and obligations in accordance with article 252 of the Administrative Code and no marks were made in administrative offence protocol as well, thus this actions violated articles 240 and 250 of the Administrative Code.
2. Court Schedule was not public.
In order to ensure openness of the Tbilisi City Court, its official website publishes daily schedule of the cases. On June 8, none of the proceedings of administrative offence concerning Ivanishvili were included in schedule on website. We believe that, management of the Court should pay more attention and provide public with adequate information concerning cases of high public interest.
3. There were particularly stricter security measures concerning carrying cell phones, recorders or other electrical input. Although the Court hearings were of great interest to civil society and media, stricter control measures were introduced during the court sessions. By order of Mamia Pkhakadze, Chairman of the TCC, on the 6th floor, where administrative disputes are held, prior to the session, every person was checked with metal detectors and all bags were closely examined. In addition, Shalva Julukhadze, head of security service of TCC, was personally ensuring order in the hall. Such strict control measures limited the attendance of interested persons and ignored the public interest.
4. Despite strong public interest, court room was extremely small.
In accordance with the established Rules of the Court, each judge is assigned to a specific court room and except certain cases, sessions are always held in those rooms. Of all cases concerning Ivanishvili, Global Consulting/Global TV was of greatest interest, as it was expected that Ivanishvili would be fined with GEL 126 Million GEL. The case was assigned to Judge Koba Gotsiridze, who deals with administrative disputes and holds the smallest court room, where only 8 persons are able attend. Due to small size of the court room, there was a queue on the day of the hearing. After the opening the session, all places were immediately taken, due to which many journalists and other interested persons were unable to attend.
The United States Embassy Official also expressed his wish to attend the postponed meeting of June 11th; however he was left without a place as well. Although most of court rooms of the administrative board were available and could hold three times as many attendants, however, Judge Gotsiridze decided to hold the proceeding in the same room. Furthermore, there was an exception concerning United States Embassy Official, after his identity was checked, extra chairs were added for him and his interpreter. We believe that the principle of publicity of court proceedings equally applies to all citizens, therefore, to avoid giving preference to individuals and to satisfy the public interest at most, such cases should be held in appropriately sized halls.
Decisions made by the TCC concerning above mentioned cases were appealed. The Court of Appeal rejected all motions of representatives of Ivanishvili, on the grounds that the court was not considering the case in essence, but only examined legal aspects of the rulings. Unlike the court of first instance, the Court of Appeals requested an expert examination in order to estimate the profitability of Global TV business plan. Experts concluded that the business plan was not profitable. The applicant doubted the results of expertise and requested questioning of the expert in person, however request was rejected.
The Court of Appeals agreed with all circumstances passed by the Court of First Instance, except the issue that Ivanishvili committed violation of law repeatedly. The Court explained that the changes in Georgian Organic Law on "the Political Unions of Citizens", which doubled the administrative responsibility for repeating the offence, were made after Bidzinia Ivanishvili acted via natural persons and legal entities. Change in legislation burdened the responsibility and therefore according to principle of retroactivity of the law, it should not have been used in the present case. According to the decision of Court of Appeal, the fine imposed on Ivanishvili was halved and determined by GEL 74 325 065.
Transparency International Georgia and Georgian Young Lawyers’ Association will continue monitoring such cases.